The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
In this pro se petition pursuant to 28 U.S.C. § 2254, William
J. Figueroa ("Figueroa") seeks a writ of habeas corpus to set
aside a judgment of conviction issued November 10, 1997 by the
New York State Supreme Court, Bronx County. Following a jury
trial, Figueroa was convicted of Murder in the Second Degree
under New York Penal Law § 125.25(1), Attempted Murder in the
Second Degree (Penal Law §§ 110, 125.25(1)), and Assault in the
First Degree (Penal Law § 120.10(1)). Figueroa was sentenced to a
term of 25 years to life for the murder conviction, 8-1/3 to 25
years for attempted murder, and 5 to 15 years on the assault
charge with the last two terms to run concurrently to each
other and consecutively to the first term. He is currently
incarcerated at the Green Haven Correctional Facility in
Stormville, New York. For the reasons stated below, Figueroa's
petition should be denied.
Figueroa's trial took place in September and October 1997.
1. The Prosecution's Case
Erick Hodge knew Aaron Brent Figueroa ("Aaron"), Figueroa's
younger brother, for approximately two and half years prior to
the events of July 14, 1991 and considered him a good friend.
(Hodge: Tr. 81, 177-78).*fn1 Hodge also knew Figueroa and
saw him almost every other day. (Hodge: Tr. 83-84, 87, 190-91).
Hodge's friendship with Aaron ended when he discovered that Aaron
was dating the mother of Hodge's son. (Hodge: Tr. 88-89, 193-97).
Upon learning of Aaron's involvement with his son's mother, Hodge
was very upset and tried to get in touch with Aaron. (Hodge: Tr.
194-201). Hodge, however, did not actually meet with Aaron until
the early hours of July 14, 1991, approximately five months after
learning of the relationship. (Hodge: Tr. 193-201).
On the evening of July 13, 1991, Hodge had gone to a movie and
then to a party on Tratman Avenue in the Bronx, at a house next
to St. Peter's Park. (Hodge: Tr. 94-95, 209, 211). When the party
ended at approximately 2:30 a.m., Hodge went to the park with his
friends Erick Gautier, Mark Matarro, and Ismael. (Hodge: Tr.
95-96, 211). At the park, Hodge met another friend, Luis
Rodriguez (sometimes spelled "Louis" in the transcript but
referred to hereinafter as
"Luis"), and the group "hung out," drinking beer. (Hodge: Tr. 96,
213-15). Other acquaintances of Hodge were also in the park at
the same time, including: Denice and Damaris Rosa, Eric
Hernandez, J. Rivera, and Jose Rodriguez. (Hodge: Tr. 212).
At some point later in the evening, Ismael saw Aaron drive by
the park in his car. (Hodge: Tr. 98, 217). Hodge saw Aaron when
he drove by a second time, and Hodge noticed a man and a woman in
the back seat of the car. (Hodge: Tr. 98, 218-19). The car came
around a third time and Aaron stepped out. (Hodge: Tr. 99,
220-21). Aaron spoke to Erick Gautier briefly, exchanged some
curses with Hodge, and then drove off in his car. (Hodge: Tr.
100-02, 222, 224-26, 228-29).
At approximately 4:30 a.m., Figueroa, Aaron, and an unfamiliar
third person approached Hodge and Luis who were sitting on a
bench together. (Hodge: Tr. 104, 234; Trigo: Tr. 489-90;
Rodriguez: Tr. 608; Rosa: Tr. 767-68). Jose Rodriguez and the
Rosa sisters were sitting on a bench near Hodge and Luis. (Hodge:
Tr. 164-65; Rodriguez: Tr. 605-07). Virginia Trigo and her friend
Juanito Perez were two benches away. (Trigo: Tr. 489, 508;
Rodriguez: Tr. 607). Eric Hernandez was lying on top of a car
near the park. (Hernandez: Tr. 338, 384-86). Hodge's friends knew
both Aaron and Figueroa and had all seen Figueroa in the
neighborhood on several occasions prior to that evening.
(Hernandez: Tr. 333-37; Trigo: Tr. 481-85, 533-35; Rodriguez: Tr.
596-99, 602-03, 644-46, 648; Rosa: Tr. 757-60, 807-09).
When Figueroa approached, he asked, "Who got beef?" and Hodge
and Luis stood up. (Hodge: Tr. 104; Trigo: Tr. 497; Rosa: Tr.
767-68).*fn2 Aaron said, "So, what's up? What do you
want to do now?" (Hodge: Tr. 105). Hodge responded, "What [do]
you want to do? Let's do it. Let's get it on." (Hodge: Tr. 105).
By saying this, Hodge intended to fight Aaron. (Hodge: Tr. 105).
Aaron and Hodge began arguing and Luis and Figueroa began
arguing. (Hodge: Tr. 105; Rodriguez: Tr. 608; Rosa: Tr. 768-69).
Aaron told Luis to mind his own business but Luis refused.
(Hodge: Tr. 106; Rosa: Tr. 768-69). Aaron turned to his brother
and said, "Lick um, lick um." (Hodge: Tr. 106-07; Trigo: Tr. 498;
Rodriguez: Tr. 608; Rosa: Tr. 770). Figueroa then aimed his gun
and fired a shot which hit Luis in the neck and grazed Hodge in
the side. (Hodge: Tr. 107, 108; Trigo: Tr. 498-99). Luis fell to
the ground and Hodge fell to the side, hitting the bench. (Hodge:
Tr. 108). Figueroa then stepped forward and fired another shot at
Hodges, this time shooting him through the thigh. (Hodge: Tr.
109-10, 249, 251). Hodge tried to run, but fell and remained on
the ground. (Hodge: Tr. 110).
The other individuals who were present in the park saw Figueroa
aim the gun at Hodge and Luis, then either saw or heard two shots
fired. (Hernandez: Tr. 344-45; Trigo: Tr. 498-500; Rodriguez: Tr.
608-10; Rosa: Tr. 770-71). Two of the witnesses testified that
the unidentified third male had been holding the gun and passed
it to Figueroa right before Figueroa fired the shots. (Trigo: Tr.
498-99, Rosa: Tr. 770).
After the shooting, Figueroa and the two other men walked past
Hernandez, with Figueroa still carrying the gun. (Hernandez: Tr.
344, 346-47). Hernandez then went over to where Hodge was lying,
told him Luis was dead, and carried him out of the park. (Hodge:
Tr. 131-32; Hernandez: Tr. 345, 360; Trigo: Tr. 513). Once out of
the park, Hodge was picked up by an ambulance and taken to the
hospital. (Hodge: Tr. 131-32; Hernandez: Tr. 345). Luis's body
was taken to the morgue. (Veaz: Tr. 694-97, 705).
Hodge identified Figueroa as the shooter in subsequent
conversations with the police. (Hodge: Tr. 281, 284-87).
Detective Irwin Silverman was initially assigned to investigate
the shooting (Silverman: Tr. 864-65), and Detective James
Finnegan was assigned to locating and arresting Figueroa,
(Finnegan: Tr. 907). In addition to pursuing other leads,
Finnegan searched for Figueroa at the homes of Figueroa's
grandmother and girlfriend and at the apartment where Aaron
lived. (Finnegan: Tr. 907-12).
In August of 1991, Figueroa went to Holyoke, Massachusetts to
stay with his ex-girlfriend's mother for several months, although
he returned to New York regularly. (Bellevue: Tr. 994-98). His
ex-girlfriend, Sandra Bellevue, also testified that she knew he
was living in Holyoke in 1994. (Bellevue: Tr. 992-93). Figueroa
was ultimately arrested on October 20, 1995 in Dunkirk, New York.
(Silverman: Tr. 879, 900; Finnegan: Tr. 913-14).
In his defense, Figueroa elicited testimony from Bellevue, the
mother of his child. (Bellevue: Tr. 971). In July 1991, their son
became sick and had to be hospitalized at Metropolitan Hospital
in Manhattan. (Bellevue: Tr. 971-72). Bellevue and Figueroa
agreed to take turns staying with the baby in the hospital.
(Bellevue: Tr. 973, 989-90, 1006-07, 1012-16). Bellevue spent the
day of July 13, 1991 at the hospital with her son (Bellevue: Tr.
974-75) and was joined by Figueroa at 7:00 or 8:00 in the
evening. (Bellevue: Tr. 977). Bellevue did not spend the night at
the hospital, but when she went back the next day at 9:00 or
10:00 a.m., Figueroa was with the baby. (Bellevue: Tr. 979).
Bellevue testified that she first learned that police were
looking for Figueroa in connection with the murder in October or
November 1991 and she subsequently provided
Figueroa with this information. (Bellevue: Tr. 998-1000, 1002).
She testified, however, that she did not come forward with her
knowledge that Figueroa had been in the hospital with their child
on the night of July 13, 1991, either at the time when the police
were investigating the shooting in St. Peter's Park or when
Figueroa was arrested in 1995. (Bellevue: Tr. 944-48, 1000-05).
When asked why she never came forward with the information prior
to trial, she responded, "I never knew I was supposed to," and "I
never thought I had to." (Bellevue: Tr. 942, 947).
B. Jury Charge, Verdict, and Sentence
The jury was instructed with respect to murder in the second
degree and manslaughter in the first degree as a lesser included
offense, attempted murder in the second degree, and assault in
the first degree. (Tr. II. 214-25). On October 16, 1997, the jury
found Figueroa guilty of murder in the second degree, attempted
murder, and assault. (Tr. II. 249-51). Figueroa was sentenced to
a term of 25 years to life for murder, 8-1/3 to 25 years for
attempted murder, and 5 to 15 years for assault. Petition for
Writ of Habeas Corpus, filed July 16, 2002 (Docket #1), 1;
Affidavit of Raffaelina Gianfrancesco (annexed to Opposition to
Petition, filed October 21, 2002 (Docket #4) ("Opposition"))
("Resp. Aff."), ¶ 6. The sentences for attempted murder and
assault were set to run concurrently to each other and
consecutively to the murder sentence. Resp. Aff. ¶ 6; Brief for
Defendant-Appellant, dated May 27, 2000 (reproduced as Ex. 1 to
Opposition) ("Pet. App. Br."), at 1.
Figueroa appealed his conviction to the Appellate Division,
First Department. Represented by counsel, Figueroa raised the
following six claims as his grounds for appeal:
1. The trial court erred in instructing the jury on
acting in concert where the prosecution's theory was
that defendant had been the shooter; the
charge prejudiced defendant in that the jury was told
that they could find him guilty of murder even if he
had not been the shooter. (U.S. Const., Amends, V,
XIV; N.Y. Const., Art. I, Sec. 6).
2. The trial court's instruction on consciousness of
guilt was deficient in that it did not tell the jury
that such evidence was of slight probative value, and
did not inform the jury that an innocent person might
resort to conduct which could create the appearance
of guilt. (U.S. Const., Amends, V, XIV; N.Y. Const.,
Art. I, Sec. 6).
3. The trial court's instruction on alibi did not
properly explain that defendant had no burden to
prove that he was not the person who committed the
crime. (U.S. Const., Amends, V, XIV; N.Y. Const.,
Art. I, Sec. 6)[.]
4. Defendant's alibi witness was improperly
questioned extensively about her failure to come
forward with exculpatory information despite the fact
that there was not a proper foundation for such
questioning[.] (U.S. Const., Amends, V, XIV; N.Y.
Const., Art. I, Sec. 6).
5. Defendant's sentences should have been concurrent
rather than consecutive, where a single shot figured
in both crimes[.] (U.S. Const., Amends, V, XIV; N.Y.
Const., Art. I, Sec. 6).
6. Defendant's sentence was excessive when compared
to the sentence offered on a guilty plea. (U.S.
Const., Amends[.] V, VIII, XIV; N.Y. Const., Art. I,
Pet. App. Br. at 19, 28, 32, 38, 44, 50 (capitalization omitted).
The Appellate Division affirmed Figueroa's conviction on
January 18, 2001. People v. Figueroa, 279 A.D.2d 357 (1st Dep't
2001). With respect to the consciousness of guilt and alibi
charges, the Appellate Division held that the trial court was not
required to use the specific language the defendant requested to
instruct the jury and that the charges conveyed the correct
standard. Id. On the claim that the sentences imposed should
have been concurrent, the court found that the act of firing a
shot that killed one victim and injured another was separate and
distinct from the act of moving closer to the surviving victim
and shooting him again. Id. The court found the remaining
issues "unpreserved" and declined to review them, noting that it
nonetheless reject the claims were it to review them on the
On January 27 and February 9, 2001, Figueroa submitted letters
to the New York State Court of Appeals seeking leave to appeal
the Appellate Division's ruling. See Letter to the Hon. Judith
S. Kaye from Paul J. Angioletti, dated Jan. 27, 2001; Letter to
the Hon. George Bundy Smith from Paul J. Angioletti, dated Feb.
9, 2001 (reproduced as Ex. 3 to Opposition). The application was
denied on March 6, 2001. People v. Figueroa, 96 N.Y.2d 783
On May 3, 2002, Figueroa submitted the instant pro se
petition for writ of habeas corpus in which he incorporates the
same grounds for relief that were raised on direct appeal. See
The respondent filed papers opposing the petition, which
included an argument that Figueroa had failed to exhaust one of
his claims because it had not been presented in federal
constitutional terms in the leave application to the Court of
Appeals. Resp. Aff. ¶ 12; Memorandum of Law, dated October 2002
(annexed to Opposition) ("Resp. Mem."), at 7-15. Figueroa
requested that his petition be held in abeyance or dismissed
without prejudice so that he could exhaust his state remedies and
"give the State court an opportunity to correct the
constitutional errors that plague [his] state proceedings, trial
and direct appeal." See Letter from William Figueroa, dated
February 3, 2003 (Docket #11). This Court denied his request
because the only issue alleged by the respondent not to have been
exhausted was the claim relating to the instruction on
consciousness of guilt. See Order, filed February 7, 2003
(Docket #10). The Court concluded that a delay would be futile as
the Court of Appeals only permits one request for leave to
appeal. Id. at 1. With respect to Figueroa's desire to "correct
the constitutional errors,"
the Court found that this statement was too vague to justify
holding the federal petition in abeyance in the absence of any
indication of what remedies would be available to him in the
state courts. Id. Nonetheless, the Court noted that Figueroa
was free to pursue any claims he wished in state court and
recommended that he do so promptly. Id. at 1-2. Figueroa was
directed to include a description of any new applications made to
the state court in his papers submitted in response to the
respondent's opposition and attach copies of any such
applications. Id. at 2.
Figueroa thereafter informed the Court that he had filed an
application for a writ of error coram nobis with the Appellate
Division, First Department alleging ineffective assistance of
appellate counsel. See Order, filed April 2, 2003 (Docket #13).
This Court then stayed the ...