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Almonte v. Lape


March 30, 2006



Julio Almonte, currently an inmate at Arthur Kill Correctional Facility, brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following a jury trial in New York State Supreme Court, New York County, Almonte was convicted of one count of Assault in the First Degree (N.Y. Penal Law ("N.Y.P.L.") § 120.10(1)) and sentenced to a prison term of six years. For the reasons stated below, Almonte's petition should be denied.


A. Evidence Presented at Trial

1. The Prosecution's Case

On March 10, 2001, Almonte was at a bar called El Sueno Two when he and Andres Pena got into a fight over the daughter of the owners of the bar, Jadira. (Andres: Tr. 4, 6; Alexis: Tr. 113; Almonte: Tr. 329-30).*fn1 Andres -- who, along with another individual whose last name is Pena, will be referred to herein by his first name -- was "very drunk," and did not remember many specific details about that night, see Andres: Tr. 6, 10, 28, 36, but he did remember telling Almonte, "Old man, I don't want to fight with you." (Andres: Tr. 4). Concerned employees called Alexis Pena, the security guard and manager of the nearby companion restaurant, El Sueno One, to break up the altercation. (Alexis: Tr. 134-35).

When Alexis arrived, he saw the two men fighting and punching each other and he separated them. (Alexis: Tr. 112-13, 135). Almonte then pulled a knife from his pocket, opened it, and attempted to stab Andres in the back. (Alexis: Tr. 113-14). Alexis caught Almonte's arm before he could stab Andres, and he took the knife away from Almonte. (Alexis: Tr. 114, 142). Alexis searched Andres for weapons, but found none. (Alexis: Tr. 124, 210). Alexis told one of the owners of El Sueno Two what happened, and the owner asked Alexis to stay at the restaurant to make sure the situation remained under control. See Alexis: Tr. 115.

Andres decided to leave, and told Alexis that he was going home. (Andres: Tr. 31; Alexis: 116, 139). Instead, Andres walked the short distance to El Sueno One. (Andres: Tr. 31). About fifteen to twenty minutes after Andres left, the owner of El Sueno Two asked Almonte to leave and told Alexis to return the knife to Almonte. (Alexis: Tr. 116, 136-37). Alexis escorted Almonte outside and gave him the knife. (Alexis: Tr. 116, 138).

Louis Natal, a disc jockey, was working that night at El Sueno One from a raised platform near the bathrooms. (Natal: Tr. 43-44, 49). There were fewer than 15 people in the bar when Natal suddenly heard an argument break out. (Natal: Tr. 46, 60, 75). He turned off the music and left the DJ booth to go to a nearby platform in order to see what was going on. (Natal: Tr. 46, 61). Before the fight, it had been dark inside the bar, but someone turned the lights on after the two men started fighting. (Natal: Tr. 46). Natal did not see any of the fighting that occurred before the lights were turned on, did not pay attention to the noise in the background, and could not hear clearly what was going on. (Natal: Tr. 73-74, 103). Once the lights were turned on and the music was turned off, however, Natal was able to watch and listen to the fight from his spot on the platform three feet away. (Natal: Tr. 49, 64). Natal was the closest person to the two men fighting. (Natal: Tr. 100).

Natal saw that the two men fighting were Almonte and Andres, neither of whom he knew. See Natal: Tr. 46-47, 49. Natal watched as Almonte rushed at Andres two or three times, and each time Andres pushed Almonte away from him. (Natal: Tr. 47, 62-63, 90-91). When Andres was pushing Almonte away from him, Andres was not in a "fighting stance." (Natal: Tr. 89-90). Natal heard Almonte say, "why you did that to me, why you did this to me?" (Natal: Tr. 47). Then Almonte rushed at Andres again. (Natal: Tr. 62-63, 90). But when Andres pushed Almonte away this time, Natal saw Almonte pull a knife out of Andres's side. (Natal: Tr. 47, 51; see also Andres: Tr. 8). Natal did not actually see the blade go inside Andres's body. (Natal: Tr. 51, 63, 90). Natal testified that he saw Andres walk towards a door and say, "look, he stabbed me, he stabbed me." (Natal: Tr. 47). Then, Almonte picked up a chair and threw it at Andres, who threw a chair back at Almonte. (Natal: Tr. 47-48, 65, 82, 94-96). Natal saw the two throw chairs only after the stabbing, and did not see any chairs on the ground when he first saw the two of them fighting. (Natal: Tr. 50, 66). Natal never saw anything in Andres's hands. (Natal: Tr. 50, 66-67). After he saw the two start throwing chairs at each other, Natal and the other patrons in that area of the bar ran outside, and Natal used his cellular phone to call the police. (Natal: Tr. 65, 75, 97). Natal did not witness the end of the altercation. (Natal: Tr. 81, 83). From outside the restaurant, Natal saw Almonte leave the restaurant. (Natal: Tr. 83). After Almonte left, Andres was sitting inside the restaurant. (Natal: Tr. 83). Natal spoke to Andres, who was not lucid and "was in and out." (Natal: Tr. 84).

Back at El Sueno Two, Alexis got a phone call about the stabbing at El Sueno One. (Alexis: Tr. 116-17). He left the restaurant and was walking to El Sueno One when he encountered Almonte on the street. (Alexis: Tr. 117). Almonte had a bloody knife in his hand. (Alexis: Tr. 117-18). Alexis told Almonte to drop the knife, but Almonte refused and repeatedly tried to stab Alexis. (Alexis: Tr. 117-18, 120, 129-30, 184, 213-16). Officers Anthony Alvarez, Isaac NgMontalvo, and Sergeant Thomas LaTorre arrived, and they saw Almonte "waving," i.e., "swinging" or "sweeping," the knife at Alexis, "attempting to stab or cut him," and Alexis was "evading" the knife. (Alexis: Tr. 119; see Alvarez: Tr. 231-32, 234-36, 278, 280; see also LaTorre: Tr. 299-301). After the police officers identified themselves, Almonte dropped the knife and put his hands up. (Alvarez: Tr. 232-33; 237-38; LaTorre: Tr. 303-04). The police recovered Almonte's bloody knife, identified as a "gravity knife," and arrested Almonte. (Alvarez: Tr. 237, 240; LaTorre: Tr. 304-05). Almonte was handcuffed and blurted out that Alexis was "a drug dealer, they are all bad, they all need to be killed." (Alvarez: Tr. 240, 266).

Almonte was taken to the precinct and placed inside a cell with several other prisoners. Officer Alvarez sat at a nearby desk and processed the arrest. (Alvarez: Tr. 246, 248-49). While the officer was working, he heard Almonte talking in Spanish to the other men in the cell. (Alvarez: Tr. 249-50). Almonte told the men that he had been arrested for stabbing Andres and said, "if he dies he dies." (Alvarez: Tr. 250, 264, 284-85).

Dr. Sitaram Pillarisetty, an expert in medicine and surgery, was Andres's attending physician in the emergency room at Harlem Hospital on March 11, 2001. (Pillarisetty: Tr. 350-52). Andres was admitted to the hospital with "a stab wound of the left chest, which is located posteriorly, that is the back of the chest and the upper chest." (Pillarisetty: Tr. 353). The wound was approximately one inch wide, and located on his side underneath his arm. (Pillarisetty: Tr. 361; Tr. 10). The "presumptive ending" was inside his "thoracic cavity" because there was "evidence of bleeding into the chest." (Pillarisetty: Tr. 353-54). An x-ray of Andres's chest showed blood and air inside his chest cavity, and a nurse recorded that he had a "hemopneumothorax." (Pillarisetty: Tr. 353-54, 365). A hemothorax is bleeding into the chest cavity, and a pneumothorax refers to air in the chest cavity. (Pillarisetty: Tr. 362). The air could have come in through the stab wound, or it could have come from a resulting pierced lung. (Pillarisetty: Tr. 355). Doctors also inserted a chest tube inside Andres's chest cavity to evacuate the blood and air. (Pillarisetty: Tr. 354). "Quite a bit" of blood -- 400 cubic centimeters -- was removed from Andres's chest. (Pillarisetty: Tr. 355). A follow-up x-ray after the insertion of the chest tube later indicated, "lung well expanded, no pneumothorax, minimum residual hemothorax." (Pillarisetty: Tr. 364-65).

Andres stayed in the hospital for three days and was discharged after the removal of his chest tube on March 14, 2001. (Pillarisetty: Tr. 356, 361, 366). Andres was scheduled to have a follow-up appointment on March 20, but he returned to the hospital on March 18 complaining of back pain. (Pillarisetty: Tr. 366-67). He was found to have fluid in his chest, but his lungs were clear, and he was given Tylenol with codeine. (Pillarisetty: Tr. 356, 361). Andres returned to the hospital again on April 11 and doctors observed a contusion on his chest wall. (Pillarisetty: Tr. 369-70).

Dr. Pillarisetty testified that the long-term consequences of the injury could include a lung that could not expand adequately, pain in the chest from weather or humidity, and tightness on the external scar where the stab injury was created. (Pillarisetty: Tr. 356-59). At trial, almost six months after the injury, Andres testified that the wound still caused him pain. (Andres: Tr. 11). Without the course of treatment performed by Dr. Pillarisetty, "somebody" with Andres's injury could "bleed continuously into the chest cavity and presumably die" from the wound. (Pillarisetty: Tr. 355-56, 373). Once the injury is treated, the mortality rate decreases to five percent. (Pillarisetty: Tr. 372).

2. Almonte's Case

Almonte was the only witness to testify for the defense. His testimony was as follows: Almonte, a native of the Dominican Republic, was 53 years old, 5'4" tall, and 152 pounds at the time of trial. (Almonte: Tr. 326, 328). He could speak some English but not much. (Almonte: Tr. 346). He was a regular customer at El Sueno One and Two. (Almonte: Tr. 328-29, 375).

On March 10, 2001, Almonte went to El Sueno Two at around 11:30 p.m. (Almonte: Tr. 329). He talked to the daughter of the restaurants' owners while sitting down at the bar. (Almonte: Tr. 329-30, 377). Andres was at the other end of the bar, and he started insulting Almonte. (Almonte: Tr. 330, 377). Andres, a big man, was drunk and seemed to be very violent. (Almonte: Tr. 331). He appeared jealous about Jadira, and kept saying that Almonte was too old for her. (Almonte: Tr. 330, 378). Wellington, a man who was sitting at Almonte's side, told him not to pay attention to Andres because he was a drug dealer and could hurt Almonte. (Almonte: Tr. 330, 378).

Andres got up and went towards Almonte from the back. (Almonte: Tr. 331). He hit Almonte on the back and said, "Old man, be quiet, . . . I am going to blow you up." (Almonte: Tr. 331, 382). Almonte understood this to mean that Andres would kill him. (Almonte: Tr. 331). Andres then placed himself in back of Jadira and hugged her. (Almonte: Tr. 331-32, 380). Andres started sneering at Almonte and making fun of him. (Almonte: Tr. 332, 380). Almonte told him, "You have to respect me. I am not a kid." (Almonte: Tr. 332, 387). Andres became violent and tried to rush Almonte. (Almonte: Tr. 332).

Almonte took out a "penknife," which was the same knife he used at his shipping job where he had worked that day. (Almonte: Tr. 332, 376). Almonte believed that Andres had a weapon. (Almonte: Tr. 333, 383). Almonte did not see a weapon on him but Andres had his coat on. (Almonte: Tr. 383). Alexis grabbed Almonte and told Almonte to give him the knife. (Almonte: Tr. 333, 388-89). The owner of the restaurant and other people held onto Andres. (Almonte: Tr. 333, 388-89). Almonte's knife was closed at that point. (Almonte: Tr. 333, 384). Almonte sat back down and Andres went back to his place. (Almonte: Tr. 334). Andres started provoking Almonte again after a few minutes. (Almonte: Tr. 334). The owner and a security person escorted Andres out. (Almonte: Tr. 334, 393).

Almonte left about twenty minutes later. (Almonte: Tr. 334, 397). Alexis and the owner returned Almonte's knife. (Almonte: Tr. 340-41, 397). Once he reached the subway station while heading home, Almonte realized he had to use the bathroom and so he stopped by El Sueno One because he was familiar with that bathroom. (Almonte: Tr. 336, 405-06). He proceeded directly to the bathroom and encountered Andres about four feet in front of him. (Almonte: Tr. 339, 463). Andres looked at him and "went ballistic." (Almonte: Tr. 339).

Andres "seemed so big and strong" to Almonte that he was "terrified" and thought Andres might have had a weapon. (Almonte: Tr. 339). Almonte did not expect to see Andres at the restaurant. (Almonte: Tr. 339).

Andres picked up a chair from the dining area and swung it at Almonte. (Almonte: Tr. 339, 409). Almonte moved backwards and was not hit. (Almonte: Tr. 339). Almonte also picked up a chair from the dining area and threw it at Andres. (Almonte: Tr. 339). Andres took a steel folding chair from the corner and came at Almonte with it in order to hit him. (Almonte: Tr. 340, 411-12). Almonte testified that he thought he was about to die and had to defend himself. (Almonte: Tr. 340). He took out his pen knife and "took a swipe" at Andres when he got close to him. (Almonte: Tr. 340, 412). Almonte hit Andres under the arm as he was holding the chair to hit Almonte. (Almonte: Tr. 340, 412). Almonte only thought about defending himself and did not try to kill Andres. (Almonte: Tr. 383). Andres did not have a gun, but Almonte viewed the chair as a weapon. (Almonte: Tr. 386). Andres did not actually hit Almonte with the chair because Almonte did not allow him to. (Almonte: Tr. 414).

After he was stabbed, Andres went toward the side of the bar. (Almonte: Tr. 342). Almonte went towards the door. (Almonte: Tr. 342). Andres was still throwing chairs. (Almonte: Tr. 343). Almonte saw blood coming out of his body and said, "you are hurt, . . . instead of throwing chairs around have someone call an ambulance for you." (Almonte: Tr. 343). Andres was saying, "come on, let's fight," and making a "come to me" gesture with his hands. (Almonte: Tr. 343).

Almonte left and was confused and scared. (Almonte: Tr. 343-44, 419). He was sorry for what he did and did not know what to do. (Almonte: Tr. 344-45). He still had the knife in his hand. (Almonte: Tr. 345). He started running and saw Alexis, who tried to grab him. (Almonte: Tr. 345-46, 419). Almonte knew that Alexis, who was a very large man, was a drug dealer and Almonte was scared of him because he thought he might have been Andres's friend. See Almonte: Tr. 345-46, 420. Almonte told him that he was not a cop and to leave him alone. (Almonte: Tr. 346, 420-21). Almonte did not put the blade of the knife towards Alexis's body. (Almonte: Tr. 422).

The police arrived shortly thereafter. See Almonte: Tr. 346, 425. They were dressed as civilians so Almonte did not immediately recognize them. (Almonte: Tr. 346). When they showed him a shield, he let the knife go. (Almonte: Tr. 347). Following his arrest, Almonte stated, "these damn drug dealers, are always trying to find trouble for others. They should all be killed." (Almonte: Tr. 347-48). However, Almonte had seen Alexis in the restaurant in the past, and he did not have a problem with Alexis and had never had words with him. (Almonte: Tr. 391). Although he felt that drug dealers were "bad people," he did not feel that they should be killed. (Almonte: Tr. 399-400).

Almonte was taken to the precinct and, in response to questioning, he told the police what happened. (Almonte: Tr. 348, 471). He said that he acted in "self-defense." (Almonte: Tr. 349). While in a jail cell at the precinct, a prisoner asked Almonte why he was in jail, and Almonte told him that it was because he stabbed someone and then Almonte said, "if he dies he dies." (Almonte: Tr. 469-70). Almonte said this because he had heard that people in jail take things from each other, and Almonte wanted to appear intimidating. See Almonte: Tr. 469-70.

B. Jury Charge, Verdict, and Sentence

The trial court's First Degree Assault charge defined "serious physical injury" as "a physical injury which, if left untreated, creates a substantial risk of death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." (Tr. 580, 586). Following the charge, Almonte's counsel noted his objection to the charge. (Tr. 594).

On September 5, 2001, the jury found Almonte guilty of first degree assault. (Tr. 624). He was acquitted of two counts of attempted assault (Tr. 624): one count relating to the first incident at El Sueno Two involving Andres (Tr. 587-88), and the other count relating to the confrontation on the street with Alexis (Tr. 591). Almonte, a first offender, was sentenced on October 4, 2001, to six years' imprisonment. (S. 12).

C. Almonte's Direct Appeal

Almonte appealed to the New York Appellate Division, First Department, and raised the following claims: (1) the evidence was insufficient to establish Almonte's guilt, (2) the verdict was against the weight of the evidence; and (3) the court's charge defining "serious physical injury" was erroneous. See Brief for Defendant-Appellant, undated ("Pet. App. Br.") (reproduced as Ex. A to Declaration in Opposition to Petition for a Writ of Habeas Corpus, filed Oct. 17, 2005 (Docket #9) ("Resp. Decl.")). On May 11, 2004, the Appellate Division affirmed Almonte's conviction. People v. Almonte, 7 A.D.3d 324, 324 (1st Dep't 2004). The court held that the "verdict was based on legally sufficient evidence and was not against the weight of the evidence," and that the court's jury instructions defining serious physical injury "was a correct statement of the law and was warranted by the evidence." Id. at 324-25.

Almonte then sought leave to appeal to the New York Court of Appeals on all issues raised in the Appellate Division. See Letter from Lyssa M. Sampson to Hon. Judith Kaye, dated June 6, 2004 (reproduced as Ex. D to Resp. Decl.). On August 13, 2004, the Court of Appeals denied Almonte's application for leave to appeal. People v. Almonte, 3 N.Y.3d 670 (2004).

D. Almonte's Habeas Petition

Almonte timely submitted this petition for writ of habeas corpus on February 4, 2005, raising the same three issues he had raised in the Appellate Division. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed Feb. 4, 2005 (Docket #2) ("Petition"), ¶ 13.

On April 20, 2005, Almonte wrote a letter seeking to "[hold] these proceedings . . . in abeyance" so that he could "exhaust[] several issues," which he did not name. Letter from Julio Almonte to Hon. Gabriel W. Gorenstein, dated Apr. 20, 2005. The respondent opposed this application on the ground that Rhines v. Weber, 544 U.S. 269 (2005), dictated, inter alia, that a habeas petition should not be stayed if there was no good cause for the failure to exhaust or if the unexhausted claims were "plainly meritless." Letter from Danielle L. Attias, dated May 18, 2005 (annexed to Memorandum Endorsement, filed May 23, 2005 (Docket #7) ("May 23 Order"). Accordingly, the Court issued an order informing Almonte that he was free to pursue any state remedies to which he was entitled. See May 23 Order at 1. It also informed him that the petition would not be stayed unless he provided a description of each proposed new claim, showed "good cause for his failure to have exhausted each such claim in the State Courts," and showed that the claim was "not plainly meritless." Id.

Almonte then submitted additional papers seeking a stay of the proceedings so that he could exhaust two claims: (1) that his counsel was ineffective for failing to demonstrate at the suppression hearing a lack of probable cause for Almonte's arrest; and (2) that the felony complaint was defective. See Show Cause Why Petition For Habeas Corpus Should Be Stayed, dated July 10, 2005 ("Pet. Supp. Mem."). In contravention of the Court's order, the papers did not give any reasons for Almonte's failure to exhaust these claims earlier. The respondent submitted a declaration and brief in opposition to the petition. See Resp. Decl.; Memorandum of Law In Opposition to Petition For a Writ of Habeas Corpus, filed Oct. 17, 2005 (Docket #10) ("Resp. Mem."). Shortly thereafter, respondent submitted additional papers addressing the two newly-raised claims. See Supplemental Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed Oct. 26, 2005 (Docket #13) ("Resp. Supp. Mem."). In a letter dated March 1, 2006, Almonte again requested that this Court stay its decision on the petition. Letter from Julio Almonte to Hon. Judge Gorenstein, dated Mar. 1, 2006.


A. Law Governing Petitions for Habeas Corpus Under 28 U.S.C. § 2254

A petition for a writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

For a claim to be adjudicated "on the merits" within the meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the parties' claims . . . with res judicata effect," and it must be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (internal quotation marks and citations omitted). As long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a state court decision will be considered to be "adjudicated on the merits" even if it fails to mention the federal claim and no relevant federal case law is cited. See Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001) (internal quotation marks omitted); accord Rosa v. McCray, 396 F.3d 210, 220 (2d Cir. 2005) ("This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether the court has alluded to federal law in its decision.").

In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409.

In addition, under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To be entitled to habeas relief, a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.

B. Exhaustion

Before a federal court may consider the merits of a habeas claim, a petitioner is first required to exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State."); accord Daye v. Attorney Gen. of New York, 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc). To exhaust a habeas claim, a petitioner is required to have presented that claim to each available level of the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (a habeas petitioner must invoke "one complete round of the State's established appellate review process"). The petitioner also must have fairly presented the federal nature of his claim to the state courts. See Baldwin, 541 U.S. at 29; Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275 (1971); Daye, 696 F.2d at 191. The exhaustion requirement is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991).


A. Sufficiency of Evidence Supporting Conviction

Almonte contends that the evidence was insufficient to support his conviction because (1) "he acted in self-defense," (2) Andres "did not recall what occurred and was 'very drunk,'" (3) Natal "did not see enough to know whether it was self-defense," and (4) Almonte did not intend to cause "serious physical injury." Pet. App. Br. at 21, 27.

Almonte's sufficiency of the evidence claim was first raised before the Appellate Division, which rejected it. Almonte, 7 A.D.3d at 324. Because the Appellate Division based its decision "on the substance of the claim advanced," this claim was adjudicated "on the merits." Sellan, 261 F.3d at 311 (internal quotation marks and citations omitted). Accordingly, the deferential standard of review articulated in 28 U.S.C. § 2254(d) is applicable to the Court's review of this claim.

1. Sufficiency of the Evidence Standard

The Due Process Clause of the Fourteenth Amendment prohibits a criminal conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime." In re Winship, 397 U.S. 358, 364 (1970). A court reviewing a sufficiency of the evidence claim must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (citation omitted). To prevail, the petitioner must show that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324; accord Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). This standard applies with equal force to the sufficiency of proof as to a defense such as justification under N.Y.P.L. §§ 25.00(1), 35.00, which the prosecution is required to disprove beyond a reasonable doubt. See, e.g., Cross v. McGinnis, 2003 WL 21812024, at *6 (E.D.N.Y. July 23, 2003); Morales v. Jones, 1988 WL 90379, at *2 (S.D.N.Y. July 26, 1988).

In conducting this review, "assessments of the weight of the evidence or the credibility of witnesses are for the jury" and thus a habeas court will "defer to the jury's assessments of both of these issues." Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (citing cases); accord Fagon v. Bara, 717 F. Supp. 976, 979-80 (E.D.N.Y. 1989) ("[T]his court is not free to make credibility judgments about the testimony . . . or to weigh conflicting testimony.") (citing cases). "[A]ll possible inferences that may be drawn from the evidence must be construed in the prosecution's favor." Maldonado, 86 F.3d at 35 (citing cases). Where the record supports competing inferences, the habeas court must "'presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326). A habeas petitioner challenging the sufficiency of the evidence underlying his conviction, therefore, bears a "very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir.) (internal quotation marks and citations omitted), cert. denied, 515 U.S. 1136 (1995).

2. First Degree Assault Under New York Law

In considering the sufficiency of the evidence in support of a state conviction, a federal habeas court must "'look to state law to determine the elements of the crime.'" Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000) (quoting Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999), cert. denied, 528 U.S. 1170 (2000)). Under N.Y.P.L. § 120.10(1), "[a] person is guilty of assault in the first degree when . . . [w]ith intent to cause serious physical injury to another person, he causes such injury to such person . . . by means of a deadly weapon or a dangerous instrument." New York Penal Law defines "serious physical injury" as "physical injury which creates a substantial risk of death, or which causes . . . serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." N.Y.P.L. § 10.00(10).

3. Analysis

The issue before the Court is whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact" could have convicted Almonte of First Degree Assault. Jackson, 443 U.S. at 319 (emphasis in original) (citation omitted).

Almonte asserts that he acted in self-defense when he struck Andres with a knife. New York law allows a justification defense, which permits a person who is not the initial aggressor to use physical force against another person when he "reasonably believes such to be necessary to defend himself . . . from what he . . . reasonably believes to be the use or imminent use of unlawful physical force by such other person." N.Y.P.L. § 35.15(1). Deadly force may be used when "[t]he actor reasonably believes that such other person is using or about to use deadly physical force," although the actor has a duty to retreat if he can do so "with complete personal safety." Id. § 35.15(2)(a). Deadly force is defined as "physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury." Id. § 10.00(11).

Despite Almonte's own view of what occurred, a jury crediting Natal's testimony could easily have found that Almonte's actions were not for the purpose of defending himself. First, the jury was entitled to consider Almonte's use of the knife as deadly physical force, see People v. Steele, 19 A.D.3d 175, 175 (1st Dep't 2005) (assault using a knife constitutes deadly force). Thus, Almonte could only have been justified in stabbing Andres if the jury found that Almonte reasonably believed that Andres was using or about to use deadly physical force and that Almonte either attempted to retreat or could not have done so without complete personal safety. Second, the jury was entitled to credit Natal's account of the incident. Natal testified that Almonte was repeatedly "rushing" at Andres who tried again and again to push Almonte away and that Andres was not in a "fighting stance." (Natal: Tr. 47, 62-63, 89-91). As the Appellate Division noted, "the disinterested eyewitness saw the entire altercation and totally refuted defendant's claim of self-defense." Almonte, 7 A.D.3d at 325. Thus, the Appellate Division did not unreasonably apply federal law in concluding that there was sufficient evidence for the jury to reject Almonte's self-defense justification for stabbing Andres.

Almonte also argues that he did not intend to cause serious physical injury to Andres and that Andres did not suffer a serious physical injury. Pet. App. Br. at 27. But it is well settled that a person intends the "natural and probable consequences of his actions." People v. Steinberg, 79 N.Y.2d 673, 685 (1992). Because serious physical injury is a natural and probable consequence of a stab wound to the torso, "the jury could infer from defendant's conduct that he intended to cause serious physical injury." Almonte, 7 A.D.3d at 325 (citing Steinberg, 79 N.Y.2d at 685).

As to the "serious injury" element itself, the evidence easily supported this element of the crime. The statute defines serious physical injury" as "physical injury which creates a substantial risk of death, or which causes . . . serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."

N.Y.P.L. § 10.00(10). Dr. Pillarisetty testified that Andres suffered a stab wound that was one inch wide and penetrated his chest cavity, causing blood and air to flow into his chest. (Pillarisetty: Tr. 353-54, 361). He testified that somebody with Andres's injuries could die if the wound was left untreated (Pillarisetty: Tr. 355-56, 373), thus creating "a substantial risk of death." Almonte argues that it was "too conjectural" for the doctor to testify that "somebody" with Andres's injuries could die, and that the doctor's testimony was thus not tied to Andres's injuries. Pet. App. Br. at 27, 31. However, Dr. Pillarisetty was testifying about Andres's wound and was basing his expert opinion on Andres's medical records and what he saw when he first treated Andres at the hospital. (Pillarisetty: Tr. 350-52).

In sum, the evidence presented at trial was sufficient to support Almonte's conviction. Thus, the Appellate Division's decision affirming Almonte's conviction did not involve "an unreasonable application of . . . clearly established Federal law . . . as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d).

B. Weight of the Evidence

Almonte argues that his convictions were against the weight of the credible evidence. Pet. App. Br. at 25-26. However, it is well-established that a claim regarding the "weight" of the evidence is not cognizable on federal habeas review because it is purely a state law claim that does not present a federal constitutional issue. See, e.g., Howie v. Phillips, 2004 WL 2073276, at *3 (S.D.N.Y. Sept. 17, 2004) (citing cases); Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001); see also Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the 'weight' of the evidence. . ."), cert. denied, 476 U.S. 1123 (1986).

C. Jury Instructions on the Definition of Serious Injury

Almonte claims that the jury instruction defining "serious physical injury" denied him due process and was not supported by the evidence. Pet. App. Br. at 37. He claims that, by adding the language "if left untreated" to the definition of "substantial risk of death," the jury charge reduced the prosecutor's burden of proof. Id. at 39. While the Due Process Clause prevents a court from "applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope," United States v. Lanier, 520 U.S. 259, 266 (1997) (citations omitted), New York courts have long interpreted the definition of "serious physical injury" under N.Y.P.L. § 10.00(10) to include injuries that have a substantial risk of death "if left untreated," see, e.g., People v. Riccardi, 199 A.D.2d 432, 432-33 (2d Dep't 1993) ("uncontroverted evidence of the People's medical expert that the wounds, if left untreated, were life-threatening, is sufficient to support the jury's verdict")(internal quotation marks omitted); People v. Gordon, 257 A.D.2d 533, 533-34 (1st Dep't 1999) ("jury was entitled to infer . . . that there had been a substantial risk that death would result from the . . . wound in the absence of speedy medical intervention"). Accordingly, the trial court's charge was not in error and thus cannot form the basis of habeas relief.

D. Almonte's Request to Stay His Habeas Petition

Almonte requests that this Court stay his petition so that he can exhaust two additional claims in state court: (1) that he received ineffective assistance of counsel at the suppression hearing "when his counsel entirely failed to establish that their [sic] had been no probable cause for [Almonte's] arrest," and (2) that the felony complaint was defective. Pet. Supp. Mem. at 1-2.

With respect to the first claim, he argues that the officers who first came upon him would not have had probable cause to arrest him for the assault of Andres since they witnessed only his altercation with Alexis. See Pet. Supp. Mem. at 2. The content of the second claim is more difficult to discern but is phrased as a claim that the felony complaint was defective for failing to "provide allegations which, if true, would establish every element of the offense charged, and actual commission of defendant thereof." Pet. Sup. Mem. at 2 (citing N.Y. Crim. Proc. Law ("N.Y.C.P.L.") §§ 100.15(3), 100.40(1)(c)); Felony, undated and unsigned ("Felony Complaint") (annexed to Pet. Supp. Mem.).

Almonte has not exhausted either claim because he failed to raise them in state court on direct appeal. See Pet. App. Br. It is not necessary to consider whether we should stay this petition to exhaust these claims, however, because a federal habeas court may deem a claim to be exhausted if it would be procedurally barred under state law. See, e.g., Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). A claim is procedurally barred where New York's procedural rules would prevent the claim from being raised in state courts. See Bossett, 41 F.3d at 828-29.

Here, Almonte cannot attempt to file an appeal with respect to these new claims because he has already utilized the one direct appeal to which he was entitled in the New York courts. See generally St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir. 2004) (per curiam), cert. denied, 543 U.S. 1058 (2005); see also N.Y. Court Rules § 500.20(a) (providing for one appeal and one leave application to New York Court of Appeals); Bossett, 41 F.3d at 829. Furthermore, Almonte would be foreclosed from bringing his two new claims in the state courts as a collateral attack on his conviction under N.Y.C.P.L. § 440.10 because "sufficient facts appear on the record . . . to have permitted, upon appeal . . . , adequate review of the ground[s] . . . raised." N.Y.C.P.L. § 440.10(2)(c).

Almonte's ineffective assistance claim is record-based because Almonte is complaining about the arguments his attorney made during the course of the suppression hearing regarding the probable cause for his arrest. See Pet. Supp. Mem. at 2 ("a clear evaluation of the hearing minutes will demonstrate no probable cause existed at the time of . . . arrest, when considering the testimony provided by P.O. Alvarez"). The felony complaint claim is similarly record-based as it relies on arguments addressing a document that forms part of the state court record.

Thus, both claims are procedurally defaulted and habeas review is unavailable. See, e.g., St. Helen, 374 F.3d at 183-84; Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (ineffective assistance of counsel claim that was record-based held to be procedurally barred). Almonte could avoid this bar if he could show cause for the default and resulting prejudice or could demonstrate that he is "actually innocent." See, e.g., St. Helen, 374 F.3d at 183-84. But even construing his pro se petition liberally, see, e.g., Williams v. Kullman, 722 F.2d 1048, 1050-51 (2d Cir. 1983), Almonte has made no such showing.


For the foregoing reasons, Almonte's petition should be denied.


Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Kimba M. Wood, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Wood. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).

GABRIEL W. GORENSTEIN United States Magistrate Judge

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