REPORT AND RECOMMENDATION

GABRIEL GORENSTEIN, Magistrate Judge

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.

I. BACKGROUND

A. Evidence at Trial

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). 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). 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).

2. Figueroa's Case

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.

C. Direct Appeal

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, Sec. 6).

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 would nonetheless reject the claims were it to review them on the merits. Id.

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 (2001).

G. The Instant Petition

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 Petition.

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 proceedings until the Appellate Division ruled on the coram nobis petition. Id.

Figueroa's application for leave to file a writ of error coram nobis was denied on September 18, 2003. See Denial of Leave to File a Writ of Error Coram Nobis, dated September 18, 2003 (reproduced as Ex. 3 to Supplemental Affidavit in Opposition, filed November 25, 2003 (Docket # 14)) ("Coram Nobis Decision"). Figueroa subsequently sought leave to appeal the denial of the motion with the Court of Appeals. The Court of Appeals denied Figueroa leave to appeal on July 14, 2004. See Certificate Denying Leave, dated July 14, 2004 (attached to Endorsed Letter from Nancy D. Killian to the Hon. Gabriel W. Gorenstein, dated July 29, 2004 (Docket #16)).

The Court deemed Figueroa's habeas petition amended to include any claims raised in his coram nobis application. See Memorandum Endorsement, filed September 10, 2004 (Docket #18). Respondent subsequently filed a second supplemental affidavit and memorandum of law to address Figueroa's claim of ineffective assistance of appellate counsel. See Supplemental Affidavit and Memorandum of Law in Opposition, filed September 15, 2004 (Docket #19).

II. APPLICABLE LEGAL PRINCIPLES

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

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 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). 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 "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); Sellan, 261 F.3d at 312.

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. Moreover, a state court determination of a factual issue is "presumed to be correct" and that presumption may be rebutted only "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

B. Law Governing Procedural Default

When a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default normally constitutes an adequate and independent ground for the state court decision. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991) (internal citations omitted). A "procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted); accord Coleman, 501 U.S. at 749-50; Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995); see also Harris, 489 U.S. at 264 n. 10 ("[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent state ground doctrine "curtails reconsideration of the federal issue on federal habeas.").

C. Exhaustion Requirement

Before a federal court may consider the merits of a habeas claim, a petitioner must 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., 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc). To exhaust a habeas claim, a petitioner is required to present the federal constitutional nature of the claim to all available levels of the state appellate courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); St. Helen v. Senkowski, 374 F.3d 181, 182-83 (2d Cir. 2004) (per curiam), cert. denied, 2005 WL 36113 (Jan. 10, 2005); Grey v. Hoke, 933 F.2d 117, 119-120 (2d Cir. 1991). This 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 [a] state prisoner's federal rights." Coleman, 501 U.S. at 731.

III. DISCUSSION

Figueroa's claim for habeas corpus relief is based on seven separate grounds. Each is discussed below.

A. Acting-in-Concert Instruction

Figueroa argues that the trial court improperly gave an acting-in-concert instruction because it could have allowed the jury to convict him even if they had reasonable doubt that he was the shooter. See Pet. App. Br. at 19-20. Because Figueroa first raised this claim in his direct appeal to the Appellate Division and it was denied on state law grounds, the respondent argues that this claim is procedurally barred. Resp. Mem. at 3-6.

The acting in concert instruction was discussed during a conference prior to closing arguments, during which the following exchange occurred:

The Court: Also, at the People's request, they did request acting in concert, even though in this case it seems that defendant did all the main operative acts. Since they requested it, I will explain it to them perhaps not as extensively in a detailed way as I would if the defendant were not alleged to be the shooter in the case.

Mr. Greenfield [Prosecutor]: As you read the instruction on the law, in and of itself it will be read as acting in concert with others.

Court: Right.

(Tr. 1087). The court went on to address the issue of manslaughter as a lesser included offense. At no time did Figueroa's attorney make any comment or objection. Following the court's charge to the jury, the trial judge specifically asked the attorneys if there were any "exceptions or requests." (Tr. II. 227). Mr. Pogrow, Figueroa's attorney, objected to the language of the consciousness of guilt charge, the language regarding an inference that could be drawn from a report of a 911 call, and the alibi instruction. (Tr. II. 227-32). When asked if he had any further objections, Mr. Pogrow replied, "Nothing." (Tr. II. 232). Indeed, Figueroa conceded in his appellate brief that "defense counsel did not object to this instruction," urging the court to instead address the issue in the interests of justice. Pet. App. Br. at 27-28.

On review, the Appellate Division decided the merits of the consciousness of guilt instruction, the alibi instruction, and the sentencing issues, but stated that Figueroa's "remaining contentions" — implicitly including the acting-in-concert instruction — were "unpreserved" and it "decline[d] to review them in the interest of justice."Figueroa, 279 A.D.2d at 357. The court added, "Were we to review these claims, we would reject them." Id.

The first question to be determined is whether the claim regarding the acting-in-concert instruction is procedurally barred. It is well settled under New York law that the failure to make a contemporaneous objection to a jury charge precludes appellate review of that instruction. See New York Criminal Procedure Law ("CPL") § 470.05(2). The prosecution relied on this statute in arguing on the direct appeal that the claim was unpreserved. See Respondent's Brief, dated December 2000 (reproduced as Ex. 2 to Opposition), 11. The appellate court's statement that Figueroa's claims were "unpreserved" is sufficient to establish that it was relying on a procedural bar as an independent ground in disposing of the issue. See Harris, 489 U.S. at 265 n. 12. The procedural bar applies even where, as here, the court makes an alternative ruling on the merits. See id. at 264 n. 10; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam) ("[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate ground, even where the state court has also ruled in the alternative on the merits of the federal claim.").

Once the procedural default is shown to be an independent state ground, the remaining question is "whether the state ground relied upon is 'adequate' to preclude federal habeas review."Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999). A procedural bar is "adequate" if "it is based on a rule that is 'firmly established and regularly followed' by the state in question."Id. (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). The "adequacy of a state procedural bar is determined with reference to the 'particular application' of the rule; it is not enough that the rule 'generally serves a legitimate state interest.'" Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362, 387 (2002)). Whether the application of a rule is "firmly established and regularly followed" must be judged in the context of "the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Id. (citing Lee, 534 U.S. at 386-87).

The Second Circuit has set forth the following "guideposts" for making this determination:

(1) Whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realties of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate government interest.

The first guidepost favors the respondent because, while "the likely impact of a timely objection involves a certain degree of speculation," it is certainly possible that "the trial court may well have come to a different conclusion" had the objection to the instruction been made. Id. at 243. Had there been such an objection, the trial court would have had the opportunity to review and weigh Figueroa's request.

The second guidepost also fails to help Figueroa. Both statutory and New York case law indicate that a party must object to a jury charge in order to preserve the issue for appeal.See, e.g., CPL § 470.05; People v. Nuccie, 57 N.Y.2d 818, 819 (1982); People v. Moultrie, 6 A.D.3d 730, 730 (2d Dep't 2004); People v. Moore, 300 A.D.2d 198, 198 (1st Dep't 2002);People v. Mobley, 176 A.D.2d 211, 211-12 (1st Dep't 1991).

Finally, Figueroa cannot show that he substantially complied with the contemporaneous objection rule as there was no objection whatsoever. The "realities of trial" obviously did not prevent objections inasmuch as counsel was able to object to other parts of the instructions. In addition, the state has a strong interest in requiring parties to bring "any matter which a party wishes the appellate court to decide . . . to the attention of the trial court at a time and in a way that [gives] the latter the opportunity to remedy the problem and thereby avert reversible error." People v. Luperon, 85 N.Y.2d 71, 78 (1995). Consistent with this approach, federal courts "have observed and deferred to New York's consistent application of its contemporaneous objection rules." Garcia, 188 F.3d at 79 (citing cases). The Second Circuit has squarely held that "[a] state prisoner who fails to object to a jury instruction in accordance with state procedural rules procedurally forfeits that argument on federal habeas review." Reyes v. Keane, 118 F.3d 136, 138 (2d Cir. 1997) (citation omitted); accord Bossett, 41 F.3d at 829 n. 2. Accordingly, the procedural bar relied upon by the Appellate Division in this case is "firmly established and regularly followed" and therefore an independent and adequate state ground barring review of the merits of Figueroa's claim.

A petitioner may obtain review of an otherwise procedurally defaulted claim only if he can show "cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris, 489 U.S. at 262 (internal citations omitted); Fama, 235 F.3d at 809. Whether there is cause "ordinarily turn[s] on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 722-23 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Overcoming a procedural bar on the grounds of a "fundamental miscarriage of justice" requires a petitioner to demonstrate "actual innocence." Calderon v. Thompson, 523 U.S. 538, 559 (1998); accord Dretke v. Haley, 124 S. Ct. 1847, 1849, 1852 (2004); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002).

Figueroa does not allege any facts that would constitute cause for default. Nor does he make any showing that he is actually innocent. Accordingly, the procedural default bars federal review of Figueroa's claims challenging the acting-in-concert instruction.

B. Improper Cross-Examination

Figueroa also seeks relief on the grounds that Bellevue, his alibi witness, was improperly questioned regarding her failure to come forward with the exculpatory information on Figueroa's whereabouts. See Pet. App. Br. at 38-44. Specifically, Figueroa argues that this questioning was improper because it was never established that she knew how to make exculpatory information available to the authorities. Id. at 38-39, 43. Thus he concludes that the proper foundation for her testimony was not laid and that Bellevue's credibility was unfairly called into question. Id. at 43-44.

As was true for Figueroa's claim regarding the jury instructions, this claim was presented for the first time on direct appeal and the Appellate Division concluded that it was "unpreserved." Figueroa, 279 A.D.2d at 357. The procedural bar constitutes an "independent" state ground for the reasons already discussed. It also constitutes an "adequate" state ground under the Cotto factors. First, Figueroa's failure to object to the testimony was "actually relied on" by the trial court in the sense that the trial court was never given an opportunity to cure the specific problem alleged by disallowing the testimony or requiring a greater foundation. Second, it is well-settled under CPL § 470.05 that the failure to alert the trial court as to the specific basis for an objection with respect to trial testimony will preclude later use of the objection as a vehicle for creating a question of law on appeal. See, e.g., People v. West, 56 N.Y.2d 662, 663 (1982); People v. Gonzalez, 55 N.Y.2d 720, 722 (1981);People v. Wegman, 2 A.D.3d 1333, 1334 (4th Dep't 2003); People v. Long, 291 A.D.2d 720, 721 (3rd Dep't 2002). Third, there was no compliance of any kind with the contemporaneous objection rule as there was no objection at all.

Finally, as already discussed, Figueroa has not shown cause for the default nor has he shown actual innocence. Therefore, the procedural bar is an adequate and independent ground precluding federal habeas review.

C. Consciousness of Guilt Charge

Figueroa argues that the trial court gave an incomplete instruction with respect to consciousness of guilt. See Pet. App. Br. at 28-32. Figueroa contends that the jury should have been instructed that the evidence on this point — the fact that he could not be located for several years following the shooting when he knew the authorities were looking for him — was of slight probative value and that an innocent person might resort to such conduct. Id. at 29-32. Respondent, however, maintains that this claim is unexhausted because Figueroa did not alert the New York Court of Appeals to the federal nature of his claim. Resp. Mem. at 8-10. It is unnecessary to address the issue of exhaustion, however, because the claim would have to be dismissed on the merits. See 28 U.S.C. § 2254(b)(2).

To sustain a claim that a jury instruction was improper, a petitioner must show "not merely that the instruction is undesirable, erroneous, or even 'universally condemned," but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973); accord Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001). Thus, an improper charge will be found to violate a petitioner's constitutional rights where "there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence," Boyde v. California, 494 U.S. 370, 380 (1990), or "violates the Constitution," Estelle v. McGuire, 502 U.S. 62, 72 (1991). Morever, whether the charge contained an omission or misstatement of law is relevant in determining prejudice to the defendant. Henderson v. Kibbe, 431 U.S. 145, 155 (1977) ("An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.").

During a pre-charge conference, defense counsel requested a charge on consciousness of guilt based on the testimony that Figueroa could not be found for a period of years. (Tr. 1069-72). The prosecutor declared that he did not intend to argue consciousness of guilt and objected to the charge, but the court agreed to give the instruction at the insistence of the defense counsel. (Tr. 1071-72). The court's charge was as follows:

In this case the evidence has been introduced which may arguably evince the defendant's consciousness of guilt, shooting [sic]. The evidence is the defendant was not around for several years, he knew he was wanted by the police in connection with the shooting. Whether or not the defendant was avoiding the police and if so whether this evidence does in fact show defendant's guilty conscience is solely a question for you the jury. Moreover, the weight to be given such evidence is exclusively up to you.

Under such circumstances proof of conduct suggesting consciousness of guilt may be considered by you, but you first must decide whether the evidence of the defendant's conduct, if believed by you, does in fact evidence a consciousness of guilt on the part of the defendant. You must examine such conduct carefully since you may have an innocent explanation; and if from the nature of the conduct itself or from any explanation offered by Defense you can reasonably define any innocent explanation from the credible evidence then you must disregard any evidence of consciousness of guilt. Moreover, proof of conduct evidencing consciousness of guilt standing alone may not be a basis for the finding of guilt. However, when the people have introduced other direct and substantial evidence pointing towards the guilt of the defendant, then evidence suggesting consciousness of guilt may be considered by you together with other evidence of guilt in arriving at your verdict.

Tr. II. 203-04.

Figueroa argues that this charge was deficient because it did not include language from a pattern jury instruction that the "proof of conduct evidencing knowledge of guilt has slight probative value" or language instructing that an innocent person might resort to conduct that creates an appearance of guilt. Pet. App. Br. at 29-31. He argues that these omissions allowed the "evidence [of flight] to loom much larger in the jury's mind than it rightfully should have." Id. at 32.

As noted, even if the failure to include the requested language violated a precept of New York law, an omission does not rise to the level of a constitutional violation unless the petitioner can show that the error "so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147. Here, the instruction does not come close to meeting this exacting standard. The instruction made clear that conduct evidencing consciousness of guilt may have an innocent explanation, that it could not be the basis of a finding of guilt standing alone, and that it was up to the jury to decide what weight to give the evidence. (Tr. II. 203-04). This was more than sufficient to accord Figueroa due process. Federal habeas courts have upheld jury instructions regarding flight even where trial judges have not instructed that flight is of weak probative value. See, e.g., Cherry v. Hoke, 1990 WL 52274, at *1 (S.D.N.Y. Apr. 19, 1990) (trial court's failure to charge the jury regarding the "ambiguity of flight" did not violate petitioner's constitutional rights); Ramos v. Henderson, 1985 WL 190, at *4-*5 (S.D.N.Y. Jan. 10, 1985) (rejecting argument that trial court was required to tell jury that evidence of flight is "weak" where court's charge "left it to the jury to give the evidence of flight 'such weight as it deserves, depending on all the facts and surrounding circumstances'"). Moreover, Figueroa's absence from the jurisdiction was not an important part of the trial because the evidence centered on the testimony of eyewitnesses to the shooting who were all familiar with Figueroa. In his summation, the prosecutor relied on the testimony of these witnesses to support his case, mentioning that Figueroa left the jurisdiction only in the context of describing the deteriorating relationship between Figueroa and Bellevue. (Tr. II. 112-88). Accordingly, the charge on consciousness-of-guilt did not result in a due process violation.

D. Alibi Charge

Figueroa argues that the trial court's instruction on the alibi charge failed to explain that he had no burden to prove that he was not the person who committed the crime. Pet. App. Br. at 32-37. He argues that the court's alibi instruction was "misleading, omitted key concepts, and did not unequivocally state that defendant bore no burden of proof concerning the alibi." Id. at 33.

The challenged instruction is as follows:

Obviously, as you are aware an issue raised by the Defense which you are called upon to decide is whether or not it was this defendant who participated in the shooting of Luis Rodriguez and Eric Hodge, identification issue. In fact the Defense has presented evidence from Sandra Bellevue that it contends should lead you to conclude that the defendant was someplace else when the crime occurred, that at the time of the shooting at approximately 4:30 on July 14, 1991, he was instead at Metropolitan Hospital. This is known as an alibi argument or defense. Now, you must consider and evaluate the testimony and credibility of the alibi witness Sandra Bellevue just as you would the testimony of any other witness. Moreover, if you find her testimony was truthful, you must still be satisfied that she correctly remembers the night initially in issue; and finally, you must consider the extent to which her testimony supports the inference that the defendant stayed at the hospital throughout the night. If you are satisfied that her evidence as to alibi creates reasonable doubt as to the guilt of the defendant, that is, the prosecution hasn't disproved the alibi defense beyond a reasonable doubt, then the defendant is entitled to be acquitted. But by the same token of course you understand that if the People have satisfied you beyond a reasonable doubt from their witnesses that the defendant was at the scene of the crime at St. Petersburg or St. Peter's Park at 4:30 in the a.m., they will of necessity have disproved the alibi beyond a reasonable doubt.

(Tr. II. 206-07).

Figueroa argues that the charge did not unequivocally convey the appropriate burden of proof to the jury and that the jury may have interpreted the instruction to mean that the prosecution could meet its burden of proof on the issue of identity merely by disproving the alibi. Pet. App. Br. at 36. He also claims that the court failed to include appropriate instructions regarding the testimony of interested witnesses which prejudiced the defendant. Id. at 37.

A jury charge that defectively defines the prosecution's burden to prove the elements of an offense against a criminal defendant beyond a reasonable doubt violates the due process clause. See Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993); United States v. Castillo, 14 F.3d 802, 804 (2d Cir. 1994). To determine whether an instruction impermissibly shifts the burden of proof on an element of the case to the defendant, the instruction must be analyzed in the context of the entire charge.See Cupp, 414 U.S. at 147-48 (noting that "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge") (citingBoyd v. United States, 271 U.S. 104, 107 (1926)). Thus, "an asserted error in a reasonable doubt instruction may be innocuous or inconsequential when viewed in the context of the charge as a whole; surrounded by different language in a different charge, however, the same language may create a constitutional infirmity." Vargas v. Keane, 86 F.3d 1273, 1277 (2d Cir.), cert. denied, 519 U.S. 895 (1996).

Here, the challenged portion of the charge itself left no ambiguity as to the burden of proof. The trial court stated that the jury should evaluate the alibi evidence to determine whether it "creates reasonable doubt as to the guilt of the defendant" and specifically stated that if "the prosecution hasn't disproved the alibi defense beyond a reasonable doubt, then the defendant is entitled to be acquitted." (Tr. II. 207). It made further reference to the prosecution's burden when it stated that if the prosecution proved that the defendant was at the scene of the crime, the prosecution "will of necessity have disproved the alibi beyond a reasonable doubt." (Tr. II. 207).

In addition, the trial court elsewhere in the charge conveyed the proper standard. When discussing the presumption of innocence, the court made it clear that the presumption of innocence "will leave the defendant only if . . . the People have fulfilled their burden to prove the defendant's guilt of each of the elements of the offenses submitted beyond a reasonable doubt. If this burden is not fulfilled, you must acquit the defendant." (Tr. II. 200). Finally, after discussing the issue of the witnesses' identification, the court concluded, "It is for you to determine whether the total evidence in the case convinces you beyond a reasonable doubt that the defendant is the right man. If you have a reasonable doubt whether the defendant is the man who committed crimes charged in the indictment, you must find him not guilty." (Tr. II. 209). Taken as a whole, the court's instructions as to Figueroa's alibi defense did not improperly shift the burden of proof to the defendant. See generally Ennis v. Walker, 2001 WL 409530, at *13-*14 (S.D.N.Y. Apr. 6, 2001) (Report and Recommendation) (adopted by Order, filed May 16, 2001) (upholding alibi instructions where charge as a whole contained instructions that defendant did not have the burden to prove his alibi); Bolling v. Stinson, 1999 WL 287733, at *4-*5 (E.D.N.Y. May 5, 1999) (same).

Figueroa makes an additional claim that the court improperly failed to instruct the jury that the testimony of an interested witness should not be dismissed merely because he or she is interested. Pet. App. Br. at 36-37. The court had instructed the jury:

It's been argued, you have heard example stated [sic], applied in substance by counsel that one or another of the witnesses is an interested witness or a disinterested witness. And on the basis of such characterizations counsel may have suggested [that] you give greater or lesser weight to such witness' testimony. The whole subject of the interest or lack of interest of any witness and whether any one witness through interest or otherwise is entitled to greater or lesser belief is for you to decide exclusively. Evidence, if any, of the interest or lack of interest of any witness is something you have a right to consider in evaluating the testimony.

(Tr. II. 197). Figueroa suggests that this instruction was particularly prejudicial because of the importance of Sandra Bellevue's testimony to the alibi defense. Pet. App. Br. at 37.

While it might have been preferable to remind the jury that the testimony of an interested witness should not be dismissed merely because of the fact that he or she is interested, this omission can hardly be said to have "infected the entire trial." Cupp, 414 U.S. at 147. The trial court expressly told the jury to weigh the arguments regarding interested witnesses for themselves. (Tr. II. 197). Thus, the jury was free to give Bellevue's testimony great weight, depending on its own evaluation of her credibility.

E. Sentencing Claims

Figueroa makes two claims based on the sentence imposed. His first argument is that his sentence for attempted murder and for assault in the first degree should have been imposed to run concurrently, not consecutively, to the sentence for murder in the second degree because the act that resulted in Luis' death was part of the same act that constituted the attempted murder and assault on Hodge. Pet. App. Br. at 44-49. Second, he argues that his aggregate sentence of 33-1/2 years to life is excessive, especially in light of the sentence of fifteen years he would have received if he had pleaded guilty. Id. at 50-51.

1. Concurrent Sentencing

New York Penal Law § 70.25(2) requires sentences to be imposed concurrently "[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other." Where the facts demonstrate that the acts underlying the crimes are separate and distinct, the sentencing court has the discretion to impose a consecutive sentence. N.Y. Penal Law § 70.25(1); see, e.g., People v. Ramirez, 89 N.Y.2d 444, 450 (1996). Figueroa argues that the state and appellate courts erred in finding that the act that constituted the murder of Luis Rodriguez was separate from the attempted murder and assault against Hodge. Pet. App. Br. at 44-49.

Errors of state law are not subject to federal habeas review.See, e.g., Estelle, 502 U.S. at 67-68 ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Rather, a petitioner must demonstrate that his conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68 (citations omitted). As a result, federal habeas courts have squarely held that claims regarding the imposition of consecutive sentences are purely a matter of state law and are not cognizable on habeas review. See, e.g., Davis v. Herbert, 2003 WL 23185747, at *15 (E.D.N.Y. Oct. 24, 2003) ("Whether the sentence could be consecutive was a matter of state law and raises no Constitutional issue."); Heath v. Hoke, 1989 WL 153759, at *3 (W.D.N.Y. Dec. 7, 1989) ("[A] state court's interpretation of state law on concurrent and consecutive sentences is not a question of federal constitutional dimension cognizable in a federal habeas corpus proceeding.") (citingKemff v. Estelle, 62 F.2d 162, 163 (5th Cir. 1980)).

In any event, the Appellate Division properly determined that "[a]lthough defendant's first shot both killed the deceased victim and slightly wounded the surviving victim, defendant then moved closer to the assault victim and purposefully shot him, causing serious physical injury. This clearly constituted a separate and distinct act sufficient for the imposition of consecutive sentences." Figueroa, 279 A.D.2d at 357 (citations omitted). Because the imposition of consecutive sentences was valid under New York law, no constitutional issue is presented for habeas review. See, e.g., Cardell v. Fischer, 2004 WL 2070820, *2 (E.D.N.Y. Sept. 14, 2004); Lewis v. Bennett, 328 F. Supp. 2d 396, 413 (W.D.N.Y. 2004), Arocho v. Walker, 2001 WL 856608, at *3 (S.D.N.Y. July 27, 2001).

2. Excessive Sentence

To the extent Figueroa is arguing that his sentence violates the Eighth Amendment, that claim must fail as well. Because a habeas court must grant considerable deference to legislatively mandated terms of imprisonment, successful challenges to sentences are "exceedingly rare." Hutto v. Davis, 454 U.S. 370, 374 (1982) (per curiam) (citation omitted); accord Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals."). Indeed, the Second Circuit has broadly stated that "[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (citation omitted); accord Herrera v. Artuz, 171 F. Supp. 2d 146, 151 (S.D.N.Y. 2001); Sutton v. Herbert, 39 F. Supp. 2d 335, 337 n. 1 (S.D.N.Y. 1999). Here, the sentence was within the limits permitted by New York law, which provides that the maximum sentence for murder in the second degree is life imprisonment. New York Penal Law §§ 125.25; 70.00(2)(a). The maximum sentence for attempted murder in the second degree is 25 years. New York Penal Law §§ 110.05(3); 125.25; 70.00(2)(b).

That the sentence is within the limits permitted by New York law does not entirely resolve the issue, however, because the Eighth Amendment prohibits "barbaric" sentences and those that are "disproportionate to the crime committed" regardless of whether they are within the limits permitted by state law.Solem, 463 U.S. at 284. While the Supreme Court has outlined factors that may be considered in deciding whether a penalty is grossly disproportionate to the offense, this is not one of the "rare" cases where the "reviewing court . . . [is] required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate." Id. at 290 n. 16. Rather, it is enough to say that a sentence of 25 years to life for the murder of one individual and a consecutive sentence of 8-1/3 to 25 years for firing a separate shot and seriously wounding another individual are appropriate to the offenses and thus easily pass constitutional muster.

Figueroa's claim that he was punished for refusing the plea offer and going to trial, Pet. App. Br. at 50-54, also fails to present a constitutional claim. While the vindictive imposition of additional punishment on a defendant for successfully attacking a first conviction violates due process, see Alabama v. Smith, 490 U.S. 794, 798 (1989), "in the 'give-and-take' of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer," Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).

Prior to trial, the court explained to Figueroa that he had previously been misinformed as to the potential maximum sentence he would face if convicted and that, based on the potential for consecutive sentences, the correct potential maximum was 37-1/2 years to life. (Tr. 30-32). The court noted that there had previously been an offer of a 15-year sentence on a plea, and that while he personally believed that the offer was "a little low" (Tr. 34), he felt compelled to make the offer again because Figueroa had been misinformed about the potential "downside" following a conviction. (Tr. 30-31). Figueroa rejected the offer once again. (Tr. 36).

Contrary to Figueroa's assertions, there is no basis on which to conclude that the sentence Figueroa ultimately received showed that the judge sentenced him vindictively for refusing the plea deal. "[T]he mere fact that the court, following conviction, imposed a sentence . . . approaching the maximum legal limit does not, in itself, demonstrate actual vindictiveness." Naranjo v. Filion, 2003 WL 1900867, at *10 (S.D.N.Y. Apr. 16, 2003) (Report and Recommendation) (adopted by Order, filed July 2, 2003) (citing cases); see also Thomas v. Kuhlman, 2003 WL 21294065, at *7 (E.D.N.Y. Apr. 8, 2003) ("[F]ederal habeas courts cannot set aside state court sentences on the ground that they are unnecessarily punitive. As a general matter, the question is only whether the sentence was within the authorized range.") (citing White, 969 F.2d at 1383). As the Supreme Court has noted, a defendant in plea bargaining circumstances will often be "confronted with the 'certainty or probability' that, if he determines to exercise his right to plead innocent and to demand a jury trial, he will receive a higher sentence than would have followed a waiver of those rights." Chaffin v. Stynchcombe, 412 U.S. 17, 30-31 (1973) (internal citation omitted). The Court, however, has also stated that "the imposition of these difficult choices . . . [is] an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Id. at 31. Because Figueroa can point to no evidence that the sentencing judge imposed a sentence only because Figueroa refused to accept the plea bargain initially offered, there is no basis for habeas relief. Notably, case law is replete with instances where similar warnings from a trial judge as to the potential for a greater sentence after trial have passed constitutional muster. See, e.g., Gomez v. Duncan, 2004 WL 119360, at *18, *20-*22 (S.D.N.Y. Jan. 27, 2004) (Report and Recommendation) (citing cases).

F. Ineffective Assistance of Appellate Counsel

Figueroa's arguments regarding the ineffective assistance of appellate counsel are contained in his application for a writ of error coram nobis. See Memorandum of Law in Support of Motion for Writ of Error Coram Nobis, dated January 1, 2004 ("Coram Nobis Mem"). While the application is difficult to follow, it appears that Figueroa relies on two grounds for relief. The vast bulk of the application argues that appellate counsel failed to frame trial errors in federal constitutional terms, thus purportedly denying Figueroa of federal review of alleged violations of his constitutional rights. Id. at 3-5. Figueroa also complains in general terms about his appellate counsel's performance and, in a single sentence, asserts that he was denied effective assistance of appellate counsel due to "appellate counsel's wholly inexcusable failure to recognize and pursue the issues of ineffective assistance of trial counsel." Affidavit in Support of Motion of Writ of Error Coram Nobis, dated January 1, 2004, ¶ 4. No examples of trial counsel's ineffectiveness are provided, however.

The first question to be decided is whether the Appellate Division denied the application "on the merits." As noted above, if the state appellate court adjudicated Figueroa's claim on the merits, the Court may grant habeas relief only if the Appellate Division's adjudication was "contrary to, or involved an unreasonable application of, clearly established Federal law" or 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); Williams v. Taylor, 529 U.S. at 405-06;Aparicio v. Artuz, 269 F.3d at 93.

Here, the Appellate Division's decision was on the merits because "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," even though it does not mention the federal claim and no relevant federal case law is cited. See Aparicio, 269 F.3d at 94. The decision makes no reference to any procedural rule but rather denies the application after "reading and filing the papers with respect to the motion" and engaging in "due deliberation" on the motion. Coram Nobis Decision at 1. The court also cites to the standards for making out an ineffective assistance of appellate counsel claim on the merits. Id. (citing People v. de la Hoz, 131 A.D.2d 154, 158 (1st Dep't 1987) (per curiam)). This further demonstrates that the court adjudicated the claim on the merits.See Rodriguez v. Artuz, 2002 WL 31093605, at *6 (S.D.N.Y. Sept. 18, 2002).

Because his claim was dismissed on the merits, habeas relief is available only if Figueroa can show that the Appellate Division's decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. Figueroa cannot meet this heavy burden.

To make a successful claim for ineffective assistance of appellate counsel, a habeas petitioner must show that: "(1) counsel's performance 'fell below an objective standard of reasonableness,' and (2) that there is a 'reasonable probability' that, but for the deficiency, the outcome of the proceeding would have been different." McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999) (quoting Strickland v. Washington, 446 U.S. 668, 688 (1984)). Further, in context of an appellate counsel who is being reviewed for failing to raise the ineffectiveness of trial counsel, the habeas court must determine "whether trial counsel was so obviously inadequate that appellate counsel had to present that question to render adequate assistance." Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989) (emphasis in original).

Here, the high standard for proving ineffective assistance of appellate counsel has not been met. First, Figueroa's claim that appellate counsel was ineffective for failing to raise the issue of the incompetence of trial counsel cannot be upheld. One of the main functions of appellate counsel is to "winnow out weaker arguments on appeal." Jones v. Barnes, 463 U.S. 745, 751 (1983). Even if a claim is nonfrivolous, counsel is not required to present every claim on behalf of a defendant appealing his or her conviction. Smith v. Robbins, 528 U.S. 259, 288 (2000) ("[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.") (citing Barnes 463 U.S. at 751); Wright v. United States, 182 F.3d 458, 466 (6th Cir. 1999) ("Appellate counsel is not ineffective simply because he or she decides not to raise every possible argument on appeal.") (citing Barnes, 463 U.S. at 753). Figueroa fails to allege how his trial counsel was so "obviously inadequate" as to require appellate counsel to raise some issue of trial counsel's incompetence on appeal. Because Figueroa does not explain how trial counsel was incompetent — let alone put forth any support for such a claim — his argument that appellate counsel should have raised this issue must fail.

The argument that appellate counsel "failed in his duty to investigate and marshall [sic] arguments on petitioner's behalf" is similarly unavailing. Coram Nobis Mem. The appellate brief submitted to the Appellate Division by appellate counsel contains six grounds for appeal and each argument is supported by references to the record and citations to relevant case law. Finally, appellate counsel was not rendered ineffective due to his failure to argue the issues he raised in federal terms. First, this Court has assumed that any federal constitutional issues were exhausted and nonetheless found no federal constitutional error in the trial court. In addition, the brief makes reference to federal constitutional provisions in its point headings, thus preserving any requirement that the federal nature of a claim be presented in the state courts. See, e.g., Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001).

Accordingly, the Appellate Division did not unreasonably apply clearly established federal law in deciding that appellate counsel had not been ineffective through his omission on appeal of the ineffective assistance of trial counsel claim or in the manner in which he raised federal law on direct appeal.

Conclusion

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

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

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 serve and 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. Deborah A. Batts, 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 Batts. 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).