Bonilla v. Lee
| Decision Date | 09 August 2014 |
| Docket Number | No. 13 Civ. 3725(JGK).,13 Civ. 3725(JGK). |
| Parties | Rene BONILLA, Petitioner, v. Superintendent William LEE, Respondent. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
Petition denied.
Rene Bonilla, Stormville, NY, pro se.
Nancy Darragh Killian, Robert Ralph Sandusky, III, The Bronx District Attorney's Office, Bronx, NY, for Respondent.
Rene Bonilla brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial, the petitioner was convicted in the New York State Supreme Court, Bronx County of one count of murder in the second degree in violation of New York Penal Law § 125.25(1) and one count of attempted murder in the second degree in violation of New York Penal Law §§ 110.00 and 125.25(1). The petitioner was sentenced to consecutive terms of imprisonment of twenty-five years to life and twenty-five years. The judgment of conviction was affirmed on December 30, 2008 by the Appellate Division, First Department, 57 A.D.3d 400, 870 N.Y.S.2d 18 (2008), and leave to appeal to the Court of Appeals was denied on April 24, 2009. 12 N.Y.3d 814, 881 N.Y.S.2d 21, 908 N.E.2d 929 (2009). The petitioner subsequently filed two motions to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 in the trial court, and one motion for a writ of error coram nobis in the Appellate Division, First Department. All of these applications were denied and leave to appeal was denied.
In the present habeas petition, dated May 23, 2013, the petitioner claims that the trial court erred in failing to charge the jury with instructions on the justification defense, the affirmative defense of extreme emotional disturbance, and the lesser-included offense of manslaughter in the first degree. He also challenges the trial court's imposition of consecutive sentences, and he alleges that his sentence should be reduced as excessive in the interest of justice. Finally, the petitioner brings various claims for denial of the effective assistance of counsel during the pretrial proceedings. For the reasons explained below, the petition for a writ of habeas corpus is denied.
The petitioner was indicted by grand jury on September 8, 2005. The Indictment charged him with murder in the second degree (Count One), murder in the second degree based on depraved indifference (Count Two), attempted murder in the second degree (Count Three), and criminal possession of a weapon in the second degree (Count Four). On May 11, 2007 a jury found the petitioner guilty of murder in the second degree and attempted murder in the second degree. ( See Trial Tr. (“Tr.”) at 689–91.) On October 29, 2007, Justice Dominic Massaro sentenced the petitioner to consecutive prison terms of twenty-five years to life and twenty-five years for the murder and attempted murder convictions, respectively. 37 Misc.3d 1228(A), 964 N.Y.S.2d 61, 2012 WL 6051926 at *1 (Sup.Ct.2012).1
The events leading to the petitioner's conviction took place in the summer of 2005. Testimony at trial indicated that the petitioner and Leonardo De'Aza had been long-time friends, (Tr. at 101, 271, 467), but that in approximately July 2005, their relationship deteriorated after De'Aza's uncle, Fernando, told De'Aza that the petitioner had robbed Fernando. (Tr. at 273; see also Tr. at 103–04.)
At trial, De'Aza and the petitioner both testified that they had altercations in the weeks that followed. De'Aza testified that the first altercation began when De'Aza approached the petitioner and the petitioner's pregnant girlfriend in the street and asked the petitioner why he had robbed his uncle. (Tr. at 274–75.) According to De'Aza, the petitioner then threw a punch at De'Aza, a fistfight ensued, and De'Aza eventually knocked the petitioner out. (Tr. at 276.) The petitioner confirmed that this altercation had occurred, but he testified that De'Aza threw the first punch. (Tr. at 471.) No weapons were used during the fight. (Tr. at 276; see also Tr. at 470–71.)
According to the petitioner, two other altercations followed this initial encounter.2 First, a few days after the fistfight, De'Aza and a few of his associates approached the petitioner as he was riding his bicycle, knocked him off of it, beat him up, and stole the bicycle. (Tr. at 471–73.) One of the individuals had a knife. (Tr. at 473.) Then, a few days later, a group of De'Aza's associates attacked the petitioner and beat him up. (Tr. at 473–75.) De'Aza was not present during this last attack. (Tr. at 474.)
On September 5, 2005, the petitioner was staying in an apartment in a building at 526 East 138th Street in the Bronx. (Tr. at 476; see also Tr. at 373.) The petitioner testified that at some point between 4:00 and 5:00pm, the petitioner's girlfriend called him and informed him that De'Aza was “looking for [him] with a gun and he wanted to kill [him].” (Tr. at 478.) She also said that De'Aza and two associates had come to her house looking for the petitioner. (Tr. at 478–79.)
The petitioner further testified that at some point later in the day he received two additional phone calls regarding De'Aza. During the second call, an unidentified individual informed the petitioner that “it was going around that [De'Aza] was looking for [him].” (Tr. at 480.) During the third call, a different individual told the petitioner that if De'Aza and his associates could not find the petitioner, they would attack his pregnant girlfriend. (Tr. at 480–81.)
The petitioner testified that after he received the third call, he “lost [his] head.” (Tr. at 481.) He then proceeded to the apartment at 526 East 138th Street, retrieved a .380 caliber handgun, and went to his girlfriend's house to retrieve a hooded sweatshirt. (Tr. at 482–83.) At his girlfriend's house, the petitioner told his girlfriend that he “was going to fix things with [De'Aza] because everything was a misunderstanding ... [and he] did not rob nobody.” (Tr. at 484.)
The petitioner testified that he then left his girlfriend's house looking for De'Aza, and ultimately found him at Saw Mill Park. ( See Tr. at 484.) De'Aza was “with two of his friends on the side of a car.” (Tr. at 485.) The petitioner was wearing the hooded sweatshirt with the hood over his head and the gun concealed in the front pocket. (Tr. at 486.)
According to the petitioner, as the petitioner approached De'Aza from across the street, De'Aza appeared to reach for something at his waist, which the petitioner thought was a gun. (Tr. at 486–88.) At this point the petitioner was “between a van and a car.” (Tr. at 488.) When the petitioner perceived De'Aza reaching for something, he shot at De'Aza twice. (Tr. at 488; see also Tr. at 510–11.)
The petitioner testified that he had no memory of what happened next because he “blanked out” after the first two shots. (Tr. at 488–89.)
In addition to the petitioner, four witnesses who were at or near Saw Mill Park at the time of the shooting testified at the petitioner's trial. De'Aza's mother, Sonia Alvarez, was in her home across the street from the park on September 5, 2005 when, at approximately 8:45 or 8:50pm, she heard two gunshots, then a pause, and then an array of additional gunshots. (Tr. at 107–08.) She then heard people yelling from outside her house that her son had been shot. (Tr. at 109.) She ran to the park across the street and found her son, who was lying on the ground, injured but conscious, with people trying to put pressure on his wounds. (Tr. at 111.) She testified that De'Aza told her the petitioner had shot him, and that Naiesha Pearson had also been hit. (Tr. at 111.) Shortly thereafter De'Aza was transported away from the scene in an ambulance. (Tr. at 112.)
Taisha Pearson was also at the park at the time of the shooting. She testified that shortly before the first shots were fired, De'Aza was helping to fix her daughter Naiesha Pearson's bicycle on the sidewalk by his parked car. (Tr. at 145, 147–48.) At 8:45pm, Taisha heard two gunshots. (Tr. at 149.) She then picked up her three-and-a-half-month-old daughter and ran to Naiesha, whom she observed leaning on a car. (Tr. at 149, 152.) Taisha saw a man in a hooded sweatshirt standing in the middle of the street, which she thought was unusual given the warm weather. ( See Tr. at 150–51.) When Taisha got to Naiesha, she saw the man in the sweatshirt standing over De'Aza shooting at him. (Tr. at 154–55.) The man fired about four shots at De'Aza from that position. (Tr. at 156.) Taisha lifted up Naiesha's shirt and saw that she had been shot in her chest. (Tr. at 157.) Eventually two police officers arrived and transported Taisha with her daughter to Lincoln Hospital. (Tr. at 158.)
De'Aza's aunt, Hilda Alvarez, was also at the park at the time of the shooting. She testified that at approximately 8:45pm on September 5, De'Aza was on the sidewalk by his car helping Naiesha Pearson fix her bicycle. (Tr. at 170, 173.) Hilda was roughly twelve feet from De'Aza when she saw the petitioner 3 run through a gap between two parked cars wearing a hooded sweatshirt, “put his hand in his pocket, and start [ ] firing.” (Tr. at 173–74, 176; see also Tr. at 178.) She then observed De'Aza attempt to push Naiesha away from him, but Naiesha was clutching his leg. (Tr. at 174.) When Naiesha fell, De'Aza attempted to coax the petitioner away from the children who were playing nearby. (Tr. at 175.) De'Aza then fell to the ground, and the petitioner stood over him and fired more shots at him. ( See Tr. at 175–76.) Hilda heard the petitioner fire five shots before she saw him flee in the direction of the apartment on East 138th Street. ( See Tr. at 176–77.) She saw a large crowd chase after the petitioner, but she stayed on the scene until an ambulance took De'Aza away. ( See Tr. at 179–80.)
Elaine Cintron, Naiesha Pearson's aunt and a friend of De'Aza, was also at the park during...
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