United States District Court, S.D. New York
September 13, 2005.
ANTONIO SALCEDO, Petitioner,
WILLIAM PHILLIPS, Acting Superintendent of Green Haven Correctional Facility, Respondent.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Antonio Salcedo, currently an inmate at Attica Correctional
Facility, brings this petition for writ of habeas corpus pro
se pursuant to 28 U.S.C. § 2254. Following a jury trial in the
New York State Supreme Court, New York County, Salcedo was
convicted of one count of Murder in the Second Degree (N.Y. Penal
Law ("N.Y.P.L.") § 125.25(2)), one count of Criminal Possession
of a Weapon in the Second Degree (N.Y.P.L. § 265.03), and one
count of Criminal Possession of a Weapon in the Fourth Degree
(N.Y.P.L. § 265.01(1)). He was sentenced to concurrent prison
terms of 23 years to life on the murder count, 5 to 15 years on
the second-degree weapons possession count, and one year on the
fourth-degree weapons possession count. For the reasons stated
below, Salcedo's petition should be denied.
A. Evidence Presented at Trial
1. The Shooting of Jose and Gregory Nuez
In 1982, Salcedo lived in an apartment on the fifth floor of
145 Audubon Avenue in Manhattan. (See Zuniga: Tr. 579-80).*fn1 Salcedo shared
the apartment with his wife, Aida Trinidad, and Trinidad's
sister, Maria Cortez. (Zuniga: Tr. 579-80). At that time, Salcedo
was carrying on a sexual relationship with Marilyn Lopez, who
lived in apartment 2F of his building. (Lopez: Tr. 346, 351-52).
Salcedo was the owner of a social club called Tonito's that was
located in apartment 2C of that same building. (Lopez: Tr.
348-49). Liquor was served at the club and several women worked
there as prostitutes, including Lopez and Roxy Holguin Almonte.
(Lopez: Tr. 350, 354-55; Almonte: Tr. 645). Antonio Zuniga and
Anibal Hiraldo worked at the club doing a variety of tasks,
including serving drinks to customers and acting as bouncers.
(See Lopez: Tr. 356-57; Zuniga: Tr. 572-73; Hiraldo: Tr. 817,
819). Apartment 2C had a long hallway with rooms adjacent to it.
(Lopez: Tr. 347). At the end of the hallway was a large living
room that was set up with sofas and a bar. (Lopez: Tr. 347-48).
On November 6, 1982, Gregorio Nuez ("Gregory") and his brother,
Jose Nuez ("Jose"), went to their cousin's house in Brooklyn.
(Nuez: Tr. 145, 148-49). While there, they were drinking, eating,
and doing "family things." (Nuez: Tr. 149). At approximately 8:00
p.m., Jose, Gregory, and their cousin, Jesus, left Brooklyn and
returned home to 172nd Street and Amsterdam Avenue. (Nuez: Tr.
149). At approximately midnight, Jose, Gregory, and Jesus arrived
at 145 Audubon Avenue and entered the club on the second floor.
(Nuez: Tr. 151). Salcedo, Lopez, Hiraldo, Almonte, and Zuniga,
among others, were at the club when they arrived. (See Lopez: Tr. 359-61; Almonte: Tr. 647-48). Hiraldo
recognized Jose and Gregory since they had visited the club
before. (See Hiraldo: Tr. 822-25). In Hiraldo's view, on the
past occasions they had visited the club, they had "looked" to
start "problems with everyone." (Hiraldo: Tr. 823-24). Hiraldo
also knew Jose and Gregory because they used to sell beer out of
their apartment. (See Hiraldo: Tr. 824). Gregory and Jose's
business attracted "[t]he same people" that visited Salcedo's
club. (Hiraldo: Tr. 825).
The witnesses's accounts differed as to what happened next.
Almonte testified that when Jose, Gregory, and Jesus entered the
club they were "rowdy," "drunk," and "disorderly." (See
Almonte: Tr. 647). The men were acting "obnoxious" and were
harassing people, particularly the women who worked at the club.
(Almonte: Tr. 649). Once the men began acting "disorderly,"
Salcedo appeared in the living room. (Almonte: Tr. 648). The male
employees of the club approached the men in order to remove them
from the club. (Almonte: Tr. 649). Because she recognized that
there were "going to be problems," Almonte left that room.
(Almonte: Tr. 649-50). From behind a closed door in another room,
Almonte heard "pushing and shoving" and the employees trying to
get one of the men out of the club. (Almonte: Tr. 650-51).
Almonte then heard Salcedo say something like "`[p]ut the gun
away.'" (Almonte: Tr. 651, 652). Almonte heard the front door
close and people leaving the apartment. (Almonte: Tr. 653). At
some point, Almonte heard four or five shots. (Almonte: Tr. 654).
Following the shooting, Almonte did not see Salcedo or hear his
voice. (Almonte: Tr. 654-55). Almonte left through the lobby of
the building and saw a dead man who had been shot. (Almonte: Tr.
Lopez testified that she was sitting in the living room of the
apartment when she heard a woman named Ramona "screaming" at Jose
from one of the bedrooms. (See Lopez: Tr. 362, 366-67). Ramona was "swearing" at Jose and he was "talking back
to her, arguing with her." (Lopez: Tr. 367-68). Gregory, whom
Lopez described as "very drunk," was also seated in the living
room. (See Lopez: Tr. 365-66). Ramona approached Salcedo and
told him that Jose had spit in her face. (Lopez: Tr. 368). After
Salcedo and Jose "started arguing," Gregory and Hiraldo got
involved as well. (See Lopez: Tr. 369). Hiraldo was attempting
to stop the argument. (Lopez: Tr. 369-70). Salcedo pushed Jose
out the door and told him he had to go. (See Lopez: Tr.
370-71). Hiraldo did the same to Gregory. (See Lopez: Tr. 371).
The four men went outside the apartment and walked downstairs to
the hallway on the first floor of the building. (Lopez: Tr.
371-73). Salcedo was walking behind Jose while holding a gun in
his right hand. (See Lopez: Tr. 374-76). Neither Gregory nor
Jose had anything in their hands. (See Lopez: Tr. 377). Lopez
followed them as they walked downstairs. (Lopez: Tr. 378).
Salcedo pointed the gun at Jose and shot him from approximately
two steps away. (See Lopez: Tr. 386). Lopez saw Jose "bouncing"
and then fall. (See Lopez: Tr. 386). Within seconds Salcedo
started shooting at Gregory, who then ran out of the building.
(See Lopez: Tr. 386-88). As Salcedo shot at Jose and Gregory,
Hiraldo stood there doing nothing. (See Lopez: Tr. 387). Lopez
heard a total of five shots. (Lopez: Tr. 389). Following the
shooting, Lopez ran upstairs to apartment 2C. (Lopez: Tr.
391-92). Salcedo returned to the apartment within approximately
five to ten minutes and told everybody that the club was closed
and that they "had to go." (Lopez: Tr. 392-93). Everybody left
the apartment with the exception of Salcedo, Hiraldo, Lopez and
Zuniga. (See Lopez: Tr. 395). Salcedo told Lopez that she did
not see anything, that "nothing happened downstairs," and he told
everybody what they "had to say when . . . the police come."
(Lopez: Tr. 393, 395-96). Specifically, Salcedo told Lopez that
she should tell police that the men started to "take the gun to" Hiraldo, he told them to "put the gun down,"
and that "he had to shoot." (Lopez: Tr. 396). After having that
conversation with Salcedo, Lopez left and returned to her
apartment. (Lopez: Tr. 397). Approximately 10 to 15 minutes
later, Salcedo knocked on Lopez's door. (Lopez: Tr. 397). Lopez
opened the door and Salcedo asked her to keep his liquor there.
(Lopez: Tr. 398). Although Lopez told Salcedo that she did not
want to keep the liquor, he left it in her apartment anyway.
(Lopez: Tr. 398-99).
Zuniga testified that, while he was at work on the night of
November 6, 1982, he heard an argument at the front door.
(Zuniga: Tr. 582-84). Zuniga saw Salcedo and Hiraldo go to the
front door. (Zuniga: Tr. 584). Salcedo and Hiraldo then left the
apartment. (Zuniga: Tr. 585-86). One minute after Salcedo and
Hiraldo left the apartment, Zuniga heard two shots, one right
after the other. (Zuniga: Tr. 586). Zuniga did not go downstairs
after he heard the shots. (Zuniga: Tr. 586). Approximately 20
minutes later, Salcedo returned to the apartment by himself.
(Zuniga: Tr. 587). Upon returning to the apartment, Salcedo told
Zuniga and Lopez that, "`Nothing is happening. Nothing is going
on.'" (Zuniga: Tr. 587-88). The club then closed for the night.
(Zuniga: Tr. 588).
Hiraldo testified that, while Gregory and Jose were at the
club, Salcedo got Gregory "a girl" and Gregory disappeared into a
bedroom. (See Hiraldo: Tr. 826-28). Jose was making comments to
Hiraldo concerning the price of the club's beer. (See Hiraldo:
Tr. 827). Jose eventually left the club. (See Hiraldo: Tr.
829). Gregory subsequently exited the bedroom and he left as
well. (See Hiraldo: Tr. 829-30). Approximately 20 minutes
later, both men returned to the club. (Hiraldo: Tr. 830). Upon
entering, Gregory asked Jose to pass him a pistol and announced
that there was "`going to be problems'" because "`the woman
didn't bring it out'" for him. (See Hiraldo: Tr. 831). Instead of passing Gregory the
pistol, Jose "put?" the gun to Hiraldo's head and Hiraldo
"screamed to" Salcedo. (See Hiraldo: Tr. 831-32). Salcedo found
a pistol and told Jose that, if he were to shoot Hiraldo, Salcedo
would shoot Gregory. (See Hiraldo: Tr. 832). Salcedo then
pushed towards the door and took the pistol away from Jose.
(See Hiraldo: Tr. 832). A patron who was there then punched
both Gregory and Jose. (Hiraldo: Tr. 832). Jose's gun was in
Hiraldo's hand at that time. (See Hiraldo: Tr. 832). Salcedo
then took Jose and Gregory downstairs, but Hiraldo did not go
with them. (Hiraldo: Tr. 833). Hiraldo "stayed upstairs because
there were some clients there, some customers." (Hiraldo: Tr.
833). Approximately thirty seconds after the men left the
apartment, Hiraldo heard two shots, one right after the other.
(Hiraldo: Tr. 834-35). After hearing the shots, Hiraldo went
downstairs to the lobby. (Hiraldo: Tr. 835). Jose was standing in
the lobby with his hands up in the air and Salcedo, who was
standing approximately five feet away, was pointing a gun at him.
(See Hiraldo: Tr. 835-37). Salcedo told Jose that "[t]hey were
tired of [him] causing all those problems." (See Hiraldo: Tr.
837). Nobody else was in the lobby at that moment. (Hiraldo: Tr.
837). Salcedo then shot Jose in the head. (See Hiraldo: Tr.
837-38). Hiraldo left the building and went to his mother's house
in the Bronx. (Hiraldo: Tr. 838). Before leaving the lobby,
Hiraldo did not see where Salcedo went. (Hiraldo: Tr. 839).
Gregory testified that, upon arriving at 145 Audubon Avenue on
November 6, 1982, he, Jose, and Jesus went up to the second floor
and drank some beers. (Nuez: Tr. 150-51). Jose then went
downstairs. (Nuez: Tr. 151). Gregory and Jesus grew tired of
waiting for Jose and left the club. (Nuez: Tr. 151, 159-60). On
the way out, Jose was coming upstairs and Jose and Gregory
returned to the club while Jesus left. (Nuez: Tr. 152, 160-61).
Upon arriving at the apartment, a man named "Tonito" answered the door, at which point Jose and
Tonito began pointing guns at one another. (Nuez: Tr. 152, 162,
164).*fn2 Gregory testified that Tonito had a .38 "[s]hort
barreled" gun in his hand. (Nuez: Tr. 164). At that point, Tonito
said, "`You left with problems and you've come back looking for
problems.'" (Nuez: Tr. 152, 163-64). Gregory was able to get the
men to lower their weapons. (Nuez: Tr. 152, 164). Tonito then
ordered Gregory and Jose to "`[g]o downstairs and don't look
back.'" (Nuez: Tr. 152. 164). They walked downstairs with Gregory
"in front" and Jose "in back." (Nuez: Tr. 152, 165). Jose turned
his head and was shot. (Nuez: Tr. 152). Gregory looked as well
and he was shot in the back. (Nuez: Tr. 153). Gregory heard only
one shot. (Nuez: Tr. 168). He did not, however, see who fired the
shot. (Nuez: Tr. 175). Gregory saw Jose on the ground. (Nuez: Tr.
168-69). He saw that Jose had been shot "in his face." (Nuez: Tr.
169). While he was looking at Jose, Gregory "felt hurt," so he
went to a nearby building where he told the neighbors that his
brother was dead. (Nuez: Tr. 169-70). Those people took Gregory
to Columbia Presbyterian Medical Center, where he was treated for
a wound to his upper abdomen and a liver injury. (Nuez: Tr. 170;
see Flomenbaum: Tr. 279; Hildebrandt: Tr. 50-51). He was
hospitalized for 19 days. (Nuez: Tr. 170). While in the hospital
he learned that Jose was dead. (Nuez: Tr. 171).
2. The Investigation
At approximately 3:00 a.m. on November 7, 1982, Officer David
Babick of the New York City Police Department ("NYPD") arrived at
145 Audubon Avenue. (Stipulated Facts ("SF"): Tr. 225). Officer
Babick observed Jose lying face down in the lobby with a single gunshot wound to the left temple. (SF: Tr. 225). Officer Babick
observed two spent bullets at the crime scene. (SF: Tr. 225). One
spent bullet was recovered from inside the lobby approximately
five feet from Jose's body. (SF: Tr. 225-26). The other spent
bullet was recovered outside the building approximately six
inches from the bottom step outside the front door of 145 Audubon
Avenue. (SF: Tr. 226). Officer Babick vouchered the two spent
bullets. (SF: Tr. 226).
"Night Watch" detectives responded to the shooting at 145
Audubon Avenue at approximately 3:00 a.m. on November 7, 1982,
and canvassed the building seeking information concerning the
shooting. (Hildebrandt: Tr. 49-51). At this same time, the police
were "knocking on everybody's door" and they came to Lopez's
apartment "asking questions." (Lopez: Tr. 400). Lopez told the
police that she was at the club until approximately 3:00 a.m. and
that she saw and heard nothing. (Lopez: Tr. 449-50). Later that
same morning, Lopez spoke with detectives at the police station
for approximately two hours. (Lopez: Tr. 400-01, 418). She told
the police that, after Jose pulled a gun, Hiraldo also pulled out
a gun. (See Lopez: Tr. 452). Lopez also told the police that
Salcedo, Hiraldo, and Zuniga escorted Jose and Gregory out of the
apartment (see Lopez: Tr. 452), and that she heard five shots
after the men left the apartment. (Lopez: Tr. 459). Shortly after
that, Salcedo and Hiraldo returned to the apartment. (Lopez: Tr.
At approximately 8:00 a.m. on November 7, 1982, Detective Harry
Hildebrandt of the 34th Precinct was assigned to investigate the
homicide at 145 Audubon Avenue. (Hildebrandt: Tr. 49-50).
Detective Hildebrandt arrived at 145 Audubon Avenue at
approximately 11:00 a.m. and went to apartment 2C. (Hildebrandt:
Tr. 59-60). Detective Hildebrandt knocked at the door and Salcedo answered. (Hildebrandt: Tr. 60). Salcedo introduced
himself as "Tony Pena" and he and Detective Hildebrandt spoke for
approximately five minutes inside the apartment. (See
Hildebrandt: Tr. 61, 64). Zuniga was also present in the
apartment. (Hildebrandt: Tr. 62). Zuniga and Salcedo voluntarily
accompanied Detective Hildebrandt to the station house.
(Hildebrandt: Tr. 63, 93-94). After interviewing both men,
Detective Hildebrandt informed them that they were "free to
leave" and they left. (Hildebrandt: Tr. 63-65). After speaking
with other witnesses concerning the shooting (see Hildebrandt:
Tr. 65-67), Detective Hildebrandt returned to 145 Audubon Avenue
at approximately 8:00 p.m. looking for Salcedo and Zuniga.
(Hildebrandt: Tr. 68). Detective Hildebrandt was unable to find
either Salcedo or Zuniga at that time. (Hildebrandt: Tr. 68).
Jose's autopsy was performed on November 7, 1982. (Flomenbaum:
Tr. 234). Dr. Mark Flomenbaum, a board-certified pathologist who
worked in the office of the Chief Medical Examiner for the City
of New York, testified concerning the results of the autopsy,
which had been performed by another doctor. (Flomenbaum: Tr. 227,
231-32, 234-36). The autopsy revealed that the cause of Jose's
death was a gunshot wound to the left side of his face.
(Flomenbaum: Tr. 262). The bullet entered "approximately an inch
or so behind the corner of the left eye." (Flomenbaum: Tr. 262).
There was a circle of gunpowder 2½ inches in diameter
"surrounding the entrance wound." (Flomenbaum: Tr. 266). The size
of the circle indicated that the tip of the gun was in the range
of "less than 12 inches" closer to eight or ten inches away
from Jose at the time it discharged. (See Flomenbaum: Tr.
Bullet fragments were also recovered during the autopsy. (See
Flomenbaum: Tr. 268-69). The bullet fragments were then forwarded
to the NYPD's ballistics department. (Flomenbaum: Tr. 269-70). Dr. Flomenbaum concluded that the bullet fragments
recovered from the scene of the crime and the bullet fragments
provided by the medical examiner's office were "fired from the
same gun." (See Koch: Tr. 307-08). Dr. Flomenbaum also
determined that the bullets recovered at the crime scene were
.38-caliber bullets. (Flomenbaum: Tr. 308).
The day after the shooting, Zuniga returned to Trinidad's
fifth-floor apartment at 145 Audubon Avenue. (Zuniga: Tr. 592,
605-06). After leaving the apartment, Zuniga went to meet Salcedo
at a grocery store in Brooklyn. (Zuniga: Tr. 593). At the grocery
store Salcedo told Zuniga that he was going to Puerto Rico "to
stay for . . . a few days." (Zuniga: Tr. 594). Salcedo had bought
a plane ticket for Zuniga to go to Puerto Rico. (Zuniga: Tr.
594-95). They left for Puerto Rico the next day. (See Zuniga:
In the days that followed, Detective Hildebrandt met with a
number of witnesses who were present at the time of the shooting.
On November 10, 1982, Detective Hildebrandt interviewed Gregory
at Columbia Presbyterian Medical Center. (Hildebrandt: Tr.
71-72). During this interview, Detective Hildebrandt showed
Gregory pictures of Salcedo, Hiraldo, and Zuniga to see if he
could identify anyone. (Hildebrandt: Tr. 693-94). Gregory stated
that, prior to the shooting, Salcedo, Hiraldo, and Zuniga pulled
out guns or had guns. (Hildebrandt: Tr. 695). Gregory also told
Detective Hildebrandt that all three men escorted him and Jose
out of the apartment at gunpoint. (Hildebrandt: Tr. 695). On
November 11, 1982, Detective Hildebrandt interviewed Hiraldo at
the 34th Precinct. (Hildebrandt: Tr. 73-74). At that time,
Hiraldo was read his rights and a videotaped statement and
written statement were taken from him. (Hildebrandt: Tr. 74,
104). Detective John Bourges reviewed the case file in 1987 when he
was first assigned to the 34th precinct. (Bourges: Tr. 706-08).
In May 1998, Detective Bourges received word from the authorities
in Puerto Rico that "Tony Pena" was in the town of Ciales, Puerto
Rico. (Bourges: Tr. 715-17). After receiving this communication,
Detective Bourges interviewed several individuals connected to
the case, including Almonte, Gregory Nuez, and Lopez. (See
Bourges: Tr. 717-18). Detective Bourges traveled to Puerto Rico
in September 1998 and went to Ciales with another detective.
(Bourges: Tr. 719-20). Ultimately, they located Trinidad's
mother, who identified Salcedo and Trinidad from photographs.
(Bourges: Tr. 721, 796-97). As a result of the conversation with
Trinidad's mother, the detectives learned that "Tony Pena" also
went by the name "Antonio Salcedo." (Bourges: Tr. 721).
Detective Bourges returned to New York and went to an apartment
building located at 600 West 183rd Street with Detective Daniel
Rodriguez. (Bourges: Tr. 721-22; Rodriguez: Tr. 677-78). Salcedo
was there and agreed to accompany the detectives to the 33rd
precinct. (Bourges: Tr. 722-23, 770; Rodriguez: Tr. 679-80).
The detectives brought Salcedo to a room and read him his
Miranda rights. (Bourges: Tr. 725-30; Rodriguez: Tr. 683-85).
Detective Bourges asked Salcedo if he was known by any other
name, including the name Tony Pena, and he said he was not.
(Bourges: Tr. 730, 738). Salcedo also initially denied having
lived at 145 Audubon Avenue. (Bourges: Tr. 730). Eventually,
however, he admitted to having lived there after Detective
Bourges explained to him that he had a photograph of Trinidad and
Salcedo was reminded that both he and she had previously been
interviewed at the building by the police. (Bourges: Tr. 730-3,
789). Salcedo also denied owning a club. (Bourges: Tr. 731, 738).
Salcedo explained that, on the night of the shooting, "he was asleep at his girlfriend's apartment" on the
sixth floor, and that he "didn't hear anything." (Bourges: Tr.
731). He informed the detectives that this "was all he knew"
about the shooting. (See Bourges: Tr. 731). This conversation
was reduced to writing and signed by Salcedo, Detective Bourges,
and Detective Rodriguez. (Bourges: Tr. 731-32). The written
statement also indicated that Trinidad died in September 1997.
(Bourges: Tr. 736). Detective Bourges then showed Salcedo a
videotaped conversation from November 1982 involving Detective
Hildebrandt, the District Attorney, and Hiraldo. (Bourges: Tr.
738-40). Detective Hildebrandt also explained to him that
"several witnesses . . . had identified him in the building" and
indicated that "he did own the social club." (Bourges: Tr. 738).
Salcedo thereafter conceded that "he did have a social club in
apartment 2C." (Salcedo: Tr. 740). Salcedo explained that he sold
liquor and beer at the club, rented rooms with beds, and that
Lopez, whom he described as his "girlfriend," worked there.
(Bourges: Tr. 744). Salcedo denied knowing or ever having seen
Hiraldo (Bourges: Tr. 740, 744, 790-91), but identified
photographs of himself, Trinidad, Zuniga and Lopez, among others.
(Bourges: Tr. 744). Salcedo recalled that the police came to the
building the night of the shooting and that he told them that he
"had no problem in the club." (Bourges: Tr. 744). This
conversation was also reduced to writing and signed by Salcedo,
Detective Rodriguez, and Detective Bourges. (Bourges: Tr. 741,
At that point, Salcedo agreed to speak with representatives
from the District Attorney's office. (Bourges: Tr. 750). This
interview was videotaped and played for the jury. (Bourges: Tr.
750, 784-86). During the course of this interview, Salcedo
explained to the detectives that his mother's maiden name was
"Pena" and that his father's name was "Salcedo." (See Bourges:
Tr. 753, 805-06). Salcedo denied using the name "Pena." (Bourges:
Tr. 753). Salcedo, however, explained that the reason why he now used his father's
name was because his parents were not married and his father had
finally recognized him. (Bourges: Tr. 806). Salcedo also said
that, after moving out of 145 Audubon Avenue, he lived on St.
John's Avenue in the Bronx. (Bourges: Tr. 756). He also said that
he then moved to Manhattan, where he lived in places located on
Audubon Avenue, 183rd Street, and St. Nicholas Avenue. (Bourges:
Tr. 756-58). When asked by Detective Bourges if he had gone to
Puerto Rico following the shooting or if he ever lived there,
Salcedo denied having done so. (Bourges: Tr. 762, 788). When the
videotaped interview was completed, Salcedo was placed under
arrest. (Bourges: Tr. 786).
Salcedo did not present any evidence at trial.
B. Pre-Trial Singer Hearing
On or about September 29, 1998, Salcedo was indicted for two
counts of Murder in the Second Degree (one count of Intentional
Murder under N.Y.P.L. § 125.25(1) and one count of Depraved
Indifference Murder under N.Y.P.L. § 125.25(2)), one count of
Attempted Murder in the Second Degree, two counts of Assault in
the First Degree, one count of Criminal Possession of a Weapon in
the Second Degree, and one count of Criminal Possession of a
Weapon in the Third Degree. See Answer (annexed to Answer and
Appendix in Support of Answer Opposing Petition for a Writ of
Habeas Corpus, filed February 24, 2005 (Docket #6)
("Appendix")) ("Answer"), ¶ 6; Indictment, undated (reproduced as
Ex. A to Appendix). Prior to trial, Salcedo moved to dismiss the
indictment based on the pre-indictment delay pursuant to People
v. Singer, 44 N.Y.2d 241 (1978). A pre-trial hearing on this issue was held
before the Honorable Bonnie G. Wittner of the New York County
1. Evidence Presented at the Hearing
Detective Bourges testified that in early 1987 he was assigned
to review the November 7, 1982, murder of Jose Nuez. (See
Bourges: H. 7). Detective Hildebrandt was the original detective
assigned to investigate the case, but he had since retired.
(Bourges: H. 7-8).
Shortly after 3:00 a.m. on November 7, 1982, officers on the
scene of the shooting canvassed the building and spoke with
Salcedo in apartment 2C. (Bourges: H. 12). At that time, Salcedo
identified himself as "Tony Pena." (Bourges: H. 12-13). Salcedo
did not provide the "Night Watch" detective with any names other
than "Tony Pena" and "Rafael Enrique." (Bourges: H. 14-15). The
officers did not arrest him at that time. (Bourges: H. 12).
Detective Hildebrandt spoke with Salcedo later that same morning,
initially at apartment 2C (and later on "possibly" at apartment
6F) and then at the 34th Precinct. (See Bourges: H. 13-14). At
the precinct, Salcedo identified himself as "Tony Pena," stated
that his date of birth was November 8, 1947, and indicated that
he lived at 145 Audubon Avenue, apartment 6F. (Bourges: H. 14).
Salcedo did not provide Detective Hildebrandt with any name
besides Tony Pena. (Bourges: H. 15-16). Detective Hildebrandt did
not arrest, fingerprint, or photograph Salcedo at that time.
(Bourges: H. 16).
After Detective Hildebrandt interviewed Salcedo, he located
other witnesses and interviewed individuals "who were present
inside the club at the time of the incident and knew of Tony Pena as well as the cause and reasons for the dispute."
(Bourges: H. 16-17). Later on that evening, Detective Hildebrandt
returned to 145 Audubon Avenue in an attempt to speak to "Tony
Pena," but he was unable to locate him. (Bourges: H. 17-18).
Detective Hildebrandt did interview Trinidad and she stated that
"she had not seen" her husband since that morning. (See
Bourges: H. 18). Detective Hildebrandt learned from Hiraldo that
"Tony Pena" was the person "responsible for the shooting."
(Bourges: H. 20). Hiraldo believed that Pena "had gone to
Brooklyn," but he also indicated that he "may have left the
location in Brooklyn and . . . gone to Puerto Rico." (Bourges: H.
19). Hiraldo supplied Detective Hildebrandt with the address of a
grocery store in Brooklyn where he believed Pena may have been
located. (See Bourges: H. 20). On November 11, 1982, Detective
Hildebrandt went to the grocery store and recovered from a "back
room" clothing "that he believed belonged to either Antonio
Zuniga . . . or Tony Pena." (Bourges: H. 19, 21, 22A-22B).
Detective Hildebrandt obtained a telephone number from an
unidentified source who had a connection with Salcedo's possible
flight to Puerto Rico. (See Bourges: H. 21-22A, 71, 108-09). A
record check was conducted and it was determined that an address
in Puerto Rico corresponded to the telephone number. (Bourges: H.
22A). At that point the NYPD and the authorities in Puerto Rico
began to communicate. (Bourges: H. 22A). The Puerto Rican
authorities provided Detective Hildebrandt with the address of
Trinidad's mother and father. (See Bourges: H. 69, 117-118).
Detective Hildebrandt also requested a subpoena and obtained
Trinidad's telephone records. (Bourges: H. 22A). The telephone
number previously obtained by Detective Hildebrandt appeared on
the records. (See Bourges: H. 21-22A). Detective Hildebrandt began conducting "name checks" through
the Bureau of Criminal Identification ("BCI") using the name
"Tony Pena" and the corresponding date of birth, but these checks
produced negative results. (Bourges: H. 22B). Detective
Hildebrandt had neither a Social Security number nor fingerprints
for the person he knew to be "Tony Pena." (Bourges: H. 22B-22C).
It also came to Detective Hildebrandt's attention during this
time that "Tony Pena" had an additional alias, "Cipriano Vargas."
(Bourges: H. 22C). This name was also run through BCI, but again
produced negative results. (Bourges: H. 22C). Detective
Hildebrandt also ran "address checks" to determine whether a
"Tony Pena" living at 145 Audubon Avenue had been arrested.
(See Bourges: H. 22G). Within a week of the shooting, "a wanted
card was filed for the subject Tony Pena." (See Bourges: H.
22C, 22E). The "wanted card" was filed under the name "Tony Pena"
with the corresponding date of birth. (Bourges: H. 22E). The
"wanted card" indicated that Pena was also known as "Cipriano
Vargas" and "Rafael Enrique." (Bourges: H. 22E). The "wanted
card" was entered into a computer bank used to notify the police
if anyone with a corresponding name or identifying information
was arrested within New York City. (See Bourges: H. 22D-22E,
31-32). In addition, Detective Hildebrandt contacted an agency
called the "Terrorist Task Force" that would place photographs or
posters of the "wanted subject" in airports "for people leaving
the country" to view. (Bourges: H. 22F-22G).
On November 26, 1982, Detective Hildebrandt forwarded to the
Puerto Rico Police Department "a copy of [a] photograph, as well
as the name of Tony Pena." (See Bourges: H. 22E-22F, 112). Also
forwarded to the Puerto Rico Police Department was information
indicating that Pena "may be in the company of [a man] identified
as Antonio Zuniga, as well as [Pena's] relatives . . .,
particularly his common-law family." (Bourges: H. 22E-22F).
Neither Detective Hildebrandt nor any other representative from the NYPD
went to Puerto Rico in an attempt to locate "Tony Pena" at that
time. (Bourges: H. 73-74, 127).
On December 7, 1982, the Puerto Rican authorities sent a
teletype to the NYPD indicating that they had received the
information and that neither Pena nor Zuniga was in their
custody. (Bourges: H. 75-77, 113). The teletype also requested
that an arrest warrant be forwarded. (Bourges: H. 113-14). No
arrest warrant was forwarded. (Bourges: H. 114). There was no
indication that after December 7, 1982, Detective Hildebrandt
made any effort to find out what the authorities in Puerto Rico
were doing or asked them to attempt to locate Pena. (See
Bourges: H. 116, 120).
Detective Hildebrandt was eventually transferred to the
Homicide Task Force and the case was reassigned to two
detectives, one of whom was Detective Aponte. (Bourges: H.
23-24). During 1983, detectives made unsuccessful attempts to
locate Hiraldo and Trinidad at 145 Audubon Avenue. (Bourges: H.
24-25). At that time, the detectives believed that Trinidad had
gone to Puerto Rico and that Pena may have gone there as well.
(Bourges: Tr. 25, 135). After Detective Aponte was assigned to
the case, the file was periodically assessed by detectives in the
34th Precinct. (Bourges: H. 26).
In early 1987 Detective Bourges was assigned to the case.
(Bourges: H. 7). At that time, a photograph of "Tony Pena" was
placed in a "Known Perp book" used at the 34th Precinct.
(Bourges: H. 26). That book "would periodically be shown to
people being debriefed and interviewed in the 34th Precinct
detective squad." (Bourges: H. 26). There was also a "wanted card
file" that was maintained at the 34th Precinct and that file was
"periodically checked." (Bourges: H. 26-27). In 1990, Detective Danny Rodriguez again ran "name checks"
inputting the name "Tony Pena" and the corresponding date of
birth, as well as the names "Cipriano Vargas" and "Rafael
Enrique." (Bourges: H. 27-28). Detective Rodriguez used a data
bank system to track intrastate communications "for persons being
sought for different crimes and warrants." (See Bourges: H.
27-28). A number of other detectives also assisted in the
investigation of this case. (See Bourges: H. 28). In 1991 and
at times thereafter, a "group search" was conducted which
involved inputting various information into a computer system,
including dates of birth and variations on the names "Tony Pena"
and "Rafael Enrique." (Bourges: H. 29-30). The 145 Audubon Avenue
address was also utilized in conducting the "group search," and
"persons that were known to live in that building were also
searched." (Bourges: H. 29).
In October 1994, the 34th Precinct was divided and the 33rd
Precinct was created. (Bourges: H. 30). Detective Bourges was
transferred to the 33rd Precinct. (Bourges: H. 30). Detective
Bourges placed the photograph of "Tony Pena" in the "Known Perp
book" that was created at the 33rd Precinct. (Bourges: H. 31).
After the 33rd Precinct was created, Detective Bourges conducted
"[n]ame checks" in an attempt to locate "Tony Pena" by utilizing
a variety of different data banks. (Bourges: H. 32). In 1994,
there was still a "wanted card" out for "Tony Pena." (Bourges: H.
31). Because Detective Bourges "was working on this investigation
and all leads, at that time, attempting to identify Tony Pena had
met with negative results," he cancelled the card in May 1995 and
did not reissue it. (Bourges: H. 60, 61). Nonetheless, Detective
Bourges "continuously" checked for any arrests of an individual
named "Tony Pena" as part of "maintaining the homicide folders
and wanted folders." (Bourges: H. 61-62). In 1997, Detective Bourges was in contact with a member of the
Violent Fugitive Task Force located in San Juan, Puerto Rico.
(Bourges: H. 34). At that time, Detective Bourges forwarded to
one of the members of that unit the information he had concerning
"Tony Pena" and the address he had for him in Ciales, Puerto
Rico. (Bourges: H. 34). By letter dated December 8, 1997,
Detective Bourges wrote the FBI identifying the circumstances of
the shooting, the individual being sought, his aliases, the name
of his wife and children, and his address, and requested
"domestic police cooperation." (Bourges: H. 63, 168-69).
In 1998, Detective Bourges ran a "High Incident Drug
Trafficking Area" ("HIDTA") search for "Tony Pena" and the
witnesses in this case. (Bourges: H. 34-35). HIDTA was a search
facility "created for local authorities that . . . accesse[d]
federal data banks." (Bourges: H. 35). Although the HIDTA search
assisted in locating witnesses, it did not successfully locate
"Tony Pena." (Bourges: H. 36).
In May 1998, Detective Bourges was contacted by the
Extraditions Unit of the Puerto Rico Police Department and "was
informed . . . that a person they believed to be Tony Pena under
the name of Cipriano Vargas was in Ciales." (Bourges: H. 36-37).
In light of his communications with the authorities in Puerto
Rico, Detective Bourges "stepped up the effort to locate the
witnesses involved in the homicide" and located the majority of
the witnesses. (Bourges: H. 37). Based on his interviews with
these witnesses, Detective Bourges "made arrangements to go to
Puerto Rico." (Bourges: H. 37).
In September 1998, Detective Bourges went to Puerto Rico.
(Bourges: H. 170). Upon arriving, Detective Bourges went to the
address contained in his folder and interviewed the woman who
lived there. (See Bourges: H. 66-67, 170-72). The woman told
Detective Bourges that she had lived there for 37 years and that she had "never
heard of" "Tony Pena." (Bourges: H. 172-73). When Detective
Bourges showed the woman a picture of "Tony Pena," she indicated
that she did not know him. (Bourges: H. 173). The woman did,
however, recognize Trinidad from a picture that was shown to her.
(Bourges: H. 173). The woman informed Detective Bourges that
Trinidad was dead and told him where Trinidad's mother lived.
(Bourges: H. 173). Bourges located Trinidad's mother and she
confirmed that Trinidad had passed away in 1997. (Bourges: H.
170). Trinidad's mother informed Detective Bourges that "Tony"
went by the name "Tony Salcedo" or "Antonio Salcedo" and that she
did not know him by the name "Tony Pena." (Bourges: H. 39, H.
170-71). Prior to this time, Detective Bourges had never heard
"Tony Pena" referred to as "Antonio Salcedo." (Bourges: Tr.
39-40). Trinidad's mother believed that Salcedo was living in
Boston. (Bourges: H. 39). Upon learning this information,
Detective Bourges, while in Puerto Rico, accessed the same data
banks that he had been accessing throughout the investigation and
inputted the name "Antonio Salcedo" with the same date of birth.
(Bourges: H. 40-42). Detective Bourges discovered that the name
"Antonio Salcedo" was Salcedo's "only name" and that there was no
association between Salcedo and the name "Tony Pena." (Bourges:
H. 40). Detective Bourges obtained Salcedo's photograph, criminal
history, and current address. (Bourges: H. 40). Salcedo's arrest
record revealed that he had never been arrested under the names
"Tony Pena," "Rafael Enrique," or "Cipriano Vargas." (Bourges: H.
47-48). Although Salcedo was arrested using two other aliases,
neither of the names were known to Detective Bourges nor did the
aliases resemble the names Tony Pena, Rafael Enrique, or Cipriano
Vargas. (Bourges: H. 48). Detective Bourges rearranged his flight
schedule so that he could leave the following morning. (Bourges:
H. 42). Upon returning to New York, Detective Bourges compared the
photograph of Salcedo with the photograph of "Tony Pena" and
determined that they were "one and the same" individual.
(Bourges: H. 42-43). On September 11, 1998, Detective Bourges and
Detective Rodriguez went to Salcedo's residence at West 183rd
Street in Manhattan. (Bourges: H. 43-44). Upon meeting the
detectives, Salcedo informed them that his name was Antonio
Salcedo. (Bourges: H. 44). Salcedo accompanied the detectives to
the 33rd Precinct. (Bourges: H. 44). At the precinct, Salcedo
told detectives that the only name he ever used was Antonio
Salcedo. (Bourges: H. 44-45). Upon being shown the photograph
utilized throughout the investigation, however, Salcedo admitted
that "he was known as Tony Pena" and that "the photograph was
him." (Bourges: H. 45-47). Salcedo also informed the detectives
that he never lived in Puerto Rico and that he had lived in
apartments in Manhattan that were in the vicinity of 145 Audubon
Avenue and in the Bronx beginning in 1982 or 1983. (See
Bourges: H. 161-62, 216). Salcedo was placed under arrest after
the police took a statement from him. (Bourges: H. 47).
On October 19, 1998, Detective Bourges spoke with Trinidad's
daughter, Aida Gelis Melezio. (Bourges: H. 213, 215). She
informed him that she and her mother moved from New York to
Puerto Rico when she was "very young," that they stayed there for
"a period of time," and that she, her mother, and Salcedo moved
back to New York and lived in the Bronx. (Bourges: H. 215-16). At
some point, Salcedo may have moved "for a short time" to the
Dominican Republic before returning to the Bronx. (See Bourges:
Detective Bourges also interviewed Cortez in 1998. (Bourges: H.
211). Cortez informed Detective Bourges that, after November 7,
1982, she went to Puerto Rico and discovered that Salcedo "had a
place of his own." (Bourges: H. 211-13). Cortez said that Salcedo
returned to New York after leaving Puerto Rico. (Bourges: H. 212). She also
stated that Salcedo's family in Brooklyn had moved to Boston.
(Bourges: H. 212).
In November 1998, Detective Bourges located Zuniga. (Bourges:
H. 49). Zuniga informed him that, for a period of time following
the shooting, Salcedo stayed at a grocery store in Brooklyn.
(Bourges: H. 49). Zuniga and Salcedo then "took a plane" to
Puerto Rico, "where they stayed with the in-laws of their wives
or common-law wives . . . at that time." (Bourges: H.
49).*fn4 They stayed in Puerto Rico for approximately one
month and, during that time, Salcedo changed his appearance by
cutting his hair and "trimm[ing] off" his beard and mustache.
(Bourges: H. 49-50). Zuniga and Salcedo were joined by their
wives while in Puerto Rico. (Bourges: H. 50). Zuniga and Salcedo
then returned to New York. (Bourges: H. 50). Other witnesses
interviewed by Detective Bourges confirmed that Salcedo and
Zuniga had gone to Puerto Rico in November 1982. (Bourges: H.
51). The witnesses also told Detective Bourges that Salcedo was
known by the name "Tony Pena" until 1982. (Bourges: H. 51).
Salcedo presented no evidence at the hearing.
2. The Court's Decision
In a decision dated April 13, 1999, Justice Wittner denied
Salcedo's motion to dismiss the indictment. See Order, dated
April 13, 1999 ("April 13 Order"), at 12. Under the heading
"Findings of Fact," the court, relying upon the testimony of
Detective Bourges, described the events surrounding the November
7, 1982, shooting as well as the events following the shooting that resulted in the identification and apprehension of Salcedo
in September 1998. See id. at 2-7. Under the heading
"Conclusions of Law," the court noted that the test for
determining whether a defendant's "right to a prompt prosecution"
was violated was set forth in People v. Taranovich,
37 N.Y.2d 442 (1975), which required that five factors be considered: the
length of the delay, the reason for the delay, the seriousness of
the pending charge, the extent of actual prejudice to the
defendant, and the length of any incarceration of the defendant.
April 13 Order at 8-9.
The court began by rejecting Salcedo's claim that he was
prejudiced by the delay because "his alleged alibi witness, his
common law wife, is now deceased." See id. at 9-10. The court
rejected Salcedo's claim because, absent a showing of good cause,
he was precluded from raising an alibi defense at trial due to
his failure to serve "alibi notice," id. at 9 (citing
N.Y.C.P.L. ("CPL") § 250.20(1)), which under New York law must
include, inter alia, the place or places where the defendant
claims to have been at the time in question and the names "of
every . . . alibi witness upon whom he intends to rely." See
CPL § 250.20(1). The court also found that Salcedo was unable to
establish prejudice because
when [he] was interviewed immediately after the
crime, he claimed he was either in apt. 2C or apt. 6F
when the Nuez brothers were shot. He never mentioned
his common law wife, Aida Trinidad, nor any
connection to apt. 5E where she lived at the time.
When Aida Trinidad was interviewed shortly after the
incident, in November 1982, she did not mention that
defendant was with her the night of the incident. In
any event, numerous witnesses to the events of that
night are available, including Antonio Zuniga, the
surviving victim, Gregorio Nuez and Marilyn
[Lopez]. . . . Any possible prejudice to defendant
from the delay was caused by the defendant's flight
and, in any event, is slight and does not rise to the
level of `substantial prejudice' implicating denial of
the right to a fair trial.
Id. at 9-10 (citations omitted). The court also found that the length of the delay did not
warrant dismissal of the indictment. See id. at 10-11. In
addressing this issue, the court stated as follows:
Here, the record establishes that the defendant
purposefully attempted to avoid apprehension or
prosecution from the beginning of the investigation.
When first interviewed a few hours after the
shootings, he never provided the police with the
apartment of his common law wife nor with the name
Antonio Salcedo. He fled the area of the crime almost
immediately, first going to Brooklyn and then, within
a week, to Puerto Rico. Needless to say, he never
informed the police of his location nor of the fact
that he had a wife through whom they could reach him.
The record reveals that this defendant never again
used any of the aliases he had given the police.
Rather, he used six other names, three of which were
completely different from one another and all of
which were completely different from the names he had
given to the police investigating the instant crimes.
After returning to New York, he never again listed
145 Aud[u]bon Ave. as his address.
Id. at 11 (emphasis in original). As a result, the court found
that "further efforts might, although by no means . . .
necessarily . . . [would] have been successful" in locating
Salcedo. Id. Thus, the court concluded that, under the
circumstances of this case, there was no reason to dismiss the
C. Verdict and Sentencing
On January 25, 2000, a jury convicted Salcedo of one count of
Murder in the Second Degree under N.Y.P.L. § 125.25(2), one count
of Criminal Possession of a Weapon in the Second Degree under
N.Y.P.L. § 265.03, and one count of Criminal Possession of a
Weapon in the Fourth Degree under N.Y.P.L. § 265.01(1). (Tr.
1155-57). The jury, however, also found Salcedo not guilty of the
following charges listed in the indictment: Murder in the Second
Degree under N.Y.P.L. § 125.25(1), Attempted Murder in the Second
Degree under N.Y.P.L. §§ 110.00, 125.25(1), Assault in the First
Degree under N.Y.P.L. § 120.10(1), Assault in the First Degree
under N.Y.P.L. § 120.10(3), and Criminal Possession of a Weapon
in the Third Degree under N.Y.P.L. § 265.02(4). (Tr. 1155-57). On February 15, 2000,
Salcedo was sentenced to concurrent prison terms of 23 years to
life on the murder count, 5 to 15 years on the second-degree
weapons possession count, and one year on the fourth-degree
weapons possession count. (See S. 31).
D. Salcedo's Direct Appeal
Represented by new counsel, Salcedo appealed his conviction to
the Appellate Division, First Department, raising the following
three grounds for relief:
Point One: The indictment against . . . [defendant]
should be dismissed, because the 16-year delay in
arresting him and bringing him to trial prevented him
from interposing an alibi defense and violated his
federal and state constitutional rights to due
process of law and a fair trial.
Point Two: Defendant's conviction for depraved
indifference murder should be reversed and this count
of the indictment dismissed.
Point Three: This case should be remanded to the
trial court for re-sentencing or, in the alternative,
[defendant's] sentence should be reduced in the
interest of justice, because the prosecutor
improperly argued that [defendant] had committed an
intentional murder, a crime of which [he] was
acquitted by a jury of his peers.
Brief for Defendant-Appellant, undated (reproduced as Ex. B to
Appendix) ("Pet. App. Brief"), at 23, 31, 50.
On April 1, 2003, the Appellate Division unanimously affirmed
the conviction. People v. Salcedo, 304 A.D.2d 309, 309 (1st
Dep't 2003). With respect to the first claim, the Appellate
Division held that "[t]he nearly 16-year delay in commencing
defendant's prosecution, although lengthy, does not warrant
dismissal of the indictment." Id. The court also rejected
Salcedo's second claim, concluding that the verdict "was
supported by legally sufficient evidence and was not against the
weight of the evidence." Id. The Appellate Division also held
that there was "no basis for reduction of defendant's sentence." Id. at 310.
Finally, the court stated that it had "considered and rejected
defendant's remaining arguments." Id.
By letter application dated April 14, 2003, Salcedo sought
leave to appeal to the New York Court of Appeals. See Letter
from Tina L. Mazza, Esq. to the Hon. Judith S. Kaye, dated April
14, 2003 (reproduced as Ex. F to Appendix). On August 5, 2003,
Salcedo's application for leave to appeal was denied. People v.
Salcedo, 100 N.Y.2d 598 (2003).
E. Salcedo's Habeas Petition
Salcedo timely submitted this petition for writ of habeas
corpus on October 8, 2004. Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody, filed October
8, 2004 (Docket #2) ("Petition"). Salcedo's petition raises the
same three grounds for relief that were set forth in his brief to
the Appellate Division. See id. at 4. Salcedo's petition
indicates that he is relying on the facts and arguments raised on
direct appeal in support of his claim for habeas relief. See
id. Respondent opposed the petition in papers submitted
February 24, 2005. See Memorandum of Law in Support of Answer
Opposing Petition for a Writ of Habeas Corpus, filed February 24,
2005 (Docket #7) ("Resp. Mem."); Answer; Appendix. Salcedo filed
reply papers on July 20, 2005. See Supplement Argument, filed
July 20, 2005 (Docket #14) ("Supp. Argument").*fn5 II. LAW GOVERNING REVIEW OF HABEAS CORPUS PETITIONS
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."). 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).
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.
Respondent argues initially that Salcedo's petition must be
dismissed because Salcedo had the burden "to demonstrate the
unreasonableness of the state courts' factual and legal
determinations" and that he has failed to do so. Resp. Mem. at
13. According to respondent, because Salcedo "has simply listed
the state court claims in his petition" and relied on the
arguments in his state court brief in support of his claims for
habeas relief, his petition should be denied since he "cannot
prevail simply by asking this Court to review the claims that he
made in his state court brief without making any attempts to satisfy his
burden." Id. at 14. The Court rejects this argument in light of
its obligation to give Salcedo's submissions a liberal
construction. See Williams v. Kullman, 722 F.2d 1048, 1050
(2d Cir. 1983) ("[D]ue to the pro se petitioner's general
lack of expertise, courts should review habeas petitions with a
lenient eye, allowing borderline cases to proceed.") (citation
omitted); accord Baker v. Bennett, 235 F. Supp. 2d 298, 309
n. 16 (S.D.N.Y. 2002). Accordingly, we now address each of the
claims raised by Salcedo.
A. Pre-Indictment Delay
The Appellate Division, in rejecting Salcedo's claim that the
pre-indictment delay violated his constitutional rights, reasoned
The nearly 16-year delay in commencing defendant's
prosecution, although lengthy, does not warrant
dismissal of the indictment inasmuch as the original
charge against defendant was extremely serious,
defendant was not incarcerated during most of the
period of delay and has made no showing of specific
prejudice attributable to the delay, and since the
delay resulted from inability to locate defendant
despite reasonably diligent efforts frustrated by
defendant's use of a false name, false address and
flight to Puerto Rico.
Salcedo, 304 A.D.2d at 309 (citations omitted). 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 (citations and internal quotation marks
omitted). Accordingly, the deferential standard of review
articulated in 28 U.S.C. § 2254(d) applies to the Court's review
of this claim.
"It is indisputable that the Sixth Amendment speedy trial right
does not apply to pre-indictment delay." United States v.
Elsbery, 602 F.2d 1054, 1058 (2d Cir.) (citing United States v. Marion, 404 U.S. 307 (1971)), cert. denied, 444 U.S. 994
(1979); see also Schurman v. Leonardo, 768 F. Supp. 993,
998 (S.D.N.Y. 1991) ("Delay between the crime and the indictment
is wholly irrelevant under the Speedy Trial Clause of the
Sixth Amendment.") (citing Marion, 404 U.S. at 320). Rather, a claim
based on pre-indictment delay rests upon the Due Process Clause.
See United States v. Lovasco, 431 U.S. 783, 789 (1977);
Marion, 404 U.S. at 324; Elsbery, 602 F.2d at 1059; see
also United States v. Alameh, 341 F.3d 167, 176 (2d Cir.
2003) ("Pre-indictment delay can constitute a violation of the
Due Process Clause of the Fifth Amendment.") (citation omitted).
Due process is implicated, however, only where the
prosecution's actions violate "fundamental conceptions of justice
which lie at the base of our civil and political institutions and
which define the community's sense of fair play and decency."
Lovasco, 431 U.S. at 790 (citations and internal quotation
marks omitted). To sustain a due process violation based upon
pre-indictment delay, a defendant must show "actual prejudice to
[his] right to a fair trial [a]nd unjustifiable Government
conduct." Elsbery, 602 F.2d at 1059 (citing cases); accord
Alameh, 341 F.3d at 176; Figueroa v. Donnelly, 2003 WL
21146651, at *5 (S.D.N.Y. May 16, 2003); United States v. Long,
697 F. Supp. 651, 657 (S.D.N.Y. 1988). The delay caused by the
prosecution must have been "an intentional device to gain a
tactical advantage." Denis v. Upstate Corr. Facility,
361 F.3d 759, 760 (2d Cir. 2004) (citing Marion, 404 U.S. at 324);
accord United States v. Santos, 1999 WL 4912, at *4 (S.D.N.Y.
Jan. 5, 1999); United States v. Wallace, 1998 WL 401534, at *12
(S.D.N.Y. July 17, 1998). A petitioner seeking to sustain a claim
that his right to due process was violated "must carry a heavy
burden." Elsbery, 602 F.2d at 1059; accord United States v.
Cornielle, 171 F.3d 748, 752 (2d Cir. 1999); Georgison v.
Donelli, 2005 WL 1384015, at *6 (S.D.N.Y. June 9, 2005). Salcedo is unable to
satisfy this burden with respect to either element of the test.
1. Actual Prejudice
"[T]he applicable statute of limitations . . . is . . . the
primary guarantee against bringing overly stale criminal
charges." Marion, 404 U.S. at 322 (internal quotation marks and
citation omitted) (some alterations in original); accord
United States v. Birney, 686 F.2d 102, 105 (2d Cir. 1982);
United States v. Rubin, 609 F.2d 51, 66 (2d Cir. 1979),
aff'd, 449 U.S. 424 (1981). Thus, "[i]f the indictment is
brought within the applicable statute of limitations, there is a
presumption that the defendant was not prejudiced." Georgison,
2005 WL 1384015, at *7 (citing cases). Because there is no
statute of limitations for second degree murder, see CPL §
30.10(2)(a); N.Y.P.L. § 125.25, the law presumes there has not
Salcedo claims he suffered prejudice as a result of the nearly
16-year delay between the time the crime was committed and his
arrest because the "lengthy delay deprived [him] of a potential
alibi witness his wife, Aida Trinidad, who died the year before
[his] arrest." Pet. App. Brief at 24 (citation omitted); accord
Petition at 4 (stating that the delay "prevented him from
interposing an alibi defense"); Reply Brief for
Defendant-Appellant, undated (reproduced as Ex. D to Appendix)
("Pet. App. Reply Brief"), at 5 (stating that "extreme delay in
prosecuting . . . Salcedo resulted in the loss of his alibi
defense when his wife died the year before his arrest") (citation
omitted). Salcedo claims that, in light of "the close
relationship between [himself] and Ms. Trinidad, it is possible
that Ms. Trinidad was with [him] in apt. 6F, where [he] lived, at
the time of the crime." Pet. App. Brief at 25. He adds that,
because Trinidad was pregnant at the time of the shooting, he
"might have hesitated to involve her in this investigation, at
least until it appeared he might be accused of the crime himself." Id. Salcedo
contends that, "[g]iven the closeness of this case, it may well
be that, had Aida Trinidad testified on [his] behalf to establish
his alibi, the verdict would have been one of outright
acquittal." Id. at 26-27.
Courts have noted that "[t]he standard for demonstrating actual
prejudice is fairly stringent." Figueroa, 2003 WL 21146651, at
*5 (citation and internal quotation marks omitted). In fact,
courts have held that "[t]he assertion that a missing witness
might have been useful does not show the `actual prejudice'
required by" Supreme Court precedent. United States v. Galardi,
476 F.2d 1072, 1075 (9th Cir.), cert. denied, 414 U.S. 839
(1973); see also Rubin, 609 F.2d at 66 ("missing peripheral
witnesses are not enough" to show actual prejudice) (citation
omitted); Georgison, 2005 WL 1384015, at *7 ("Merely asserting
missing witnesses . . . is not enough to show actual prejudice.")
(citing cases). Here, Salcedo has not specified what his alibi
defense would have been had Trinidad been available to testify.
Nor does Salcedo state what the content of Trinidad's testimony
might have been had she been available to testify. Salcedo does
not even specify how any potential testimony from Trinidad would
have exculpated him except to state that "it is possible" that he
was with Trinidad in apartment 6F at the time of the crime. Pet.
App. Brief at 25. This sort of speculation on the part of Salcedo
particularly regarding a matter about which he has personal
knowledge is insufficient to sustain his burden of proving
actual prejudice. See Birney, 686 F.2d at 105-06 ("[T]he
proof of prejudice must be definite and not speculative.")
(citing cases); accord United States v. Ungar,
648 F. Supp. 1329, 1333 (E.D.N.Y. 1986); cf. Schurman,
768 F. Supp. at 997, 999 (petitioner did not show actual prejudice based upon
12-year delay between murder and indictment despite his
suggestion "that he might have been able to present an alibi
defense" had the delay not occurred since the petitioner's
allegations were "too speculative to warrant the extreme sanction of
dismissal of the indictment"); see also United States v.
Gotti, 2004 WL 32858, at *4 (S.D.N.Y. Jan. 6, 2004) (defendants
unable to satisfy their "heavy burden" of establishing actual
prejudice based on unavailability of witnesses because defendants
did not provide "any details as to how the witnesses would
exculpate them"); United States v. Harrison, 764 F. Supp. 29,
33 (S.D.N.Y. 1991) (petitioner not prejudiced due to "his
inability to call a witness who has died" where there was "no
showing . . . that [the witness] would have or could have
testified in a way helpful to defendant") (footnote omitted);
Long, 697 F. Supp. at 657 (defendant unable to establish
prejudice based on death of potential witness because defendant's
"entire claim of prejudice is based on conjecture" where
defendant did not know whether the witness's presence "would have
helped or hindered his case" and there was "no way of knowing
what [the witness's] testimony would have been").
2. Tactical Advantage
Salcedo contends that the reason for the delay was "a
thoroughly inadequate, incomplete police investigation at the
time of the shooting." Pet. App. Brief. at 27; see also Pet.
App. Reply Brief at 3 ("[T]he sixteen-year delay in arresting . . .
Salcedo was unjustifiable, in that it was directly attributable
to a conspicuous lack of effort on the part of the NYPD.").
Salcedo argues that, although "Detective Hildebrandt had obtained
evidence both that . . . Salcedo had relatives through his wife
in Puerto Rico, and that he might have gone there after the
shooting," it was not until "nearly sixteen years after the
shooting that any member of the NYPD traveled to Puerto Rico to
search for [him]." Pet. App. Brief at 27-28 (citations omitted).
Salcedo claims that the police could have discovered the same
information that was discovered by Detective Bourges in his visit
to Puerto Rico "sixteen years earlier, by calling Aida Trinidad,
or traveling to Puerto Rico at that time, or simply by dusting for [his] fingerprints in
any of the three apartments [he] regularly utilized." Id. at 28
(citation omitted). According to Salcedo, "there is simply no
good excuse for the police failure to make reasonable efforts to
apprehend [him]." Id. at 30.
None of these arguments establishes that the prosecution
"intentionally used delay to gain unfair tactical advantage."
Alameh, 341 F.3d at 176 (citing cases). Rather, Salcedo's
arguments amount to nothing more than an attack on the alleged
lack of diligence with which the NYPD pursued its investigation
of the Jose Nuez murder. These arguments fail to demonstrate that
the NYPD's lack of diligence was intentional or brought about by
an improper motive. See United States v. Lai Ming Tanu,
589 F.2d 82, 89 (2d Cir. 1978) (defendant failed to show that the
delay was intentional on the part of the prosecution despite an
"extraordinary lack of liaison between state and federal
prosecutors" where "there was nothing sinister about the
breakdown in communications"); United States v. Baxt,
74 F. Supp. 2d 425, 430 (D.N.J. 1999) (defendant failed to show
"intentional delay on the part of the Government" where "the
preindictment delay . . . was the product of a lack of diligence
. . . and not some improper motivation"); Schurman,
768 F. Supp. at 999 (no evidence of "governmental misconduct" where the
detective investigating the case "was careless in not pursuing
the lead as diligently as he might have"); see also United
States v. Oliver, 683 F. Supp. 35, 41 (E.D.N.Y. 1988) (motions
to dismiss the indictment on due process grounds denied even
though "the . . . prosecution of th[e] case was anything but
diligent"). Because Salcedo "put forth no evidence that the
Government engaged in any deliberate actions to delay the
indictment in this case for its own benefit," United States v.
Silberstein, 2003 WL 21488024, at *4 (S.D.N.Y. June 27, 2003),
his claim must fail. In addition, Salcedo has not presented "clear and convincing
evidence," 28 U.S.C. § 2254(e)(1), to rebut the state courts'
factual finding that it was his actions following the shooting,
and not any inaction on the part of the NYPD, that resulted in
the delay. Justice Wittner found that Salcedo purposely attempted
to avoid prosecution by not providing the police with Trinidad's
apartment number or with the name "Antonio Salcedo" when he was
first interviewed "a few hours after the shootings." April 13
Order at 11. The court found that Salcedo "fled the area of the
crime almost immediately," first by going to Brooklyn and then by
going to Puerto Rico "within a week." Id. The court also found
that Salcedo used six aliases, "all of which were completely
different from the names he had given to the police investigating
the instant crimes." Id. Finally, the court determined that,
upon returning to New York, Salcedo "never again listed 145
Aud[u]bon Ave. as his address." Id. The Appellate Division
similarly concluded that the pre-indictment delay resulted from
Salcedo's "use of a false name, false address and flight to
Puerto Rico." Salcedo, 304 A.D.2d at 309 (citations omitted).
These facts, as determined by the state courts, as well as
Salcedo's failure to present any evidence to rebut the state
courts' findings, establish that the pre-indictment delay in this
case was caused by Salcedo himself. See 28 U.S.C. § 2254(e)(1).
In sum, Salcedo has not shown a violation of his due process
rights as a result of the delay in his indictment. Certainly, the
state courts' adjudication of this claim did not unreasonably
apply "clearly established Federal law" or involve "an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d). As
a result, this claim does not provide a basis for habeas relief. B. Sufficiency of Evidence Supporting Conviction
Salcedo contends that he "was denied his due process right to a
fair trial" because he was convicted of "depr[a]ved indifference
murder when [he] was only guilty of an intentional shooting" and
"no other crime." Petition at 4. Salcedo argues that "there was
no reasonable view of the evidence to support submission of a
nonintentional murder count to the jury" and that "it was error
for the trial court to submit this count to the jury over [his]
objection." Pet. App. Brief at 31 (citation omitted); accord
Supp. Argument ¶ 12 ("The trial court committed reversal [sic]
error when the court proceeded with the charge of depraved
indifference when that count was unsupportable as a matter of
law. The trial judge was clearly in error to proceed on both
theories of murder."); id. ¶ 2 ("The crux of petitioner's
argument is the trial judge committed reversal [sic] error by
allowing the petitioner to proceed to trial under Penal Law
125.25(1) and 125.25(2), as those statutes require two different
states of min[d]."). Salcedo argues that the eyewitness accounts
of the shooting support his claim for relief because those
accounts "portray? the shooter as firing upon two unarmed
victims, in the absence of any additional provocation from the
victims, at a point where no one else was in the line of fire."
Pet. App. Brief at 34 (citations omitted). According to Salcedo,
when the eyewitness testimony is considered along with "the
testimony of the coroner, who stated that the gun was six to ten
inches from the victim's head when the bullet was fired about one
inch behind the corner of Jose Nuez's left eye," it demonstrates
that he is guilty of an intentional murder and no other crime.
Id. at 35 (citation omitted). Salcedo argues that, based on the
facts, "the evidence demonstrates the People had proved [his]
conduct was intentional only and therefore [he] is entitled to
have his conviction of depraved indifference homicide set aside."
Supp. Argument ¶ 6 (emphasis in original) (internal quotation mark omitted); see also id. ¶ 11; Pet.
App. Brief at 38, 44; Pet. App. Reply Brief at 7.
Salcedo's sufficiency of the evidence claim was first raised
before the Appellate Division, which held that:
Although defendant argues that the trial evidence to
the effect that he shot the victim in the head at
close range did not permit the jury to convict him,
as it did, of murder on a depraved indifference
theory, the evidence permitted the jury rationally to
harbor doubt as to whether defendant's `conscious
objective [was] to cause [the victim's death].' The
evidence did not exclude and, indeed, permitted the
hypothesis that the homicide was the consequence of
an impulsive shooting, meant perhaps to disable or
frighten the victim, rather than to kill him.
Although defendant, in the same vein, contends that a
homicide resulting from a point-blank shooting such
as the one at issue may not be said to have been
committed with depraved indifference within the
meaning of Penal Law § 125.25(2), the Court of
Appeals has held otherwise. [People v. Sanchez,
98 N.Y.2d 373, 378 (2002).]
Salcedo, 304 A.D.2d at 309-10 (some citations omitted) (some
alterations in original). 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
(citations and internal quotation marks 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.
The Court will now direct its attention to the merits of
Salcedo's sufficiency of the evidence claim.*fn6 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); see also Maldonado v. Scully,
86 F.3d 32, 35 (2d Cir. 1996) ("[A]ll possible inferences that
may be drawn from the evidence must be construed in the
prosecution's favor.") (citing cases). 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 (footnote omitted);
accord Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir.
2002). 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, 86 F.3d at 35 (citing cases);
accord Rosa v. Herbert, 277 F. Supp. 2d 342, 347 (S.D.N.Y.
2003) ("[T]he court must defer to the jury's assessments of the
weight of evidence and the credibility of witnesses.") (citation
omitted); 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 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. Depraved Indifference Murder Under New York Law
a. The Depraved Indifference Statute and Its Interpretation.
In considering the sufficiency of the evidence in support of a
state conviction, the 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 New York law, "[a] person is guilty
of murder in the second degree when . . . [u]nder circumstances
evincing a depraved indifference to human life, he recklessly
engages in conduct which creates a grave risk of death to another
person, and thereby causes the death of another person." N.Y.P.L.
§ 125.25(2). A person is said to act recklessly with respect to a
particular result or to a circumstance
when he is aware of and consciously disregards a
substantial and unjustifiable risk that such result
will occur or that such circumstance exists. The risk
must be of such nature and degree that disregard
thereof constitutes a gross deviation from the
standard of conduct that a reasonable person would
observe in the situation.
N.Y.P.L. § 15.05(3).
The Court of Appeals clarified the basis of depraved
indifference murder in People v. Register, 60 N.Y.2d 270
(1983), cert. denied, 466 U.S. 953 (1984), distinguishing it
from both intentional murder and reckless manslaughter. First,
the court affirmed that "recklessness is the element of mental
culpability required" in the depraved indifference statute and
thus "the focus of the offense is not upon the subjective intent
of the defendant, as it is with intentional murder, but rather
upon an objective assessment of the degree of risk presented by
defendant's reckless conduct." Id. at 277 (citations omitted);
accord People v. Gomez, 65 N.Y.2d 9, 11 (1985) (per curiam);
see also People v. Roe, 74 N.Y.2d 20, 24-25 (1989)
(evidence relating to "the actor's subjective mental state . . . is not pertinent to a
determination of . . . whether the objective circumstances
bearing on the nature of a defendant's reckless conduct are such
that the conduct creates a very substantial risk of death")
(emphasis in original) (citing cases). The Register court
explained that the requirement that conduct occur "`[u]nder
circumstances evincing a depraved indifference to human life'"
refers to "neither the mens rea nor the actus reus" but
rather to "the factual setting in which the risk creating conduct
must occur." 60 N.Y.2d at 276 (alterations in original); see
also Sanchez, 98 N.Y.2d at 381 (it is "defendant's disregard
of the risk [which] elevates and magnifies the degree of
recklessness, itself establishing the required circumstances
evincing depraved indifference to human life").
In People v. Gallagher, 69 N.Y.2d 525, 529 (1987), the Court
of Appeals contrasted the deliberate indifference statute with
the intentional murder statute, holding that
[o]ne who acts intentionally in shooting a person to
death that is, with the conscious objective of
bringing about that result cannot at the same time
act recklessly that is, with conscious disregard of
a substantial and unjustifiable risk that such a
result will occur. The act is either intended or not
intended; it cannot simultaneously be both. Thus,
where the shooting (the act) and the death (the
result) are the same, a defendant cannot be convicted
twice for the murder, once for acting `intentionally'
and once for acting `recklessly.'
(citations omitted); see also People v. Gonzalez,
1 N.Y.3d 464, 468 (2004) ("[A] person cannot act both intentionally and
recklessly with respect to the same result."); People v.
Atkinson, 799 N.Y.S.2d 125, 131 (2d Dep't 2005) ("Ordinarily, a
defendant cannot be guilty of both the intentional and reckless
homicide of the same individual because a defendant cannot intend
to cause a person's death and at the same time consciously
disregard a risk that he or she will succeed in doing so.").
Thus, the defendant's use of a weapon "can never result in
depraved indifference murder when . . . there is a manifest intent to
kill." People v. Payne, 3 N.Y.3d 266, 271 (2004); see also
Atkinson, 799 N.Y.S.2d at 132 ("[A] verdict convicting a
defendant of depraved indifference murder cannot stand where the
evidence at a homicide trial admits of no mens rea other than an
intent to kill.") (citing cases). As a result, "[b]ecause `guilt
of one necessarily negates guilt of the other,' intentional and
depraved indifference murder are inconsistent counts."
Gonzalez, 1 N.Y.3d at 468 (quoting Gallagher,
69 N.Y.2d at 529).
Nonetheless, the Court of Appeals has also stated that a
defendant "could certainly intend one result serious physical
injury while recklessly creating a grave risk that a different,
more serious result death would ensue from his actions."
People v. Trappier, 87 N.Y.2d 55, 59 (1995). Thus, if a
defendant, "intending only to cause serious physical injury, is
aware of the risk that his or her conduct will cause death but
consciously disregards that risk and engages in the conduct
anyhow, thereby deviating grossly from the standard of conduct
that a reasonable person would observe in the situation, and
death results, the defendant is guilty of both an intentional
crime and a reckless one." Atkinson, 799 N.Y.S.2d at 132.
The Appellate Division has recently described the distinction
between intentional and depraved indifference murder as follows:
[A] single homicidal act committed against one
individual can, under certain circumstances,
constitute both an intentional crime and a reckless
one, provided only that the intent harbored by the
perpetrator is other than an intent to kill.
Id. On the other hand, where the defendant acts with the intent
to kill the victim, "he or she may not be convicted of any
reckless crime, either reckless homicide or depraved indifference
murder, in connection with the death." Id.; accord
Gonzalez, 1 N.Y.3d at 467 ("[W]here . . . a defendant's conduct is specifically designed to cause the death
of the victim, it simply cannot be said that the defendant is
indifferent to the consequences of his or her conduct.").
The Court of Appeals has identified several circumstances
coming within the depraved indifference statute that involve the
creation of a risk with respect to multiple people, including
"shooting into a crowd, placing a time bomb in a public place, or
opening the door of the lions' cage in the zoo." Payne,
3 N.Y.3d at 272 (citation and internal quotation marks omitted);
see also Gonzalez, 1 N.Y.3d at 467 (discussing additional
examples such as a defendant who "drives an automobile down a
crowded sidewalk at high speed") (citation omitted). But depraved
indifference murder may also be committed where "a defendant is . . .
indifferent to whether death will likely result from his or
her conduct including with respect to a single victim."
Gonzalez, 1 N.Y.3d at 467; see also Atkinson,
799 N.Y.S.2d at 135 (the risk created by the defendant that is
sufficient to satisfy the depraved indifference standard "may be
to many individuals or to only one") (citations omitted). The
Court of Appeals has identified some examples of conduct falling
within this category, including a defendant who "shoots a
partially loaded gun at a person's chest during a game of Russian
roulette, abandons a helplessly intoxicated person on a snowy
highway at night, or repeatedly beats a young child over a period
of several days." See Gonzalez, 1 N.Y.3d at 467 (citations
In addition, so long as there is "any reasonable view of the
evidence which would permit a jury rationally to acquit of
intentional murder and convict of depraved indifference murder,"
a depraved indifference murder conviction should be upheld. See
Sanchez, 98 N.Y.2d at 384-85. Thus, a New York state appellate
court is "not free to vacate a conviction based on a finding of
recklessness merely because [it] . . . consider[s] that a finding
of intent would have been more plausible in light of the evidence." People v. Tankleff,
199 A.D.2d 550, 554 (2d Dep't 1993), aff'd, 84 N.Y.2d 992 (1994);
accord People v. Crawford, 295 A.D.2d 361, 361-62 (2d Dep't
2002); People v. Flowers, 289 A.D.2d 504, 504 (2d Dep't 2001);
People v. Cole, 233 A.D.2d 247, 247-48 (1st Dep't 1996); see
also 6 N.Y. Prac., Criminal Law § 6:13 (2003) ("Appellate
courts give a great degree of deference to the fact-finder in
this area, upholding depraved indifference murder convictions
even when intentional conduct is the more plausible finding,
provided there is at least some rational basis to support a
finding of recklessness.") (footnote and citations omitted).
b. Recent Depraved Indifference Case Law. In Sanchez, a
2002 decision, the New York Court of Appeals affirmed the
defendant's conviction for depraved indifference murder where the
evidence at trial established that the "defendant with at least
one other person (the eyewitness) in the hallway spontaneously
turned, his arm came from around [a] door, he pointed the gun in
the direction of the victim who was standing behind the door, and
. . . pulled the trigger." 98 N.Y.2d at 386. The Sanchez court
pointing a gun at [the victim], without the slightest
justification, discharging it within not more than 18
inches of his body and striking him in the chest,
would permit a jury rationally to conclude that
defendant demonstrated an indifference to human life
so depraved as to be deserving of the same punishment
as intentional murder; that it was virtually a
knowing, although not intentional, homicide.
Id. at 384 (emphasis in original) (footnote omitted). Thus,
although the court found that "the jury could reasonably have
concluded that defendant's conduct was either reckless and
depraved, or intentional," the court upheld the jury's
determination that defendant acted with depraved indifference
because "there [was] evidence in the record to support that
determination." Id. at 386. The Sanchez court noted that the
fact "[t]hat [defendant's] conduct involved such a high risk of death that it could also lead to the conclusion that it
was intentional supports rather than detracts from characterizing
it as evincing depraved indifference to human life." Id. at
A contrasting situation was presented in People v. Hafeez,
where the defendant helped to lure the victim out of a bar and
his co-defendant, who was waiting outside with a knife concealed
in his sleeve, stabbed the victim in the heart following a
struggle. 100 N.Y.2d 253, 256, 258 (2003). The Court of Appeals
affirmed the Appellate Division's order reversing the defendant's
conviction for depraved indifference murder, concluding that
there was "no valid line of reasoning that could support a jury's
conclusion that defendant possessed the mental culpability
required for depraved indifference murder." Id. at 259. The
court stated that, because the plan devised by the defendant and
his co-defendant "culminated in a single deliberate wound to the
chest that perforated the victim's heart" and resulted in "a
quintessentially intentional attack directed solely at the
victim," the evidence "was consistent with intentional murder as
opposed to depraved indifference murder." Id. at 258 (citation
omitted). The court found Sanchez to be distinguishable because
the facts of that case "involved the sudden shooting of a victim
by a defendant who reached around from behind a door and fired
into an area" where other individuals were present, thereby
creating "a heightened risk of unintended injury." See id. at
In Gonzalez, a 2004 decision, the Court of Appeals dealt with
a case in which the defendant entered a barber shop, pulled out a
gun, and shot the victim in the chest from a distance of six to
seven feet. 1 N.Y.3d at 465. As the victim fell to the floor, the
defendant shot him again in the head. Id. Defendant then leaned
over the victim's body and fired eight more shots into the
victim's back and head. Id. Medical testimony established that
defendant shot the victim once in the chest, once in the face from 6 to 18 inches
away, six times in the back of the head from approximately six
inches away, and twice in the back. Id. at 466. After his
arrest, the defendant told police that he "could not recall the
shooting" because he "had `blanked out' as a result of fear."
Id. The jury acquitted defendant of intentional murder but
convicted him of, inter alia, depraved indifference murder.
The Court of Appeals affirmed the Appellate Division's reversal
of the conviction on the ground that the defendant "was guilty of
an intentional shooting or no other." Id. at 467 (internal
quotation marks and citation omitted). The court stated that
"[t]he only reasonable view of the evidence . . . was that
defendant intentionally killed the victim by aiming a gun
directly at him and shooting him 10 times at close range, even
after he had fallen to the ground." Id. The court found that
"[w]hen defendant shot his victim at close range, he was not
recklessly creating a grave risk of death, but was creating a
virtual certainty of death born of an intent to kill." Id. at
468. The court stated that firing 10 times did not establish
"extremely reckless homicide," but rather, "it confirmed the
[defendant's] intent to kill." Id. The court concluded that,
"because the depraved indifference murder count was unsupportable
as a matter of law, the trial court erred in allowing the jury to
consider it." Id. at 469. The Gonzalez court found Sanchez
to be distinguishable, stating that the defendant's conduct there
consisted of "firing from behind a partly closed door" and
therefore established the defendant's "indifference to the grave
risk of death posed by his actions." See id. at 468.
In Payne, a decision issued later in 2004, the Court of
Appeals reversed the decision of the Appellate Division affirming
the defendant's conviction for depraved indifference murder under
circumstances where "defendant, armed with a 12-gauge shotgun,
went to the deceased's home and shot him at point-blank range" in an area "below the
heart and just above the navel." 3 N.Y.3d at 269. In so doing,
the court stated that "depraved indifference murder may not be
properly charged in the overwhelming majority of homicides that
are prosecuted in New York." Id. at 270. The court also stated
that, while there are "instances in which a killing could qualify
as depraved indifference murder, a point-blank shooting is
ordinarily not one of them." Id. at 270. The court went on to
state that "[a]bsent the type of circumstances in, for example,
Sanchez (where others were endangered), a one-on-one shooting
or knifing . . . can almost never qualify as depraved
indifference murder." Id. at 272 (footnote omitted). The court
made clear that "the more the defendant shoots . . . the victim,
the more clearly intentional is the homicide" and that "[f]iring
more rounds or inflicting more wounds does not make the act more
depravedly indifferent, but more intentional." Id. (emphasis
in original). The court also stated that "if a defendant fatally
shoots the intended victim once, it could be murder, manslaughter
in the first or second degree or criminal negligence . . ., but
not depraved indifference murder." Id.
Payne was recently interpreted by the Second Department in
Atkinson. See 799 N.Y.S.2d at 135-39. In Atkinson, the
defendant fired one shot at the victim from a distance of
approximately four to five feet, striking him in the neck. Id.
at 129. Shortly thereafter, the defendant left the scene of the
crime without firing another shot. Id. The victim was taken to
the hospital where he died of a single gunshot wound to the neck.
Id. The defendant was indicted and tried on charges of, inter
alia, intentional murder and depraved indifference murder.
Id. The jury acquitted the defendant of intentional murder, but
convicted him of depraved indifference murder. Id. The
defendant argued on appeal that his conviction could not stand
because, while the evidence may have demonstrated his intent to kill, it was
insufficient as a matter of law to prove that he acted
The Appellate Division unanimously affirmed the defendant's
conviction on the depraved indifference murder charge. Id. at
139. In so doing, the court stated as follows:
Inasmuch as the defendant fired his small caliber
weapon only once and left the [scene of the crime]
while the deceased was still conscious, speaking, and
surrounded by persons who could, and did, seek
medical assistance for him, a rational jury certainly
could have concluded that the evidence did not
establish that the defendant intended to kill the
deceased. . . . [V]iewing the evidence in the light
most favorable to the prosecution, we conclude that a
rational jury could have found, beyond a reasonable
doubt, that, although the defendant did not intend to
kill the deceased, his act of discharging a weapon in
his direction created a substantial and unjustifiable
risk that the deceased would die, and that the
defendant was aware of that risk and consciously
disregarded it, firing the weapon anyhow, thereby
deviating grossly from the standard of conduct that a
reasonable person would observe in the situation and
causing the deceased's death.
Id. at 133-34 (citations omitted). The court went on to state:
[T]he evidence established that the defendant fired a
shot directly at the deceased from very close range,
striking him in the neck, and then walked away. The
jury concluded that, although the defendant did not
harbor the conscious objective of killing the
deceased, he committed a reckless act that was
imminently dangerous to the deceased and created a
very high risk that he would die, and was so wanton,
so deficient in a moral sense of concern, so devoid
of regard for the deceased's life, and so blameworthy
as to warrant the same criminal liability as would be
imposed if the defendant had killed the deceased
intentionally. We cannot conclude that the evidence
was legally insufficient to support that finding.
Id. at 135 (citing cases).
The Atkinson court also engaged in a lengthy discussion
concerning the effect of Payne on the law of depraved
indifference murder in New York state. The court noted its belief
that the Court of Appeals in Payne did not set forth "a firm
holding that, as a matter of law, a jury is foreclosed from considering a depraved indifference murder charge
whenever a death is the result of a one-on-one confrontation in
which no other persons are endangered." Id. at 136. The court
also found that Payne acknowledged that "a one-on-one,
point-blank shooting involving only one shot and endangering only
the victim can, under certain circumstances, evince a depraved
indifference to the life of the victim." Id. at 137. The
Atkinson court, after warning against an "overly broad
interpretation of Payne," stated as follows:
The Court's observation in Payne that `depraved
indifference murder may not be properly charged in
the overwhelming majority of homicides that are
prosecuted in New York' reflects the reality that, in
most cases, when one person shoots and kills another,
particularly in the course of a one-on-one
confrontation, the shooter acts with the intent to
kill and, when the evidence manifestly supports only
such an intent, no conviction of depraved
indifference murder may be sustained. We do not read
Payne as standing for the broader proposition that,
as a matter of law, a shooting that results in death
may never support a finding that the death was caused
with heightened recklessness rather than with an
intent to kill.
Id. at 138-39 (citation omitted). Thus, the court concluded
that Payne did not cause a "material change" in New York law
given that the Court of Appeals in Payne did not overrule or
repudiate "contrary precedents, including its own." Id. at 138.
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 Salcedo of depraved indifference
murder. Jackson, 443 U.S. at 319 (emphasis in original)
(citation omitted). In making this determination, "a federal
habeas court does not sit to correct a misapplication of state
law, unless such misapplication violates the Constitution, laws,
or treaties of the United States." Ponnapula, 297 F.3d at 182
(citations omitted). The definition of which acts "constitute the elements of a state crime is a question generally answerable only
by the state legislature and state courts, and is antecedent to
the constitutional requirement that the government prove those
elements beyond a reasonable doubt." Id. (citations omitted).
"[I]n determining what facts must be proved beyond a reasonable
doubt the state legislature's definition of the elements of the
offense is usually dispositive." McMillan v. Pennsylvania,
477 U.S. 79, 85 (1986); see also Patterson v. New York,
432 U.S. 197, 211 n. 12 (1977) (the application of the reasonable
doubt standard is "dependent on how a State defines the offense
that is charged in any given case").
Here, the question is not the definition of the state law
offense per se but rather whether a particular set of facts
proven in Salcedo's case meets that undisputed definition. That
question was answered as a matter of State law when the Appellate
Division decided that the evidence presented at Salcedo's trial
satisfied the definition of depraved indifference murder, see
Salcedo, 304 A.D.2d at 309-10 a decision to which this Court
owes great deference. As the Supreme Court has held, "state
courts are the ultimate expositors of state law" and federal
courts "are bound by their constructions except in extreme
circumstances." Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)
(citations omitted); see also 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.").
The only circumstance that would prevent this Court from
accepting the Appellate Division's interpretation of New York law
would arise if the "state court's construction of [the] criminal
statute was so unforeseeable as to deprive the defendant of the
fair warning to which the Constitution entitles him." Bouie v.
City of Columbia, 378 U.S. 347, 354 (1964). This principle has
also been phrased as one of "fair notice." Rabe v. Washington,
405 U.S. 313, 316 (1972) (per curiam); accord Ponnapula,
297 F.3d at 183; Lurie v. Wittner, 228 F.3d 113, 126 (2d Cir. 2000), cert. denied, 532 U.S. 943 (2001). Thus, "due process
bars courts 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
It may be sufficient to satisfy Due Process that a defendant
had notice that his conduct is criminal in a generic sense. See
generally Rogers v. Tennessee, 532 U.S. 451, 459 (2001) ("the
right to fair warning" bears on "the constitutionality of
attaching criminal penalties to what previously had been innocent
conduct") (citing Bouie, 378 U.S. at 351-52, 354-55).*fn8
Obviously, if this is all the Due Process Clause requires, Salcedo surely
had notice that his conduct the night he shot Jose did not
constitute innocent conduct.
But even if Due Process requires that Salcedo have notice that
the depraved indifference statute in particular might be applied
to his conduct, that requirement is met here. The Appellate
Division's decision that the depraved indifference murder statute
reached Salcedo's conduct was not so "unforeseeable," Bouie,
378 U.S. at 354, that Salcedo's right to Due Process was violated
when he was convicted of that offense. The Supreme Court has made
clear that the Due Process Clause places "limitations on the
retroactive application of judicial interpretations of criminal
statutes to those that are `unexpected and indefensible by
reference to the law which had been expressed prior to the
conduct in issue.'" Rogers, 532 U.S. at 461 (quoting Bouie,
378 U.S. at 354); McKee v. Nix, 995 F.2d 833, 836 (8th Cir.)
(question is whether the state courts' "`interpretation of their
own law is so unexpected, so outlandish, that no reasonable
person could have expected it'") (quoting Welton v. Nix,
719 F.2d 969, 970 (8th Cir. 1983)), cert. denied, 510 U.S. 998
The application of the depraved indifference statute to
Salcedo's conduct was neither "outlandish" nor "unexpected and
indefensible." While this Court is unaware of cases decided prior
to Jose's murder in 1982 that dealt with the application of the
depraved indifference statute to factual circumstances similar to
Salcedo's, this absence is of no moment. As the Second Circuit
has held, the due process clause is not violated "simply because
the claim is a matter of first impression." Ponnapula, 297 F.3d at 183. The concept of
"recklessness" admits of a sufficiently large number of factual
circumstances that the statutory text itself should have put
Salcedo on notice that his shooting could be deemed by a jury to
evince a high degree of recklessness. See generally People
v. France, 57 A.D.2d 432, 434 (1st Dep't 1977) (evidence in
support of a depraved mind murder conviction "should require . . .
that the act . . . be `perpetrated with a full consciousness of
the probable consequences' and certainly be one which would
support the observation that `the imminently dangerous act, the
extreme depravity of mind, and the regardlessness of human life,
properly place the crime upon the same level as the taking of
life by premeditated design'") (quoting Darry v. People,
10 N.Y. 120, 148, 158 (1854)) (internal citation omitted) (emphasis
omitted). Thus, the view that the shooting in Salcedo's case
could be found to be "reckless" was simply a "refin[ement] [of] a
principle long-enunciated by New York courts," Ponnapula,
297 F.3d at 184, and thus meets the requirements of the Due Process
In this case, a jury may have decided that the quick sequence
and number of shots fired showed that, regardless of how close
the gun was to Jose at the time of its discharge, Salcedo
intended only to seriously injure Jose and not to kill him or
perhaps that Salcedo was firing indiscriminately in the lobby and
thus harbored no intention to kill Jose specifically. Notably,
New York State law after the 1982 shooting firmly supports the
view that the application of the depraved indifference statute
even to a point-blank shooting was not based on some "novel"
interpretation. In fact, New York courts have routinely
interpreted the depraved indifference statute as supporting such
a verdict. See Sanchez, 98 N.Y.2d at 384 (defendant's act of
"pointing a gun at [the victim], without the slightest
justification, discharging it within not more than 18 inches of
his body and striking him in the chest, would permit a jury
rationally to conclude" that the defendant acted with depraved indifference to human life);
Atkinson, 799 N.Y.S.2d at 134 (defendant acted with depraved
indifference by "discharging a weapon in [the victim's]
direction," thereby "creat[ing] a substantial and unjustifiable
risk that the deceased would die" under circumstances where "the
defendant was aware of th[e] risk and consciously disregarded it,
firing the weapon anyhow"); People v. Wilkens, 8 A.D.3d 1074,
1075 (4th Dep't 2004) (depraved indifference murder conviction
upheld where the jury "could have found that defendant held the
gun close to the victim and then pulled the trigger" and thus
concluded that the shooting was "`instantaneous'" or
"`impulsive'") (quoting Sanchez, 98 N.Y.2d at 378); People v.
Hall, 309 A.D.2d 511, 511 (1st Dep't 2003) ("The evidence
warrants the conclusion that when defendant pointed a revolver in
the direction of the victim from a distance of six feet or more
and pulled the trigger, striking and killing him, he committed
the crime of depraved indifference murder.") (citations omitted);
Flowers, 289 A.D.2d at 504 (evidence legally sufficient to
establish the defendant's guilt of depraved indifference murder
where eyewitnesses testified that, following a verbal
altercation, the defendant "pursued the victim with a gun, which
was ultimately discharged in the victim's face at close range,
causing the victim's death"); People v. Thompson,
233 A.D.2d 755, 757 (3d Dep't 1996) (point-blank shooting supported
conviction for depraved indifference murder based on defendant's
"pulling and pointing a loaded automatic handgun at decedent")
(citation omitted); People v. Cunningham, 222 A.D.2d 727, 728
(3d Dep't 1995) (evidence sufficient to sustain a conviction for
depraved mind murder where "the shotgun was fired while the gun
barrel was against [the victim's] body"); People v. Waugh,
189 A.D.2d 907, 907 (2d Dep't 1993) (evidence legally sufficient to
establish defendant's guilt of depraved mind murder where the
record established that "the defendant pressed a gun against his girlfriend's neck, pulled the trigger and fled the scene,
leaving her on the floor of his bedroom"). Whether this Court
agrees with these decisions is not of any moment since New York
State is free to determine the elements of the crime of
deliberate indifference. See generally Ponnapula,
297 F.3d at 182 (the definition of which acts "constitute the elements of
a state crime is a question generally answerable only by the
state legislature and state courts, and is antecedent to the
constitutional requirement that the government prove those
elements beyond a reasonable doubt." Id. (citations omitted).
The Court of Appeals' more recent decision in Payne does not
change this result for two reasons. First, it comes nearly 22
years after Jose's murder and thus is irrelevant to whether
Salcedo had "fair warning" that his conduct was criminal in 1982.
Second, Atkinson makes clear that Payne acknowledged that a
one-on-one point-blank shooting involving only one shot may
support a conviction for depraved indifference murder under
certain circumstances. See 799 N.Y.S.2d at 137. Here, this
Court has no basis for disturbing the Appellate Division's
conclusion that the evidence at trial met the standard of
Although not cited to by either party, the Court is not
persuaded that Policano v. Herbert, 2004 WL 1960203, at *1
(E.D.N.Y. Sept. 7, 2004), appeal docketed, No. 04-5518 (2d
Cir., argued July 11, 2005), requires a different result. In
Policano, a jury acquitted petitioner of intentional murder but
convicted him of depraved indifference murder where the
petitioner shot the victim on a street corner "three times in the
back of the head from three to five feet away" and, when the
victim fell, "shot him again in the leg." Id. at *2. The
district court granted petitioner's writ of habeas corpus,
concluding that the evidence presented at trial was insufficient
to sustain his conviction because "the only reasonable inference
from the evidence . . . i.e., his firing three shots at close range to the back of [the victim's]
head (and a fourth into his prone body) one week after telling a
detective he would retaliate against [the victim] is that
[petitioner] intended to kill." Id. at *9.
Policano does not change the result here for two reasons.
First, in Salcedo's case, the record does not reflect the same
evidence of intent that existed in Policano. For example, there
was no clear threat of retaliation as existed in Policano. Nor
was there evidence that Salcedo fired a shot at Jose after he had
already fallen. Thus, unlike Policano, there was a far stronger
basis here for the jury to conclude that Salcedo acted
spontaneously in shooting Jose and without the conscious
objective of causing Jose's death.
Second, this Court respectfully disagrees with Policano
insofar as it conducts a de novo analysis of how New York
State case law should apply to the facts of that case. Policano
essentially begins and ends with the district court's careful and
detailed review of New York law, leading to its conclusion that
New York law does not permit a conviction for depraved
indifference murder under the facts presented at the petitioner's
trial. See 2004 WL 1960203, at *5-*9. Policano engages in
this analysis, however, as if it were reaching an independent
judgment on the application of New York law. Thus, Policano
gives no consideration to whether the Due Process "fair notice"
or "fair warning" requirement was satisfied at the time of
Policano's crime. Indeed, Policano cites no case law on this
doctrine at all or on the doctrine that a habeas court must defer
to a state court's interpretation of its own laws. In the
Policano case, the Appellate Division of course had found that
the evidence presented at the petitioner's trial was contrary
to the conclusion of the federal habeas court legally
sufficient to establish petitioner's guilt beyond a reasonable
doubt. The federal habeas court in Policano, however, does not consider the question of whether deference is owed to
that decision and does not determine whether that interpretation
was "novel" even if it was, in the federal habeas court's view,
In this Court's view, the judgment of the Appellate Division on
the application of New York law to Salcedo's case is of critical
importance. As the Seventh Circuit put it:
When a state court enters or affirms a conviction, it
is saying that the evidence satisfies the legal
norms. These norms are for the state to select. State
law means what state courts say it means. See,
e.g., Garner v. Louisiana, 368 U.S. 157, 166
(1961) ("We of course are bound by a State's
interpretation of its own statute and will not
substitute our judgment for that of the State's when
it becomes necessary to analyze the evidence for the
purpose of determining whether that evidence supports
the findings of a state court."); Hebert v.
Louisiana, 272 U.S. 312, 316-17 (1926); Patterson
v. Colorado, 205 U.S. 454, 459-61 (1907). A claim
that the state court misunderstood the substantive
requirements of state law does not present a claim
under § 2254. A federal court may not issue the writ
on the basis of a perceived error of state law.
Pulley v. Harris, 465 U.S. 37, 41 (1984).
Bates v. McCaughtry, 934 F.2d 99
, 102 (7th Cir.) (parallel
citations and quotation marks omitted), cert. denied,
502 U.S. 915 (1991).
We believe that we are compelled to accept the Appellate
Division's conclusion that New York law permitted a jury to
conclude that the facts of Salcedo's case supported a conviction
for depraved indifference murder. The only remaining question,
therefore, is whether Salcedo had "fair warning" that such an
application could be made at the time of his crime or whether, on
the other hand, that application was "outlandish" or "unexpected
and indefensible." For the reasons discussed above, we believe
Salcedo had such warning. Whatever doubt Payne may have cast on
this question is irrelevant both because it comes long after
Salcedo's crime and also because, as Atkinson held, Payne did
not cause a "material change" in New York law especially given
the fact that the Court of Appeals in Payne did not overrule or
repudiate "contrary precedents, including its own." Atkinson,
799 N.Y.S.2d at 138.
In sum, the Court concludes that the evidence presented at
trial was sufficient to support Salcedo's conviction. The
Appellate Division's decision to uphold the conviction did not
violate Salcedo's due process right to "fair warning." Certainly,
the Appellate Division's implicit rejection of the federal due
process claim 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). Because
there is no basis for concluding that Salcedo's federal
constitutional rights were violated, he is not entitled to habeas
C. Excessive Sentence
Salcedo's final claim for relief is based on his sentence. In
his appellate brief, Salcedo argued that his sentence of 23 years
to life for the depraved indifference murder conviction was
unduly harsh and should be reduced. See Pet. App. Brief at
50-51. Salcedo argued that the "unfairness" of his sentence was
"exacerbated by the prosecutor's argument that [he] deserved the
maximum possible sentence because he had committed an
intentional murder, despite his having been acquitted of that
crime." Id. at 52 (internal citation omitted) (emphasis in
original); accord Petition at 4 (stating that "[t]he imposition of the
sentence is unduly harsh punishment and should be reduce[d] in
the interest of justice . . . because the prosecutor improperly
accused" him of committing an "intentional crime"). Salcedo,
therefore, requested that the court "reduce his sentence to
fifteen years to life in the interest of justice or, in the
alternative, remand th[e] case to the trial court for
resentencing in accordance with the crimes for which he was
actually convicted." Pet. App. Brief at 52. The Appellate
Division rejected this claim, stating that there was "no basis
for reduction of defendant's sentence." Salcedo,
304 A.D.2d at 310.
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). 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
Salcedo was convicted of Murder in the Second Degree under
N.Y.P.L. § 125.25(2). At the time of his sentence, New York law
authorized a minimum sentence of between 15 and 25 years and a
maximum sentence of life imprisonment for a conviction on this
charge. See N.Y.P.L. §§ 70.00(2)(a), 70.00(3)(a)(i), 125.25.
Salcedo was sentenced to a term of 23 years to life, which was
within the range prescribed by New York law.
That the sentence is within the limits permitted by New York
law does not entirely resolve the issue. The Eighth Amendment
prohibits sentences that are "grossly disproportionate to the
gravity of the offense committed." Bellavia v. Fogg,
613 F.2d 369, 376 (2d Cir. 1979) (citing cases). This, however, is not one of the "rare?"
instances where a "`reviewing court . . . [is] required to engage
in extended analysis to determine that a sentence is not
constitutionally disproportionate.'" Bethea v. Scully,
834 F.2d 257, 261 (2d Cir. 1987) (quoting United States v. Ortiz,
742 F.2d 712, 714 (2d Cir.), cert. denied, 469 U.S. 1075 (1984)).
It is sufficient to state that a sentence of 23 years to life is
not grossly disproportionate for a conviction for murder in the
For the foregoing reasons, Salcedo's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
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. Paul A. Crotty, 40 Centre
Street, New York, New York 10007, and to the undersigned at the
same address. Any request for an extension of time to file
objections must be directed to Judge Crotty. 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
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