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United States District Court, S.D. New York

September 13, 2005.

WILLIAM PHILLIPS, Acting Superintendent of Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


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. 655).

  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. 459).

  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. 266-67, 273).

  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: Tr. 595).

  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, 744-45).

  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 Supreme Court.*fn3

  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: H. 215-16).

  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 indictment. Id.

  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 as follows:

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 been prejudice.

  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 omitted).

  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 determined that

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 384.

  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 259.

  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. Id.

  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 recklessly. Id.

  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.

   3. Analysis

   The issue before the Court is whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact" could have convicted 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 omitted).*fn7

   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 (1993).

   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 Clause.

   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 reckless conduct.

   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, incorrect.

   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 relief.*fn9

   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 (S.D.N.Y. 1999).

   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 second degree.


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


   Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. 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 (1985).


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