The opinion of the court was delivered by: John G. Koeltl, District Judge
This is a petition for habeas corpus pursuant to 28 U.S.C. § 2254 brought by New York State prisoner Tirso Salcedo, who is currently incarcerated at the Shawangunk Correctional Facility. Following a jury trial, the petitioner was convicted on one count of Conspiracy in the Second Degree, for which he was sentenced to an indeterminate term of imprisonment of eight and one-third to twenty-five years. After a second jury trial, the petitioner was convicted on three counts of criminal possession of a controlled substance in the first degree. He was sentenced to a term of twenty years to life, consecutive to two concurrent terms of twenty years to life, and concurrent with the previously imposed sentence.
The petitioner argues that the trial court violated his Fourth Amendment and due process rights by failing to disclose a sealed supplemental affidavit accompanying an eavesdropping application. He also argues that the primary affidavit supporting the application was insufficient to establish probable cause to justify the interception of telephonic communications.
During the five-month period between October 1995 and February 1996, the New York Drug Enforcement Task Force ("NYDETF"), together with the New York County District Attorney's Office and the Office of the Special Narcotics Prosecutor, conducted an investigation of a cocaine trafficking organization. (Transcript dated July 15, 1998 ("July 15 Trans.") at 74.)
Pursuant to their investigation, the police obtained eavesdropping warrants. In support of their application for the warrants, the police submitted affidavits allegedly containing facts sufficient to establish probable cause, including an affidavit that was sealed because it allegedly contained information that would reveal the identities of several confidential informants.
A New York County Special Narcotics Grand Jury charged the petitioner with Conspiracy in the Second Degree (New York Penal Law § 105.15), three counts of Criminal Possession of a Controlled Substance in the First Degree (New York Penal Law § 220.21), three counts of Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law § 220.16), and Criminal Possession of a Weapon in the Third Degree (New York Penal Law § 265.02) (Special Narcotics Indictment Number 10946/96).
Prior to trial, the petitioner moved to suppress evidence derived from the wiretaps. The petitioner argued that the warrants authorizing the wiretaps were improper because, among other reasons, there was insufficient probable cause for the issuance of the warrants. Justice Wittner denied the motion, noting that the primary affidavit accompanying the applications provided ample probable cause to believe that each telephone or beeper was being used in the furtherance of the conspirators' narcotics business, even without consideration of the sealed supplemental affidavit. (Decision of Justice Wittner denying Defendant's Motion to Suppress ("Motion to Suppress") at 3, attached at Ex. A to Declaration of Laurie M. Israel in Opposition to Petition for a Writ of Habeas Corpus, dated Nov. 9, 2005 ("Israel Decl.").) Justice Wittner further noted that the protective order sealing the supplemental affidavit was properly granted pursuant to proper state procedures. (Id.)
Following an initial trial before Justice Wittner and a jury, the jury found the petitioner not guilty of the weapons charge and did not reach a verdict on the other counts. Justice Wittner declared a mistrial. The petitioner proceeded to trial again before Justice Wittner and a jury. The jury convicted the petitioner of second-degree conspiracy but did not reach a verdict on the first-or third-degree possession charges. Justice Wittner again declared a mistrial as to the possession charges and, on April 23, 1998, sentenced the petitioner to a term of imprisonment of between eight and one-third to twenty-five years. The petitioner then proceeded to trial on the three first-degree possession charges before Justice Wetzel and a jury. The jury convicted the petitioner as charged. Justice Wetzel sentenced the petitioner to a term of twenty years to life, consecutive to two concurrent terms of twenty years to life, and concurrent to the previously imposed sentence.
On appeal to the New York State Supreme Court, Appellate Division, First Department, the petitioner raised several issues, only one of which is relevant to the current petition, namely, whether the face of the initial affidavit in support of the eavesdropping warrant established probable cause and, if not, whether suppression was required as a matter of law because of the failure to disclose the supplemental affidavit. (Brief for Defendant-Appellant to Appellate Division, First Department dated Aug. 2002, attached at Ex. B to Israel Decl. at 22-30.) The Appellate Division affirmed the convictions on October 7, 2003. See People v. Salcedo, 765 N.Y.S.2d 499 (App. Div. 2003). With respect to the eavesdropping claim, the Court held that the petitioner's "motion to suppress evidence acquired from eavesdropping was properly denied. The application established the informants' reliability as well as the basis of their knowledge." Id. at 543 (citations omitted). The court also held that "[t]he court followed proper procedures with respect to a sealed supplemental affidavit, and defendant was not entitled to disclosure." Id. (citations omitted).
The petitioner applied to the New York Court of Appeals for leave to appeal the decision of the Appellate Division. (See Letter Seeking Leave to Appeal, attached at Ex. F to Israel Decl., at 2-8.) In his letter seeking leave to appeal, the petitioner reiterated the arguments contained in his brief to the Appellate Division. (Id.)
On February 24, 2004, the Honorable Albert M. Rosenblatt denied leave to appeal. See People v. Salcedo, 808 N.E.2d 1291 (N.Y. 2004).
The petitioner argues that, apart from the undisclosed supplemental affidavit, there was insufficient evidence to establish probable cause to justify the wiretaps. Specifically, he complains that facts supporting the reliability of the confidential informants' information were contained only in the sealed supplemental affidavit. Because the trial court failed either to disclose the supplemental affidavit or to suppress any evidence obtained by means of the ...