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Salcedo v. Phillips

October 22, 2007


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


Pro se Petitioner Antonio Salcedo ("Salcedo") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 2000 conviction and sentence for Murder in the Second Degree under N.Y. Penal Law ("N.Y.P.L.") § 125.25(2) ("depraved indifference murder"), Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Fourth Degree, on the grounds that (1) the 16-year delay between the crime and the indictment violated his constitutional rights to due process and a speedy trial; (2) there was insufficient evidence to support his conviction for depraved indifference murder and therefore the conviction violated his due process rights; and (3) the sentence imposed was unduly harsh and therefore violated his Eighth Amendment right to be free from cruel and unusual punishment.

This case was referred to United States Magistrate Judge Gabriel W. Gorenstein, who issued his Report and Recommendation ("R&R") on September 13, 2005, recommending the denial of Salcedo's petition. On November 4, 2005, Salcedo timely filed objections ("Objections") to Magistrate Judge Gorenstein's determinations that there was sufficient evidence to support his conviction for depraved indifference murder, and that the pre-indictment delay did not violate his due process rights. On July 26, 2006, the Court stayed this matter pending the New York Court of Appeals' decision on questions certified by the Second Circuit regarding the standard for depraved indifference murder applicable at the time of Salcedo's conviction. Salcedo v. Phillips, 04 Civ. 7964 (S.D.N.Y. July 26, 2006). The New York Court of Appeals ruled on the certified questions in Policano v. Herbert, 7 N.Y.3d 588 (2006). The Second Circuit applied the answers to the certified questions in Policano v. Herbert (Policano IV), _____ F.3d ____ (2d Cir., September 19, 2007). The Court now lifts the stay and denies Salcedo's petition as the Second Circuit did in Policano IV.


I. Consideration of a Report and Recommendation

A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). When a timely objection has been made to the magistrate's recommendations, the court is required to review the contested portions de novo. Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). The court, however, "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F.Supp.2d 157, 159 (S.D.N.Y. 2000).

II. Recommendations Lacking Objection

The Court finds no error in those portions of the R&R to which Salcedo has not objected. The Court therefore accepts and adopts Magistrate Judge Gorenstein's recommendation that the sentence imposed did not violate Petitioner's Eighth Amendment rights because it was within the applicable statutory range.

III. Relevant Facts*fn1

Salcedo's conviction for depraved indifference murder was based on the killing of Jose Nuez on November 6, 1982. At his trial, the testimony of various witnesses testified that Salcedo lived at 145 Audubon Avenue in Manhattan with his common-law wife Aida Trinidad ("Trinidad"). Salcedo owned a social club named "Tonito's" located on the second floor of the same building, where liquor was served and several female prostitutes, including witnesses Marilyn Lopez ("Lopez") and Roxy Almonte ("Almonte"), worked. Antonio Zuniga ("Zuniga") and Anibal Hiraldo ("Hiraldo") also worked at the club, in part as bouncers. On the night of November 6, 1982, brothers Gregorio ("Gregory") and Jose Nuez went to Salcedo's club, where they had been customers in the past.

The witnesses presented at trial differed in their accounts of the events that occurred that night. Hiraldo testified that the Nuezs, who had caused problems at the club in the past, instigated a confrontation with Salcedo and Hiraldo because Gregory was unhappy with the behavior of one of the women working at the club. Hiraldo stated that Jose held a gun to his head, and that Salcedo in turn found a gun and threatened to shoot Gregory if Jose shot Hiraldo. Salcedo then disarmed Jose, and took both Gregory and Jose downstairs. Hiraldo remained upstairs until he heard two gunshots. Going downstairs to investigate, he saw Jose with his hands in the air, and Salcedo pointing the gun at him from approximately five feet away. Salcedo told Jose that "[t]hey were tired of [him] causing all those problems," Trial Transcript ("Tr."), 837, and the shot him in the head. Hiraldo testified that no one else was in the lobby at the time of the shooting. Gregory Nuez's version of the events was different. He testified that he and Jose had left the club and then returned, but he states that when they arrived the second time, a man named "Tonito" answered the door and Tonito and Jose began pointing guns at one another. At this point, Tonito stated, "You left with problems and you've come back looking for problems." Tr. 152, 163-64. Gregory convinced both men to lower their weapons, and Tonito then ordered the Nuezs to "go downstairs and don't look back." Tr. 152, 164. Jose turned his head and was immediately shot, and when Gregory then turned to look he was shot in the back. Gregory saw that Jose was dead, and went to another building, from which he was taken to a hospital. Gregory did not identify Salcedo as "Tonito" at trial, and testified that that he did not see who shot him.

Lopez testified that Salcedo and Jose Nuez started arguing because Jose had supposedly spit in the face of one of the girls who worked at the club, and Hiraldo and Gregory, who was very drunk, became involved in the argument. Salcedo ultimately pushed Jose out of the door and told him he had to leave, while Hiraldo did the same to Gregory. Salcedo and Hiraldo followed the Nuezs downstairs to the lobby, where Salcedo shot Jose from approximately two feet away. He then began firing at Gregory, who ran out of the building. Lopez counted five shots in all.

Zuniga testified only that he heard an argument at the door, that Salcedo and Hiraldo left the apartment, and that one minute later he heard two shots.

Almonte testified that the Nuezs were drunk and disorderly when they arrived at the social club, and that the men working at the club eventually tried to remove them. She went to another room at that time, from which she heard Salcedo say something along the lines of "[p]ut ...

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