The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Sean Salley, a New York State prisoner, seeks a writ of habeas corpus, challenging his conviction on three counts of murder and other crimes, and his resulting sentence to 120 years to life in prison, in the Supreme Court of the State of New York for New York County. The petition will be denied.
Salley was convicted of murder in the highly-publicized robbery-murder of a marijuana dealer who lived above New York's well-known Carnegie Deli, and the murder of two other victims who were present at the time of the robbery. The prosecution's theory at trial was that Salley and another man, Andre Smith, sought to rob the dealer, Jennifer Stahl, and in the course of the robbery, shot Stahl and four other people in her apartment, two of whom died and two of whom survived to testify at trial.
The evidence at Salley's trial was overwhelming and would have permitted a reasonable jury to find the following facts. In early May 2001, Salley, who had lost his job and was short on cash, recruited Smith to help him rob Stahl's sixth-floor apartment above the Carnegie Deli in Manhattan. On the evening of May 9, 2001, Salley and Smith, on the pretense of purchasing marijuana, went to Stahl's apartment to case the location. The two returned to Stahl's apartment the following evening. Upon entering, Smith pulled out a .38 caliber revolver and told Stahl and four other individuals in the apartment to lie face-down on the floor. Smith took Stahl at gunpoint into the back room where she kept her money and drugs. Meanwhile, Salley bound the arms and legs of the other individuals with duct tape.
After handing over the money and contraband, Stahl pleaded with Salley and Smith not to hurt anyone, but Salley placed the gun against Stahl's head and pulled the trigger, fatally wounding her. Either Salley or Smith then shot each of the other four victims in the head at point blank range. Two individuals were killed. The two survivors called 911 after Salley and Smith left the premises. A surveillance camera in the apartment building photographed Salley and Smith as they entered and left the building. Upon arriving at Stahl's apartment, the police recovered Salley's palm print from the duct tape that had been used to bind one of the victims. Smith's fingerprints were also recovered from the duct tape found at the crime scene.
The next morning, Salley took a Greyhound bus from New Jersey to Atlanta. He then went to New Orleans and, later, to Miami. Following a police investigation, witnesses identified Salley and Smith from the surveillance photographs. On May 20, Smith voluntarily spoke with the police and ultimately confessed to participating in the robbery and murder. The police arrested Smith and the two surviving victims subsequently identified him in a lineup. Salley remained at large.
On July 14, the television show "America's Most Wanted" aired an episode about the robbery-murder of Stahl and the two other victims. That night, Miami police received a tip that Salley was staying at a homeless shelter in Miami. After surrounding the shelter, several Miami police officers went inside to look for Salley. When a detective spotted Salley in the lobby, Salley ran out the back door, leaped over a railing, climbed a 12-foot chain link fence, and hid in a yard behind a nearby church. The officers then called in the canine unit, and a trained canine subsequently located Salley in the bushes and dragged him out by his left forearm. The officers arrested Salley and recovered from his wallet a driver's license bearing a false name. Salley, however, immediately admitted his true identity to the officers. Paramedics treated Salley for the dog bite, which had caused a small laceration to his left arm and three puncture wounds. Salley's arm was not broken, however, and medical personnel re-wrapped the wound after Salley was taken to the precinct.
The following day, three NYPD detectives arrived in Miami and questioned Salley. After waiving his Miranda rights, Salley confessed, orally and in writing, to participating in the robbery and shooting Stahl. Salley claimed, however, that Smith had shot the four other victims. The next morning, July 16, after again waiving his Miranda rights, Salley repeated his admissions in a videotaped statement. One of the surviving victims subsequently identified Salley in a lineup and also testified against Salley at trial.
A New York grand jury charged Salley with three counts of Murder in the Second Degree (under a felony murder theory), one count of Robbery in the First Degree, three counts of Robbery in the Second Degree, and one count each of Criminal Possession of a Weapon in the Second and Third Degrees. On April 10, 2002, following a hearing, the Supreme Court of New York for New York County (Carol Berkman, J.) denied Salley's motion to suppress his oral, written, and videotaped confessions. Salley's jury trial commenced on May 13, 2002, and on June 18, 2002, the jury convicted him on all counts. On July 29, 2002, Salley was sentenced to an aggregate prison term of 120 years to life. Salley's conviction and sentence were affirmed by the Appellate Division, and the New York Court of Appeals denied leave to appeal. See People v. Salley, 808 N.Y.S.2d 664 (1st Dep't 2006), leave to appeal denied, 6 N.Y.3d 838 (2006).
In this petition, Salley raises only two claims of constitutional error. First, he argues that his waiver of his Miranda rights and the subsequent confession he made to NYPD detectives in Miami were involuntary. Second, he claims that he was denied his right to be present at his trial when the trial judge responded to a jury note requesting a written copy of portions of the judge's charge. Both claims were raised on Salley's direct appeal in the state courts and were rejected. See People v. Salley, 808 N.Y.S.2d at 665-66. Neither provides a basis for federal habeas relief.
I. Involuntary Waiver and Confession Claim
Salley essentially confessed his guilt in a full statement made to NYPD detectives following his arrest in Miami.*fn1 Salley does not dispute that he was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), nor could he since he signed a printed form acknowledging that he had been "advised . . . of [his] rights" and was nevertheless "willing to answer questions" and thus waive those rights. (Resp. App. Ex. I.) Instead, Salley claims that the waiver, and his resulting confession, were involuntary. The trial court held a full evidentiary hearing on this claim, made findings of fact, and issued a written decision rejecting Salley's contention (Id. Ex. K, at 10-13, 20), which was subsequently affirmed by the First Department, see Salley, 808 N.Y.S.2d at 665-66. Based on the factual findings of the trial court, to which this Court is obliged to defer absent circumstances not remotely present ...