Salcedo v. Artuz

Decision Date02 August 2000
Docket NumberNo. 00 Civ. 0930 SAS.,00 Civ. 0930 SAS.
Citation107 F.Supp.2d 405
PartiesDulys SALCEDO, Petitioner, v. Christopher ARTUZ, Superintendent Green Haven Correctional Facility, Respondent.
CourtU.S. District Court — Southern District of New York

Sylvia Wertheimer, Assistant District Attorney, New York County District Attorney's Office, New York City, for respondent.


SCHEINDLIN, District Judge.

Pro se petitioner Dulys Salcedo seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises the following seven claims: (1) the trial court's charge regarding petitioner's right not to testify violated both his right to remain silent and due process; (2) petitioner's conviction arose out of a single continuous act and requires imposition of concurrent sentences; (3) petitioner's conviction for murder in the second degree was improper where the evidence demonstrated that petitioner acted under extreme emotional disturbance; (4) prosecutorial misconduct deprived petitioner of the right to a fair trial; (5) ineffective assistance of trial counsel; (6) the appellate court should have reduced petitioner's sentence to the minimum and ordered the sentences to run concurrently; and (7) the trial court denied petitioner due process by overlooking petitioner's mental state during jury selection. For the reasons stated below, Salcedo's petition is denied.

I. Factual Background

On March 8, 1992, Salcedo shot and killed his former girlfriend, Ysidra Rosario, after Rosario ended their seven year relationship. See Respondent's Brief at 1-2. Salcedo approached Rosario on the street and asked her if she would speak with him. Id. at 2. When Rosario refused, Salcedo took a gun from his car and followed Rosario into a nearby bodega. Id. Once inside the bodega, Salcedo again demanded that Rosario speak with him. Id. After Rosario refused, Salcedo grabbed her and fired a shot that hit a refrigerator. Id. Salcedo then fatally shot Rosario in the stomach. Id.

Salcedo was charged with Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Third Degree. See Respondent's Brief to Appellate Division, Ex. C to Respondent's Appendix, at 2. Salcedo never denied that he shot Rosario. Instead, he asserted the affirmative defense of extreme emotional disturbance. See Respondent's Brief at 2. In support of that defense, Salcedo called psychiatrist Dr. Robert Berger as an expert witness. See Petitioner's Brief to Appellate Division, Ex. A to Respondent's Appendix, at 8. The prosecutor countered the psychiatrist's expert testimony with testimony from the bodega owner, Hector Molina, who had known Salcedo for approximately five years. Id. at 4. Molina testified that Salcedo did not appear disturbed on the day he shot Rosario. See Respondent's Brief at 16.

On January 13, 1994, a jury convicted Salcedo of all charges. Id. at 2. On February 15, 1994, Salcedo was sentenced to a term of twenty years to life for murder, a consecutive term of five to fifteen years for second-degree weapon possession and a concurrent term of two and one-third to seven years for third-degree weapon possession. Id. at 1.

Petitioner appealed his conviction to the Appellate Division of the New York Supreme Court, First Department. In a brief filed by counsel, Salcedo challenged the trial court's charge concerning petitioner's decision not to testify, claiming that the charge violated Salcedo's Fifth Amendment right to remain silent and his right to due process. See Petitioner's Brief to Appellate Division, Ex. A to Respondent's Appendix. Counsel's brief also challenged the imposition of consecutive sentences, claiming that the convictions arose from a single, continuous act under New York Penal Law § 70.25(2). Id.

In addition to counsel's brief, petitioner filed a pro se supplemental brief alleging ineffective assistance of counsel and prosecutorial misconduct, and requesting that the appellate court make the sentences concurrent in the interests of justice. See Petitioner's Pro Se Supplemental Brief, Ex. B. to Respondent's Appendix. Petitioner also raised additional claims in a section titled "questions presented". These claims included: (1) a due process violation based on petitioner's inability to understand the jury selection process due to his emotional mental state; (2) a due process violation based on the failure to provide petitioner with a Spanish interpreter at all stages of the trial; and (3) the excessiveness of the sentence given that petitioner was acting under an extreme emotional disturbance and lacked the required criminal intent. Id. at 3.

The Appellate Division, First Department, affirmed petitioner's conviction on December 18, 1997. See People v. Salcedo, 245 A.D.2d 163, 666 N.Y.S.2d 174 (1st Dep't 1997). The court found that defense counsel failed to preserve his objection to the court's charge regarding petitioner's right not to testify. Id. In addition, the appellate court held that the trial court lawfully sentenced Salcedo to consecutive terms of imprisonment because the act of using the revolver to kill Rosario was separate and distinct from possession with the intent to use the same revolver. Id. Finally, the appellate court rejected all of the arguments raised in petitioner's supplemental brief as meritless. Id.

The New York Court of Appeals granted petitioner's application for leave to appeal. Counsel for Salcedo filed a brief raising the same two claims he had previously raised in the First Department. See Petitioner's Brief to Court of Appeals, Ex. F to Respondent's Appendix. Petitioner sought permission to submit a pro se supplemental brief addressing the same claims he had raised below, but the Court of Appeals denied petitioner's request. See Respondent's Brief at 3-4. The Court of Appeals affirmed the holding of the First Department, finding the trial court properly sentenced petitioner to consecutive terms of imprisonment. See People v. Salcedo, 92 N.Y.2d 1019, 1021, 684 N.Y.S.2d 480, 707 N.E.2d 435 (1998). The court further found that the objection to the jury charge had not been preserved for appellate review. Id. at 1022, 684 N.Y.S.2d 480, 707 N.E.2d 435.

II. Discussion
A. Exhaustion of State Court Remedies

"Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court." O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). "Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, we conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional claims by invoking one complete round of the State's established appellate review process." Id. at 845, 119 S.Ct. 1728. Thus, in order to obtain federal habeas review, petitioner must have presented to the state court all of the factual and legal arguments set forth in his federal habeas petition. See Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir.1991) (petitioner must fairly present federal constitutional claims to state courts to fulfill the exhaustion requirement); Daye v. Attorney General of N.Y., 696 F.2d 186, 191 (2d Cir.1982) (same).

B. Standard of Review For Claims Adjudicated on the Merits in State Court

Claims that have been adjudicated on the merits in state court proceedings are governed by 28 U.S.C. § 2254(d) which precludes federal habeas relief unless the state-court adjudications "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." 28 U.S.C. § 2254(d) (West Supp.1999). Section 2254(d) applies, for example, where a state court denies an ineffective assistance of counsel claim on a writ of error coram nobis and the petitioner then seeks habeas relief on that ground. See Clark v. Stinson, 214 F.3d 315, 320 (2d Cir.2000).

Until recently, the applicable standard of review under § 2254(d) was uncertain. See id. Then, in Williams v. Taylor, ___ U.S. ___, ___-___, 120 S.Ct. 1495, 1518-23, 146 L.Ed.2d 389 (2000), the Supreme Court clarified the key phrases "contrary to" and "unreasonable application." With regard to the former, the Williams Court held that a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.

Id. at 1519. With regard to the latter, the Court held that a

state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts or the particular state prisoner's case.

Id. at 1520. The Court emphasized that "unreasonable" is different from "incorrect" or "erroneous" stating: "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522.

Thus, following Williams, the power of a federal habeas court to grant a state prisoner's application with respect to claims adjudicated on the merits in state court is sharply circumscribed. The newly articulated standard prohibits a federal habeas court from substituting its own judgment for that of the state-court judge, requiring a great deal...

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