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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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FRANCISCO SALINAS, : 

 : 

Petitioner, : MEMORANDUM & ORDER

 : 

 v. : 07 Civ. 3420 (LBS) 

 : 

DALE ARTUS, : 

 : 

Respondent. : 

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SAND, J. 

 Petitioner Francisco Salinas was convicted after a non-jury trial in the New York 

Supreme Court, New York County on August 15, 2002, of Murder in the Second Degree, P.L. § 

125.25[1]. Petitioner was sentenced to a term of twenty two years to life in prison. The 

Appellate Division affirmed the conviction and the New York Court of Appeals denied leave to 

appeal. People v. Salinas, 24 A.D.3d 217 (1st Dept. 2005), lv. denied, 6 N.Y.3d 852 (2006). 

Petitioner brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 

(2000). For the reasons stated below, this petition is denied. 

I. 

 Petitioner and the victim, Mary Ann King, were involved in a relationship that began in 

the early 1980s.1

 In the mid-1980s, as their relationship began to deteriorate, petitioner harassed 

King in numerous ways. He sent threatening letters, broke one of her windows, threatened to kill 

her and her colleagues, and sent nude photographs of her to her employers. At one point, 

petitioner predicted that he would kill King, raise an insanity defense, be convicted only of 

 

1

 Except where noted, the facts described here are taken from Petitioner and Respondent’s Memoranda of Law. 

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manslaughter, and serve two years in prison. Petitioner was convicted of harassment twice and 

spent time in jail briefly. 

 Petitioner and King reunited in 1989. On October 27, 2000, petitioner became jealous 

and “bothered” because he had seen King exiting a blue van in front of their apartment. 

Petitioner became convinced that her “boyfriend” had driven her home. The next day, petitioner 

took some medication because he “knew” that he would hurt King. Later that day, petitioner 

strangled King and stabbed her 16 times. 

 After King was dead, petitioner called 911 and confessed that he had killed King. Police 

officers arrived at his apartment and arrested him. Petitioner was driven to the police precinct, 

placed in a holding cell, and read his Miranda warnings. About ten minutes later, petitioner fell 

to the ground unconscious, and was taken by ambulance to Cornell Hospital. Petitioner 

remained in a coma for two days, and was diagnosed as having taken an overdose of Xanax and 

Elavil. On October 30, after waking up from his coma and being read his Miranda warnings 

again, petitioner admitted to killing King because he was “bothered” that her “boyfriend” had 

driven her home. 

 Petitioner was charged with two counts of Murder in the Second Degree (intentional and 

depraved indifference), and was convicted on the intentional theory after a bench trial before the 

Honorable Jeffrey Atlas on July 26, 2002. 

II. 

 The petition before the Court raises three grounds for relief. Petitioner first argues that 

the rejection of his extreme emotional disturbance defense was against the weight of the 

evidence. Second, petitioner argues that he was denied his choice of counsel and denied 

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effective assistance of counsel because the trial court denied his request to appoint a new 

attorney. Third, petitioner argues that his sentence is excessive. 

A. STANDARD OF REVIEW 

To determine whether a petitioner is entitled to a grant of a writ of habeas corpus, a 

federal court must apply the standards of review provided in 28 U.S.C. § 2254, as amended by 

the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No 104-132, 110 

Stat. 1214. The statute provides, in relevant part: 

(d) An application for a writ of habeas corpus on behalf of a person in custody 

pursuant to the judgment of a State court shall not be granted with respect to any 

claim that was adjudicated on the merits in State court proceedings unless the 

adjudication of the claim – 

 

(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. “Clearly established Federal law” is comprised of “the holdings, as opposed to 

the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” 

Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 

412 (2000)). A decision is “contrary to” clearly established federal law “if the state court arrives 

at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the 

state court decides a case differently than [the Supreme Court] has on a set of materially 

indistinguishable facts.” Williams, 529 U.S. at 413. A decision is an “unreasonable application” 

of clearly established federal law if a state court “identifies the correct governing legal principle 

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from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of [a] 

prisoner’s case.” Id. 

 

B. SUFFICIENCY OF THE EVIDENCE CLAIM 

It is well established that a habeas court may neither “disturb the jury’s findings with 

respect to the witnesses’ credibility,” United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), 

nor “make credibility judgments about the testimony presented at petitioner’s trial or ... weigh 

conflicting testimony.” Fagon v. Bara, 717 F. Supp. 976, 978 (E.D.N.Y. 1989). The federal 

court must “resolve all issues of credibility[] in favor of the jury’s verdict.” United States v. 

Reyes, 157 F.3d 949, 955 (2d Cir. 1998). 

 Petitioner argues that because he “satisfied all of the elements of the [extreme emotional 

disturbance] defense,” the trial verdict was against the weight of the evidence. (Pet. Br. at 46). 

Petitioner’s arguments are unmistakably factual. Petitioner presented an expert at trial who 

testified that the killing was caused by petitioner’s emotional disturbance, and the prosecution 

presented an expert who testified that petitioner was malingering, and discussed the results of a 

series of psychological tests he administered to petitioner to support his conclusion. The jury 

clearly credited the testimony of the prosecution’s expert over the defendant’s expert. It would 

be inappropriate for this Court to disturb the jury’s ruling on this basis. 

Petitioner argues that “there was notable unanimity among court, counsel, and experts as 

to the central fact in this case: appellant was suffering serious psychological problems.” (Pet. Br. 

at 36). But this unanimity is not at all clear from the record.2

 In contrast, the expert for the 

 

2

 The case that petitioner relies on, People v. Liebman, 179 A.D.2d 245 (1st Dept. 1992), is inapplicable here. The 

court in that case noted that both the defendant and prosecution expert agreed on the extent of the defendant’s 

mental problems. Liebman, 179 A.D.2d at 257 (“Moreover, we are presented with a situation in which the basic 

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prosecution presented credible evidence that the petitioner was actually malingering, and was 

exaggerating his symptoms for the purpose of appearing disturbed. (Pet. Br. at 16-19). The jury 

clearly found, based on that conflict in testimony, that the requirement for the statutory defense, 

extreme emotional disturbance, had not been established. Thus, petitioner’s argument regarding 

the sufficiency of the evidence fails. 

C. DENIAL OF PETITONER’S REQUEST FOR NEW COUNSEL 

Petitioner also contends that he was denied “his choice of counsel” and “the effective 

assistance of counsel” because the trial court refused to substitute petitioner’s counsel upon his 

request. First, it is necessary to distinguish between petitioner’s two claims, involving “the right 

to counsel of choice – which is the right to a particular lawyer regardless of comparative 

effectiveness – [as opposed to] the right to effective counsel – which imposes a baseline 

requirement of competence on whatever lawyer is chosen or appointed.” United States v. 

Gonzalez-Lopez, 126 S. Ct. 2557, 2563 (2006). 

1. Counsel of Petitioner’s Choice

The right to counsel of one’s choice may entitle a defendant to new assigned counsel 

upon showing “good cause for a substitution.” People v Medina, 44 N.Y.2d 199, 207 (1978). 

However, “this is far from suggesting that an indigent’s request that a court assign new counsel 

is to be granted casually” Id. The right of an indigent defendant to the services of a courtappointed lawyer does not provide a right to appointment of successive lawyers at defendant’s 

option. People v Sawyer, 57 N.Y.2d 12, 18-19. Most importantly, requests for substitution of 

 facts are undisputed and, in large part, the difference in psychiatric opinion was without legal relevance.”). As 

discussed above, this was not the case in petitioner’s trial. 

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counsel may not be used “merely to delay the orderly administration of justice.” People v. Sides, 

75 N.Y.2d 822, 824 (N.Y. 1990). 

Petitioner claims that when he requested appointment of new counsel, the court’s inquiry 

into his claim was insufficient. Petitioner stated in court that his reason for wanting new counsel 

was “ineffective counsel” and that “he doesn’t represent me,” but did not elaborate. However, at 

the time of defendant’s request, he had worked with his trial counsel for a year and a half, and 

plaintiff made this request five weeks before the parties and the court anticipated that the trial 

would begin. (Resp. Br. at 29). Where a defendant requests to substitute counsel on the eve of 

trial and defendant has had a reasonable opportunity to retain counsel of his own choosing before 

that time, “it is incumbent upon the defendant to demonstrate that the requested adjournment has 

been necessitated by forces beyond his control and is not simply a dilatory tactic.” People v 

Arroyave, 49 N.Y.2d 264, 271-272 (1980). Petitioner was given three opportunities to explain 

his reasons for his request, but failed to state any specifics beyond his vague “ineffective 

counsel” terminology. Although petitioner was not given the opportunity to speak at length, it is 

reasonable to assume that if he had a specific complaint, he would have articulated it. It seems 

more likely that petitioner’s request was the result of a passing disagreement, and would have 

served only to delay his upcoming trial, particularly since there is no record of any conflict with 

his attorney after this brief incident. Accordingly, this Court will not hold that the Appellate 

Division’s rejection of petitioner’s claim was an unreasonable application of federal law. 

2. Ineffective Assistance of Counsel

Nothing in the record supports petitioner’s claim that his counsel was ineffective. The 

Supreme Court set out the test for ineffective assistance of counsel in Strickland v. Washington, 

466 U.S. 668 (1984). To prevail on a Sixth Amendment claim, petitioner must show that 

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counsel’s representation “fell below an objective standard of reasonableness” measured under 

“prevailing professional norms,” and that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A 

“reasonable probability” is “a probability sufficient to undermine confidence in the outcome,” 

and there is a “strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Id. at 694, 689. A reviewing court should “assess counsel’s 

overall performance throughout the case in order to determine whether the identified acts or 

omissions’ overcome the presumption that counsel rendered reasonable professional assistance.” 

Kimmelman v. Morrison, 477 U.S. 365, 386 (1986) (internal quotation marks omitted). 

Petitioner’s trial counsel represented him at arraignment, on 21 pre-trial calendar calls 

over a year and a half, and during trial. (Resp. Br. at 24). Nothing about petitioner’s trial 

counsel’s performance indicates that he provided ineffective assistance to petitioner. Rather, it is 

clear from the record that petitioner received diligent legal representation during his trial. 

Moreover, although not determinative to this Court’s inquiry, it is worth noting that the First 

Department Disciplinary Committee found that there was “insufficient evidence to indicate an 

ethical violation” on the part of petitioner’s trial counsel, in two independent reviews. (See letter 

from Thomas Cahill, dated June 10, 2003). Thus, it cannot be said that the Appellate Division’s 

rejection of petitioner’s ineffective assistance of counsel claim was an unreasonable application 

of clearly established federal precedent. 

 

D. PETITIONER’S SENTENCE 

 Finally, petitioner argues that his sentence was excessive because of his psychological 

problems and his remorse for his actions. Federal courts have held that the consideration of 

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