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LLACA v. DUNCAN

United States District Court, S.D. New York


May 4, 2004.

JOSE LLACA, Petitioner, -against- GEORGE B. DUNCAN, Respondent; DANIEL GONZALEZ, Petitioner, -against- MICHAEL McGINNIS, Respondent; LINDWOOD COLLINS, Petitioner, -against- FLOYD G. BENNETT, Respondent

The opinion of the court was delivered by: DENNY CHIN, District Judge

OPINION

Pro se petitioners Jose Llaca, Daniel Gonzalez, and Lindwood Collins bring petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioners were convicted in 1995, after a jury trial, in the Supreme Court of the State of New York, New York County, of crimes stemming from their participation in a large narcotics organization. Petitioners challenge their convictions on a variety of grounds. The Court has reviewed the submissions of the parties as well as the record of the proceedings in the state court. For the reasons discussed herein, the petitions are denied.

  BACKGROUND

 A. Facts

  The following is a brief summary of the facts adduced at petitioners' trial.*fn1

  1. Overview

  Petitioners were high-ranking members of a large drug-selling organization founded by brothers Nelson and Lenin Sepulveda (the "organization"). (Trial Tr. at 13574-75, 13581-82, 13588, 13592, 13608-09, 13675, 13667, 13705, 13892). From 1986 until 1993, the organization sold crack cocaine in the Mott Haven area of the Bronx and the Brighton Beach area of Brooklyn. (Id. at 957, 1542, 1545, 12266-67, 12309, 13574-75, 13581-82, 13667, 13705, 13892). In certain locations, the drugs sold were packaged in containers with red tops (or caps); in other locations the drugs were packaged with orange tops. (Id. at 957-58, 1455, 1475-76, 1597, 1718-19, 1724, 1772, 1777, 1904).

  Llaca was, inter alia, one of the bosses of two of the drug selling spots in Mott Haven (Id. at 8823, 8992-94, 8995, 9047-48); Gonzalez worked as a "pitcher," or hand-to-hand seller, and a shift manager at all four of the organization's Mott Haven drug spots (Id. at 4147-48, 5603, 6930, 6932, 8885-86, 8997, 9822, 13595); and Collins began as a lookout for the drug sellers at one of the Bronx locations, and later became a manager at two of the Mott Haven spots. (Id. at 4168, 5602-03, 5608, 6291, 6360, 6366, 6369-70, 8997-98).

  Petitioners committed several murders in furtherance of the drug conspiracy for which they were ultimately convicted. On September 3, 1989, Llaca and two other members of the operation ambushed and shot to death a rival heroin dealer and one of his companions. (Id. at 5589-91, 6405, 6412-13, 7917-18, 7920, 8387-88, 8389, 8392-96, 8399, 8425, 9886-87, 9889-90, 9895, 9898, 12973, 12978). On December 16, 1991, Gonzalez and several other members of the conspiracy ambushed a competing crack spot and killed four people. (Id. at 4201-02, 4204, 4237-38, 4987-90, 4995-96, 4998, 5734-36, 5738-39). Also, on June 20, 1993, Llaca shot and killed the leader of a rival drug-selling organization. (Id. at 1613, 15229-30, 15460-61, 15463-64, 15535).*fn2

  On November 3, 1993, petitioners and thirty-eight co-defendants were charged in one indictment with conspiracy and related crimes for their involvement in the organization. (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol. I, Ex. A). The indictment charged that the forty-one defendants committed numerous crimes in furtherance of the operations of the organization. (Id.). Thirty-two of the defendants pled guilty prior to trial. Petitioners and six co-defendants proceeded jointly to trial in September 1994. On May 15, 1995, following a seven-month trial, the jury convicted petitioners of the crimes detailed below.

  2. Pre-Trial Proceedings

  a. Severance

  Prior to trial, Collins moved to sever his case from those of his co-defendants arguing, inter alia, that courts have found severance appropriate for trials involving more than ten defendants, and that his defense was antagonistic to that of his co-defendants because he would argue that "if any one was involved, it was one or another" of the co-defendants. (2/1/94 Mot.). The trial court (Leslie Crocker Snyder, J.) denied Collins's motion, stating that the trial would likely involve nine defendants, not forty-one, and that all nine were of similar importance within the conspiracy. The court also noted that Collins had failed to make a sufficient showing of antagonistic defenses. (7/19/94 Order). Thereafter, throughout the course of the trial, petitioner made or joined in a number of oral renewals of severance motions, all of which were denied. (Trial Tr. at 1488, 1500-04, 1518G, 3690-91, 3706, 7948-49, 9212-13, 9347-53, 9600-07, 17874-77, 18615-16, 19491-94). b. Co-Conspirator Statements

  Also prior to trial, the court held a hearing pursuant to People v. Evangelista, 88 A.D.2d 804, 450 N.Y.S.2d 817 (1st Dep't 1982), to determine the admissibility of Llaca's co-conspirators' statements.*fn3 (See 10/6/94 Proceedings; 10/11/94 Proceedings). At the hearing, the prosecutor described the evidence relevant to Llaca's participation in the conspiracy. (10/6/94 Proceedings at 1750-64, 1772-73; 10/11/94 Proceedings at 9-28). Llaca argued that the statements should not be admitted into evidence because the evidence was insufficient to establish his participation in the conspiracy. (10/6/94 Proceedings at 1772-75).

  The prosecution responded, inter alia, that it would offer testimony at trial from individuals who had worked for Llaca that he was one of the bosses at the 138th and 141st Street spots. (Id. at 1772-73). Additionally, the prosecution noted that Llaca and one of his co-conspirators had committed a double murder on September 3, 1989. (10/11/94 Proceedings at 24).

  At the close of the hearing, the court ruled that the State had presented "ample evidence" in support of a prima facie case of conspiracy, "without resort to the statements [the State] seek[s] to introduce," and therefore, the State would be permitted to introduce the co-conspirators' statements in furtherance of the conspiracy. (Id. at 28-30).

  3. Jury Selection

  a. Statements by the Trial Judge

  During voir dire, counsel for Stanley Tukes, one of petitioners' co-defendants, likened the prosecution's case to a collage and argued that the prosecution was "going to put together little pictures and tell you that this forms one big picture but we are not going to have a physical picture to see. It's going to an idea that they are perpetrating." Tukes's attorney asked the prospective jurors to "understand that that's all it is[,] an idea[,] and that it's not necessarily a physical reality." (Id. at 123).

  In response to a prosecution objection, the judge stated that she was "tired of the concept and the idea of brain washing jury selection as opposed to getting information." (Id. at 124). Tukes's attorney then denied that he was trying to brainwash anybody, and the judge responded that she would take his word "at face value." (Id.).

  b. Batson Challenge

  During the first round of jury selection, held on October 4, 6, and 11, 1994, the prosecutor exercised peremptory challenges against thirteen of the forty-four prospective jurors, (Id. at 205-20). In the second round, held on October 13, 1994, the prosecutor exercised a peremptory challenge against another juror. (10/13/94 Proceedings at 549-50). Tukes's counsel then made a Batson application, arguing that the prosecutor had used thirteen of his fourteen peremptory challenges to strike black jurors, and that the prosecutor had struck only one white juror. (Id.). The other defendants, including petitioners, later joined in that challenge. (Id.).

  In response, the trial court observed that "almost every prospective juror was either black or Hispanic," and that there was an "incredibly small" number of "Caucasians." (Id. at 550). Additionally, the prosecutor noted that seven of the thirteen seated jurors (twelve jurors and one alternate) were black. (Id.). The court concluded that (1) the defense had not shown a prima facie case of discrimination, and (2) the Batson challenge should have been made prior to the dismissal of the first jury panel "so that the Court could have acted appropriately at the appropriate time." (Id.).

  Nonetheless, the court then asked the prosecutor to explain the reasons for his peremptory challenges to "make a record." (Id.). The prosecutor did so, stating that he excused venireperson eight because she was a Jehovah's Witness and every Jehovah's Witness he had questioned in his ten years of experience had stated that Jehovah's Witnesses could not "sit in judgment." (Id. at 552).

  The prosecutor believed that venireperson twelve did not seem to be taking the proceedings seriously, that she "relied an awful lot on horoscopes," and that she had read the Enquirer whenever the parties were not questioning her. (Id. at 553). Consequently, he did not think that she would be an appropriate juror for a case of this "complexity." (Id. at 559-60).

  The prosecutor stated that venireperson seventeen was "too young" and would be unable to "evaluate evidence" and "make a decision" in a "serious" case like this because she was only twenty-one years old and unemployed. (Id. at 554).

  The prosecutor noted that venireperson thirty-four was employed by the Transit Authority. The prosecutor stated that it was his experience, based on past criminal investigation interviews, that Transit Authority workers did not have a "very good opinion" of police officers and were not "usually fair and impartial when it comes to evaluating them." (Id. at 554-55). The same explanation was offered for venireperson forty-one. (Id. at 556).

  The prosecutor stated that venireperson thirty-seven had appeared "stone faced" throughout the proceedings and he could not "read her." (Id. at 555-56). Further, he did not think she had been "particularly up front" with the parties. (Id. at 556).

  As to venirepersons forty-three and forty-four, the prosecutor explained that he thought they might be "too sympathetic" because venireperson forty-three worked in a day care facility and venireperson forty-four was involved to "a very large extent with church activities." (Id. at 556-57). Lastly, as to venireperson two of the second round of jury selection, the prosecutor explained that he had "a problem" with the fact that she wore sunglasses despite the lack of brightness in the courtroom. (Id. at 559). The prosecutor opined that she did not appear to be paying attention and that her wearing sunglasses indoors could indicate "a substance abuse problem." (Id.).

  None of the defendants, including petitioners, challenged any of the prosecutor's explanations as inadequate or pretextual. Thereafter, the court reiterated that the Batson application was untimely, but stated that it would make a ruling on the merits "because of the record." (Id. at 557). The court then found that the defendants had failed to make a prima facie showing of racial discrimination. (Id.). Specifically, the court found that "clear reason" existed for the prosecutor's peremptory challenges, that there was "no pretext," and that "the challenges were not exercised to discriminate on the basis of race." (Id. at 558).

  4. The Trial

  a. Stipulation Regarding Collins's Incarceration

  In his opening statement at trial, Collins's attorney argued that Collins had not been caught on videotape or in photographs and that he was not directly implicated by anything recovered pursuant to search warrants. (Trial Tr. at 817-19).

  Detective Mark Tebbens testified on direct examination that on January 5, 1992, he watched one of the Bronx drug selling spots from 12:30 a.m. until 5:00 a.m. and observed Collins and one "of his co-defendants, Russel Harris, in the location for several hours while lookouts rode bicycles nearby, whistling or yelling when the police came onto the block. (Id. at 1069-74, 1101-17, 1124, 1156-57). During that time, another co-defendant, Wilfredo De Los Angeles, arrived and spoke to Collins, Harris, and the lookouts. (Id.). Detective Tebbens also stated that Collins's address was near the location of the surveillance. (Id. at 1126-27).

  On cross-examination, Collins's attorney inquired whether "the only thing" Detective Tebbens could say with respect to Collins's activities was that he saw Collins once "in his own neighborhood talking to his neighbors." (Id. at 1441-43). Detective Tebbens responded that Collins had appeared to be talking to lookouts and directing people to the drug purchasing location. (Id. at 1442). Collins's attorney then elicited that, while from late 1989 to mid-1993 Detective Tebbens saw various people around 354 Cypress Avenue, the location where bosses and upper-level workers of the drug spots often gathered, he never saw Collins in the area during that period. (Id. at 1443-45).

  Next, Detective Edwin Benitez testified that he began his investigation into the Mott Haven narcotics trafficking activities in June 1992. (Id. at 1542-45). Collins's attorney then elicited that Detective Benitez had never seen Collins around the Bronx drug selling spot Detective Tebbens had testified about earlier. (Id. at 2143). At a sidebar conference, the prosecutor informed the court that Collins had been in jail since February 1992, a period that encompassed the tail end of Detective Tebbens' sinvestigation and the entirety of Detective Benitez's investigation. (Id. at 2144). The prosecutor stated his intention to introduce records to that effect, and the court ruled that Collins's attorney had opened the door to an explanation. (Id.). The prosecutor then asked Collins's attorney for a stipulation, but he declined, stating that it would be "[e]asy enough" for the prosecution to prove its point. (Id. at 2147-48).

  Cross-examination resumed and Collins's attorney elicited from Detective Benitez that during the period of his investigation he never saw Collins participate in and was unaware of Collins's involvement in investigation-related activities of which Detective Benitez had knowledge. (Id. at 2150-55).

  A subsequent colloquy occurred following the examination of Detective Kevin Bryant, whose investigation began after Collins was incarcerated. The judge reiterated that counsel had opened the door to an explanation about Collins's absence and noted a preference that the parties stipulate that Collins was not in the vicinity rather than that he was incarcerated. (Id. at 10718-19). The court opined that evidence of incarceration was "prejudicial," (Id.). The prosecutors replied that such a stipulation would inaccurately imply that Collins voluntarily chose to remove himself from the area. After more discussion, the court directed the parties to "start thinking of an appropriate stipulation." (Id. at 10723).

  At the close of the prosecution's case, the prosecutors read a series of stipulations to the jurors, one of which was that Collins had been incarcerated since February 1992. (Id. at 17912). At a sidebar conference Collins's attorney informed the judge that he had not agreed to the stipulation. (Id. at 17913). He also moved for a mistrial, asserting he had not opened the door to evidence of Collins's incarceration. (Id. at 17913-18).

  The court rejected the claim that the door had not been opened, stating that Collins's attorney's inquiry of the prosecution's witnesses had "raised an unfair inference." (Id. at 17917-18). With respect to the stipulation, the court offered to inform the jury that Collins had not agreed to the stipulation. (Id. at 17918). Collins's attorney declined, stating that he did not want to "highlight" the information. (Id.). The court also offered to instruct the jury "not to draw any inference" from the dates any of the defendants were incarcerated. (Id.). None of the attorneys accepted that offer. (Id. at 17919).

  During deliberations, the jury sent a note requesting the "stipulation of in jail dates of all defendants." (Id. at 20972). The prosecutor argued that the court should read the stipulations addressing the incarceration of Collins and several of his co-defendants. (Id. at 20975-76). Collins's attorney argued that he had not opened the door to that evidence and had not stipulated to its admission, and reminded the court that he objected after the prosecutor read the stipulation to the jury. (Id. at 20976, 20982, 20986, 21150-52). Noting that Collins had declined the court's offer to have the stipulation withdrawn, the court held that the evidence of Collins's incarceration had come in by stipulation and would be reported to the jury that way. (Id. at 21157-58). The record does not reflect whether and when the stipulation was in fact re-read to the jury.

  b. Statements by Trial Judge

  i. Statements Regarding Scope of Witness Cross-Examination

  During his cross-examination of cooperating witness George Santiago, Collins's attorney elicited that Santiago had been incarcerated at Rikers Island and that during his stay there he had been "called into security" with respect to his involvement with a gang, the "Latin Kings." (Id. at 10114). When the judge sustained a prosecution objection to Collins's attorney's request for a description of the Latin Kings, Collins's attorney requested a sidebar. (Id.).

  At the sidebar, Collins's attorney alleged that Santiago (1) had shot or been involved in the shooting of the individual for whose death Collins was presently on trial, (2) was an upper-level member of the Latin Kings, and (3) was able to exert control over prosecution witnesses because of his status. (Id. at 10116-17, 10133). Thus, Collins's attorney wanted to inquire into Santiago's gang membership. The judge told Collins's attorney that he had an "absolute right" to elicit Santiago's Latin Kings membership, but that "how far [counsel was] going to be able to go from there from an[] evidentiary point of view is a totally different issue." (Id. at 10118-19, 10134). While the judge was. explaining her ruling, Collions's attorney interrupted and set forth the information he intended to elicit upon the resumption of his cross-examination. (Id. at 10119). The following exchange then took place:

The Court: No. If your next question will be "are you a member" — sten to me first. [Collins's attorney]: I will listen to you first and then I will be heard.
The Court: You will be heard because I will hear you. But if you do something I tell you not to do[,] I warn you right now you will sit down and your [cross-examination] will end.
[Collins's attorney]: If you want to run that risk.
The Court: Because I am putting you on notice now. I want you to know in every trial I have with you, you try to push me to the limit. And I'm warning you now.
[Collins's attorney]: I am representing my client.
The Court: And you do a good job but you will ask the questions that I permit.
[Collins's attorney]: I will go into the areas that you permit but I will ask my questions. I'm doing the cross-examination here.
The Court: When I sustain an objection you will follow my ruling. [Collins's attorney]: I will follow your ruling in terms of areas, but I will not follow your script.
The Court: Don't yell at me. Don't put your face in my face. And change your tone of voice.
[Collins's attorney]: I won't follow the Court's script.
The Court: You can say anything you want, if you don't follow the ruling —
[Collins's attorney]: I will follow your ruling to the letter.
The Court: Be quiet and listen to me. Remember there's no jury here. I tell you right now if you don't do what I say you will have an exception and you will have your objection noted. If you don't listen to me, I'll direct you to sit down. And I'm telling the jury exactly what you're doing and what you've done, before in other trials.
[Collins's attorney]: What will you do that for? You wouldn't do something like that what I've done in other trials?
The Court: In front of the jury, I will tell the jury this is the standard procedure you follow in the hope of building a record for appeal if there should be a conviction. I will say everything that I have to say and it will make you look bad.
(Id. at 10119-22).

  The judge then ruled that Collins's attorney could ask Santiago whether he belonged to the Latin Kings and whether he knew what the Latin Kings were, (Id. at 10122). The judge later commented that Collins's attorney should "listen rather than pick a fight," that she agreed that he had a good faith basis for his inquiry, and that he could elicit if possible that Santiago could coerce witnesses to testify as he wanted. (Id. at 10123). The judge specified, however, that Collins's attorney had to pursue his line of inquiry "in the proper way." (Id. at 10124). The following exchange then occurred:

[Collins's attorney]: . . . I'm sure the Court is aware of the fact why you can set out what areas and the extent of the questioning and alike, you cannot give me my cross-examination for my client. You've not prepared this case from my point of view. Let me finish —
The Court: No. You're not going to finish. I didn't say I would ask your questions, what I said was this[:] If you ask a question and there's an objection and I sustain it you will follow my ruling.
[Collins's attorney]: Oh yes. Most certainly. Of course.
The Court: Otherwise you will have to go to another area. If you don't follow the ruling you will have to sit down.
[Collins's attorney]: I'm going to ask my questions.
The Court: Let's cu[t] the B.S. I'm warning you. Make your questions consistent with the rules of evidence.
[Collins's attorney]: Yes.
The Court: If you don't I'll give [a] speech to the jury and you'll end up sitting down, but I will give it in such a loving manner you won't find as distasteful as you hope.
(Id. at 10124-25).

  The judge later ruled that Collins's attorney could not inquire about the Latin Kings unless he first established that Santiago was a member. (Id. at 10129-32). When Collins's attorney stated that he sought to ask Santiago whether the Latin Kings was a Puerto Rican organization and whether members owe allegiance to each other, the judge agreed that counsel could pursue that inquiry if Santiago admitted to membership in the group. (Id. at 10134).

  ii. Sidebar Regarding Method of Cross-Examining Witness

  Another sidebar was called while De Los Angeles's attorney was cross-examining another cooperating witness. At the sidebar, the prosecution stated, in essence, that De Los Angeles's attorning was confusing the witness by his method of questioning. The following exchange then took place:

The Court: That's his job, to obfuscate the truth, confuse everything. Just laughing when I said that.
[De Los Angeles's attorney]: It's not my job —
The Court: Have a sense of humor.
(Id. at 11033).

  c. Jury Instructions

  i. Conspiracy Charge

  (1) Age Element

  At the charge conference, the court informed the parties that it would deliver a charge regarding the age element of conspiracy in the first degree.*fn4 The court planned to instruct the jury that the prosecution was required to prove that at the time of the agreement, the defendant, "referring to each defendant," "was over [eighteen] years of age and at least one of his co-conspirators was under [sixteen] years of age." (Id. at 18538). The court added that it was "not a defense" that "a defendant did not know that the person under [sixteen] years of age was under age or that he believed that person to be [sixteen] years or older." (Id. at 18538-39).

  Collins's attorney then asked whether the court would charge the jury that it must find that, "even though the defendant did not have to be aware" that the other individual was under the age of sixteen, that the prosecution proved "an agreement between that defendant and the party under the age of [sixteen]." (Id. at 18539-40). The court replied that the prosecution was required to prove only that the "defendant was over [eighteen] years of age and at least one of his co[-]conspirators whom the defendant knew was a member of the conspiracy was under [sixteen] years of age." (Id. at 18540). Collins's attorney responded, "Fine." (Id.).

  After the court charged the jury as such, Collins's attorney stated that he "disagree[d] with the court that s[cie]nter is not required" for first-degree conspiracy. (Id. at 20950-51). The court replied that "the law does not support that position," and Collins's attorney said nothing further on the matter. (Id.). (2) Multiple Conspiracies

  Also in its conspiracy charge to the jury, the court noted that "the defendants contend that as to the conspiracy count the [prosecution's] proof fails to show the existence of one overall conspiracy" and instead "may show several separate conspiracies with various groups or members." (Id. at 20841). The court instructed the jury that whether there existed "a single unlawful agreement or many such agreements or indeed no agreement at all" was "a question of fact that you the jury[] determine in accordance with the instructions I'm about to give you." (Id.).

  The court further stated:

If you find that [the] conspiracy charge[d] in the indictment did not exist you cannot find the defendant guilty of a conspiracy that is not charged in the indictment. . . . [I]n other words, if you find that the conspiracy charged in the indictment did not exist you cannot find the defendant guilty of that conspiracy charge. This is so, even if you find that a defendant was a member of some conspiracy other then the one charged in the indictment.
(Id. at 20, 842). Following the charge, counsel for petitioners' co-defendant argued that the court had not informed the jury that it "must acquit" if it found multiple conspiracies. (Id. at 20936-37). The court responded, "I think I did say that. I will rest on the record." (Id. at 20937). The attorneys for Gonzalez and several other co-defendants joined in the argument. (Id. at 20937-39, 20955-56). During deliberations, the jury sent a note to the court asking whether it could find any defendant guilty of conspiracy if it found that the organization that sold the cocaine with red tops was "independent of" the orange top organization, or, alternatively, if it found that "Red and Orange Top operated together for only a portion of the time charged." (Id. at 21281-82). After conferring with the other defense attorneys, counsel for Rafael Perez, petitioners' co-defendant, stated that the defendants requested a charge "directing an acquittal in the event the jury concludes something other than a single conspiracy was proved." (Id. at 21286). The court ruled that it would "basically" repeat its previous charge. (Id. at 21288, 21296-97).

  The court then instructed the jury that it would be "inaccurate" and "misleading" to answer its questions in the negative, but instead would give a "short recharge on various aspects of conspiracy." (Id. at 21299). The court reminded the jurors that whether there existed a single conspiracy, multiple conspiracies, or no conspiracy at all was a question of fact for the jury to decide. (Id.). In addition, the court reiterated that if the jurors found that "the conspiracy charge[d] in the indictment did not exist, . . . or that a conspiracy with separate and distinct purposes existed, then you cannot find the defendant guilty of the conspiracy charged." (Id. at 21301-02).

  The court further added that if "you find that the conspiracy charged in the indictment existed between any of the defendants you must then decide as to each defendant on an individual basis whether that defendant joined the conspiracy with knowledge of any of its unlawful purposes or some of its unlawful purposes. . . . [E]ach defendant is entitled to individual consideration of the proof." (Id. at 21301-02). The court also gave general instructions concerning the definition of a conspiracy and, specifically, the definitions of single versus multiple conspiracies. (Id. at 21299-304).

  The defense attorneys objected to the supplemental charge as "unbalanced." The court overruled the objection, stating that it would "rest on the record." (Id. at 21304-06).

  ii. Charge on the Nature of Deliberations

  Before sending the jurors into the jury room, the court reminded each that he or she had "given your oath that you will consult with each other and deliberate with the view [] towards reaching an agreement in this case." (Id. at 20963). The court noted that the purpose of the trial was "to have the jury reach a verdict as to each defendant if humanly possible as consistent with your principles." (Id. at 20964). The court instructed the jurors to be "calm," "open-minded," and "rational," and to "talk to each other and share your views for as long or as short as may be necessary." (Id. at 20965).

  On May 10, 1995, eight days after commencing deliberations, the jury sent a note to the court asking for "very `specific' instructions as to what deliberations among jurors consist of." (Id. at 21350). The note continued, "for example, is saying, `I did not believe the testimony of one witness and I have nothing more to say' sufficient for deliberation?" (Id.).

  In a colloquy outside the presence of the jury, the court proposed that it would give the jurors a "similar instruction [to] that I have given before about the duty to deliberate." (Id. at 21352). Counsel for Collins then asked that the court include language noting that the deliberations had already lasted "several days," and stating that if a juror was "still of a certain mind that you do not accept the credibility of a witness, . . . [the] juror does have a right after exchanging their views to hold firm to what it is they concluded based upon their deliberation and all the evidence they heard." (Id. at 21353-54). After the court responded that it was "not giving a full Alien charge yet," all of the defendants joined in Collins's arguments. (Id. at 21354).

  The court then charged the jury as follows:

That is not deliberation. That is a refusal to participate in deliberation. We have discussed this on a number of occasions. You each took an oath, you took an oath to follow the law, to evaluate the testimony, you took an oath to confer with each other and review all of the testimony and apply the law to it fairly to both sides. You took an oath that you would apply the standard of reasonable doubt[—]that's doubt based on reason[—]and not arbitrarily reject the testimony of any witness or refuse to consider it.
Your duty as jurors is to discuss among yourselves using reason, logic and common sense. You have taken an oath to do that and it is your sworn duty to do so.
This has been a long case as we have discussed on many occasions. Everyone has put a lot of effort into this case and probably most of all[,] all of you. You have given your oath that you would consult with one another, deliberate with a view towards reaching an agreement that could be fair to both sides, that you would never resort to sympathy or prejudice or be arbitrary or resort to speculation and that you would follow the law and all principles. The purpose of this trial is to have you, the jury, reach a verdict for each defendant if humanly possible, consistent with your principles. No jury will ever be better equipped than you to reach these verdicts.
Obviously each of you should not hesitate to re-examine your views and if you feel that in reason you cannot accept something, then you may say so and give a reason for it. However, you cannot arbitrarily reject any testimony and you must apply the law as it has been given to you, so when you go back to the jury room now, remember your oath as jurors. Remember that you have a duty to deliberate, remember that you should be fair and calm and rational. Use reason, logic, and common sense. If you are stuck on one count, go on. Do what you can fairly.
This has been long, you are tired. We all understand that, but we have as much time as we need and we will take it. Please retire, remember your oath as jurors and continue your deliberations. Thank you.
(Id. at 21355-50).

  In addition to objections made by petitioners' co-defendants, Collins's counsel objected to the charge as "unbalanced." (Id. at 21358). The other defendants joined in Collins's objection. (Id.). The court rejected the defendants's challenges to the charge. (Id.). The jury continued to deliberate and returned a verdict five days later, on May 15, 1995. 5. Petitioners' Convictions and Sentences

  Llaca was convicted of three counts of murder in the second degree, two counts each of attempted murder in the second degree and assault in the second degree, one count of conspiracy in the first degree, and four counts of criminal possession of a weapon in the second degree. He was sentenced to an aggregate indeterminate prison sentence of 116 1/3 years to life. The jury failed to reach a verdict with respect to the following charges against Llaca: one count of attempted murder in the second degree, one count of assault in the first degree, and two counts of possession of a weapon in the second degree.

  Gonzalez was convicted of four counts of murder in the second degree, one count each of attempted murder in the second degree, conspiracy in the first degree, assault in the second degree, and criminal sale of a controlled substance in the third degree, and five counts of criminal possession of a weapon in the second degree. He was sentenced to an aggregate indeterminate prison term of 141 2/3 years to life.

  Collins was convicted of conspiracy in the first degree and sentenced to an indeterminate prison term of 20 years to life. The jury failed to reach a verdict on second-degree murder and weapons possession charges. On May 8, 1997, however, following a retrial, Collins was convicted of those charges and later sentenced to concurrent prison terms of 25 years to life and seven and one half to fifteen years, respectively, to run consecutively to his sentence for the conspiracy conviction. See Collins, 306 A.D.2d 180.

  As to the remaining six defendants tried with petitioners, the jury returned guilty verdicts on sixty-three of sixty-four counts charged against them, and was unable to reach a verdict on one count of third-degree criminal possession of a weapon. (Trial Tr. at 21453-89).

 C. Appellate Review

  1. Appellate Division

  Petitioners and their five co-defendants appealed jointly to the New York Appellate Division, First Department, raising a number of claims.

  Llaca argued that (1) the prosecutor exercised peremptory challenges to remove blacks from the jury panel, (2) his co-conspirators' out-of-court statements should not have been admitted into evidence, and (3) the trial court's supplemental charge was an improper, unbalanced Allen charge. (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol. I, Ex. B).

  Gonzalez argued that the trial court (1) erred by failing to instruct the jury that it "must acquit" if it found multiple conspiracies rather than the single over-arching conspiracy charged in the indictment, and (2) improperly charged the jury on the nature of deliberations. (Id., Ex. C). Gonzalez also "join[ed] in the points of all his co-defendants." (Id.).

  Collins argued that (1) the trial court erred by admitting the stipulation into evidence that Collins had been incarcerated, (2) the trial court erred by denying Collins's motion to sever his trial from that of his co-defendants, and (3) the trial judge improperly charged the jury as to conspiracy in the first degree. (Resp't Opp. to Collins Pet., App. Vol I, Ex. A).

  In a memorandum dated March 30, 2000, the Appellate Division affirmed the convictions of all three petitioners. Justice Rosenberger dissented, opining that the trial court erred in admitting into evidence the stipulation that Collins had been incarcerated. See People v. De Los Angeles, 270 A.D.2d 196, 707 N.Y.S.2d 16 (1st Dept. 2000). Justice Rosenberger granted Collins leave to appeal to the New York Court of Appeals. See People v. Collins, 95 N.Y.2d 840 (2000). The relevant portions of the Appellate Division decision are discussed below.

  a. Severance

  With respect to Collins's and certain of his co-defendants' claims that the trial court had improperly denied their severance motions, the Appellate Division held:

The court properly exercised its discretion in denying defendants' motions for severance since most of the People's evidence was introduced to establish the joint enterprise, which evidence applied to all defendants. The trial lasted eight months, with the People presenting some 70 witnesses, and to have conducted multiple trials would have violated the strong public policy favoring joinder and would have turned an already extended trial into several such trials, with security problems associated with disclosure of the identity of witnesses through repetitive appearances. Furthermore, the record reveals that there was no irreconcilable conflict between the defenses presented nor was there a significant danger that any alleged conflict led the jury to infer any defendant's guilt. Incidents during the trial wherein some defendants elicited evidence that other defendants found objectionable did not require a severance, since no defendant took an aggressive adversarial stance against another, and since the evidence so elicited was cumulative to evidence elicited by the People or was nonprejudicial.
People v. De Los Angeles, 270 A.D.2d at 197-98 (internal citations omitted).

  b. Batson Challenge

  With respect to Llaca's and certain of his co-defendants' arguments on appeal that (1) the Batson claim was timely, (2) a prima facie case of discrimination had been demonstrated, and (3) the prosecutor's reasons for his challenges to the above-mentioned jurors had been pretextual, the Appellate Division held:

Defendants failed to preserve for appellate review their current contentions that the court did not follow the proper three-step procedure and that the prosecutor's explanations for his peremptory challenges of certain prospective jurors were pretextual, and we decline to review them in the interest of justice. Were we to review these claims, we would find that the record, read as a whole, establishes that the court followed the proper protocols and made a distinct finding that the reasons proffered by the prosecutor were not pretextual, and we would further find that this factual determination, which largely turned on the credibility of the prosecutor, was supported by the record.
Id. at 198. c. Co-Conspirator Statements

  With respect to his challenge to the trial court's admission of co-conspirator statements, Llaca argued that the prosecution was required to (1) establish a prima facie case of conspiracy at a pretrial evidentiary hearing, and (2) demonstrate that the statements were reliable and that the declarants were unavailable to testify. The Appellate Division held that:

Defendants'[] various challenges to the admissibility of co[-]conspirators' [] statements are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the statements were properly admitted.
Id. at 199.

  d. Stipulation Regarding Collins's Incarceration

  As to Collins's argument that the stipulation regarding his incarceration had improperly been read to the jury, the Appellate Division held, with Justice Rosenberger dissenting, that Collins's attorney had opened the door to evidence of Collins's incarceration by questioning the detectives about whether they had seen Collins during their surveillance even though counsel was "keenly aware that the detectives could not have seen [Collins] at the locations specified because [Collins] resided elsewhere, at the New York Correctional facility on Rikers Island." Id. at 200. The Appellate Division also stated that Collins's attorney's questions "tended to mislead the jury," and the prosecutor was permitted to "clarify" the issue because Collins had "opened the door." Id. at 200-01. The Appellate Division noted that Collins's counsel had not "agreed to the "stipulation," but found the issue unpreserved, because "counsel rejected the court's offer to inform the jury that he did not agree to the stipulation." Id. at 200. Further, the Appellate Division held that Collins suffered no prejudice from the "one passing reference" to his incarceration. Id.

  e. Jury Instructions

  The Appellate Division also rejected (1) Collins's argument that the trial court improperly instructed the jury on the age requirement of the conspiracy count, and (2) Gonzalez's argument that the trial court's multiple conspiracy charge had been improper, stating that "[v]iewed as a whole, the court's charge and supplemental instructions with respect to conspiracy in the first degree and multiple conspiracies conveyed the appropriate legal principles." Id. at 199.

  Further, with respect to Llaca and Gonzalez's argument that the trial court improperly instructed the jury on the nature of deliberations, the Appellate Division held that "[t]he court's response cautioning the jury against arbitrarily disbelieving a witness was proper, in context, since the court defined arbitrariness in terms of lack of reason." Id. at 199.

  2. Court of Appeals

  On September 12, 2000, the Court of Appeals denied Llaca and Gonzalez leave to appeal, "without prejudice to renew upon decision" in People v. Collins. (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol. III, Exs. K, L). On June 5, 2001, the Court of Appeals affirmed Collins's conviction. See People v. Collins, 96 N.Y.2d 837 (2001).

  As to Collins's severance claim, the Court of Appeals stated that "[Collins's] arguments with respect to the denial of his motion for severance . . . are without merit." Id. at 838. As to Collins's argument with respect to the stipulation, the Court of Appeals stated:

On appeal, [Collins] argues that the trial court erred in denying his motion for a mistrial after a "stipulation" was read to the jury stating that [Collins] was incarcerated from February 19, 1992 to the date of the trial about two and a half years later. On this record we conclude that the trial court did not abuse its discretion as a matter of law by denying the motion for a mistrial.
Collins. 96 N.Y.2d at 838.

  As to Collins's claim that the trial judge made "hosfile" and "demeaning" comments and had "denigrated" the defense, a claim that he did not bring before the Appellate Division, the Court of Appeals denied it as unpreserved.*fn5 Id. at 838. The Court of Appeals also rejected Collins's challenge to the age instruction of the conspiracy charge as unpreserved. Id. Finally, with respect to Collins's argument regarding the court's instruction on the nature of deliberations, the Court of Appeals rejected the claim as "without merit." Id. Neither Llaca nor Gonzalez renewed their leave applications before bringing petitions for writs of habeas corpus.

 D. The Instant Petitions

   1. Llaca

   Llaca filed a petition for a writ of habeas corpus on October 25, 2001, arguing that (1) the trial court improperly denied his Batson challenge, (2) his co-conspirators' out-of-court statements should not have been admitted into evidence, and (3) the trial court incorrectly instructed the jurors on the nature of deliberations. (Llaca Pet. at 5-6A).

   2. Gonzalez

   Gonzalez also filed a petition for a writ of habeas corpus on October 25, 2001, arguing that the trial court (1) erred by failing to instruct the jury that it "must acquit" if it found multiple conspiracies rather than the single over-arching conspiracy charged in the indictment, and (2) improperly charged the jury on the nature of deliberations. (Gonzalez Pet. at ¶ 13).

   By letters dated April 3, 2002, and April 24, 2002, Gonzalez asked the Court to hold his petition in abeyance so that he could return to the New York Appellate Division and exhaust the following two claims that were not raised in his petition: (1) his Batson application was improperly denied, and (2) his appellate attorney provided ineffective assistance by not raising [EDITOR'S NOTE: THIS PAGE IS BLANK] his Batson claim on appeal. By orders dated May 1, 2002, and May 9, 2002, the Court granted Gonzalez's request. On October 16, 2002, the New York Court of Appeals denied Gonzalez's request for leave to appeal, stating that "there is no question of law which ought to be reviewed by the Court of Appeals." (Resp't Aff. in Response to Gonzalez Am. Pet., Ex. C).

   On November 5, 2002, Gonzalez requested leave to amend his petition to include three additional claims: (1) the prosecutor exercised peremptory challenges to remove African-Americans from the jury, (2) Gonzalez's trial counsel provided ineffective assistance by failing to make a timely Batson application, and (3) his appellate counsel provided ineffective assistance in his leave application to the Court of Appeals. (Gonzalez Aff. dated 11/5/02 at ¶ 6 ("Gonzalez Am. Pet.")). On November 19, 2002, the Court granted Gonzalez's motion to amend his petition. Thereafter, Gonzalez requested that "his two claims regarding ineffective assistance of trial and appellate counsel be dismissed." (Gonzalez Mem. of Law dated 3/5/03 at 11, n.3).

   3. Collins

   Collins filed a petition for a writ of habeas corpus on June 21, 2002. The form petition Collins used contained an instruction to include the grounds being raised in the petition. Collins, however, left this entry blank. (See Collins Pet. at ¶ 13). On September 13, 2002, Judge Gorenstein ordered Collins to complete the relevant section of his petition, stating that "Collins had otherwise carefully completed the petition and even included a typed listing of the grounds raised in his state court appeals" and "[r]ather than go through the exercise of returning the petition — thereby risking the possibility that an argument might be made that the new petition should be deemed untimely — the Court finds that the more sensible course is to allow Collins to amend the petition to state the grounds that he intends to raise." Collins v. Bennett, 02 Civ. 4807 (RMB) (GWG) (S.D.N.Y. Sept. 13, 2002).

   Thereafter, by letter dated September 23, 2002, Collins informed the Court that he wanted to raise all five of the grounds that he raised before the Court of Appeals, namely, that (1) the trial court erred by admitting a stipulation into evidence that petitioner had been incarcerated; (2) the trial court erred by denying petitioner's motion to sever his trial from that of his co-defendants; (3) the trial judge delivered an improper Alien charge to the jury; (4) the trial judge improperly made comments denigrating defendants and defense counsel; and (5) the trial judge improperly charged the jury as to conspiracy in the first degree. (See Collins's Mem. Endorsed Letter to Court dated Sept. 23, 2002 ("Collins Am. Pet.")).

   For the reasons set forth below, petitioners' claims are rejected and their petitions are dismissed. DISCUSSION

  A. AEDPA

   1. Standard of Review

   The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") provides the applicable standard of review. See 28 U.S.C. § 2254. AEDPA provides that a habeas petition may not be granted unless the state court's adjudication of the claim on the merits "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)(1); see also Williams v. Taylor, 529 U.S. 362 (2000).

   A state court adjudicates a petitioner's claims "on the merits" when it disposes of the claim on the merits and reduces its disposition to judgment. Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) (citing Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)). In addition, the Second Circuit has held that the state court "need not mention the argument raised or cite relevant case law in order for its ruling to constitute an `adjudication on the merits.'" Brown, 283 F.3d at 498 (quoting Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001)).

   A decision is contrary to clearly established federal law when a state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or the state court decides a case differently than the Supreme Court had on a set of materially indistinguishable facts. See Williams, 529 U.S. at 406. A state court's decision involves an unreasonable application of clearly established federal law when the state court identifies the governing legal principle from Supreme Court decisions, but unreasonably, not merely incorrectly, applies that principle to the facts of the prisoner's case. Id., 529 U.S. at 411.

   AEDPA also specifies the applicable standard for federal review of state factual findings: a petitioner must demonstrate that a decision 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(d)(2). In habeas proceedings, a "determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). Additionally, it is the petitioner's burden to rebut the presumption of correctness "by clear and convincing evidence." Id.

   2. Procedural Default

   A federal court may consider a petition for habeas corpus only if the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275 (1971); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997); Dave v. Attorney Gen., 696 F.2d 186, 190 (2d Cir. 1982) (en banc).

   The Second Circuit "has formulated a two prong test for determining whether an applicant for federal habeas relief has exhausted his state remedies." Bacchi v. Senkowski, 884 F. Supp. 724, 730 (E.D.N.Y. 1995), aff'd, 101 F.3d 683 (2d Cir. 1996). First, the petitioner must have "fairly presented" his federal claims to the state's highest court. Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (quoting Picard, 404 U.S. at 275); see also Daye, 696 F.2d at 190-91 n.3. "Second, the petitioner must have used all methods in the state appellate process, including direct appeal to the highest state court, before filing a writ of habeas corpus." Robertson v. Artuz, No. 97 Civ. 2561, 1999 U.S. Dist. LEXIS 19994, at *8 (S.D.N.Y. Jan. 4, 2000); see also Klein v. Harris. 667 F.2d 274, 282 (2d Cir. 1981); Bacchi, 884 F. Supp. at 730.

   A petitioner may fairly present the constitutional nature of his claim to the state courts "even without citing chapter and verse of the Constitution," by demonstrating: (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, or (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. Priester v. Mantello, No. 99 Civ. 4473, 2001 U.S. Dist. LEXIS 10428, at *8 (S.D.N.Y. July 26, 2001) (citing Dave. 696 F.2d at 194); see also Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984). If a petitioner has not exhausted his state remedies, he must return to state court. See Engle v. Isaac. 456 U.S. 107, 125 n.28 (1982); Cadilla v. Johnson, 119 F. Supp.2d 366, 374 n.7 (S.D.N.Y. 2000). If there is no available state forum to pursue a state remedy because of a procedural bar, the claim may be deemed forfeited. See Teague v. Lane, 489 U.S. 288, 297-99 (1989); see also Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) ("a federal claim [need not] be presented to a state court if it is clear that the state court would hold the claim procedurally barred") (quoting Harris v. Reed, 489 U.S. 255, 263 n.9 (1989)).

   Under such circumstances, a petitioner cannot obtain federal habeas review of a claim on the merits "unless [he] can show `cause' for the default and `prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice.'" Harris, 489 U.S. at 262 (internal citations omitted); see also Murray v. Carrier, 477 U.S. 478, 493-94 (1986); Wainwright v. Sykes, 433 U.S. 72, 72 (1977); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Cause exists if "the prisoner can show that some objective factor external to the defense impeded counsel's effort to comply with the State's procedural rule." Murray, 477 U.S. at 488. Prejudice exists if "`there is a reasonable probability' that the result of the trial would have been different" absent the complained of constitutional violation. Stickler v. Greene, 527 U.S. 263, 289 (1999). B. The Claims

   1. Collins; Severance

   Collins contends that the trial court committed "reversible error" by declining to sever his case from those of his co-defendants. (See Collins Am. Pet., Ground Two). Specifically, Collins alleges that the State presented evidence of "heinous crimes, violent acts, and homicides attributable solely to his co-defendants," and such evidence "created a danger of transference of guilt so great that he was denied a fair trial." (Id.). For the reasons set forth below, Collins's argument is without merit.

   a. Applicable Law

   New York law permits joinder where "all the offenses charged are based on a common scheme or plan." New York Crim. Proc. Law § 200.40(1)(b) (McKinney 2002). A strong public policy favors joinder "because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses." People v. Mahboubian, 74 N.Y.2d 174, 183 (1989); see also People v. Cardwell. 78 N.Y.2d 996 (1991).

   The decision whether to grant a defendant's motion for severance is "committed to the sound discretion of the trial judge." See Opper v. United States, 348 U.S. 84, 95 (1954); United States v. Cardascia, 951 F.2d 474, 482 (2d Cir. 1991); United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989). A trial court's denial of a severance motion is considered "virtually unreviewable." United States v. Friedman, 864 F.2d 535, 563 (2d Cir. 1988); see also United States v. Martinez, 922 F.2d 914, 922 (1st Cir. 1991) (at the trial level, a separate trial will be ordered only upon "a strong showing of prejudice").

   At the appellate level, a denial of a severance motion will only be reversed upon a showing that the trial court abused its discretion. See Cardascia, 951 F.2d at 482; United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998). An appellant must establish that he or she "was so severely prejudiced by the joinder as to have been denied a fair trial, not that he [or she] might have had a better chance for acquittal at a separate trial." Grant v. Hoke. 921 F.2d 28, 31 (2d Cir. 1990) (citations omitted). Incidental prejudice, which is almost always present when multiple defendants who played different roles are tried together, will not be enough. See Martinez, 922 F.2d at 922.

   b. Application

   i. Procedural Default

   The State contends that, although Collins's first habeas petition was timely filed, because Collins left blank the pertinent section of the petition regarding claims raised, and did not file an amended petition until approximately twenty days past the expiration of AEDPA's one-year statute of limitations, Collins's amended petition is untimely. Consequently, the State argues, all of Collins's claims, including the instant severance claim, are time-barred. For the reasons set forth in Judge Gorenstein's order dated September 13, 2002, the State's argument is rejected and Collins's petition is deemed timely filed. Accordingly, as Collins has also properly exhausted his state remedies with respect to this claim, I address the merits below.

   ii. The Merits

   Collins has failed to establish prejudice of a magnitude such that he was denied a fair trial. In Mahboubian, the Court of Appeals set forth a two-prong test for deciding whether severance is required. Mahboubian, 74 N.Y.2d at 184. The Court of Appeals held that

severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt.
Id.

   Here, Collins has not shown that the trial court abused its discretion by failing to grant his motion for severance. As the Court noted in Mahboubian, while a trial court must decide a severance motion "prospectively, based on its discretionary assessments of the strategies and evidence as forecast by the parties," an appellate court has the "full trial record by which [it] may, within the ambit of [its] review powers, determine the existence of irreconcilable conflict and its possible effect on the verdict." Id. at 184-185. The record does not reveal an irreconcilable conflict between Collins's defense and that of his eight co-defendants such that the conflict alone would have led the jury to infer Collins's guilt. Id. at 183. Furthermore, the circumstances of this case supported a joint trial. The charges against Collins and his eight co-defendants were based on a "common scheme or plan." Thus, under the New York Criminal Procedure Law, joinder was appropriate. See New York Crim. Proc. Law § 200.40(1)(b). Collins and his eight co-defendants were all direct participants in the conspiracy and each played significant roles in the managerial structure of the crack selling locations around which the conspiracy revolved. The Court must also consider that the trial in this case lasted seven months and required the testimony of numerous witnesses. Multiple separate trials would have violated the strong public policy favoring joinder.

   This case is not one where "the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." Bruton v. United States, 391 U.S. 123, 135 (1968). This was a typical multi-defendant drug case; it was not so intricate as to require severance. See Campbe11 v. Andrews, No. 97 Civ. 2534, 1999 U.S. Dist. LEXIS 16965, *14 (E.D.N.Y. Oct. 19, 1999).

   Moreover, the jury carefully weighed the evidence and fairly distinguished among the separate defendants when reaching its verdict. The jury requested numerous exhibits and clarifications of the charge. The jury clearly evaluated the evidence against each defendant separately, as demonstrated by the fact that the jury failed to reach a verdict on the second-degree murder and second-degree weapons possession charges against Collins.

   I find that Collins has failed to demonstrate an abuse of the trial court's discretion in denying his motion for severance. Consequently, this claim fails.

   2. Llaca and Gonzalez: Batson Challenge

   Llaca and Gonzalez contend that their constitutional rights were violated by the prosecutor's use of peremptory challenges to excuse several African-American jurors. (Llaca Pet. at 5A; Gonzalez Am. Pet., Ground Three). As demonstrated below, these claims are procedurally barred and, in any event, without merit.

   a. Applicable Law

   In Batson v. Kentucky, the Supreme Court reaffirmed the long-standing principle that the Equal Protection Clause is violated when prosecutors "challenge potential jurors solely on account of their race," and set forth a three-step, burden shifting analysis to determine whether a peremptory strike has been exercised in a racially discriminatory manner. 476 U.S. 79 (1986). The trial court must (1) decide whether the opponent of the peremptory challenge has made a prima facie showing that the challenge was exercised on the basis of race; if so, (2) decide whether the proponent of the strike has satisfied the burden of offering a race neutral explanation for striking the potential juror; and, if so, (3) make a determination whether the opponent of the strike has carried his burden of persuasion of proving purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995).

   In the first step of the analysis, the opponent of the challenge must show that the circumstances raise an inference of discrimination. Purkett, 514 U.S. at 767 (citation omitted). The second step does not require an explanation that is persuasive or even plausible; the issue is whether the non-movant's explanation is facially valid. Id. at 767-68. Further, unless a discriminatory intent is inherent in the non-movant's explanation, the reason offered will be deemed race neutral. Id. at 768 (citation omitted). The third step of the Batson inquiry requires the judge to make "an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances." United States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991). Because it is largely an evaluation of credibility, the trial judge's finding with respect to discriminatory intent is afforded a high level of deference. Batson. 476 U.S. at 98; see also Hernandez v. New York. 500 U.S. 352, 365 (1991) (the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed).

   Additionally, the Supreme Court has made clear that to claim the rights specified in Batson, a defendant must object in a timely fashion. 476 U.S. at 99. The Second Circuit has held that failure to object to the discriminatory use of peremptory challenges prior to the conclusion of jury selection waives the objection. McCrory v. Henderson, 82 F.3d 1243 (2d Cir. 1996).

   b. Application

   i. Procedural Default

   Llaca's habeas petition with respect to this claim was timely filed. Additionally, Llaca submitted the claim on direct appeal to the Appellate Division, and his leave to appeal to the New York Court of Appeals was denied. (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol. III, Exs. F, G, K). Llaca has procedurally defaulted with respect to this claim, however, because, as explained in further detail below, he failed to preserve it at the trial level.

   Gonzalez's Batson claim is barred by procedural default for a number of reasons: it is untimely, unexhausted, and as with Llaca's claim, unpreserved. Gonzalez had thirty days from June 5, 2001, the date the Court of Appeals decided People v. Collins, to renew his leave application to the Court of Appeals. Because Gonzalez did not file a motion to renew by that date, his state court judgment became final on July 5, 2001. Pursuant to AEDPA's one-year time limitation, Gonzalez then had until July 5, 2002, to seek federal habeas review. Gonzalez did not file his amended habeas petition until November 5, 2002, four months beyond the expiration of AEDPA's one-year statute of limitations. Consequently, the claim is time-barred.

   Further, although this Court granted Gonzalez permission to return to state court to exhaust the new claims raised in his amended habeas petition, and the Court of Appeals granted Gonzalez's request for an extension of time to file his renewed leave application, Gonzalez failed to raise the Batson claim in his renewed leave application. (Resp't Aff. in Response to Gonzalez Am. Pet., Ex. A). Consequently, the claim is unexhausted. Additionally, as with Llaca, Gonzalez failed to preserve the claim at the trial level.

   In any event, I address the merits, as well as the preservation issue, below.

   ii. The Merits

   The trial court indicated that the defense's Batson objection was untimely because it was made during the second round of jury selection, after the dismissal of the first jury panel. (See Trial Tr. at 551 (before addressing the merits, the trial judge noted that the challenge should have been made "so that the Court could have acted appropriately at the appropriate time")). Because the objection was raised prior to the completion of jury selection, however, it was not waived. Thus, although the trial court incorrectly stressed the untimeliness of the objection, the court did not preclude petitioners from raising their Batson claim. The court ultimately adjudicated the claim based on its merits. Llaca and Gonzalez, therefore, were not prejudiced by this error.

   With respect to the first step of the Batson analysis, the trial court found that petitioners had not established a prima facie showing of discrimination. (10/13/94 Proceedings at 551, 559). Nonetheless, the trial court proceeded to step two by asking the prosecutor to give an explanation for each of his strikes. (Id.). After such explanations were offered, the trial court proceeded to step three, making a finding that the prosecutor's reasons for his challenges were race neutral and not pretextual. (Id. at 558). Specifically, the judge determined that there was "clear reason and no pretext" involved and the "challenges were not exercised to discriminate on the basis of race." (Id.).

   Llaca and Gonzalez failed to preserve their Batson claim for appellate review because, although an objection was made prior to the trial court's request for explanations, petitioners failed to thereafter object to the prosecutor's explanations as pretextual. See People v. Cruz, 200 A.D.2d 581, 606 N.Y.S.2d 291 (2d Dept. 1994) (Batson issue not preserved for appellate review where, when prosecutor provided an explanation for peremptory challenges, "defense counsel did not indicate any dissatisfaction with the explanation . . . at no time prior to the swearing-in of the jury did the defense counsel object to the court's rulings, nor did he press the issue by requesting a hearing or moving for a mistrial"). Consequently, as the appellate court rejected petitioners' pretext claim based on an independent state preservation bar, see De Los Angeles, 270 A.D.2d at 197-98 ("[Llaca, Gonzalez, and their co-defendants] failed to preserve for appellate review their current contentions that the court did not follow the proper three-step procedure and that the prosecutor's explanations for his peremptory challenges of certain prospective jurors were pretextual"), Llaca and Gonzalez have procedurally defaulted their Batson claim.

   Further, neither Llaca nor Gonzalez has attempted to show cause for the default and resulting prejudice, nor would the Court's failure to consider this claim result in a "fundamental miscarriage of justice." See Coleman v. Thompson. 501 U.S. 722, 750 (1991) (when a "state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice"). Consequently, the claim is procedurally barred.

   In any event, the determination by the trial court that the prosecutor's reasons for his challenges were race neutral and not pretextual is entitled to deference. Although one or two of the explanations were less than compelling, overall the prosecutor's explanations were supported by the record. Notably, at the time the Batson objection was made, seven African-American jurors had already been selected for service. See, e.g., Jamison v. Duncon, No. 01 Civ. 2909, 2001 U.S. Dist. LEXIS 18589, *27 (S.D.N.Y. Nov. 2, 2001) (no prima facie case of discrimination where 60% of selected jurors were African-American). Accordingly, I find the Batson claim to be without merit. 3. Llaca: Co-Conspirator Statements

   Llaca asserts that the trial court improperly admitted co-conspirator hearsay statements into evidence because the State "made no effort to establish the unavailability" of the non-testifying co-conspirators whose statements were introduced into evidence. (Llaca Pet. at 6-6A). This claim is procedurally barred and, in any event, is without merit.

   a. Applicable Law

   New York law provides that "[a] declaration by a co-conspirator during the course of and in furtherance of the conspiracy is admissible against another co-conspirator as an exception to the hearsay rule." People v. Bac Tran, 589 N.Y.S.2d 845, 850 (Ct.App. 1992) (citations omitted); see also People v. Salko, 417 N.Y.S.2d 894, 898 (Ct. App. 1979). This evidence may be admitted only upon a showing that a prima facie case of conspiracy has been established. Salko, 417 N.Y.S.2d at 898; see also People v. Fernandez, 670 N.Y.S.2d 840, 844 (1st Dep't 1998). Additionally, the determination whether a prima facie case of conspiracy has been established must be made without relying upon the declarations sought to be introduced. Salko. 417 N.Y.S.2d at 898; Fernandez, 670 N.Y.S.2d at 844.

   On habeas review, however, the relevant issue for Confrontation Clause purposes is whether the admission of these hearsay statements violates federal law governing co-conspirator statements, not state law. See Glenn, 98 F.3d at 728. Specifically, "even if the admission of co-conspirator[] statements violated New York law, which unlike federal law requires independent indicia of reliability for a co-conspirator's statement, the statement does not offend the federal Confrontation Clause if it falls within [Federal Rule of Evidence] 801(d)(2)'s co-conspirator exception." Id.

   Under Rule 801(d)(2)(E), a statement is admissible hearsay if the court finds that (1) there was a conspiracy; (2) its members included the declarant and the party against whom the statement is offered; and (3) the statement was made both (a) during the course of and (b) in furtherance of the conspiracy. See Glenn, 98 F.3d at 728; United States v. Rivera, 22 F.3d 430, 435-36 (2d Cir. 1994). Additionally, a trial court "need only find by a preponderance of the evidence that a conspiracy existed." Glenn, 98 F.3d at 728. Once the court has found that a conspiracy exists, such a factual finding may not be disturbed absent clear error. Id.

   b. Application

   i. Procedural Default

   At the pretrial Evangelista hearing, Llaca argued that the evidence was insufficient to establish his participation in the conspiracy. (10/6/94 Proceedings at 1772-75). On appeal to the Appellate Division, however, Llaca argued, that the prosecutor was required to (1) establish a prima facie case of conspiracy at a pretrial evidentiary hearing, rather than by making an offer of proof (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol. I, Ex. B at 38-39), and (2) demonstrate that the statements were reliable and that the declarants were unavailable to testify (Id. at 39-41). Because Llaca did not raise these arguments at the trial level, see De Los Angeles. 270 A.D.2d at 199 ("[Llaca and his co-defendants'] various challenges to the admissibility of co[-]conspirators' statements are unpreserved"), he has procedurally defaulted this claim. Additionally, Llaca has not attempted to show cause for the default and resulting prejudice, nor would the Court's failure to consider the claim result in a "fundamental miscarriage of justice." See Coleman, 501 U.S. at 750. Consequently, Llaca's claim is procedurally barred.

   In any event, I review the claim below, and find it to be without merit.

   ii. The Merits

   The trial court had sufficient evidence to conclude that a prima facie case of conspiracy to possess and/or sell drugs had been established and that Llaca was a member of that conspiracy without resorting to the hearsay statements the prosecution sought to introduce. The evidence consisted of testimony of individuals who had worked under Llaca on different levels, who described Llaca as not only managing various kitchens where the crack was made, but also managing certain locations where the crack was sold. (10/6/94 Proceedings at 1750-64, 1772-73; 10/11/94 Proceedings at 9-28). Accordingly, the trial court properly admitted into evidence Llaca's co-conspirators's hearsay statements.*fn6 Thus, Llaca's's claim as to this issue is without merit.

   4. Collins; Stipulation Regarding Collins's Incarceration

   With respect to the stipulation regarding Collins's incarceration, Collins argues, inter alia, that (1) the trial court improperly allowed the stipulation to stand, and (2) the evidence of his incarceration was irrelevant. (Collins Am. Pet., Ground One). Although Collins has procedurally defaulted with respect to the first argument, I address both arguments below and find each to be without merit.

   a. Applicable Law

   i. Erroneous Evidentiary Rulings

   Erroneous evidentiary rulings present a constitutional issue "only where [a] petitioner can show that the error deprived [him] of a fundamentally fair trial." Taylor v. Curry. 708 F.2d 886, 891 (2d Cir. 1983). Specifically, the erroneous admission of evidence constitutes a denial of due process under the Fourteenth Amendment only if the evidence was "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (internal quotations omitted); see also Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992); Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985).

   ii. Rebuttal Evidence

   Under New York law, where the opposing party "opens the door on cross-examination to matters not touched upon during the direct examination," a party has the right "to explain, clarify and fully elicit [the] question only partially examined on cross-examination." People v. Melendez, 55 N.Y.2d 445, 451 (1982) (internal quotations omitted). The same principle applies in the context of Rule 403 of the Federal Rules of Evidence:

The weighing of relevance under Rule 403 may be altered when a false impression is created by earlier testimony. That is, evidence whose probative value might not ordinarily outweigh its prejudicial effect if offered on direct examination is admissible to rebut testimony elicited on cross examination that created a false impression.
United States v. Bilzerian, 926 F.2d 1285, 1296 (2d Cir. 1991).

   The trial court has broad discretion to determine the admissibility of rebuttal evidence, and its ruling will not be overturned unless "arbitrary or irrational." Id. b. Application

   i. Procedural Default

   Collins's habeas petition with respect to this claim was timely filed. Additionally, Collins submitted the claim on direct appeal to the Appellate Division and the Court of Appeals. The Appellate Division, however, found that, although Collins's attorney did not agree to the stipulation, because he had "rejected the court's offer to inform the jury that he did not agree to the stipulation," Collins's argument that the stipulation had improperly been read to the jury was unpreserved. De Los Angeles. 270 A.D.2d at 200. Consequently, Collins has procedurally defaulted as to that argument. See id. (because Collins procedurally defaulted with respect to the stipulation issue, "the sole issue [before the Appellate Division] is whether the trial court was correct in concluding that defense counsel had `opened the door' regarding [Collins's] incarceration."). Additionally, Collins has not attempted to show cause for the default and resulting prejudice, nor would the Court's failure to consider the issue result in a "fundamental miscarriage of justice." See Coleman, 501 U.S. at 750.

   In any event, I address each of Collins's arguments with respect to the stipulation below, and find them to be without merit. ii. The Merits

   First, Collins's challenge to the trial court's ruling allowing the stipulation to stand is a challenge to a state court evidentiary ruling. Accordingly, unless the challenged stipulation provided the basis for Collins's conviction, no federal constitutional issue is presented. See Dunnigan, 137 F.3d 117, 125. I find that the stipulation did not provide the basis for the conviction. On the contrary, Collins was convicted based on the extensive evidence of his participation in the conspiracy, including his managerial role within the organization. Certainly, the absence of the stipulation would not have "remove [d] a reasonable doubt" that otherwise existed. Id. Thus, Collins's contention that the trial court erroneously allowed the stipulation to stand is not a question of constitutional concern and this claim for relief is denied.

   Second, the trial court's evidentiary ruling that Collins's attorney opened the door to evidence of Collins's incarceration was an appropriate exercise of discretion. While cross-examining several detectives who investigated the conspiracy, Collins's attorney elicited testimony from the detectives that they had seen Collins only once at a particular drug selling location, in January 1992, and never afterwards. The impression created, that because the investigating detectives had only seen Collins on the one occasion he was not involved in the conspiracy or had withdrawn from the conspiracy, was misleading. Collins was incarcerated from February 1992 until the time of the trial and, therefore, could not have been observed at the location under surveillance during that time. As such, evidence of Collins's incarceration was properly offered "to rebut an impression created during cross-examination." United States v. Vasquez, 267 F.3d 79, 86 (2d Cir. 2001), Consequently, as the trial court's ruling with respect to this issue does not rise to the level of "arbitrary or irrational," Bilzerian, 926 F.2d at 1296, Collins's contention that the evidence was irrelevant is rejected.

   5. Collins: Statements by Trial Judge

   Collins argues that he was denied a fair trial because the trial judge made "numerous hosfile and demeaning comments" during the trial proceedings. Specifically, Collins contends that the trial court (1) accused his attorney of engaging in "brain washing" during jury selection, (2) stated that a defense attorney's job was to "obfuscate the truth," and (3) threatened his attorney. (Collins Am. Pet., Ground Four). These arguments are procedurally barred and, in any event, without merit.

   a. Applicable Law

   The Due Process Clause of the Fourteenth Amendment requires "`a fair trial in a fair tribunal' before a judge with no actual bias against the defendant or interest in the outcome of his particular case." Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). Only rarely, however, does a judge's conduct rise to the level of a due-process violation:

[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hosfile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if. they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. . . . Not establishing bias or partiality . . . are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration — even a stern and short-tempered judge's ordinary efforts at courtroom administration — remain immune.
Litekey v. United States, 510 U.S. 540, 555-56 (1994). Further, a federal court's power to review a state claim of judicial bias is restricted to "the narrow one of due process and not the broad exercise of supervisory power that [it] would possess in regard to [its] own trial court." Garcia v. Warden Dannemora Correctional Facility, 795 F.2d 5, 7 (2d Cir. 1986) (citations omitted). Indeed, "a petitioner claiming that a judge's bias deprived him of a fair trial faces a difficult task." Gayle v. Scully, 779 F.2d 802, 813 (2d Cir. 1985).

   b. Application

   i. Procedural Default

   Collins's claim with respect to the alleged "numerous hosfile and demeaning comments" made by the judge during the trial proceedings is barred by procedural default. Collins (1) failed to object at trial to any of the judge's comments that he now raises in his habeas petition and (2) failed to properly exhaust this claim. In fact, Collins raised a judicial bias claim for the first time on appeal to the Court of Appeals (see Resp't Opp. to Collins Am. Pet., App. Vol. II, Ex. D at 48-51), where the claim was denied as unpreserved. Collins. 96 N.Y.2d at 838. Further, Collins has not attempted to show cause for the default and resulting prejudice, nor would the Court's failure to consider the issue result in a "fundamental miscarriage of justice." See Coleman, 501 U.S. at 750.

   In any event, I address the judicial bias claim below, and find it to be without merit.

   ii. The Merits

   First, the alleged accusation by the trial judge that defense counsel was engaging in "brain washing" during jury selection was merely an admonition directed at Tukes's attorney, who was inappropriately arguing his client's case during voir dire. There is no judicial bias evidenced by the judge's statement.

   Second, the trial judge's comment that defense counsel's "job" is to "obfuscate the truth" occurred at a sidebar colloquy and was directed at De Los Angeles's attorney. It is clear that this comment, as the court expressly noted, was made in jest. It was in response to the prosecution's statement that, in essence, De Los Angeles's attorning was confusing the witness on the stand by his method of questioning. Here also, there is no evidence of judicial bias.

   Third, the sidebar exchanges between the court and Collins's attorney regarding the scope of cross-examination of witness Santiago, while hosfile at times, also lacks any evidence of judicial bias. Upon review of the transcript, it is evident that throughout the exchange the court's sole concern was with ensuring Collins's attorney's compliance with the court's evidentiary rulings. In fact, Collins's attorney eventually did comply with the court's ruling and, in so doing, was able to ask Santiago the questions that were the subject of the sidebar discussion.

   Thus, as Collins has failed to demonstrate that he was denied a fair trial, his claim with respect to judicial bias is rejected.

   6. Jury Instructions

   a. Applicable Law

   Errors in state jury charges are questions of state law and therefore are not reviewable on a petition for a writ of habeas corpus absent a showing that a jury charge deprived the defendant of a federal constitutional right. Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990). The standard of review of state jury instructions in a habeas petition is "not whether the instruction is undesirable, erroneous or even universally condemned [but whether] the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Wright v. Smith. 569 F.2d 1188, 1191 (2d Cir. 1978) (quoting CUDD v. Naughten, 414 U.S. 141, 146-47 (1970)); see also Blazic, 900 F.2d at 541.

   Additionally, federal habeas review of a state court jury charge regarding a matter of state law is limited . . . See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state court determinations on state-law questions"). To obtain habeas relief, "the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Id.

   b. Application

   i. Conspiracy Charge

   (1) Collins: Age Element

   Collins contends that the trial court should have charged the jury that, to convict Collins of first-degree conspiracy, the jury must find that Collins knew that another member of the conspiracy was less than sixteen years old. (Collins Am. Pet., Ground Five). This claim is barred by procedural default and, in any event, without merit.

   (a) Procedural Default

   Collins timely filed his habeas petition and raised his claim in the Appellate Division and the Court of Appeals. (See Resp't Opp. to Collins Am. Pet., Vol. I, Ex. A; Vol. II, Ex. D). Collins failed, however, to preserve the issue at the trial level. Specifically, after the trial judge stated during the charging conference that the prosecution was required to prove only that the "defendant was over [eighteen] years of age and at least one of his co[-]conspirators whom the defendant knew was a member of the conspiracy was under [sixteen] years of age," Collins's attorney responded, "Fine." (Trial Tr. at 18538-40). Additionally, the next day, the court asked the attorneys whether they had any "further charge requests" and no attorney did. (Id. at 18558-60). It was not until after the judge charged the jury that Collins's attorney stated that he "disagree[d] with the Court that-s[cie]nter is not required" for first-degree conspiracy. Hence, the Court of Appeals found Collins's argument with respect to the conspiracy charge unpreserved. See Collins, 96 N.Y.2d at 838 (the Court of Appeals denied on the merits Collins's claims regarding severance, the stipulation, and the jury charge concerning deliberations, and held that Collins's "remaining arguments are unpreserved"). As Collins has not attempted to show cause for the default and resulting prejudice, nor would the Court's failure to consider the issue result in a "fundamental miscarriage of justice," Collins's claim with respect to the conspiracy charge is barred by procedural default. See Coleman, 501 U.S. at 750.

   In any event, I address the claim below and find it to be without merit. (b) The Merits

   The trial court's instruction oil the age element of first-degree conspiracy did not deprive Collins of any federally-protected due process right.

   Pursuant to New York Penal Law § 105.17, a defendant commits first-degree conspiracy "when, with intent that conduct constituting a class A felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct." By its plain language, the statute does not require that the defendant know that another member of the conspiracy is less than sixteen years old. Rather, the statute requires only that the defendant "agree[]" to commit a class A felony with a person under sixteen years of age. Thus, as the trial court correctly charged the jury, a defendants failure to know the co-conspirator's age, or his erroneous belief that the co-conspirator was over sixteen, provides no defense to the crime.

   Section 15.20 of the New York Penal Law explicitly states that a defendant's failure to know a child's age is not a defense under New York Law to any age-specific crime. The statute provides:

Notwithstanding the use of the term "knowingly" in any provision of this chapter defining an offense in which the age of a child is an element thereof, knowledge by the defendant of the age of such child is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the age of the child of believed such age to be the same as or greater than that specified in the statute.
N.Y. Penal Law § 15.20(3) (McKinney 1998). Thus, Collins's ignorance or erroneous belief about a juvenile co-conspirator's age does not absolve him of criminal liability for first-degree conspiracy.

   Accordingly, as Collins has not shown "that the instruction misstated state law," much less that it "violated a right guaranteed to him by federal law," Collins's claim with respect to the conspiracy charge is rejected. Estelle v. McGuire, 502 U.S. at 67-68.

   (2) Gonzalez; Multiple Conspiracies

   Gonzalez argues that the trial court's jury instructions with respect to multiple conspiracies, including a supplemental instruction, were "fundamentally flawed," because the court did not instruct the jurors that "if they found multiple conspiracies they must acquit." (Gonzalez Pet. at 4). This claim is without merit.

   (a) Procedural Default

   Gonzalez's habeas petition with respect to this claim was timely filed. Additionally, Gonzalez submitted the claim on direct appeal to the Appellate Division, and his leave to appeal to the New York Court of Appeals was denied. (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol. III, Exs. I, K).

   Accordingly, I address the merits below. (b) The Merits

   The trial court's instruction as to multiple conspiracies did not deprive Gonzalez of any federally-protected due process right.

   Under New York law, "when the facts are such that a jury might reasonably find either a single conspiracy or multiple conspiracies," and the relevant indictment charges a single integrated conspiracy, the court must give a charge "explicitly recognizing the possibility of multiple conspiracies and directing an acquittal in the event that the jury concludes that something other than [the] single integrated conspiracy [charged in the indictment] was proven." People v. Leisner, 73 N.Y.2d 140, 150, 538 N.Y.S.2d 517 (1989) (noting that "jury confusion may arise when the prosecution's proof establishes several discrete conspiracies, but not the single integrated conspiracy charged in the indictment"). To that end, the trial judge charged the jury that it could find a "single unlawful agreement or many such agreements or indeed no agreement at all" (Trial Tr. at 20841), and if it found that the "conspiracy charged in the indictment did not exist," the jury "cannot find the defendant guilty of that conspiracy charge . . . even if [the jury] find[s] that a defendant was a member of some conspiracy other than the one charged in the indictment." (Id. at 20842).

   Further, in its supplemental instructions in response to the jury's questions, the court reiterated that if it found that "the conspiracy charged in the indictment did not exist, . . . or that a conspiracy with separate and distinct purposes existed, then [the jury] cannot find the defendant guilty of the conspiracy charge[d] in the indictment." (Id. at 21301). Thus, the court did, in fact, instruct the jury that it had to return a verdict of not guilty if it found that the over-arching, conspiracy charged in the indictment did not exist. See United States v. Berger, 224 F.3d 107 (2d Cir. 2000) ("[A] charge should not instruct that a jury must acquit whenever it finds multiple conspiracies; acquittal is required only if the jury finds that the charged conspiracy is not one of the conspiracies that has been proved. . . . What the charge should stress is `that there must be [a] finding of the single conspiracy charged and individual knowing participation by each individual in it.'") (quoting United States v. Aracris, 968 F.2d 1512, 1520 (2d Cir. 1992)).

   Accordingly, as Gonzalez has not shown "that the instruction misstated state law," or that it "violated a right guaranteed to him by federal law," Gonzalez's claim with respect to the conspiracy charge is rejected. Estelle v. McGuire, 502 U.S. at 67-68.

   ii. Llaca, Gonzalez. and Collins; Charge on the Nature of Deliberations

   Llaca, Gonzalez, and Collins assert that the trial court's instruction to the jury concerning deliberation was an unconstitutionally coercive Alien charge. (Llaca Pet., Ground One; Gonzalez Pet., Ground Two; Collins Am. Pet., Ground Three). Specifically, they contend that the trial court erred by not instructing the jury that it should reach a verdict without forcing any juror to yield a conscientious belief. (Id.). Petitioners' contentions are without merit.

   (1) Procedural Default

   Llaca and Gonzalez submitted this claim on direct appeal to the Appellate Division and subsequently raised the issue in their applications for leave to appeal to the Court of Appeals. (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol. III, Exs. G, I). Accordingly, I address the merits of the claim below.

   Collins, however, did not raise any claim relating to the trial court's charge regarding the nature of deliberations on appeal to the Appellate Division. (See Resp't Opp. to Collins Pet., App. Vol I, Ex. A). Consequently, he has procedurally defaulted this claim. Thus, as Collins has not attempted to show cause and resulting prejudice for the default, nor would the Court's failure to consider the claim result in a "fundamental miscarriage of justice," he is not entitled to federal habeas review. See Coleman, 501 U.S. at 750. In any event, as discussed below, the claim is without merit.

   (2) The Merits

   The trial court's jury instruction was proper and did not deprive petitioners of a fair trial. First, the challenged jury instruction was not an Alien charge, and therefore the trial court was under no obligation to caution the jurors not to surrender their own conscientiously held beliefs. See Alien v. United States. 164 U.S. 492 (1896) (an Alien charge is used when the court is given notice that there is a deadlock); Smalls v. Batista, 191 F.3d 272, 279 (2d Cir. 1999) (a necessary component of such a charge to a jury requires the trial judge to "admonish the jurors not to surrender their own conscientiously held beliefs"). Here, the trial court responded to a jury request for the meaning of deliberation. The trial court was not, as petitioners allege, instructing the jury to encourage a verdict in the face of deadlock.

   "Second, the jury instruction was responsive to the jury's question. It was non-coercive, as shown by the fact that the jury continued to deliberate for an additional five days. The trial court's instructions cautioning the jurors not to arbitrarily reject testimony and to deliberate based on reason were proper. Consequently, I find there to be no error with respect the jury instruction in question, much less one of constitutional magnitude. Accordingly, petitioners' claim for habeas relief as to this issue is denied.

   CONCLUSION

   Petitioners have demonstrated no basis for relief under 28 U.S.C. § 2254. Accordingly, the instant habeas petitions are dismissed. Because petitioners have not made a substantial showing of the denial of a constitutional right, I decline to issue certificates of appealability. See 28 U.S.C. § 2253 (1996) (as amended by the AEDPA). I certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeals taken from this decision and order would not be taken in good faith.

   The Clerk of the Court shall enter judgment accordingly and close these cases.

   SO ORDERED.


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