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CASTRO v. FISHER

United States District Court, S.D. New York


July 23, 2004.

MARIO CASTRO, Petitioner,
v.
BRIAN FISHER, Superintendent, Sing Sing Correctional Facility, Respondent.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Denise L. Cote, United States District Judge:

Pro se petitioner Mario Castro seeks a writ of habeas corpus from his December 19, 1996 conviction of first degree and third degree criminal possession of a controlled substance, and his sentence of concurrent terms, the longest of which is fifteen years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.)

  Castro's habeas petition raises four grounds: (a) the trial court's refusal to compel the prosecution to produce a confidential informant to testify on the defense case and to give a missing witness charge denied Castro his right to confrontation and to a fair trial (Dkt. No. 2: Castro Br. at 17-25);*fn1 (b) the trial court's refusal to grant Castro's severance motion denied him a fair trial (Castro Br. at 25-27); (c) there was insufficient evidence to prove Castro guilty beyond a reasonable doubt (Castro Br. at 27-45); and (d) coram nobis is constitutionally defective because it deprives criminal litigants of due process and equal protection of the law (Castro Br. at 45-60).

  For the reasons set forth below, Castro's habeas petition should be DENIED.

  FACTS

  The Prosecution Case

  At about 1:15 p.m. on November 3, 1995, Detective Sean Abate, Detective Jose Rosa (acting as an undercover officer) and a confidential informant arrived at the vicinity of 874 East 167th Street in the Bronx to conduct an undercover drug operation called a "rip-off." (Abate: Trial Transcript ["Tr."] 116-18, 120-22;*fn2 Rosa: Tr. 368, 377.) A "rip-off" is an operation in which the confidential informant enters the "target location," orders a quantity of heroin, leaves and returns to his handling officer and waits until the drugs are delivered to the location. (Abate: Tr. 116-18, 240-42; Fleming: Tr. 289, 347; Rosa: Tr. 370-71, 373, 397.) The informant returns to the location to inspect the drugs that have arrived, reports back to his handling officer, calls to cancel the order, and when someone attempts to transport the drugs out of the location, the police "rip off" those people, i.e., arrest them. (Abate: Tr. 116-18, 240-42; Fleming: Tr. 289, 347; Rosa: Tr. 370-71, 373.)

  According to the plan, at approximately 1:10 p.m., undercover Detective Rosa, as the handling officer, drove to a "set-up location" about seven blocks from the target location to rendezvous with the informant. (Rosa: Tr. 375-77, 412-14.) After a brief patdown of the informant, Detective Rosa got into the passenger side of the informant's car and they drove to the target location. (Rosa: Tr. 375, 378, 393-95, 400, 412-13.) In the car, Detective Rosa attempted to calm the nervous informant and explain what was about to occur. (Rosa: Tr. 373-75, 393, 395.)

  At about 1:20 p.m., undercover Detective Rosa and the informant arrived at the target location and parked across the street. (Rosa: Tr. 378-79, 396, 398, 400, 420.) After receiving the "green light" from his superior to proceed, Detective Rosa told the informant to enter the house and order 250 grams of heroin through the informant's contact, an ex-girlfriend. (Rosa: Tr. 377, 381-82, 397.) The informant entered the house and exited five minutes later. (Rosa: Tr. 382.) Detective Rosa and the informant drove back to the set-up location and notified the supervising lieutenant that the informant had ordered 250 grams of heroin and that it would be arriving in approximately twenty minutes. (Rosa: Tr. 382-83.)

  Detective Abate had arrived at the target location at approximately 1:30 p.m. and saw two Hispanic males (later identified as the petitioner Mario Castro and Genero Matoa) standing and talking to an unidentified Hispanic woman in front of a white gate that led to the house. (Abate: Tr. 123-25, 128, 130, 197-98, 200-01, 245.) Detective Abate also saw two cars parked in front of him — a Honda one car away and a Nissan two cars in front of the Honda. (Abate: Tr. 129, 204-06, 211, 259-60, 263.) At trial, Detective Abate identified co-defendant Jorge Davino as the passenger in the Nissan and a man known only as "Millan" in the Honda's passenger seat. (Abate: Tr. 130, 207, 260.) The three people standing in front of the house talking went inside the gate and, presumably, into the house — Detective Abate admitted "los[ing] sight" of them a few feet after they passed through the gate. (Abate: Tr. 130-31, 203-04, 251.) At approximately 1:50 p.m., about five minutes after Castro, Matoa and the woman entered the house, Detective Rosa and the informant returned to the same parking location across the street from 874 East 167th Street. (Abate: Tr. 133; Rosa: Tr. 383-84, 401.) The informant re-entered the house to see the product. (Abate: Tr. 133-35; Rosa: Tr. 384.) At approximately 2:00 p.m., the informant exited the house, returned to the car, and gave Detective Rosa a tin foil containing a white powdery substance that Detective Rosa believed to be heroin. (Abate: Tr. 135; Rosa: Tr. 385, 421-22, 424-25.) The informant told Detective Rosa that Castro and Matoa had shown him the drugs. (Abate: Tr. 235.) Detective Rosa and the informant returned to the set-up location where Detective Rosa instructed the informant to call the sellers and cancel the order. (Rosa: Tr. 388-89.) The informant did so from a pay phone. (Rosa: Tr. 389.)

  The lieutenant notified the backup officers in the vicinity that the order had been cancelled, and Castro exited the house alone five minutes after that radio transmission. (Abate: Tr. 137-3; Rosa: Tr. 389.) Between 2:05 and 2:10 p.m., Matoa exited the house carrying a small black dog in his right hand (Abate: Tr. 139-40, 211, 261.) Matoa walked to the Honda and spoke briefly with Millan, then walked to the Nissan and spoke with Castro, who was standing outside of the car speaking with Davino in the passenger seat. (Abate: Tr. 140-41, 211-12, 261-62.) Matoa next entered the Nissan's driver's seat and spoke briefly with Davino. (Abate: Tr. 141, 143, 211, 260, 265.) Finally, Matoa got out of the Nissan, returned to the house with the dog and reappeared a few minutes later without the dog. (Abate: Tr. 143-45, 266-67.) After a few more brief words with Castro, Matoa returned to the Honda, and the two cars left the area — the Nissan driven by Castro following the Honda. (Abate: Tr. 145-47, 213.) Detective Abate radioed this information to the backup officers in the vicinity, including Sergeant Brian Fleming, who was a few blocks from the target location. (Abate: Tr. 145-47; Fleming: Tr. 290-94.)

  While the two cars were stopped at a red light at the intersection of Southern Boulevard and Westchester Avenue, Detective Abate pulled his jeep up diagonally to the Nissan's driver's side door. (Abate: Tr. 148-50, 215, 254.) He got out of his car with his shield and gun drawn and immediately moved toward the Nissan's driver's side door. (Abate: Tr. 150, 215, 254.) As he drew nearer, Detective Abate noticed Castro's right hand reach for the upper chest area of his jacket. (Abate: Tr. 150-51, 216-17, 255, 274.) Detective Abate quickly yanked Castro out of the Nissan, patted him down for weapons and drugs, and sent him behind the car in the care of another officer, while Detective Abate conducted a search of the car. (Abate: Tr. 150, 152, 153, 219, 221, 256, 270.) Another officer removed Davino from the Nissan. (Abate: Tr. 282.) Detective Abate found a white sweatshirt on the center console between the Nissan's two front seats. (Abate: Tr. 154-55, 218, 221, 259, 272-74.) Pulling back a flap of the sweatshirt, Detective Abate found a plastic bag roughly 8 1/2 inches by eleven inches that contained white powder, which a police chemist later determined to be slightly over 8 5/8 ounces of heroin, "approximately 240 gram[s]," valued between $30,000 and $50,000. (Abate: Tr. 155-56, 164-66, 171-75, 222-24; Fleming: Tr. 347-48; Diep: Tr. 440-42, 446, 452-54.) Detective Abate also testified that based on his experience, that large a quantity of drugs was not just for personal use. (Abate: Tr. 176.)

  At the same time that Detective Abate stopped the Nissan, Sergeant Fleming used his truck to block the Honda. (Fleming: Tr. 298.) Sergeant Fleming ordered Matoa and Millan from their car, and they complied. (Fleming: Tr. 299.) Sergeant Fleming received from Detective Abate the sweatshirt and the clear plastic bag containing the white powder, and after searches of all four suspects and their vehicles, the four men were arrested and their cars taken to the police precinct. (Fleming: Tr. 299-300, 311-12.) At the precinct, Sergeant Fleming learned that the Nissan was registered to Anna Castro, Castro's wife. (Fleming: Tr. 304; Castro: Tr. 611.)

  At the close of the prosecution's evidence, both defendants moved to dismiss, which the judge denied. (Tr. 455-56.)

  Co-Defendant Jorge Davino's Defense

  Jorge Davino testified in his own defense. (Davino: Tr. 517.)

  On the morning of November 3, 1995, Davino received a call at his home from petitioner Mario Castro. (Davino: Tr. 519.) Castro asked Davino to accompany him to the Bronx to pick up some money. (Davino: Tr. 519.) Davino demurred but at Castro's insistence, Davino agreed to go with him. (Davino: Tr. 519-20.) Castro picked up Davino in a Nissan, and the two drove to the Bronx. (Davino: Tr. 520.) Once they arrived in the Bronx, Castro drove around for awhile because he was lost, but eventually found the address he was looking for: 874 East 167th Street. (Davino: Tr. 521.) Castro got out of the car to speak with Genero Matoa, whom Davino had never seen before. (Davino: Tr. 521.) Castro and Matoa approached the house, but Davino did not see the two actually enter the house. (Davino: Tr. 521.)

  Fifteen to twenty minutes later, Davino saw Castro returning to the car by himself. (Davino: Tr. 521-22.) Castro told Davino that he had to use the public payphone to call his family because his wife was arriving from Colombia. (Davino: Tr. 521-22.) Meanwhile, Davino stayed in the car, where he eventually saw Matoa coming from the house, carrying a dog. (Davino: Tr. 522.) Matoa approached the Nissan and, saying he needed to get out of the rain, entered on the driver's side. (Davino: Tr. 522.) Once inside the car, Matoa stayed only for a few minutes and said to Davino that the person who was supposed to give them the money had not done so. (Davino: Tr. 523.) Thereafter, Matoa, dog in hand, left the car to "see what [was] going on with the money." (Davino: Tr. 523.) Some fifteen minutes later, Matoa returned without the dog. (Davino: Tr. 523-24.) Castro was on the pay phone when Matoa came back a second time. (Davino: Tr. 524.) Castro returned from the phone and spoke briefly with Matoa, who returned to his own car, and Castro got back into the Nissan's driver's seat. (Davino: Tr. 525.)

  Back inside the car, Castro told Davino that the money had not arrived. (Davino: Tr. 525.) Davino said he was hungry, and Castro, after inviting him to eat, made a U-turn and left the area, following Matoa's Honda. (Davino: Tr. 525.) While the car was stopped at a red light, Davino saw police cars arriving and also saw Castro make a quick movement and put a sweatshirt on the center console. (Davino: Tr. 526.) Davino had seen this sweatshirt in the backseat earlier that day. (Davino: Tr. 528.) The police quickly surrounded the Nissan and with guns drawn demanded that Castro and Davino put their hands on the dashboard. (Davino: Tr. 526-27.) The police pulled Castro out of the car and a minute later pulled Davino out. (Davino: Tr. 527-28.)

  On cross-examination, Davino testified that he did not see Castro possess any drugs that day or notice any "bulge" underneath Castro's shirt when he returned to the car after Matoa left with the dog.*fn3 Also, although Davino testified to not knowing Matoa, Davino admitted to accepting $1,500 from Matoa to help pay for Davino's lawyer and in January 1996, Davino lent his car to Matoa.

  Petitioner Castro's Defense*fn4

  On the morning of November 3, 1995, petitioner Mario Castro, a livery cab driver, received a page on his beeper from his old friend Davino. (Castro: Tr. 608-10, 632-33, 635, 672, 721.) Castro called Davino, who said he would pay Castro enough money to pay Castro's rent for a month and some extra "bucks in [his] pocket" if Castro would drive Davino to the Bronx and help him pick up some money that he was owed. (Castro: Tr. 609-11, 634-36, 638-40, 664.) Although Castro was unfamiliar with the Bronx, he agreed to drive Davino in his wife's Nissan since his cab was not running well. (Castro: Tr. 611, 637, 640, 674, 681-84.) Castro testified that he expected Davino to pay for Castro's driving services but never discussed specific details with Davino. (Castro: Tr. 683-84, 723.) Castro later testified, however, that he did not ask Davino anything; he accompanied Davino as a "friend." (Castro: Tr. 692.)*fn5 Castro picked up Davino at his home in Astoria, Queens. (Castro: Tr. 611.) Davino directed Castro to go to the Bronx, but first they stopped at the 103rd St. and 41st Ave. subway stop in Corona, Queens. (Castro: Tr. 611-12, 641, 683.) There, they met Genero Matoa, who was driving a Honda, and his passenger, Millan. (Castro: Tr. 612, 614-15, 642.) Castro did not know these men and had never seen them before, but Davino pointed to Matoa and told Castro, "that's him," they were "going to pick up the money" with Matoa. (Castro: Tr. 613-15, 642, 654, 687.) From his car, Matoa waved for Castro and Davino to follow his car, which they did. (Castro: Tr. 613, 642-43, 686.)

  Castro followed Matoa into the Bronx to an unfamiliar location where Matoa stopped and got out of his car to make a telephone call. (Castro: Tr. 614-15, 644, 691.) After hanging up the phone, Matoa gave an "OK" sign, got back into the Honda, and drove off, followed by Castro and Davino. (Castro: Tr. 614, 644, 691-92.) Castro testified that during the ride, he did not ask Davino why he needed Castro to drive him to the Bronx when Davino could have gotten a ride with Matoa and Millan. (Castro: Tr. 690).

  Matoa and Castro again stopped their cars. (Castro: Tr. 616-17, 693.) Castro got out of the Nissan, crossed the street to a public payphone, and called his mother to tell her he would not be able to pick up his children from school. (Castro: Tr. 617, 645, 693.) Meanwhile, Matoa left his car, walked to the Nissan and spoke with Davino. (Castro: Tr. 616.) Castro's testimony is inconsistent as to whether Matoa entered the Nissan at that time. (Castro: Tr. 616, 646.) Castro hung up the phone, and Matoa signaled for Castro to accompany him across the street into the house at 874 East 167th Street. (Castro: Tr. 617, 647.) Davino waved for Castro to go with Matoa and told him "go." (Castro: Tr. 617-18, 647.)

  Castro and Matoa approached the outer gate of the house, where Matoa spoke with an unidentified Hispanic woman. (Castro: Tr. 647-48, 697-98.) Castro, Matoa and the woman entered the house. (Castro: Tr. 618, 648, 654, 698.) Once inside, Castro sat at a table with an unidentified man who was eating. (Castro: Tr. 618, 648, 655, 657, 699-700.) Soon thereafter, the doorbell rang and the woman went to answer it. (Castro: Tr. 618, 656, 701.) Castro decided to leave because he realized he did not know anyone in the house, and he felt it was a "bad situation," even though he did not see any drugs or receive anything in the house. (Castro: Tr. 618-19, 648-49, 655-57, 701, 703-05.) As Castro walked out the front door, an African American man — presumably, the informant — entered the house. (Castro: Tr. 619, 658, 704.)

  Castro testified that once outside, he went directly to the payphone to call his mother again. (Castro: Tr. 619, 659.) Later, however, he testified that he went directly back to the Nissan and later called his mother for the second time. (Castro: Tr. 705.) Castro testified that he saw Matoa exit the house holding a dog while he was on the phone with his mother. (Castro: Tr. 660-61.) However, he also testified that he was standing by the Nissan when he saw Matoa. (Castro: Tr. 619, 706-07.) Matoa, dog in hand, approached the Nissan and got in on the driver's side. (Castro: Tr. 619, 661, 707.) Although Castro could hear Matoa and Davino talking, he could not determine what they said to one another. (Castro: Tr. 620, 708.) After a moment, Matoa exited the car and re-entered the house. (Castro: Tr. 620, 661, 711.) When Matoa exited the house the second time without the dog, Castro testified that he was on the phone talking to his mother, asking her to pick up his kids from school. (Castro: Tr. 620, 711.) He also testified that he was standing beside the Nissan when Matoa exited the second time. (Castro: Tr. 662-63.) Castro testified that Matoa, after exiting the house, went back to the Nissan, again sitting in the driver's seat. (Castro: Tr. 712.) Earlier, however, he testified that Matoa went directly back to his Honda, signaling for Castro to follow him. (Castro: Tr. 620-21, 663, 707-13.)

  When Castro got back into the Nissan's driver's seat, Davino told Castro not to touch the sweatshirt on the car's center console because it contained money. (Castro: Tr. 621-23, 663-65, 714-15.) Matoa made a U-turn in the Honda; Davino told him that "everything" was "fine" and to follow Matoa, so Castro also made a U-turn. (Castro: Tr. 622-23, 665-66, 714.)

  Soon after, Castro slowed at an intersection where he was suddenly surrounded by police. (Castro: Tr. 623.) He felt someone put a gun to his head and was told to get out of the car. (Castro: Tr. 666-67, 715.) Castro testified that at no point did he reach down or toward the left area of his body with his right hand (Castro: Tr. 623-24, 669, 715.) Until a police officer removed the sweatshirt from the car, Castro did not know about and had never seen or touched any drugs inside the sweatshirt and did not intend to sell any drugs. (Castro: Tr. 624, 629-30, 668-69, 720, 722.) Castro was arrested and taken into custody. (Castro: Tr. 625, 716.)

  Sometime after November 3, 1995, while they were both being held on Riker's Island, Davino told Castro that Davino had received some money from Matoa to pay for Davino's lawyer and that, in exchange, Davino had lent his car to Matoa. (Castro: Tr. 627-29.)

  At trial, Castro admitted that the white sweatshirt, in which the heroin was wrapped, belonged to him. (Castro: Tr. 621.) Confidential Informant Materiality/Availability Hearing

  During the prosecution's case the judge had a discussion with counsel outside the jury's presence about the defense request to make the informant available for the defense case, and the prosecution's claimed inability to locate the informant. (Tr. 403-10.)*fn6 The judge told the prosecution there would be an evidentiary hearing later in the trial. (Tr. 406.) After the close of the prosecution case, the judge heard arguments and testimony as to whether the confidential informant should or should not be produced by the prosecution as a defense witness. (Tr. 458-513.)

  Davino's counsel argued that the informant's testimony was material insofar as it could establish that the informant did not know or deal with Davino. (Tr. 459.) The judge inquired whether such testimony would not be cumulative because Detective Abate had already testified that Davino never entered the target location. (Tr. 460.) Davino's counsel responded that the informant's testimony still was necessary to determine whether Davino was merely an innocent bystander and not a principal who sent Castro into the house to do his bidding. (Tr. 460-61.)

  Castro's counsel, after consulting with Castro (Tr. 463), joined in the co-defendant's application and further argued that the informant's testimony was material because the informant could testify to the details of any negotiations that occurred in the house, such as with whom he carried out those negotiations. (Tr. 463-65.) Castro's counsel asserted that the jury could believe that neither Castro nor Davino knew that the sweatshirt contained heroin, and that in fact, it was Matoa who possessed and owned the drugs and put them in the Nissan, and that the informant could testify to that contention. (Tr. 466-67.)

  The prosecutor argued that the confidential informant was unavailable. (Tr. 467-71.) The prosecutor stated that, according to Sergeant Ronald Mejia, the informant had contacted Sergeant Mejia that morning, after having no contact with the informant since January 1996, nine months prior to the trial. (Tr. 467.) According to the prosecutor, Sgt. Mejia was able to reach the informant by contacting one of his relatives and asking him to have the informant call back. (Tr. 467-68.) The informant, who the prosecutor stated was not under his or police control, was afraid to come forward in the case and refused to divulge to Sgt. Mejia his address or phone number. (Tr. 468-69.)

  Sergeant Mejia testified at the hearing, confirming the prosecutor's representations and adding more specific details (Mejia: Tr. 417-75.) Sgt. Mejia testified that he had not spoken with the informant after the November 1995 "rip-off" operation since January 1996, because the police had no need for him (Tr. 473, 482, 489); that in the recent weeks prior to the hearing Sgt. Mejia had tried four different phone and pager numbers given to him by the informant's police handler, but was unsuccessful in contacting the informant (Tr. 473-74, 476, 482-83, 492); that Sgt. Mejia attempted to visit the informant twice in person by driving past areas where he had seen the informant before, including his last known home address, but could not find him (Tr. 474-75, 480-81, 493-95); and that the informant finally called Sgt. Mejia back at 11:00 a.m. the morning of the hearing in response to a message Sgt. Mejia had left with one of the informant's relatives saying that it was "imperative" he call back (Tr. 476, 489).

  In that phone conversation, Sergeant Mejia explained the details of the case and attempted to persuade the informant to come forward and testify. (Tr. 476-77, 486.) The informant expressed concerns about testifying — namely, that he feared for his own life and for his family's because they lived in the same neighborhood in the Bronx as the November 1995 target location. (Tr. 477.) The informant did not specifically allege that anyone associated with the defendants had threatened or had a contract out on his life or on his family. (Tr. 487-88.) When Sgt. Mejia asked the informant for his location and for a call-back number, the informant remained silent. (Tr. 478, 485.) Sgt. Mejia was afraid the informant would simply hang up, because the informant had no obligation to the police since his last operation sometime in January 1996. (Tr. 475, 478.)

  Sergeant Mejia testified that the informant was no longer under the control of the police, that he was not a paid informant, and that even if the police were asked to serve a subpoena on the informant, they would not know where to serve it. (Tr. 478-79.)

  At the conclusion of the hearing the judge found that "the People's witness, Sergeant Ronald Mejia, was a credible witness" (Tr. 505) and that Sergeant Mejia and the prosecution "exerted reasonable good faith efforts to determine [the confidential informant's] whereabouts in order to make him available if the court so ordered it" (Tr. 509). The judge specifically found that:

The confidential informant was not involved in any new cases after January of 1996. He was not under any obligation or encumbrance to the police. That is he owed them no information at all because of any commitment to them. Therefore Sergeant Mejia until October of 1996 had no reason to look for the confidential informant that is between January and October. The first time that it was made known in this case that the defense wished to have the confidential informant produced was this week. During the opening statement of defendant Rojas — of defendant Davino by Mr. Rojas. . . . [T]hat opening statement took place on October 7th, 1996. Between October 7th and October 10th, 1996, Sergeant Mejia began to make efforts to find the confidential informant. He telephoned a relative of the confidential informant. And urged the relative to have the confidential informant contact Sergeant Mejia. Eventually the confidential informant did contact him on October 10th. At that time the confidential informant refused to reveal his whereabouts. He informed Sergeant Mejia that he, the confidential informant, was very fearful of appearing as a witness in this case or becoming otherwise known as an informant. That he had a new baby; that he feared becoming known by either or both of these defendants; that whatever contact he may have had with a [sic] defendant was hopefully brief enough so that if he were not again seen he would be in better — in a better situation but that if he were seen again in this case he would be fearful of the results of that. He was on the verge of hanging up when he spoke with the sergeant and was not cooperative with him. He refused to give his address. He refused to give his telephone number. He would not agree to come to court and testify, nor did he have any obligation to come. Sergeant Mejia had no method and no facts by which to locate the confidential informant after this telephone call or even to know what borough he was calling from or what location he might be found in.
(Tr. 506-08.) The judge found that the "informant [was] unavailable to be called as a witness at this trial" (Tr. 508) and moreover, that "the [P]eople [had] done nothing intentionally to cause the confidential informant's unavailability" (Tr. 509). The judge concluded that:
Under [cited New York] cases where the court has found that a confidential informant is unavailable and that the prosecution has not caused the unavailability of that person, and has not in any bad faith caused that person's unavailability or contributed to it in bad faith, the defense is affirmatively obligated to meet a certain burden. Neither defendant has met that necessary burden in this case. The burden which must be met by a defendant is as follows: The defendant must affirmatively demonstrate that the testimony of an informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution's case. This requires an affirmative factual showing of those conclusions as opposed to a speculative claim or a conclusory claim. In this case the grounds stated by the defendants are merely speculative and counsel have not complied with the requirement of this burden of proof.
(Tr. 509-10.) The judge cited People v. Goggins, 34 N.Y.2d 163, 356 N.Y.S.2d 571, cert. denied, 419 U.S. 1012, 95 S.Ct. 332 (1974), as the controlling New York case, which held that "`[t]he basis to be shown by the defendant must be not merely an angling . . . in desperation to find possible weaknesses in the prosecution's investigation.'" (Tr. 510.)

  As to Castro's arguments that the informant's testimony was material, the judge concluded that:

[N]othing has been presented on behalf of defendant Castro, no factual, no evidentiary grounds have been stated which would establish either of the two grounds previously referred to under Goggins and [People v.] Jenkins, [41 N.Y.2d 307, 392 N.Y.S.2d 587 (1977),] namely the most . . . that Castro has argued is that the confidential informant would state — and I'm quoting the words whether Castro had knowledge of the drugs found in the car. This does not show or allege that the confidential informant's testimony would be exculpatory. This clearly does not set forth facts satisfying the foregoing requirements of law. Again it is merely speculative. It is an angling for possib[i]lities that might in some manner help Castro in this case. Even if the confidential informant were deemed to be available in the legal sense, or if for some reason the people had not sufficiently sought his availability which I stress is contrary to my findings, the defendants have failed to meet the Goggins standard of showing sufficient materiality and relevance of the confidential informant's proposed testimony to establish their right to any remedy under the legal doctrines with which we are now concerned.
(Tr. 511-12.)

  The judge further found that "the [P]eople have established through the testimony of Sergeant Mejia that the confidential informant has a good faith fear, a substantial fear of [sic] his personal safety and that of his family if he were to appear as a witness at this trial." (Tr. 512-13.) Finally, because the confidential informant is unavailable I will not charge the missing witness charge concerning the confidential informant. And . . . defense counsel in summations should not and I caution you now, should not argue that the people should have called the confidential informant or that the jury should infer anything negative from his absence. That is my decision.

 (Tr. 513.)

  Pre-Charge Conference

  At the close of evidence, the judge held a pre-charge conference at which Castro's counsel renewed a motion to sever the trial, and now moved for a mistrial, on the grounds that Castro's and Davino's defenses were antagonistic to each other.*fn7 (Tr. 725-26.) The judge denied both motions. (Tr. 726.)

  Castro's counsel further requested missing witness charges for, inter alia, the confidential informant. (Tr. 726-27.) The prosecutor responded by citing the judge's earlier ruling that the confidential informant was unavailable. (Tr. 731-32).

  The judge ruled that "as to the missing witness charge requests by both defendants, [he had] already ruled that the confidential informant was unavailable under the Goggins doctrine and other related cases," and that at the time of that ruling, the judge stated that "for the same reason [he] would not charge the missing witness as to the confidential informant who is unavailable. That is still [his] ruling." (Tr. 735.) Further, the judge stated that: [I]t had not been shown that the confidential informant, within the legal sense, was material to the issues because the bottom line here is that whatever happened on East 167th Street the defendants were found ten blocks away or eight blocks away inside an automobile with a quarter of a kilo of heroin sitting on a console right between their seats as they sat there.

 (Tr. 735.) The judge therefore denied the request for a missing witness charge as to the confidential informant. (Tr. 735.)

  Verdict and Sentence

  On October 16, 1996, the jury found Castro guilty of first degree and third degree criminal possession of a controlled substance, and found co-defendant Davino not guilty on both charges. (Verdict: Tr. 854-57.) On December 19, 1996, Castro was sentenced as a predicate felon to fifteen years to life imprisonment for the first degree criminal possession conviction, and a concurrent sentence of eight to sixteen years for the third degree conviction. (12/19/96 Sentencing Transcript ["S."] 24-25.)*fn8

  Castro's Direct Appeal

  On appeal to the First Department, new counsel for Castro raised two grounds: (1) the trial court's refusal to order the prosecution to produce the confidential informant as a material witness and to give a missing witness charge as to that informant violated Castro's Confrontation Clause and due process rights to a fair trial (Dkt. No. 6: Gill Aff. Ex. A: Castro 1st Dep't Br. at 17-28); and (2) the trial court's refusal to grant Castro's severance motion deprived him of a fair trial (Castro 1st Dep't Br. at 28-31).

  On February 19, 2002, the First Department affirmed Castro's conviction, holding:

After a thorough hearing, the court properly determined that, through no fault of the People and despite their reasonably diligent efforts to produce him, the confidential informant was unavailable to testify at trial. The informant could not be located and, when he spoke to a police sergeant by telephone without revealing his location, he clearly stated that he was unwilling to testify due to fear for his safety and that of his family. Furthermore, the court correctly concluded that defendant had not met his burden of demonstrating that the proposed testimony of the informant would have been exculpatory or could create a reasonable doubt. Under these circumstances, the court properly declined to issue a missing witness charge since the informant was unavailable and there was no showing that he could have provided material testimony.
Defendant's severance motion, made prior to trial and renewed during trial, was properly denied. Despite some conflict in the trial testimony of defendant and the codefendant, who was acquitted, the cores of their respective defenses were not so irreconcilable as to require a severance, and there is no indication that the jury inferred defendant's guilt from this conflict in testimony.
People v. Castro, 291 A.D.2d 292, 293, 737 N.Y.S.2d 605, 606-07 (1st Dep't 2002) (citations omitted).

  The New York Court of Appeals denied leave to appeal on April 26, 2002. People v. Castro, 98 N.Y.2d 636, 744 N.Y.S.2d 765 (2002).

  Castro's § 440.10 Motion

  On August 13, 2002, Castro filed a pro se motion to vacate the judgment pursuant to C.P.L. § 440.10. (Dkt. No. 6: Gill Aff. Ex. F: Castro § 440 Motion.) The motion argued that because "the Trial Court denied [his] due process rights by failing to produce the confidential informant, sever [his] case from his co-defendant Davino's, for [not] giv[ing] a missing witness charge regarding the informant, . . . [therefore] the People failed to establish [Castro's] guilt . . . beyond a reasonable doubt as a matter of New York Law." (Castro § 440 Motion at 18; see also id. at 21-39 (re insufficiency of the evidence).)

  On January 13, 2003, the § 440 court denied Castro's motion:

In 1996, after a jury trial, the defendant Mario Castro, was convicted of the charge of Criminal Sale of a Controlled Substance in the First and Third Degrees. . . . On February 19, 2002, the Appellate Division, First Department affirmed the trial court's judgment. The defendant now submits the instant pro se motion to vacate the judgment of conviction, claiming that his due process rights were violated by: (1) the court's failure to order the production of the confidential informant; (2) the court's failure to issue a missing witness charge; and (3) the court's denial of his severance motion. . . .
The defendant already raised all of the above mentioned issues on his appeal. As a result, the court is procedurally barred from reviewing the defendant's claims (CPL § 440.10(2)(a)). Therefore, the motion to vacate the judgment pursuant to CPL § 440.10 is denied.
(Gill Aff. Ex. I: 1/13/03 Justice Padró Order.) The First Department denied leave to appeal on April 1, 2003. People v. Castro, M-903, 2003 N.Y. App. Div. LEXIS 3593 at *1 (1st Dep't Apr. 1, 2003). (See also Gill Aff. Ex. L.)

  Castro's Coram Nobis Petition

  On May 22, 2003, Castro filed a coram nobis petition in the First Department, arguing that he was denied the effective assistance of appellate counsel:

[P]etitioner respectfully submits that he was denied the effective assistance of appellate counsel when his attorney failed to raise the issue that the People failed to prove that he had knowing possession of the heroin discovered by investigators in a car, in which he was an occupant with another, beyond a reasonable doubt in accordance with New York's prevailing reasonable doubt law, and that his conviction is against the weight of the evidence requiring vacation of this Court's affirmance of his appeal as a matter of law and in the interest of justice.
(Dkt. No. 6: Gill Aff. Ex. M: Castro Coram Nobis Br. at 22-23.) On September 30, 2003, the First Department denied "in its entirety" Castro's coram nobis petition, citing People v. de la Hoz, 131 A.D.2d 154, 520 N.Y.S.2d 386 (1st Dep't 1987). (Gill Aff. Ex. O: 9/30/03 1st Dep't Order.) Castro did not seek leave to appeal the First Department's decision to the New York Court of Appeals. (See, e.g., Dkt. No. 1: Pet. ¶ 12(c)-(d).)

  Castro's Federal Habeas Corpus Petition

  Castro's timely-filed federal habeas corpus petition raises four grounds: (a) the trial court's refusal to order the prosecution to produce the confidential informant as a witness on the defense case and to give a missing witness charge as to that informant denied Castro his constitutional right to confrontation and to a fair trial (Dkt. No. 2: Castro Br. at 17-25); (b) the trial court's refusal to grant Castro's severance motion deprived him of a fair trial (Castro Br. at 25-27); (c) there was insufficient evidence to prove Castro guilty beyond a reasonable doubt (Castro Br. at 25-45); and (d) coram nobis is constitutionally defective because it lacks a "legislatively enacted procedural guideline" and a "uniform standard" against which appellate counsel's performance can be evaluated (Castro Br. at 45-60).

  ANALYSIS

  I. THE AEDPA REVIEW STANDARD*fn9 [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] Before the Court can determine whether Castro is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

  In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) . . . 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)(1)-(2).*fn10 The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.*fn11 Both, however, "restrict[] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.*fn12 "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

  As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.*fn13

  In Williams, the Supreme Court explained that "[u]nder the `unreasonableapplication' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 So. Ct. at 1523.*fn14 However, "[t]he term `unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn15 Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.*fn16 "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 538 U.S. at 75, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while `[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).*fn17 "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v. Alvarado, 124 S.Ct. at 2149.*fn18 Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.*fn19

  Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

  Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman, 261 F.3d at 312; accord Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. Apr. 20, 2004) (Where "the Appellate Division concluded its opinion by stating that it had `considered and rejected defendants' remaining claims,'" AEDPA deference applies.); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word `denied' — triggered AEDPA deference.").*fn20 "By its terms, § 2254(d) requires such deference only with respect to a state-court `adjudication on the merits,' not to a disposition `on a procedural, or other, ground.' Where it is `impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).*fn21 Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

  In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of `rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

  Castro's confidential informant production/missing witness charge and severance claims were denied on the merits by the First Department (see pages 15-17 above), and thus AEDPA deference applies. Castro's sufficiency of the evidence claim is barred from habeas review by adequate and independent state grounds. (See Point III below.) Finally, Castro's coram nobis claim is unexhausted but deemed exhausted and procedurally barred. (See Point IV.A. below.)

  II. CASTRO'S CLAIMS THAT THE CONFIDENTIAL INFORMANT SHOULD HAVE BEEN PRODUCED AND THAT A MISSING WITNESS JURY CHARGE SHOULD HAVE BEEN GIVEN SHOULD BE DENIED

  A. Castro's Production of the Confidential Informant Claim Should Be Denied

  Castro claims that the trial judge's refusal to compel the prosecution to produce the confidential informant "allowed the People to prove the knowledge element of the crime charged through hearsay and made it impossible for the defense to establish its lack-of-knowledge defense. As a result, [Castro] was deprived of his constitutional rights to confrontation, due process, and a fair trial." (Dkt. No. 2: Castro Br. at 17-18.) The First Department denied this claim on the merits (see pages 15-16 above), and thus under the AEDPA, the issue before this Court is whether the First Department's decision involved an unreasonable application of Supreme Court precedent. (See Point I above.)

  The Supreme Court has determined when the Due Process clause requires the prosecution to produce or disclose the identity of a confidential informant whom it does not plan to call as a witness. Roviaro v. United States, 353 U.S. 53, 60-62, 77 So. Ct. 623, 628-29 (1957). In Roviaro, the Supreme Court held that "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the [informer's] privilege must give way." Roviaro v. United States, 353 U.S. at 60-61, 77 S.Ct. at 628.*fn22 The Supreme Court, however, established a balancing test, as follows:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.
Roviaro v. United States, 353 U.S. at 62, 77 S.Ct. at 628-29.*fn23

  In DiBlasio v. Keane, 932 F.2d 1038 (2d Cir. 1991), the Second Circuit interpreted Roviaro as to when to require production or disclosure of a confidential informant:

Roviaro v. United States describes the circumstances under which the government's privilege to withhold the identity of those who furnish information about violations of law to law enforcement officials must yield to a defendant's fundamental right to a fair trial. . . . This circuit has interpreted Roviaro to require disclosure when it is "material to the defense." The determination of materiality lies with the trial judge, subject to an "abuse of discretion" standard of review. The judge must consider a number of factors in determining whether the informant's testimony is material: "the crime charged, the possible defenses, the possible significance of the informant's testimony and other relevant factors."
DiBlasio v. Keane, 932 F.2d at 1041-42 (citations omitted).*fn24

  Materiality aside, where the prosecution has made good-faith efforts to produce the informant, but where the informant is found to be unavailable by the trial court, the prosecution is not required to produce the informant. See, e.g., United States v. Dixon, No. 96-1095, 112 F.3d 506 (table), 1996 WL 585127 at *2 (2d Cir. Oct. 11, 1996) (Where government made "good faith efforts to locate the [confidential informant] after it realized he had disappeared, including visiting his neighborhood [and] interviewing persons who might know of his whereabouts," defendant's "Sixth Amendment Confrontation Clause rights" were not violated by "government's failure to produce the [informant] at trial."); Jacobson v. Henderson, 591 F. Supp. 503, 510 (S.D.N.Y. 1984) (Where government made "reasonable efforts to locate" the informant and there was no evidence that "the government acted in bad faith to render [informant] unavailable," habeas petitioner's "sixth amendment right to compulsory process" was not violated and petitioner was not "deprived [of] a fair trial."); cf. United States v. Ruiz-Juarez, 456 F.2d 1015, 1016 (9th Cir.), cert. denied, 407 U.S. 914, 92 S.Ct. 2450 (1972) (Government's failure to produce informer was justified where government provided affidavit that informer was unknown because informer had left anonymous telephone tip.).

  Here, the trial judge found that Sergeant Mejia made diligent efforts to locate the confidential informant between October 7, when "it was [first] made known in [the] case that the defense wished to have the confidential informant produced," and October 10, the day before the availability hearing. (Tr. 507; see page 15 above.) The informant was under no obligation to the police or to the prosecution from the time of his last assignment in January 1996 and consequently, the police had no control over and no need to contact the informant between January and October 1996. (Tr. 506-07; see page 15 above.) On the morning of the hearing, October 11, the informant called in response to a message Sgt. Mejia left with one of the informant's relatives. (Tr. 507; see page 15 above.) During that conversation, however, Sgt. Mejia could not persuade the informant to divulge his whereabouts or any contact information. (Tr. 507-08; see page 15 above.) The trial judge concluded that the "confidential informant [was] unavailable to be called as a witness at . . . trial." (Tr. 508; see page 15 above.)

  Under the AEDPA, this Court applies a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); see Point I above. As such, this Court need not reach the issue of materiality; because the whereabouts of the informant were unknown to the prosecution, the police made a good faith effort to locate the informant, and the police did not in bad faith render the informant unavailable, failure to produce the informant as a witness at trial did not constitute a violation of Castro's Constitutional Confrontation or due process rights.

  B. Castro's Missing Witness Jury Charge Claim Should Also Be Denied

  Castro also claims that the trial court's refusal to charge the jury with a missing witness instruction rendered "the hearsay information provided by the informant to Detective Rosa . . . equivalent to a stipulation on those facts, facts that were essential to prove whether or not [petitioner] had knowledge of the drugs." (Dkt. No. 2: Castro Br. at 27-28.) The First Department denied Castro's missing witness charge claim on the merits (see pages 16-17 above), and thus the issue is considered under the deferential AEDPA standard. (See Point I above.)

  Castro's missing witness charge claim cannot form a basis for habeas relief because, as Judge Weinstein recently explained, "[p]etitioner can point to no clearly established Supreme Court precedent requiring a trial court to instruct the jury with respect to a missing witness. At any rate, `[w]hether a missing witness charge should be given lies in the sound discretion of the trial court.'" Morales v. Strack, No. 99-CV-1617, 2003 WL 21816963 at *4 (E.D.N.Y. July 3, 2003) (Weinstein, D.J.) (quoting Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992), quoting United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988)).*fn25

  Castro's missing witness charge claim "raise[s] only [an] issue[] of state law that can not justify federal habeas relief." Green v. McCray, 02 Civ. 9332, 2003 WL 21688238 at *2 (S.D.N.Y. July 18, 2003). Moreover, the trial judge's decision was not erroneous even as a matter of state law.

  The New York Court of Appeals has announced the standard under New York law for requesting a missing witness charge:

Once the party seeking the [missing witness] charge has established prima facie that an uncalled witness is knowledgeable about a pending material issue and that such witness would be expected to testify favorably to the opposing party, it becomes incumbent upon the opposing party, in order to defeat the request to charge, to account for the witness' absence or otherwise demonstrate that the charge would not be appropriate. This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not "available", or that the witness is not under the party's "control" such that he would not be expected to testify in his or her favor.
People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 799 (1986) (emphasis added); accord, e.g., Rivera v. Duncan, 00 Civ. 4293, 2001 WL 1580240 at *20 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.). Castro's claim fails to satisfy this standard, because he cannot establish the element of "availability." As the New York Court of Appeals in Gonzalez explained:
"Availability" simply refers to the party's ability to produce [a] witness. Surely, it would be unfair as well as illogical to allow a jury to draw an adverse inference from the failure of the party to call a witness when the party is unable to do so. . . . So that, if the party opposing the charge can demonstrate, for example, that the witness' whereabouts are unknown and that diligent efforts to locate him have been unsuccessful . . ., the charge should not be given for the inference that the witness has not been called because of his anticipated unfavorable testimony has been negated.
People v. Gonzalez, 68 N.Y.2d at 428, 509 N.Y.S.2d 799 -800.*fn26

  As discussed above, the trial judge held a hearing and found that the informant was unavailable. (See pages 12-14 & 14-17 above.) Thus, under New York law (or the Second Circuit's "exercise of discretion" standard), the trial judge did not err in declining to give a missing witness charge. The trial judge's and First Department's decisions on this issue certainly did not constitute an unreasonable application of Supreme Court precedent. Castro's missing witness charge habeas claim should be denied.

  III. CASTRO'S SEVERANCE CLAIM SHOULD BE DENIED

  Castro asserts that the trial court's refusal to sever Castro's and Davino's trials deprived Castro of a fair trial because "both defendants presented antagonistic lack-of-knowledge defenses, [Davino] . . . accused [Castro] of knowledge, and the prosecutor used the conflicting defenses as evidence of [Castro's] guilt." (Dkt. No. 2: Castro Br. at 28; see also id. at 28-31.) The Court disagrees.

  "Although the Second Circuit has not articulated a standard against which to assess a habeas petitioner's severance claim, it has been said that the petitioner's burden is `at least' as great as that of a federal defendant raising the same claim on direct appeal." Campbell v. Andrews, No. 97-CV-2534, 1999 WL 997277 at *5 (E.D.N.Y. Oct. 19, 1999) (citing Grant v. Hoke, 921 F.2d 28, 31 (2d Cir. 1990)); accord, e.g., Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *15 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Calhoun v. Walker, No. 97CV0550, 1999 WL 33504437 at *3 (N.D.N.Y. Feb. 26, 1999) ("In a habeas proceeding, the Petitioner must demonstrate at least [as] much" as a defendant in a federal trial would need show for a severance).

  "In federal court, decisions on pretrial severance motions are discretionary, and a defendant will win a new trial only by showing that the district court abused its discretion. In addition, the defendant `must show that he was so severely prejudiced by the joinder as to have been denied a fair trial, not that he might have had a better chance for acquittal at a separate trial.'" Campbell v. Andrews, 1999 WL 997277 at *5 (citations omitted) (quoting Grant v. Hoke); accord, e.g., Aramas v. Donnelly, 2002 WL 31307929 at *15; see also, e.g., Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 938 (1993) ("It is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials."). There is a strong presumption of a joint trial where two (or more) defendants are charged with having committed the same crime. As the Supreme Court has explained: It would impair both the efficiency and the fairness of the criminal justice system to require . . . that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution's case beforehand Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability — advantages which sometimes operate to the defendant's benefit. Even apart from these tactical considerations, joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.

 Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 1708-09 (1987) (n. omitted); accord, e.g., Zafiro v. United States, 506 U.S. at 537-40, 113 S.Ct. at 937-38; United States v. Hepburn, No. 03-1459, 86 Fed. Appx. 475, 477, 2004 WL 234874 at *2 (2d Cir. Feb. 9, 2004); United States v. Nachamie, No. 00-1806, 28 Fed. Appx. 13, 21-22, 2002 WL 108341 at *5 (2d Cir. Jan. 25, 2001); United States v. Shareef, 190 F.3d 71, 77 (2d Cir. 1999) ("[I]n the federal system, there is a preference for the joint trial of defendants indicted together. . . . A severance need not be granted simply because codefendants have made incriminating statements."); United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998), cert. denied, 525 U.S. 1112, 119 S.Ct. 885 (1999); United States v. Hernandez, 85 F.3d 1023, 1029 (2d Cir. 1996); United States v. Aulicino, 44 F.3d 1102, 1116-17 (2d Cir. 1995).*fn27

  "[T]o warrant a severance, each defendant must meet the `heavy burden' of showing that he will be so severely prejudiced by a joint trial that he will in effect be denied a fair trial. In this regard, a defendant must demonstrate substantial prejudice from a joint trial, not just a better chance of acquittal at a separate one. Finally, a defendant must show that the prejudice resulting from joinder is so compelling that the trial court will be unable to afford protection." United States v. Matos-Peralta, 691 F. Supp. at 789 (internal quotations & citations omitted); accord, e.g., Aramas v. Donnelly, 2002 WL 31307929 at *16; see also, e.g., United States v. Diaz, 176 F.3d 52, 104 (2d Cir.) ("even when the risk of prejudice is high, measures less drastic than severance, `such as limiting instructions, often will suffice to cure any risk of prejudice.'") (quoting Zafiro v. United States, 506 U.S. at 539, 113 S.Ct. at 938), cert. denied, 528 U.S. 875, 957, 120 S.Ct. 181, 314, 315, 386 (1999); United States v. Haynes, 16 F.3d 29, 32 (2d Cir. 1994); United States v. Beverly, 5 F.3d 633, 637-38 (2d Cir. 1993) ("Even if prejudice is shown, severance is not required."); United States v. Tutino, 883 F.2d 1125, 1130 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 1082, 101 S.Ct. 1139 (1990); United States v. Potamitis, 739 F.2d 784, 790 (2d Cir.), cert. denied, 469 U.S. 918, 105 S.Ct. 297 (1984); United States v. Sotomayor, 592 F.2d 1219, 1228 (2d Cir.) (abuse of discretion standard for severance is a "difficult burden"), cert. denied, 442 U.S. 919, 99 S.Ct. 2842, (1979); United States v. Ricco, 549 F.2d 264, 274 (2d Cir.), cert. denied, 431 U.S. 905, 97 S.Ct. 1697 (1977); United States v. Fantuzzi, 463 F.2d 683, 687 (2d Cir. 1972); United States v. Martinez-Montilla, 135 F. Supp.2d 422, 423-24 (S.D.N.Y. 2001); United States v. Persico, 621 F. Supp. at 852.*fn28 With specific respect to mutually antagonistic defenses and whether they mandate severance, the Supreme Court has held, in the direct federal appeal context, that:

Mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 [of the Federal Rules of Criminal Procedure] does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion. . . .
We believe that, when defendants properly have been joined under [Fed.R. Crim. P.] Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. . . . The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here. When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, as we indicated in Richardson v. Marsh, less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice. See 481 U.S., at 211, 107 S. Ct., at 1709.
Zafiro v. United States, 506 U.S. at 538-39, 113 S.Ct. at 938.*fn29 The Second Circuit has further held that "[t]o obtain a severance on the ground of antagonistic defenses, a defendant must show that the conflict is so irreconcilable that acceptance of one defendant's defense requires that the testimony offered on behalf of a codefendant be disbelieved." United States v. Tutino, 883 F.2d at 1130 (citing United States v. Potamitis, 739 F.2d at 790, & United States v. Carpentier, 689 F.2d 21, 27-28 (2d Cir. 1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735 (1983)); accord, e.g., Aramas v. Donnelly, 2002 WL 31307929 at *16 n. 28.

  The Court notes that Castro does not "articulate any specific instances of prejudice. Instead [he] contend[s] that the very nature of [his and Davino's] defenses, without more, prejudiced" him. Zafiro v. United States, 506 U.S. at 539-40, 113 S.Ct. at 938. Castro's theory is that (1) because Davino implicitly accused Castro of knowledge of the heroin, the two co-defendants have "antagonistic" defenses, and (2) because the prosecutor, in his summation, used the conflicting defenses as evidence of both defendants' guilt, the jury could find one or both of them guilty without regard to whether the prosecution had proved its case beyond a reasonable doubt. (Dkt. No. 2: Castro Br. at 25-27.)

  The Supreme Court's language used to analyze the situation in Zafiro is equally applicable to an analysis of Davino's testimony vis-a-vis Castro:

[I]t is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials. Rules 8(b) and 14 are designed to promote economy and efficiency and to avoid a multiplicity of trials, so long as these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial. While an important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence, a fair trial does not include the right to exclude relevant and competent evidence. A defendant normally would not be entitled to exclude the testimony of a former codefendant if the district court did sever their trials, and we see no reason why relevant and competent testimony would be prejudicial merely because the witness is also a codefendant.
Zafiro v. United States, 506 U.S. at 539-40, 113 S.Ct. at 938 (internal quotations & citations omitted).

  The First Department held that the two defendants' arguments were not so antagonistic as to require severance. See People v. Castro, 291 A.D.2d 292, 293, 737 N.Y.S.2d 605, 607 (1st Dep't 2002) ("Despite some conflict in the trial testimony of [Castro] and the codefendant, who was acquitted, the cores of their respective defenses were not so irreconcilable as to require a severance."). Both Castro and Davino testified that neither saw the other actually possess the drugs. (Davino: Tr. 567; Castro: Tr. 636; see pages 7 & 11 above.) The Court agrees that the core defenses of both Castro and Davino were not so irreconcilable as to mandate severance of the trial. See, e.g., United States v. Shareef, 190 F.3d 71, 77-78 (2d Cir. 1999) (Lack-of-knowledge defenses put forward by both defendant and co-defendant "were not necessarily irreconcilable" defenses.).

  With regard to Castro's second contention, there is no indication that the jury inferred from the apparent conflict in defenses the guilt of either or both defendants. Indeed, while the prosecutor argued that both Castro and Davino were guilty (State Summation: Tr. 795-96), the jury found Castro guilty but found Davino not guilty (see page 18 above). Moreover, the trial judge alleviated any potential prejudice with proper curative instructions immediately following summation on the prosecution's burden of proving every element of every crime as to each defendant beyond a reasonable doubt (Charge: Tr. 807, 814, 818-22, 823-24) and on the non-evidentiary value of opening and closing statements (Charge: Tr. 808-09). As in Zafiro, "[t]hese instructions sufficed to cure any possibility of prejudice." Zafiro v. United States, 506 U.S. at 541, 113 S.Ct. at 939; see also, e.g., United States v. Harwood, 998 F.2d 91, 95 (2d Cir. 1993) (Where co-defendants both claimed lack of knowledge of LSD hidden in van and accused the other of placing it there, co-defendants "failed to satisfy the burden of showing `legally cognizable prejudice,'" and limiting instruction was enough to cure any potential prejudice); see also, e.g., United States v. Shamsideen, 03 CR 1313, 2004 WL 1179305 at *4-5 (S.D.N.Y. Mar. 31, 2004); United States v. Allibalogun, 93 CR 230, 1993 WL 385801 at *2 (S.D.N.Y. Sep. 30, 1993) (Lack-of-knowledge defense on its face does not constitute "legally cognizable prejudice" to justify severance, especially where curative instruction will be given.).

   Finally, the Court reiterates that the deferential AEDPA review standard applies. This Court cannot say that the trial judge's and First Department's decisions, even if erroneous (which they were not), constituted an "unreasonable application" of Supreme Court precedent or were based on an "unreasonable determination of the facts in light of the evidence" at trial. Accordingly, the Court should deny Castro's severance habeas claim.

   IV. CASTRO'S SUFFICIENCY OF THE EVIDENCE CLAIM IS BARRED FROM HABEAS REVIEW BECAUSE THE STATE COURT'S DECISION WAS BASED ON AN ADEQUATE AND INDEPENDENT STATE GROUND, AND IN ANY EVENT LACKS MERIT

   Castro argues that there was insufficient evidence to convict him of first and third degree possession of a controlled substance. (Dkt. No. 2: Castro Br. at 27-45.) Castro did not raise this claim on direct appeal but rather raised it for the first time in his C.P.L. § 440 motion. (Dkt. No. 6: Gill Aff. Ex. F: Castro § 440 Motion; see page 19 above.) The § 440 court, however, interpreted Castro's legal sufficiency claim to be repetitive of his direct appeal claims and therefore denied the motion, concluding that the § 440 court was "procedurally barred" from reviewing the claims. (Gill Aff. Ex. I: 1/13/03 Justice Padró Order; see page 20 above.) The First Department denied leave to appeal. People v. Castro, M-903, 2003 N.Y. App. Div. LEXIS 3593 at *1 (1st Dep't Apr. 1, 2003). Since the § 440 court's decision was based on adequate and independent state law grounds, Castro's sufficiency of the evidence claim is barred from federal habeas review.

   A. Adequate and Independent State Ground*fn30 The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner 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 v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations & internal quotations omitted).*fn31

   "[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must `clearly and expressly state [] that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); Garcia v. Lewis, 188 F.3d at 77-82; Glenn v. Bartlett, 98 F.3d at 724-25; see also, e.g., Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.

   The state § 440 court interpreted Castro's sufficiency of the evidence issue as a reiteration of the informant production, missing witness charge, and severance issues, and thus rejected all the claims including the sufficiency of the evidence claim pursuant to C.P.L. § 440.10(2)(a) which allows denial of § 440 claims that previously were raised on direct appeal.*fn32 The cases in this Circuit hold that CPL § 440.10(2) is an "adequate and independent" state procedural ground barring federal habeas review. See, e.g., Dorsey v. Irvin, 56 F.3d 425, 426 (2d Cir. 1995); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995) (§ 440.10(2)(c) is adequate and independent state ground); Ramos v. Costello, 96 Civ. 3659, 1997 WL 231129 at *2 (S.D.N.Y. May 7, 1997) ("The procedural ground on which the state court denied his § 440.10 motion" — "namely, that they were barred by a New York rule precluding claims that could have been raised on direct appeal but were not" — "is an independent and adequate state ground that prevents him from asserting those claims in a federal habeas corpus proceeding absent cause and prejudice."); Flowers v. Irvine, No. 94-CV-2240, 1995 WL 669913 at *4 (E.D.N.Y. Oct. 31, 1995) ("The state court dismissed his claim as `procedurally defective' because he could have argued this claim previously on direct appeal to the Appellate Division . . . and did not. The decision of the state court in this case clearly rested on state law."); Sykes v. Scully, No. 90 CV 4302, 1992 WL 151896 at *2 (E.D.N.Y. June 16, 1992) ("§§ 440.10(2)(a) and 440.20(2) mandate that such claims are barred from review. This court therefore treats such claims as exhausted and procedurally barred under state law . . ."); Esquilin v. Walker, No. CV-91-4608, 1992 WL 151903 at *3 (E.D.N.Y. June 16, 1992) ("Collateral review is barred since the claim was raised on direct appeal to the Appellate Division. N.Y.C.P.L. § 440.10(2)(a) (collateral review unavailable for claims raised on direct appeal). . . . Therefore, the claim of prosecutorial misconduct must be denied as barred by an independent and adequate state procedural ground."), aff'd, 990 F.2d 624 (2d Cir. 1993).

   Even assuming that the § 440 court erred in construing Castro's legal sufficiency claim as a mere repetition of his direct appeal claims and denying it under C.P.L. § 440.10(2)(a), the § 440 court could have rejected Castro's C.P.L. § 440 motion as to his sufficiency of the evidence claim because C.P.L. § 440.10(2)(c) requires denial of such a motion when the issue could have been raised on direct appeal. New York law bars consideration via collateral attack of an issue that could have been raised on direct appeal. N.Y.C.P.L. § 440.10(2)(c); see, e.g., People v. Cooks, 67 N.Y.2d 100, 103-04, 500 N.Y.S.2d 503, 505 (1986); People v. Byrdsong, 234 A.D.2d 468, 469, 651 N.Y.S.2d 903, 903 (2d Dep't 1996) ("Pursuant to C.P.L. 440.10(2)(c) a court must deny a postjudgment motion to vacate a conviction when sufficient facts appear in the record so that an issue may be adequately reviewed on a direct appeal and the defendant unjustifiably failed to raise the claim on appeal."), appeal denied, 89 N.Y.2d 1033, 659 N.Y.S.2d 863 (1997); People v. Skinner, 154 A.D.2d 216, 221, 552 N.Y.S.2d 932, 935 (1st Dep't) ("defendant's failure to present his constitutional attack upon his conviction after trial in the course of his direct appeal forecloses any consideration of it [in a § 440.10 proceeding]"), appeal denied, 76 N.Y.2d 796, 559 N.Y.S.2d 1001 (1990). The Second Circuit has held C.P.L. § 440.10(2)(c) to be an adequate and independent state ground. See, e.g., Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995).*fn33 Because there is an adequate and independent finding by the state § 440 court that Castro had procedurally defaulted on his sufficiency of the evidence claim, Castro would have to show in his habeas petition "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." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565.*fn34 Castro does not allege cause, prejudice or a fundamental miscarriage of justice.

   Accordingly, Castro's sufficiency of the evidence claim should be denied on procedural grounds. In any event, as discussed in the next subsection, his sufficiency of the evidence claim is without merit. B. Castro's Sufficiency of the Evidence Claim Lacks Merit

   1. Legal Principles Governing Sufficiency of the Evidence Habeas Claims*fn35

   `"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction `except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.*fn36

   Petitioner Castro bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.
United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).*fn37 The habeas court's review of the jury's findings is limited:
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).*fn38

   The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").

   2. Application of the Standard to Castro's Claim Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found beyond a reasonable doubt that Castro was guilty of first and third degree possession of a controlled substance. A defendant is guilty of first degree criminal possession of a controlled substance if he "knowingly and unlawfully possess[ed] . . . one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances [were] of an aggregate weight of four ounces or more." Penal Law § 220.21(1). A defendant is guilty of third degree criminal possession of a controlled substance if he "knowingly and unlawfully possess[ed] . . . a narcotic drug with intent to sell it." Penal Law § 220.16(1).

   Castro did not dispute that the police found heroin wrapped in his sweatshirt in his car, and that it weighed over four ounces. (See pages 5, 6 & 11 above.)*fn39 Thus, the only question is whether the evidence sufficiently proved that Castro "knowingly and unlawfully possessed" that heroin. The evidence showed that Castro drove to 874 East 167th Street, the location of the planned drug transaction, shortly after the time that the informant placed his order for 250 grams of heroin. (See page 3 above.) Detective Abate identified Castro as one of the men who entered the house and exited it soon after the informant called to cancel the order. (See page 4 above.) At the actual arrest scene, both Detective Abate and co-defendant Davino testified that they saw Castro quickly reach with his right hand over to the left side of his body. (See pages 5 & 7 above.) Davino further testified that he saw Castro put the sweatshirt on the center console. (See page 7 above.) The police found roughly 250 grams of heroin in a plastic bag, wrapped loosely in a white sweatshirt on the center console between the two defendants' seats. (See page 5 above.) The white sweatshirt in which the heroin was loosely wrapped belonged to Castro; he admitted that at trial. (See page 11 above.) The Nissan which Castro was driving and in which the heroin was found was registered to Castro's wife. (See page 6 above.) While Castro testified that he did not go to the Bronx to participate in a drug sale and did not know there were drugs in the car, his testimony was certainly inconsistent and the jury could have found his testimony to be not credible. In any event, from all the evidence, a reasonable, properly instructed jury could have found Castro guilty beyond a reasonable doubt.

   In addition, the prosecution's case also was supported and assisted by the statutory "automobile presumption." Under New York law, "presence of a controlled substance in an automobile . . . is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found." Penal Law § 220.25(1). That presumption has been found Constitutional by both the New York Court of Appeals and the Second Circuit. See, e.g., Lopez ex rel. Garcia v. Curry, 583 F.2d 1188, 1192 (2d Cir. 1978); People v. Leyva, 38 N.Y.2d 160, 170-71, 379 N.Y.S.2d 30, 40 (1975); accord, County Ct. of Ulster County v. Allen, 442 U.S. 140, 163-64, 167, 99 S.Ct. 2213, 2228, 2230 (1979) (upholding similar presumption in Penal Law § 265.15 as applied to the presence in an automobile of a firearm). Applying the presumption, Castro was driving the car in which large quantities of heroin were found wrapped in a sweatshirt that he admitted was his. That simple fact, along with the Penal Law § 220.25 presumption, was more than sufficient to prove his guilt beyond a reasonable doubt. Of course, this automobile presumption is rebuttable. See People v. Leyva, 38 N.Y.2d at 167, 379 N.Y.S.2d at 35-36. The jury was free, however, to accept or reject Castro's own rebuttal testimony, and it chose to reject it.

   Here, as in prior cases, "the jury's `decision was largely a matter of choosing whether to believe [Castro's] version of the events or to believe the version offered by the State [and co-defendant Davino]. The jury chose to believe the State's witnesses. . . . We cannot say that no rational [factfinder] could have found guilt beyond a reasonable doubt on all the evidence.'" Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *12 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.) (quoting Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981)); accord, e.g., Brown v. Fischer, 2004 WL 1171277 at *7-9; Rodriguez v. Goord, 02 Civ. 6318, 2004 WL 540531 at *17 (S.D.N.Y. Mar. 19, 2004) (Peck, M.J.); Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *29 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *22 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *11 & n. 18 (S.D.N.Y. May 7, 2003) (& cases cited therein); see also cases cited in Point IV.B.1 above.

   Castro's sufficiency of the evidence claim should be denied.

   V. CASTRO'S CORAM NOBIS CLAIM IS UNEXHAUSTED BUT DEEMED EXHAUSTED AND PROCEDURALLY BARRED

   Castro's habeas petition claims not that he was denied the effective assistance of appellate counsel, but that the vehicle of coram nobis itself is "constitutionally defective" because it lacks a "legislatively enacted procedural guideline, and a uniform standard allowing for equitable evaluation of appellate counsel's performance," thus "depriv[ing] criminal litigants, seeking coram nobis relief, due process and equal protection of the law." (Dkt. No. 2: Castro Br. at 45.)

   Ineffective assistance of appellate counsel is "the only claim cognizable on a motion for coram nobis relief." Bilbrew v. Garvin, No. 97-CV-1422, 2001 WL 91620 at *3 n. 2 (E.D.N.Y. Jan. 10, 2001); see also, e.g., People v. Gordon, 183 A.D.2d 915, 915, 584 N.Y.S.2d 318, 318 (2d Dep't 1992) ("In a criminal action, the writ of error of coram nobis lies in this court only to vacate an order determining an appeal on the ground that the defendant was deprived of the effective assistance of appellate counsel.") (citing People v. Bachert, 69 N.Y.2d 593, 594-96, 516 N.Y.S.2d 623, 624-25 (1987)).

   The only appropriate time for Castro to raise his constitutional challenge to coram nobis in state court would have been before the First Department as part of Castro's coram nobis petition or perhaps more properly on appeal to the New York Court of Appeals from the First Department's denial of his coram nobis petition. Castro did not raise this issue before the First Department. (See pages 18-19 above.) And Castro failed to seek leave to appeal to the Court of Appeals following the First Department's denial of his coram nobis petition. In his habeas petition, Castro states that "No Appeal Lies From Coram Nobis Traditionally." (Dkt. No. 1: Pet ¶ 12(d).) Castro's belief that he could not appeal this decision was erroneous. "In 2002, the New York Criminal Procedure Law was amended to allow permissive appeals to the New York Court of Appeals from the denial of coram nobis petitions." McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *12 n. 14 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.) (citing C.P.L. § 450.90(1)).*fn40 Castro did not do so and the time to do so has passed. Pursuant to C.P.L. § 460.10, Castro had thirty days from the First Department's denial of his coram nobis petition (i.e., until October 29, 2003) to timely seek leave to appeal to the New York Court of Appeals. C.P.L. § 460.10(5)(a).*fn41 Thus, Castro's challenge to the constitutionality of the coram nobis device was not pursued to the New York Court of Appeals, as it could and should have been. Castro's coram nobis challenge claim should be denied under the "unexhausted but deemed exhausted and procedurally barred" doctrine, described below.

   A. The Unexhausted But Deemed Exhausted and Procedurally Barred Doctrine*fn42 Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A).*fn43 As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732.

   The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:

First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. & Peck, M.J.) (emphasis added; quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732-34.

   B. Application to Castro's Coram Nobis Claim

   The appropriate state forum to have heard Castro's claim that the coram nobis procedure is unconstitutional would be the New York Court of Appeals, by having sought leave to appeal from the First Department's denial of his coram nobis petition. However, Castro did not seek leave to appeal to the Court of Appeals. (See page 21 above.) Thus, his claim is unexhausted but deemed exhausted and procedurally barred from habeas review. See, e.g., Reyes v. Keane, 118 F.3d 136, 139-40 (2d Cir. 1997) (unexhausted claims may be "deemed exhausted" and procedurally barred where petitioner no longer has remedies available in state court); Soto v. Greiner, 2002 WL 1678641 at *14-15 (& cases cited therein) (discussing unexhausted but deemed exhausted and procedurally barred doctrine). In any event, Castro's claim is without merit. The State Legislature propounded a right to seek leave to appeal to the New York Court of Appeals. C.P.L. § 450.01(1), quoted at page 56 fn.40 above. That has given the New York Court of Appeals a chance to clarify the New York legal standard for ineffective assistance of appellate counsel, which in fact it recently did in People v. Stultz, 2 N.Y.3d 277, 778 N.Y.S.2d 431 (2004). The Court of Appeals there held that the state standard for ineffective appellate counsel is the "meaningful representation" standard previously set forth (for trial counsel) in People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893 (1981). See People v. Stultz, 2 N.Y.3d at 284, 778 N.Y.S.2d at 435-36. The Second Circuit previously upheld the state "meaningful representation" standard as "not diametrically different, opposite in character or nature, or mutually opposed to the [procedural] standard articulated in Strickland" v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). E.g., Lolisco v. Goord, 263 F.3d 178, 192-93 (2d Cir. 2001).

   Thus, whether because of his procedural default or on the merits, Castro's habeas challenge to state coram nobis procedure should be denied.

   CONCLUSION

   For the reasons set forth above, Castro's habeas petition should be denied. Since Castro's petition has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability should not issue. 28 U.S.C. § 2253(c)(2).

   FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

   Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Pearl Street, Room 1040, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Cote. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).


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