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July 23, 2004.

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

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


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.


  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. ...

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