The opinion of the court was delivered by: Trager, District Judge
Manuel Mateo ("Mateo" or "petitioner") brings this pro se petition under 28 U.S.C. § 2254 for writ of habeas corpus, arguing that a supplemental jury instruction deprived him of a fair trial, that his sentence was excessive and vindictively imposed on the basis of crimes for which he had been acquitted and that the evidence adduced at trial was legally insufficient. For the following reasons, the petition is denied.
Petitioner was charged with two counts each of Criminal Sale of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.43(1) (McKinney's 1999)), Criminal Possession of a Controlled Substance in the Second Degree (N.Y. Penal Law § 220.18(1) (McKinney's 1999)), Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16(1) (McKinney's 1999)), and Criminal Possession of a Controlled Substance in the Seventh Degree (N.Y. Penal Law 220.03 (McKinney's 1999)). Government Affirmation in Opposition ("Gov. Aff.") ¶ 6.
At a jury trial presided over by the Honorable Judge Leon Ruchelsman, the state introduced the testimony of several detectives involved in the undercover operation that led to petitioner's arrest. Detective Luis Flores ("Flores") testified that on March 23, 2000, petitioner dropped off Hector Vidal ("Vidal") at a restaurant in Brooklyn where Vidal met with detective Flores, who was posing as a drug dealer. Trial Tr. ("Tr.") at 68:9-14; 69:11-24. After forty-five minutes, petitioner returned to the restaurant and met privately with Vidal. Tr. at 70:12-16. Immediately following this meeting, Vidal handed more than sixty grams of cocaine to Flores in exchange for $2295. Tr. at 70:21-25.
Flores also testified that on May 24, 2000, he and Vidal met again at the same restaurant. Tr. at 79:2-8. Again, after approximately forty-five minutes, petitioner arrived at the restaurant and met privately with Vidal. Tr. at 80:23-81:5.
Detective Matthew Lloyd ("Lloyd") testified that he observed, via surveillance camera, this meeting between petitioner and Vidal. He testified that the two men exited the restaurant having a conversation, and that during this conversation petitioner placed his hand in Vidal's jacket pocket and then removed it. Tr. at 138:8-15. Vidal then walked away from petitioner and met again with Flores. Flores testified that Vidal told Flores that he had the drugs, and the two of them left the restaurant and entered Flores's car. Tr. at 81:2-8. Once inside the car, Vidal removed approximately sixty grams of cocaine from his jacket pocket and handed it Flores in exchange for $2000. Tr. at 81:11-13; 82:20-83:1.
After the jury had been charged, the prosecution requested a supplemental instruction that circumstantial evidence can be stronger than direct evidence, and the jury received the following instruction: "I want to instruct you that circumstantial evidence can be stronger than direct evidence. The weight to be given to circumstantial evidence is up to you, the jury." Tr. at 233:21-23; 235:13-16.
On December 12, 2001, the jury convicted petitioner of one count of Criminal Possession of a Controlled Substance in the Second Degree, N.Y. Penal Law 220.18(1), a class A-II felony, and acquitted petitioner on the other charges. Tr. at 247:1-5. On February 19, 2002, the court imposed the maximum sentence of eight and a third years to life for petitioner's conviction. Sentencing Transcript ("Sent. Tr.") at 5:3-6.
Mateo appealed to the Appellate Division, Second Department ("Appellate Division"), arguing that the supplemental jury instruction was inappropriate and prejudicial, that his sentence was excessive and that he had been vindictively sentenced for crimes for which he had been acquitted. Mateo Brief on Appeal ("Br.") at 10, 14. On March 8, 2004, the Appellate Division affirmed petitioner's conviction. People v. Mateo, 5 A.D.3d 507, 772 N.Y.S.2d 576 (2d Dep't 2004). As to petitioner's objection to the jury charge, the court held that, "[c]ontrary to [Mateo]'s unpreserved contention, the Supreme Court's supplemental charge on circumstantial evidence did not deprive him of a fair trial," since the charge was both a correct statement of the law, and non-prejudicial to Mateo. Id. at 507, 772 N.Y.S.2d at 577 (citations omitted). With respect to petitioner's other claims, the Appellate Division held that he was not sentenced excessively or for crimes for which he had been acquitted. Id. at 507, 772 N.Y.S.2d at 577.
After leave to appeal to the New York Court of Appeals was denied, People v. Mateo, 2 N.Y.3d 802, 814 N.E.2d 474, 781 N.Y.S.2d 302 (2004), petitioner filed a coram nobis petition in the Appellate Division, arguing that his appellate counsel was ineffective for failing to contest the sufficiency of the evidence adduced at trial. Gov. Aff. ¶ 11. On November 8, 2004, the Appellate Division rejected the petition, holding that Mateo had failed to establish that his counsel's assistance was ineffective. People v. Mateo, 12 A.D.3d 461, 783 N.Y.S.2d 852 (2d Dep't 2004). On January 25, 2005, the New York Court of Appeals denied petitioner leave to appeal the denial of his coram nobis petition. People v. Mateo, 4 N.Y.3d 765, 825 N.E.2d 141, 792 N.Y.S.2d 9 (2005).
Mateo then filed this petition pursuant to 28 U.S.C. § 2254, raising two of the same issues brought on direct appeal, specifically, attacking the supplemental jury charge and his sentence, and raising one new issue, namely, that the evidence was legally insufficient to convict him of Criminal Possession of a Controlled Substance in the Second Degree. Mateo's Petition for Writ of Habeas Corpus ("Pet.") at 5-6. The state responded to the petition, arguing that: (1) Mateo's attack on the jury charge is procedurally barred, or, in any event, without merit; (2) Mateo's sentencing claims do not present a federal constitutional issue, and are without evidentiary support; and (3) Mateo's insufficiency claim is procedurally barred, or, in any event, without merit. Government Memorandum of Law in Opposition ("Gov. Mem.") at 1-4, 5-6, 7-11. Petitioner then filed a Traverse on February 28, 2005.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214 (1996), establishes a deferential standard of review for federal court habeas corpus proceedings. See also 28 U.S.C. § 2254(d)-(e). Under this standard, a federal court may grant habeas relief only when a state court adjudication on the merits of a federal claim was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or was "based on an ...