The opinion of the court was delivered by: Denise Cote, District Judge
Juan Manuel Castillo ("Castillo") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, seeking to overturn his conviction following trial on narcotics charges in 2004. The Honorable Douglas Eaton has recommended in a report dated October 28, 2009 ("Report") that the petition be denied, and for the following reasons, that recommendation is adopted.
Castillo was charged in a two-count indictment with participating in two narcotics conspiracies in violation of 21 U.S.C. § 846. The conspiracies involved the distribution of kilograms of cocaine. The first related to fifteen kilograms seized in February 2001; the second related to fifteen kilograms seized in December 2001.
Castillo was represented at trial by retained counsel Glendon B. Adams, Esq. ("Adams"), and Castillo's petition asserts that Adams provided ineffective assistance at trial. Judge Eaton recommends that the petition be denied because Castillo has not shown prejudice, a necessary element of his Strickland claim. See Strickland v. Washington, 466 U.S. 668, 693-94 (1984). As described in considerable detail in the Report, the evidence against Castillo was overwhelming.
In brief, court-authorized wiretaps and testimony from co-conspirators established that Castillo, who was known by the nickname "Gago", and his partner Faridi arranged to deliver cocaine from Texas to New York. The first conspiracy involved a delivery to a Bronx cocaine distribution organization run by Carlos Silverio and Roberto Rodriguez. On February 27, 2001, FBI agents stopped Rodriguez in the Bronx, searched the Honda minivan he was driving, and seized fifteen kilograms of cocaine from the van.
About ten months later, on December 14, 2001, acting on an informant's tip, a New York City Police Department detective seized a grey 1996 Land Rover and discovered fifteen kilograms of cocaine hidden in a secret trap in its roof. Porfirio Martinez testified at trial that he owned a garage in the Bronx and that Castillo, whom he knew as Gago, and Faridi had paid him to build secret traps for a number of Castillo's vehicles, including the seized Land Rover. Martinez explained that Castillo visited him near the end of 2001, complaining that the Land Rover had disappeared while carrying nineteen to twenty-one kilograms of drugs, and that he suspected that it had been stolen. The FBI photographed Castillo visiting the garage on January 11, 2002.
Francisco Batista also testified about the December events. He explained that he unloaded drugs from five cars, including a Land Rover, in Manhattan for Castillo (whom he also knew as Gago) and Faridi between late January 2001 and late February 2002. According to Batista, in late December 2001, Sylvia Suarez drove the Land Rover from Houston to New York, at which point he and Faridi took it and parked it in a garage. There were thirty kilograms of cocaine hidden in the rooftop trap, and he and Faridi removed half of the drugs. Castillo arrived the next day and stayed overnight with Batista. When Castillo and Batista learned from a building superintendent that the Land Rover had been taken by the police, Castillo accused Batista of stealing the car and its remaining drugs. Castillo ordered Batista to go to the police station with Suarez, in whose name the car was registered, and report that the vehicle had been stolen.
Police officers testified that Batista, Suarez, and a Sophia Cole visited the 30th precinct police station to report a stolen car. The police told Suarez that they had seized the Land Rover, but believed that the vehicle was stolen. Pen register information showed that Suarez called Castillo's pager during the weeks that followed.
When Castillo was arrested on April 14, 2003, he had several items in his wallet that confirmed his nickname and connection with his co-conspirators. These items included a nightclub card with his nickname Gago.
The Honorable John Sprizzo presided over Castillo's jury trial, at which Adams served as defense counsel. Castillo was convicted on both counts, and on February 23, 2005, Judge Sprizzo imposed concurrent sentences of 180 months' imprisonment. Following trial, Castillo retained Valerie Amsterdam, who filed an unsuccessful motion for a new trial on Castillo's behalf and represented him at the sentencing.
The law firm of Feldman & Feldman represented Castillo on appeal. The conviction was summarily affirmed on May 31, 2006. In January 2007, Castillo filed a pro se petition alleging that Adams had provided ineffective assistance of counsel. The Honorable Peter Leisure appointed Steven M. Witzel to represent Castillo in October 2007, and Mr. Witzel continues to act on his behalf in connection with this habeas petition. On September 5, 2008, Mr. Witzel submitted his memorandum in support of the petition. The briefing was fully submitted on December 5, 2008. Following Judge Sprizzo's death, this case was reassigned twice, ultimately being reassigned to this Court on February 6, 2009. The Report was issued on October 28, 2009, and Mr. Witzel submitted his objections to the Report on November 24, 2009.
The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When specific objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To accept those portions of the report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Figueroa v. Riverbay Corp., No. 06 Civ. 5364 (PAC), 2006 WL 3804581, at *1 (S.D.N.Y. Dec. 22, 2006) (citation omitted). "[O]bjections to a Report and Recommendation are ...