The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.
USDC SDNY_________ DOCUMENT_________ ELECTRONICALLY
REPORT AND RECOMMENDATION TO THE HONORABLE JED S. RAKOFF
I. Introduction Petitioner Darryl Adams ("Adams") brings this pro se proceeding pursuant to 28 U.S.C. § 2255 ("Section 2255") to challenge his conviction on all three counts of an indictment charging him with: (a) conspiring to distribute and possess with intent to distribute five grams or more of crack cocaine (Count One); (b) distributing and possessing with intent to distribute an unspecified quantity of powder cocaine (Count Two); and (c) distributing and possessing with intent to distribute five grams or more of crack cocaine (Count Three). (See Cr. ECF No. 62).*fn1 On January 22, 2007, Your Honor sentenced Adams to concurrent terms of 168 months imprisonment on each count, to be followed by five years of supervised release. (Id.; S. 75).
In his motion (Civ. ECF No. 1 ("Petition" or "Pet.")), Adams asserts several claims. Specifically, Adams contends that he was denied the effective assistance of counsel during his trial, at sentencing, and on appeal, in violation of the Sixth Amendment. (Pet. at 5, 5a, 5b, 5c, 7-8, 8a, 9). Adams further maintains that his Fifth and Sixth Amendment rights were violated because the prosecutor engaged in misconduct and because the instructions given to the jury were constitutionally deficient. (Id. at 6, 6a, 10).
For the reasons that follow, I recommend that the Petition be denied. Additionally, because Adams has failed to make the substantial showing of the denial of a constitutional right required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not issue.
1. Government's Case*fn2 At trial, the Government presented the testimony of only two witnesses: Drug Enforcement Administration ("DEA") Special Agent Toby Byrd ("Byrd"), and Steve Garcia, a DEA Confidential Source ("Garcia") ("CS"). Their testimony and the other evidence presented at trial would have enabled a reasonable juror to conclude as follows:
Garcia is a CS who works for the DEA in exchange for monetary compensation. (Id. at 31-32, 173-75). In October 2005, while reporting to Byrd, Garcia assisted in an investigation of violent narcotics traffickers in the vicinity of the Patterson housing project in the South Bronx. (Id. at 29-30, 32, 176). On October 25, 2005, Garcia purchased one ounce of powder cocaine from Adams at 145th Street and Willis Avenue in the Bronx. (Tr. 168-69). The following night, Garcia purchased two ounces of crack cocaine from Adams at 149th Street and Morris Avenue in the Bronx. (Id. at 168-70). During both transactions, Garcia wore a recording device. (Id. at 184, 188-89).
Garcia had grown up in the same apartment building as Darrin Carathers ("Carathers"), who used and sold drugs in high school. (Id. at 176-77). Carathers continued selling drugs in the 1990s. (Id. at 321-23, 326-27). In or around October 2005, Garcia approached Carathers on a street corner and asked whether he knew anyone who had "some hard," i.e., crack cocaine. (Id. at 176, 178-80). Garcia indicated that he wanted to purchase the crack so that he could "flip" it in order to make money. (Id. at 182). Carathers, who is wheelchair-bound, responded by telephoning Adams on Garcia's behalf. (Id. at 180).
At Byrd's instruction, Garcia subsequently called Carathers to arrange to purchase crack from Adams. (Id. at 181). During that call, Garcia and Carathers agreed that a sale of two ounces of crack for $1,400 would take place on October 25, 2005, at a laundromat on the corner of 145th Street and Willis Avenue. (Id. at 181-82).
On the evening of October 25, after Garcia drove to the location, Carathers and a friend, Ronald Pleasant ("Pleasant"), arrived. (Id. at 42, 185, 188-90). Soon thereafter, Adams and another person drove into the parking lot in a white Toyota Camry. After Adams stepped out of the vehicle, Carathers introduced Garcia to Adams. (Id. at 44, 200-01, 224). Garcia soon learned that, rather than bringing crack cocaine, Adams had brought only powder cocaine. (Id. at 45, 201). Adams instructed Garcia that, if he wanted crack cocaine, in the future he should refer to it as "ready made," instead of "hard," so that there would be no confusion. (Id.).
As the discussion progressed, Garcia agreed to purchase some powder cocaine. (Id. at 46-47, 205). Adams told Garcia that the price per ounce was $785, or "28 a gram," but Garcia indicated that he thought the price would be $700 per ounce and, therefore, had brought only $1,400. (Tr. 46-47, 206-09, 527-28). Garcia also stated that he wanted "two more tomorrow, ready-made." (Id. at 46, 209). At that point, Adams walked to the Toyota to check with his "man." (Id. at 201, 206-07).
After returning to Garcia's vehicle, Adams handed Garcia a bag containing approximately one ounce of powder cocaine and suggested that he taste it, commenting that "there is no shit on the street like this." (Id. at 201, 208). Adams also told Garcia that he could "step on that hard" and that "every grain in this comes back," which Garcia understood to mean that he could dilute the cocaine and cook it down to make quality crack. (Id. at 202, 211). Garcia paid Adams $700 for the ounce of cocaine. (Id. at 47, 209-10).
Although Adams agreed to sell Garcia two ounces of crack for $1,400 the following night, he also commented that his people usually only sell "bricks," meaning kilograms of cocaine. (Id. at 47, 210, 213-14). When Garcia asked Adams how much a kilogram of cocaine cost, Adams told him $24,500. (Id.).
On October 26, Garcia had a telephone conversation with Adams during which they agreed to meet at 149th Street and Morris Avenue for the second sale. (Id. at 51, 214, 228). Garcia did not intend to involve Carathers in this transaction, but Carathers was at the buy location when he got there. (Id. at 51, 222-24). When Adams arrived, he entered Garcia's vehicle and handed him two ounces of crack in exchange for $1,400. (Id. at 51, 226-28).
Several months later, in early February 2006, the DEA arrested Adams, Carathers, and Pleasant.*fn3 (Id. at 30-31, 54).
2. Defense Case In light of the audio recordings and surveillance of the two drug deals, Adams could not credibly contend that the transactions had not occurred or that he was not a participant. Instead, he admitted his role, but, together with Carathers, relied on an entrapment defense. Their theory was that Garcia had begged Carathers -- who was virtually a member of the Garcia family -- to introduce him to a cocaine dealer because he allegedly was in danger as a result of a failed drug deal and could only repay his dealer through the proceeds of further drug transactions. Although Adams did not know Garcia, he allegedly became involved as an accommodation to Carathers because he knew a drug dealer, and therefore could serve as a middle-man between that dealer and Garcia. Like Carathers, Adams maintained that he was not predisposed to sell cocaine or crack and would not have done so without Garcia's inducement.
In support of this theory, the defendants called three witnesses: Steve Garcia's brother Raul; Carathers; and Adams himself.
a. Raul Garcia's Testimony The purpose of Raul Garcia's testimony was two-fold: first, to undermine the CS's credibility; second, to establish that the Garcia family had taken care of Carathers throughout his life, that Carathers therefore felt uniquely indebted to the Garcias, and that Adams had acted to help Garcia, whom Carathers described as his cousin, after being told that Garcia's life was in danger.
Consistent with this theory, Raul Garcia testified that Carathers was very close to his family and that they had treated him "like a brother." (Id. at 349-50, 354). Raul further testified that he, his brother, and some neighborhood friends visited Carathers at the Green Haven Correctional Facility in 2001. (Id. at 352). Raul identified photographs of their visit, noting that his brother and Carathers "always took care of each other." (Id. at 352-53). Raul also explained that he did not know that his brother was a CS until after it became public record. Indeed, according to Raul, Garcia had lied to him, falsely claiming to have spent time in jail. (Id. at 354).
Carathers testified that he had known Steve Garcia for more than twenty years, and that the Garcias were "like family" to him. (Id. at 377-78, 387). He admitted to having sold drugs in the past, but testified that he never sold any quantity greater than five-dollar bags. (Id. at 378-83). He further claimed that he had not sold any drugs from 1998 to 2005.*fn4 (Id. at 384).
According to Carathers, in September 2005, Garcia approached him and stated that he needed to buy "ounces" of cocaine in order to generate cash because he had "messed up some money or something like that." (Id. at 388, 435). Carathers told Garcia that he didn't know anyone who sold cocaine in such large quantities, but agreed to try to find a seller after learning that Garcia's "life was in danger." (Id. at 388-89).
A week or two later, Carathers encountered Adams, a friend of his who was staying at the same homeless shelter. Carathers told Adams that his "cousin"*fn5 was in trouble and needed to buy cocaine. (Id. at 390). Adams allegedly explained that he did not know anyone who could supply cocaine, but would look into it. (Id. at 390-91). Soon thereafter, Adams also gave Carathers permission to give Garcia his phone number so that Garcia and Adams could speak directly. (Id. at 391, 495).
Carathers testified that he was with Pleasant in Manhattan on October 25, when Garcia called and directed him to come to the Bronx because he was planning to buy cocaine from Adams. (Id. at 393-94). Carathers further claimed that he was angry when he and Pleasant arrived at the laundromat because his presence was unnecessary since he had provided Garcia with Adams' phone number. (Id. at 395-97). Nevertheless, once Adams arrived, Carathers made the necessary introductions, assuring both Adams and Garcia that they could trust each other. (Id. at 403). Carathers conceded that he then asked Garcia whether he had told Adams that he wanted "hard," because Carathers had previously provided that information to Adams. (Id. at 400). According to Carathers, he had not previously heard the phrase "ready made." (Id. at 401). Subsequently, after the sale was completed, Carathers felt disrespected when Garcia gave him only twenty dollars for his efforts. (Id. at 406, 414).
Carathers testified further that he did not learn of the October 26 deal until he ran into Garcia near a bus stop, at which time he complained about Garcia's decision to give him only twenty dollars the day before. (Id. at 412, 414).
c. Adams' Testimony During his testimony, Adams largely agreed with Carathers' explanation of the events leading up to October 25 and 26, 2005, but provided additional details concerning his own involvement in the drug deals with ...