OPINION & ORDER
KATHERINE B. FORREST, District Judge.
Cesar Castro, presently incarcerated in CI Northeast Ohio Correctional Center, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence and judgment. (Petition at 1, 10 Civ. 1680, ECF No. 2) Castro was found guilty of heroin conspiracy charges following a one-week jury trial in August. 2007, over which United States District Judge Thomas P. Griesa presided. On May 29, 2008, Judge Griesa sentenced Castro to 120 months' imprisonment, five years' supervised release, and a $100 special assessment. (Judgment at 1-4, 04 Cr. 664, ECF No. 31.)
For the reasons set forth below, Castro's petition is DENIED.
Castro and his co-defendants were originally charged on July 13, 2004 with one count of conspiracy to distribute, and to possess with intent to distribute, 100 grams or more of heroin in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. (04 Cr. 664, ECF No. 1.) Superseding indictments were subsequently returned and filed against Castro, on June 30, 2006 and August 10, 2007, charging him with one count of conspiracy to distribute, and to possess with intent to distribute, one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. (04 Cr. 664, ECF Nos. 6, 17.)
Castro was represented by Thomas Moran from his indictment up through his August 2007 trial. (Petition Ex. 7 ¶ 1.) Following indictment but prior to trial, Castro and Moran asked for a meeting with the U.S. Attorney's Office to engage in a so-called "innocence proffer, " or a chance to explain Castro's conduct. (Trial Tr. at 417, 04 Cr. 664, ECF No. 19.) That meeting took place on November 22, 2005, and was attended by Castro, Moran, two Assistant U.S. Attorneys, and a representative from the Drug Enforcement Administration ("DEA"); an interpreter was also present. ( Id. at 417-18.) After the purpose of the meeting a chance to explain his conduct-was described to him, Castro agreed to continue. ( Id. at 417-18.)
Castro later contested the charges against him at a five-day trial from August 20, 2007 to August 24, 2007. At trial, the government called a cooperating witness, Castro's co-defendant, Raphael Beato. Beato testified about his relationship with Castro, their involvement in heroin transactions, and numerous intercepted calls to and from Beato's cell phone. ( Id. at 71-73, 97-118, 124-39, 168-211, 215-21.) Beato testified that. Castro was present at meetings at which heroin purchases from Colombia were discussed, that Castro was involved in at least three separate heroin transactions that Beato organized. ( Id. at 97-99, 104-105, 110-16, 124-37.) Beato also explained how the intercepted calls on which he, Castro, and their co-conspirators were heard fit into the heroin conspiracy he had previously described. ( Id. at 139-44, 151-211, 215-44.) The government called two DEA agents who testified to their undercover investigation and surveillance of Beato, Castro, and their co-conspirators, which further corroborated Beato's testimony and the intercepted calls. ( Id. at 46-52, 281-300.) The government also established that an individual whom the parties stipulated was a heroin courier was seen riding in Castro's car along with Beato and another co-conspirator by DEA agents. ( Id. at 221-44, 292-99.)
Castro chose to testify in his own defense at trial. He testified on direct examination that he worked as Beato's chauffeur, and that he believed Beato to be a loan shark and international currency trader rather than a narcotics trafficker. ( Id. at 319-22, 325-29, 338-39.) On cross-examination, Castro admitted that he did not previously mention these facts in either his post-arrest interview with pretrial services or his November 2005 innocence proffer. ( Id. at 415-20.) The government also presented the testimony of another DEA agent who attended the November 2005 innocence proffer in rebuttal; he confirmed that Castro did not mention any of these facts at the meeting. ( Id. at 456-59.)
Moran also asked Castro about a prior arrest and subsequent conviction in New Jersey for felony possession of an interception device on direct examination. Castro testified that he was in a car with another individual "at the bridge in... Fort Lee, New Jersey, " and that he did not know that a bag brought by the other individual contained the device (which was used to capture the cell phone numbers of nearby cell phones). ( Id. at 329-30.) Castro testified that he was found guilty at trial and was sentenced to one year of probation. ( Id. at 330.) This conviction was then the subject of cross and redirect examination. ( Id. at 386-90, 427-29.)
In light of Castro's decision to testify, the day before summations, Judge Griesa notified the parties that he intended to give "an appropriate instruction on credibility that includes that." ( Id. at 462.) Neither the government nor Moran raised any issue with such an instruction at that time. The next day, following summations, Judge Griesa instructed the jury, in relevant part, as to how to evaluate the credibility of witnesses generally. ( Id. at 546-47.) Judge Griesa stated:
Does the witness have an interest in the outcome of the case? That's another factor. And there are witnesses who have vital interests in the outcome of the case and they tell the truth, sometimes they're influenced not to tell the truth by such an interest.
(Id. at 547.) Later, after discussing the need to evaluate the credibility of the government's cooperating witness, Beato, Judge Griesa instructed the jury as to Castro's testimony:
The defendant testified. The defendant did not need to testify. But he did, and, now that he has testified, you will judge his credibility in the way that you judged the credibility of any witness. The defendant, of course, has an interest in the outcome of the case, a vital interest, and you'll consider that, as I've already indicated, and it is up to you to determine after considering all that should be considered about his testimony, it is up to you to determine whether you credit his testimony or not. As to any witness, it may be that you credit part of the testimony and reject part or credit all and reject all, This is a matter which is up to your good judgment after considering the testimony and the different factors I've mentioned.
(Id. at 548-49.) After delivering the charge, Judge Griesa excused the jury and asked counsel whether they had any further objections. ( Id. at 554.) Judge Griesa then engaged in the following colloquy with Assistant U.S. Attorney Loyaan Egal and Moran:
THE COURT:... Anything else'?
MR. EGAL: Your Honor, I leave this to you. With regards to the instruction you gave of the defendant's testimony, I believe you used the word "vital, " and I believe that the United States v. Gaines , Second Circuit case from last year, the language is that "you should examine and evaluate their testimony just as you would the testimony of any witness with an interest in the outcome of the case." I don't know if your Honor - I leave it to your Honor, but the word "vital" before "interest, " does not appear to have come out of this case in the Second Circuit.
THE COURT: The Court of Appeals does change things once in a while. We used to always say that, that was pretty standard. I don't know how to correct it.
MR. EGAL: It's just the word "vital" might make it appear that the defendant had more of an interest than any ...