Opinion
00 Civ. 6676 (GBD)(FM)
October 27, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B. DANIELS
I. Introduction
Following a jury trial in Supreme Court, New York County, petitioner Emanuel Pacheco ("Pacheco") brings this pro se habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to challenge his conviction, on one count each of Criminal Sale of a Controlled Substance in the First Degree, Criminal Possession of a Controlled Substance in the Second Degree, Conspiracy in the Second Degree, and Bail Jumping in the Second Degree. (Pet. ¶¶ 1, 4, 6). On December 22, 1993, Justice Felice K. Shea sentenced Pacheco to concurrent indeterminate prison terms aggregating fifteen years to life on the drug and conspiracy charges, and a one-year consecutive sentence on the bail jumping charge. (S. 12).
"S." refers to the sentencing transcript; "Tr." refers to the trial transcript.
In his petition, Pacheco asserts three claims. First, he contends that the evidence did not reliably establish the weight of the cocaine sold to an undercover agent, and that no evidence demonstrated his knowledge of that weight. (Pet. ¶ 12. A). Second, he contends that the trial court improperly consolidated the narcotics and bail jumping charges. (Id. ¶ B). Third, he maintains that all of his sentences should have been concurrent, and that the fifteen-year minimum sentence should have been reduced in the interest of justice. (Id. ¶ 12.C).
For the reasons that follow, Pacheco's petition should be denied. Additionally, pursuant to 28 U.S.C. § 2253(c)(2), Pacheco should be denied a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right.
II. Background
A. Trial
1. People's Case
The People's proof at trial permitted a reasonable juror to conclude as follows:
In or around July 1990, Special Agent Richard Buggy ("Buggy") of the federal Bureau of Alcohol, Tobacco and Firearms ("ATF") asked an informant, Ruben Perez ("Perez"), to make several small narcotics purchases at 290 Troutman Street in Brooklyn to lay the groundwork for an eventual larger buy. (Tr. 276, 279-82, 289, 483).
The first such transaction took place on July 9, 1990, when Perez bought eight vials of cocaine. (Id. at 282, 285-86). Perez bought an additional eight vials of cocaine on July 11, 1990. (Id. at 287-88).
On July 23, 1990, Special Agent Ceasar Santana ("Santana") of the ATF accompanied Perez to 290 Troutman Street. (Id.at 289). Posing as a drug purchaser, Santana bought ten vials of cocaine from a man named "Cano" and a woman named "Rosita." (Id.at 376). While there, Santana also discussed a proposed larger purchase with Cano and a man named "Willy." (Id.)
On July 31, 1990, Santana and Perez returned to 290 Troutman Street, where they eventually told Rosita that they wished to purchase 40 "bundles" of cocaine. (Id.at 377-78). After Rosita made a phone call, Pacheco arrived at the location, where Rosita introduced him to Santana and Perez. (Id.at 299, 379-80, 493-94). Using Rosita as an intermediary, Santana and Perez negotiated with Pacheco to purchase 40 bundles of cocaine on August 7, 1990, at a price of $110.00 per bundle. (Idat 380-81, 496-98).
A bundle typically consists of 25 vials of cocaine. (Tr. 378-79, 505).
Although the trial witnesses frequently referred to Pacheco as "Morenno," I have used his true name throughout to minimize confusion.
On August 7, 1990, in accordance with Pacheco's instructions, Santana and Perez drove to a restaurant in Brooklyn. (Id.at 384, 500-01). There, they met a man named "Picua," later identified as Elvis Gil, who assured them that Pacheco would soon arrive with the 40 bundles of cocaine. (Id.at 387-90). Santana and Perez then drove away, but returned a little while later, at which point Picua told them that he would get Pacheco. (Idat 388-89, 503). Picua then drove off in a Cadillac. (Idat 389, 503).
Less than 30 minutes later, Picua returned in the same Cadillac with Pacheco in the front passenger seat and another individual in the back. (Id.at 390-92, 503). Perez then entered the Cadillac, where Pacheco showed him a paper bag containing vials of cocaine and told him that he had only 25 bundles. (Id.at 505-07). Pacheco then walked to Santana's car and told him that he could get the full 40 bundles if Perez and Santana waited 30 minutes. (Idat 394, 508-09).
Perez and Santana advised Pacheco that they preferred to purchase the 25 bundles and would drive to the corner to retrieve the necessary money from the trunk of their car. (Id.at 508-09). After moving their vehicle, they signaled a back-up team which arrested Pacheco, Picua, and the third individual who had been seated in the back seat of the Cadillac. (Idat 395-96, 509-10). The ATF subsequently recovered 653 vials of cocaine from inside that Cadillac. (Id. at 302). A Drug Enforcement Administration chemist testified that the net weight of the cocaine in those vials was 57.96 grams (i.e., only 1.26 grams more than the two ounces (56.7 grams) necessary to establish the first degree drug sale count). (Id.at 471, 477-78).
2. Defense Case
Pacheco did not call any witnesses to testify at trial.
3. Subsequent Events
Due to a bureaucratic foul-up, the Department of Corrections failed to produce Pacheco in court on August 13, 1990, for a previously scheduled appearance. (Id.at 260-61). Despite his absence, the court set October 1, 1990, as an adjourned date, and indicated that Pacheco was to be released on his own recognizance. (Id.at 262). A senior court clerk familiar with the County Clerk's records testified that the Department of Corrections notified Pacheco of this date before his release. (Id.at 256, 265). Nonetheless, Pacheco failed to appear on October 1. (Id.at 265).
In December 1990, a grand jury returned Indictment No. 14737/90, which charged Pacheco, and others, with Criminal Sale of a Controlled Substance in the First Degree, Criminal Possession of a Controlled Substance in the Second Degree, and Conspiracy in the Second Degree. (See Pet. ¶ 4; Def.'s Br. on Appeal ("Def.'s Br.") at 8). Subsequently, in May 1993, Pacheco was charged in Indictment No. 4620/93 with the crime of Bail Jumping in the Second Degree because of his failure to appear on October 1, 1990. (Def.'s Br. at 8). Both the narcotics and bail jumping charges were tried together following Pacheco's rearrest. (Seee.g., Tr. 236-38). The trial took place on November 16, 1993, after which Pacheco was sentenced on December 22, 1993. (Tr. 1; S.I).
B. Appellate History
Pacheco's appeal to the Appellate Division, First Department, raised three claims. Pacheco's first claim was that the evidence at trial did not establish beyond a reasonable doubt either that the weight of the cocaine seized at the time of his arrest exceeded the two-ounce statutory threshold or that Pacheco was aware that this was the weight. (Def.'s Br. at 14-25). He based the first of these contentions, in part, on the chemist's testimony that he weighed the contents of all of the vials, but tested only 30 of them to establish that they contained cocaine. (Tr. 480; Def.'s Br. at 15). Pacheco noted that the chemist also testified that 95 percent of the vials were statistically likely to contain cocaine. (Tr. 481; Def.'s Br. at 15-16). The chemist testified, however, that his visual examination of the vials indicated "that they all contained the same substance." (Tr. 481). In addition, the chemist testified that he calculated the net weight of the cocaine by subtracting its weight from the gross weight of the unopened vials, a method which did not take into account the trace amount of cocaine that remained in each vial. (Id.at 478). As he explained, his estimate of the weight of the drugs was therefore somewhat conservative. (Id).
Based upon the chemist's testimony, Pacheco also argues that the People failed to prove that he knew that "the weight of the controlled substance in the 653 vials exceeded two ounces by 'a little.'" (Def.'s Br. at 17).
Pacheco's second claim was that the trial court improperly consolidated the narcotics and bail jumping charges for trial. (Id.at 26-28). Pacheco contended that this prevented him from testifying in his own defense because he could not testify with respect to the bail jumping charge without forfeiting his right to remain silent with respect to the narcotics charges. (Id.at 27-28).
Finally, Pacheco asked that his consecutive bail jumping sentence be modified to run concurrently with his other sentences, and that his fifteen-year minimum sentence on the first degree narcotics charge be reduced in the interest of justice. (Id.at 29-31). Justice Shea had denied Pacheco's request for a sentence of less than fifteen years at his sentencing proceeding. (See S. 9) ("I have to give him [fifteen] to life. . . . I cannot give him less than that. That's the minimum.").
On June 22, 1999, the Appellate Division affirmed Pacheco's conviction, but modified his sentence. People v. Pacheco. 694 N.Y.S.2d 351, 351-52 (1st Dep't 1999). In its decision, the Appellate Division found that Pacheco's evidentiary insufficiency claims were unpreserved and declined to review them in the interest of justice. Id. at 352. The court observed, however, that even if it were to review those claims, it "would find that the verdict was based on legally sufficient evidence" because
the chemist's testimony provided ample evidence to establish that the amount of drugs recovered was more than two ounces, and defendant clearly possessed the then-requisite knowledge of the weight of the controlled substance based on his active role in establishing the price of the drugs, his overall participation in the transaction, and his personal handling of the controlled substance.Id. (citing People v. Ryan. 82 N.Y.2d 497 (1993)).
With respect to sentencing, the People conceded, and the Appellate Division found, that all of Pacheco's prison terms should run concurrently. Id. The court further concluded that review of Pacheco's sentence for Criminal Sale of a Controlled Substance in the First Degree was precluded because he received the minimum sentence. Id.: see N.Y. Crim. Proc. Law § 470.20(6) (McKinney 2001).
Finally, the Appellate Division did not specifically address Pacheco's claim that the charges in the two indictments should have been consolidated for trial, but noted that it had "considered and rejected [his] remaining claims." Pacheco. 694 N.Y.S.2d at 352.
On August 10, 1999, Pacheco's application for leave to appeal to the New York Court of Appeals was summarily denied. People v. Pacheco. 697 N.Y.S.2d 583 (1999). Accordingly, his conviction became final on November 8, 1999, following the expiration of the 90-day period in which Pacheco could have petitioned the United States Supreme Court for a writ of certiorari. See Williams v. Artuz. 237 F.3d 147, 151 (2d Cir. 2001) ("We . . . hold that the AEDPA limitations period specified in Section 2244(d)(1)(A) does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has expired."). Pacheco's petition was received by the Pro Se Office of this Court on August 23, 2000, within the one-year statute of limitations, and is therefore timely.
C. Alleged Errors
Pacheco's present habeas petition raises all three grounds previously asserted as part of his direct appeal. (SeePet ¶ 12; Def.'s Br. at 14-29).
III. Discussion
A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins. 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated.Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.28 U.S.C. § 2254(d)(1) (emphasis added).
As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable."Id. at 409. This standard does not require that reasonable jurists all would agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'"Stinson. 229 F.3d. at 119 (quoting Francis S. v. Stone. 221 F.3d 100, 109 (2d Cir. 2000)) (emphasis added). Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Taylor. 529 U.S. at 389. As discussed below, because Pacheco has failed to show that his conviction resulted from such constitutionally infirm proceedings in state court, he is not entitled to federal habeas relief.
B. Pacheco's Insufficiency of the Evidence Claim is Procedurally Defaulted and Meritless.
A federal court may not consider an issue of federal law raised in a state prisoner's petition for a writ of habeas corpus if the state court's prior denial of that claim rested on an adequate and independent state ground. E.g., Harris v. Reed. 489 U.S. 255, 262 (1989);Wainright v. Sykes. 433 U.S. 72, 81 (1977). A finding of procedural default qualifies as such an adequate and independent state ground, Harris. 489 U.S. at 262, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or . . . that failure to consider the claims will result in a fundamental miscarriage of justice."Coleman v. Thompson. 501 U.S. 722, 750 (1991). Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804. 809 (2d Cir. 2000) To demonstrate cause, a petitioner must adduce "some objective factor external to the defense" which explains why he did not raise the claim previously. Murray v. Carrier. 477 U.S. 478, 488 (1986);Gonzalez v. Sullivan. 934 F.2d 419, 422 (2d Cir. 1991) (quoting Murray). A showing of prejudice requires a petitioner to demonstrate that the failure to raise the claim previously had a substantial injurious effect on his case such that he was denied fundamental fairness.Reyes v. New York. No. 99 Civ. 3628 (SAS), 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999). Finally, to establish a fundamental miscarriage of justice, a petitioner must demonstrate that he is "actually innocent." Aparicio v. Artuz. 269 F.3d 78, 90 (2d Cir. 2001).
Here, the Appellate Division rejected Pacheco's evidentiary insufficiency claims on the ground that they were "unpreserved."Pacheco. 694 N.Y.S.2d at 352. Pursuant to New York's contemporaneous objection rule, an objection must be raised at trial in order to preserve it for appellate review. N.Y. Crim. Proc. Law § 470.05(2) (McKinney 2001). As Pacheco impliedly conceded in his brief on appeal, his trial counsel voiced neither of the objections that he now raises regarding the sufficiency of the evidence. (SeeDef.'s Br. at 24). The Appellate Division's finding of procedural default therefore constitutes an adequate and independent state ground for rejecting these claims. See Harris. 489 U.S. at 264 n. 10 ("a state court need not fear reaching the merits of a federal claim in analternative holding . . . as long as [it] explicitly invokes a state procedural rule as a separate basis for its decision") (emphasis in the original); Philips v. Smith. 717 F.2d 44, 48 (2d Cir. 1983) ("explicit state court reliance on a procedural default bars federal habeas review of the forfeited claim absent a showing of cause and prejudice regardless of whether the state court ruled alternatively on the merits of the forfeited claim").
The subsequent Court of Appeals order summarily denying leave to appeal does not change this result. Torres v. Hanslmaier. No. 94 Civ. 4082 (MCG), 1995 WL 272527, at *4 (S.D.N.Y. May 8, 1995) (citingLevine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995)).
Accordingly, the Court may not hear Pacheco's claim regarding the sufficiency of the evidence unless he can show both cause for the default and actual prejudice or that the failure to consider them will result in a fundamental miscarriage of justice.See Coleman. 501 U.S. at 750. Here, Pacheco has not madeany of these showings. Consequently, the Court lacks jurisdiction to grant habeas relief on this ground.
In any event, Pacheco's evidentiary insufficiency claim is meritless. A habeas petitioner challenging the sufficiency of the evidence bears a "very heavy burden." Knapp v. Leonardo. 46 F.3d 170, 178 (2d Cir. 1995). To prevail, the petitioner must show that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt."Bossett v. Walker. 41 F.3d 825, 830 (2d Cir. 1994) (quotingJackson v. Virginia. 443 U.S. 307, 324 (1979)). Moreover, in considering such a sufficiency claim, a habeas court must weigh the evidence in the light most favorable to the prosecution and draw all permissible inferences in its favor. Jackson. 443 U.S. at 326. A sufficiency claim therefore does not permit the reviewing court to redetermine the credibility or reliability of witnesses or substitute its view of the evidence for that of the trier of fact. See Marshall v. Lonberger. 459 U.S. 422, 434 (1983); Maldonado v. Scully. 86 F.3d 32, 35 (2d Cir. 1996). Rather, insofar as there is any evidence from which the jury could have drawn an inference favorable to the accused but chose not to, the court must "defer to . . . the jury's choice ofthe competing inferences." United States v. Kinney. 211 F.3d 13, 18 (2d Cir. 2000) (quoting United States v. Morrison. 153 F.3d 34, 49 (2d Cir. 1998)).
Here, the People's expert witness testified that the net weight ofthe drugs removed from the vials exceeded two ounces and that the residue that remained in each vial, if weighed, would increase that total. (Tr. 477-78). He also testified that his visual examination ofthe vials confirmed that the contents of each vial were the same. (Id.at 481). To be sure, he also made an arguably inconsistent statement that "95 percent" of the vials "would contain the substance that I said." (Id). While this statement might have permitted the jury to find that less than two ounces of cocaine had been seized, it certainly did not compel this conclusion. Indeed, the jurors had an opportunity to inspect the 653 vials themselves. (Id.at 303-07). Viewing the testimony and evidence in the light most favorable to the prosecution, there clearly was enough evidence for the jury to conclude that the cocaine weighed at least two ounces.
There also was ample evidence to establish Pacheco's knowledge that the drugs seized from the car weighed at least two ounces. Through his negotiations with Santana and Perez, Pacheco established that he was no novice when it came to drug dealing. In fact, it was Pacheco himself who arranged to sell the cocaine to Santana and Perez for $110.00 per bundle. (Id.at 381). Based on this evidence, the jury clearly was entitled to conclude that Pacheco knew the approximate weight of the cocaine that he was proposing to sell.
C. Pacheco's Sentencing Claim is Unexhausted and Meritless
Pursuant to 28 U.S.C. § 2254(b)(1)(A) and (B), a habeas petition brought by a state prisoner may not be granted unless the petitioner has exhausted all of the remedies available to him through the state courts,or there is no state corrective process available to the petitioner, or circumstances render that process ineffective to protect the petitioner's rights. As a defendant convicted of crimes in New York State, Pacheco unquestionably had an effective process available to him through the state statutes governing appeals in criminal cases.See N.Y. Crim. Proc. Law § 450.10 (McKinney 2001). Therefore, to satisfy the exhaustion requirement with respect to a particular federal claim, Pacheco must show that he presented the substance of "the same federal constitutional claim that he now urges upon the federal courts to the highest court in the . . . state."Aparicio. 269 F.3d at 89-90 (internal quotation marks and citations omitted).
"A federal constitutional claim has not been fairly presented to the [s]tate courts unless the petitioner has informed those courts of 'all of the essential factual allegations' and 'essentially the same legal doctrine he asserts in his federal petition.'" Strogov v. Attorney Gen, of N.Y., 191 F.3d 188, 191 (2d Cir. 1999) (quoting Dave v. Attorney Gen. of N.Y., 696 F.2d 186, 191-92 (2d Cir. 1982)). To meet this requirement, it is not necessary that the federal constitutional claim be presented to the state courts in haec verba; rather, there are a number of ways in which a petitioner may present such a claim, including
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Dave. 696 F.2d at 194.
In his petition, Pacheco claims that his sentences should have been concurrent and that the fifteen-year minimum sentence imposed on the first degree narcotics sale count should have been reduced in the interest of justice. (Pet. ¶ 12.C). The first of these arguments is moot since the Appellate Division previously ruled that the bail jumping sentence should not be consecutive to his other sentences. See Pacheco. 694 N.Y.S.2d at 352.
The second contention was presented to the Appellate Division, but not in federal constitutional terms. In his Appellate Division brief, Pacheco argued that one factor that a state court should consider in determining whether to exercise its sentencing discretion is whether the mandatory minimum sentence is "disproportionately severe" when compared to the punishment for the same offense in other jurisdictions. (Def.'s Br. at 29). In that context, he urged the court to adopt "the model for determining a drug offender's sentence afforded by the congruent federal jurisdiction." (Id.at 30). More specifically, he noted that a federal judge "is not bound by the jury's determination" of the weight of the drugs and may make his own determination in connection with sentencing. (Id.) (emphasis in original). The only federal case that Pacheco cited, however, concerned the procedures to be followed under the federal Sentencing Guidelines; it did not address any issue of constitutional law. (See Id.) (citing United States v. Jacobo. 934 F.2d 411 (2d Cir. 1991)). Accordingly, Pacheco did not fairly present to the state courts any federal constitutional claim related to his sentencing.
It also is settled law that a state court's sentencing decision does not present a federal constitutional issue when the sentence is within the range prescribed by state law. White v. Keane. 969 F.2d 1381, 1383 (2d Cir. 1992). Here, Justice Shea exercised her discretion and sentenced Pacheco to the legislatively-mandated minimum sentence for Criminal Sale of a Controlled Substance in the First Degree. See N.Y. Penal Law §§ 220.43, 70.00(2)(a), 70.00(3)(a)(i). Accordingly, there is no basis for this Court to substitute its judgment for that of the state court.
D. Pacheco Was Not Deprived of a Fair Trial
Pacheco's only other claim is that the trial court improperly consolidated the narcotics and bail jumping charges for trial. (Pet. ¶ 12.B). He argues that consolidation improperly "forced [him] to choose between two substantial constitutional guarantees: his right to remain silent, and his right to present a full defense." (Def.'s Br. at 28). Previously, in opposition to the People's consolidation motion, Pacheco argued that he intended to testify with respect to the bail jumping case, but not the narcotics case. (See Resp't'sBr. at 26).
Federal courts have recognized the appropriateness of joining a trial of bail jumping charges with a trial of the charges giving rise to the original arrest. See, e.g., United States v. Gabay, 923 F.2d 1536, 1539-40 (11th Cir. 1991): United States v. Greo, No. 85 Cr. 961 (JFK), 1994 WL 533579, at *1 (S.D.N.Y. Sept. 30, 1994);United States v. Martinez, No. 92 Cr. 839 (SWK), 1993 WL 322768, at **6-7 (S.D.N.Y. Aug. 19, 1993); United States v. Gambino, 809 F. Supp. 1061, 1072-73 (S.D.N.Y. 1992). In a federal prosecution, only three conditions must be satisfied in order to try such charges together: the offenses must be related in time, the defendant's flight must have been motivated by his desire to avoid prosecution for the underlying offense, and the custody from which he fled must have derived from the underlying offense. Gabay, 923 F.2d at 1539; Martinez, 1993 WL 322768, at *7. Here, all three conditions were met since Pacheco fled shortly after his arrest and release on bail, this timing certainly suggested that his flight was related to the drug charges he faced, and the bail conditions that he violated were set in connection with the underlying charges.
Pacheco argues that he nevertheless was unfairly prejudiced by the joinder because he would have testified at the bail jumping trial that his flight arose out of his desire to be treated in Santo Domingo for several gunshot wounds that he subsequently sustained and his fear that the shooters might seek to finish the job. (Resp't's Br. at 27). However, the People would have been free to explore the underlying narcotics case if Pacheco took the stand at a separate bail jumping trial since Pacheco's motivation for leaving the jurisdiction would plainly have been a pivotal issue. Accordingly, the Hobson's choice that Pacheco contends he faced would not have been obviated by separate trials. See United States v. Brozyna. 571 F.2d 742, 747 (2d Cir. 1978) ("evidence of Brozyna's use of false identification would have been admissible at a separate trial on the bail jumping count because it supplies her motive . . .[and]. . . discredits her contention that she had been motivated solely by her love of her boyfriend"); Gambino. 809 F. Supp. at 1073 (defendants' prejudice argument "overlooks the fact that . . . evidence of bail jumping would be admissible in a separate trial on the other substantive counts in an attempt to show consciousness of guilt").
IV. Conclusion
For the foregoing reasons, Pacheco's petition should be denied. Furthermore, because Pacheco has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable George B. Daniels, at the United States Courthouse, 40 Foley Square, New York, N.Y. 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Daniels. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn. 474 U.S. 140 (1985); Frank v. Johnson. 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).