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finding habeas claim unexhausted where Petitioner failed to seek leave to appeal denial of coram nobis motion
Summary of this case from Hawkins v. KirkpatrickOpinion
04 Civ. 346 (DLC).
November 8, 2004
Mario Castro, 97-A-0186, Sing Sing Correctional Facility, Ossining, NY, for Petitioner pro se.
Alyson J. Gill, Assistant Attorney General, New York, NY, for defendant.
OPINION AND ORDER
On January 15, 2004, pro se petitioner Mario Castro ("Castro") filed this timely petition for habeas corpus relief pursuant to Title 28, United States Code, Section 2254. Castro seeks to vacate his 1996 conviction for first and third degree criminal possession of a controlled substance following a jury trial. He makes the following claims: (1) that he was denied the right of confrontation and the right to a fair trial when the trial court refused to compel the prosecution to produce a confidential informant or to issue a missing witness charge; 2) that he was denied a fair trial when the trial court refused to grant his severance motion; 3) that there was insufficient evidence to support his conviction; and (4) that he was denied due process and equal protection of the law by the constitutionally defective procedure of coram nobis.
Castro's petition was referred to the Honorable Andrew J. Peck for a report and recommendation (the "Report"), which was issued on July 23, 2004. The Report recommends that the petition be denied. After requesting an extension of time, Castro filed objections to the Report on August 14, 2004. For the following reasons, the Report is adopted, and the petition is denied.
Background
The facts established at trial are set forth in the Report and summarized here. On November 3, 1995, Detectives Sean Abate ("Abate") and Jose Rosa ("Rosa"), aided by a confidential informant, conducted an undercover drug operation. Abate and Rosa testified at trial; the informant did not.
The trial court judge allowed the officers to testify about the events leading up to the arrests of Castro and his co-defendant, but ruled that they could not testify as to any hearsay statements from the informant.
After meeting with Rosa at a nearby "set-up" location, the informant ordered 250 grams of heroin at a house located at 867 East 167th Street in the Bronx through his contact, an ex-girlfriend, and then retreated with Rosa to the set-up location. Soon after, Abate arrived near the house, whereupon he witnessed a number of people, including Castro, talking in front of the house and then entering a gate that led to the house.
Approximately one half hour later, the informant came back to the house to collect his order, whereupon he returned to Detective Rosa's undercover car, and gave Rosa a package of tin foil containing a white powdery substance that Rosa believed to be a sample of the heroin. In response to questions asked on cross-examination, Abate testified that the informant described the persons who gave him the drugs to Rosa and that those descriptions matched Castro and a male companion, later identified as Genero Matoa. Rosa instructed the informant to call the sellers and cancel his order, which the informant did from a pay phone at the set-up location.
Within minutes of the order's cancellation, Abate saw Castro exit the house alone, followed soon thereafter by Matoa, who first spoke with a male passenger in a Honda parked outside the house; then spoke with Castro, who was standing next to a Nissan parked nearby; and finally, talked with a man sitting in the Nissan's front passenger seat, Jorge Davino ("Davino"). After briefly returning to the house, Matoa reemerged, and the Honda, driven by Matoa, and the Nissan, driven by Castro, both drove away in the same direction. Abate, who had been parked behind the Honda, notified other officers in the vicinity and began to follow both cars.
While the two cars were stopped at a red light, Abate pulled his vehicle diagonally to the Nissan's driver-side door, and approached the Nissan with his shield and gun drawn. As he came closer, Abate saw Castro's right hand reach for the upper chest area of his jacket, and therefore, he quickly removed Castro from the car and patted him down for weapons and drugs while another officer removed Davino. Abate then searched the car, and on the console between the two front seats, he discovered a white sweatshirt, in which a plastic bag containing approximately 240 grams of heroin were concealed. Davino and Castro were tried together.
Davino and Castro both testified at trial. Davino denied any wrongdoing and stated that it was Castro who had asked him to join him on a trip to the Bronx to recover money Castro was owed. In addition, on cross-examination by the prosecution, Davino stated that after their car was surrounded by police, he saw Castro quickly move to place the sweatshirt on the center console. While Castro acknowledged that the white sweatshirt in which the heroin was found belonged to him, he denied having any knowledge of or involvement with the drugs and testified that he had simply driven Davino to collect money Davino told him he was owed in the Bronx. Castro further stated that Davino told him not to touch the sweatshirt because it contained money. Castro denied reaching down or toward the left area of his body with his right hand.
During the trial, the prosecution revealed that it did not plan to call the confidential informant as a witness. As a result, Davino's counsel requested that the judge direct the prosecution to make the informant available to testify, arguing that the informant's testimony would demonstrate that the informant neither knew nor dealt with Davino. Castro's lawyer joined in this request, contending that the informant could also testify as to what transpired within the house and that such testimony could support Castro's claim that he neither knew about the drug sale nor knowingly possessed the heroin found in his car.
In response, the prosecution argued that the informant was unavailable, and at a related hearing, it offered the testimony of Sergeant Ronald Mejia of the Bronx Narcotics Unit to support this assertion. According to Mejia, the police had no contact with the informant since eight months prior to the trial, and after the defense requested that he be produced, Mejia tried to find the informant by calling four different telephone and pager numbers, visiting the informant's last known address and other locations at which he had been seen, and calling the informant's relatives and stating it was "imperative" that he call Mejia back. Mejia further testified that although the informant called Mejia on the morning of the hearing, he refused Mejia's request to testify, expressing concern for his safety and that of his family, and would not even divulge his location or a telephone number.
Ultimately, the judge ruled that the informant was unavailable and that the prosecution, having done nothing to cause such unavailability, would not be required to produce him given the defendants' inability to demonstrate that the informant's testimony would either "tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution's case" that the defendants had drugs in the car. In addition, at the pre-charge conference, the judge denied the defendants' missing witness charge, noting that the informant was already found to have been unavailable and his testimony immaterial.
On October 16, 1996, the jury found Castro guilty of first and third degree criminal possession of a controlled substance, and acquitted Davino on both charges. On December 19, Castro was sentenced as a predicate felon to concurrent terms of fifteen years to life imprisonment for the first degree possession count and eight to sixteen years for the third degree count.
Castro appealed his conviction on the grounds that the trial court's failure to compel production of the informant or give a missing witness charge violated his Confrontation Clause and due process rights to a fair trial and that the trial court's refusal to grant his severance motion deprived him of a fair trial. Castro had made a severance motion before trial and renewed it at trial. The Appellate Division affirmed the conviction on February 19, 2002, finding that the trial court had properly deemed the informant to be unavailable despite the prosecution's "reasonably diligent efforts" to produce him, that its failure to give a missing witness charge was appropriate, and that, while some conflict existed between Castro and Davino's accounts of events, "their respective defenses were not so irreconcilable as to require severance." People v. Castro, 737 N.Y.S.2d 605 (1st Dep't 2001). The Court of Appeals denied leave to appeal on April 26.
On August 13, Castro then moved pro se pursuant to New York Criminal Procedure Law Section 440.10 to set aside the verdict on the ground that due to the trial court's failure to order the prosecution to produce the informant, give a missing witness charge, and sever his case from Davino's, the prosecution failed to establish his guilt beyond a reasonable doubt. The Supreme Court, New York County, denied this motion on January 13, 2003, noting that Castro had already raised all of these issues on appeal and was therefore procedurally barred from raising them in a Section 440.10 motion. The Appellate Division denied leave to appeal on April 1.
Castro also filed a pro se application for a writ of error coram nobis, contending that he had been denied effective assistance of appellate counsel by virtue of his attorney's failure to contest the prosecution's failure to establish his guilt beyond a reasonable doubt. The Appellate Division denied the motion without an opinion on September 30, 2003, and Castro did not seek leave to appeal.
Discussion
A reviewing 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). The court shall make a de novo determination of those portions of the report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Habeas petitions are subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. With respect to any claim that was adjudicated on the merits in state court, the petition must be denied unless the state court's adjudication
(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; or
(2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.28 U.S.C. § 2254(d) (emphasis supplied). AEDPA further mandates that a state court's determination of a factual issue shall be presumed correct and may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
1. Failure to Compel the Production of the Confidential Informant or Give a Missing Witness Charge
The Report correctly concludes that Castro was not denied either his right to confrontation or his right to a fair trial by the trial court's failure to compel production of the informant or give a missing witness charge. Under Roviaro v. United States, 353 U.S. 53 (1957), the prosecution must produce an informant or disclose his identity "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Id. at 60-61. Yet such production and disclosure is not governed by a bright-line rule. Rather, in evaluating whether to compel production of an informant, courts must undertake to balance "the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id. at 62.
Castro argues that the trial court's failure to compel production of the informant constitutes an unreasonable application of Roviaro. Although Roviaro strongly supports the production of informants in some circumstances, such as when a government informant is the "sole participant, other than the accused, in the transaction charged," Roviaro, 353 U.S. at 64, it also explicitly "calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 62. Toward that end, in denying Castro's request to compel production of the informant, the trial court considered multiple factors, including the materiality of the informant's testimony, his reasons for refusing to testify, and the extent of the police department's efforts to locate and produce the informant. Hence, rather than contradictingRoviaro, the trial court's multi-factor evaluation is consistent with the approach endorsed in Roviaro.
Moreover, the trial court's determinations that the informant was unavailable and that the police had made a good-faith attempt to locate him constitute factual findings entitled to deference under AEDPA. See 28 U.S.C. § 2254(e)(1). Castro has failed to marshal any clear and convincing evidence to rebut the presumption that these findings are correct.
In a related vein, the Report also correctly determined that the trial court did not deny Castro's right to a fair trial by failing to give a missing witness charge. There is "no clearly established Supreme Court precedent requiring a trial court to instruct the jury with respect to a missing witness." Morales v. Strack, Nos. 99-CV-1617, 03-MISC-0666 (JBW), 2003 WL 21816963, at *4 (E.D.N.Y. July 3, 2003) (Weinstein, J.). In denying Castro's request that it give a missing witness charge, the trial court relied on New York law, noting that a missing witness charge is appropriate only where the party seeking the charge has shown "that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him; and that the witness is available to such party." People v. Gonzalez, 68 N.Y.2d 424, 428 (1986). The trial court then not only reiterated its previous finding that the informant was unavailable despite the prosecution's good faith efforts, but further found that the informant's testimony would not be material because irrespective of what happened in the house when the informant placed his order, Castro and Davino were charged with possession of 250 grams of heroin found in an automobile several blocks away from the house.
In his objections, Castro concedes that no existing Supreme Court precedent demands a missing witness charge in his case, but nonetheless asserts that he was clearly entitled to such a charge based on his reading of New York law. A federal habeas court does not, however, "reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 68 (1991). Moreover, the trial court's judgments as to the informant's unavailability and his immateriality to the central issues in the case are factual determinations. Again, Castro has not presented evidence sufficient to rebut the presumption established by AEDPA, 28 U.S.C. § 2254(e) (1), that the state court's factual findings are correct.
2. Failure to Grant Severance Motion
The Report properly finds that Castro was not deprived of a fair trial due to the trial court's refusal to sever Castro and Davino's trials. As the Report notes, under Zafiro v. United States, 506 U.S. 534 (1993), where two defendants present mutually antagonistic defenses, a federal court may grant a severance where "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id. at 539. The holding in Zafiro solely concerns when severance is required under Rule 14, Fed.R.Crim.P. See id. at 535 ("In this case, we consider whether Rule 14 requires severance as a matter of law when codefendants present `mutually antagonistic defenses.'"). No Supreme Court opinion has ever addressed when severance is constitutionally mandated or how a federal habeas court should review a state court's denial of a severance motion. Castro does not contend otherwise. Even ifZafiro contains general statements concerning the risk of prejudice involved in joint trials, a federal court may grant habeas relief only where a state court adjudication directly contradicts or unreasonably applies the holding of a Supreme Court decision, not its dicta. Williams v. Taylor, 529 U.S. 362, 412 (2000).
Castro acknowledges in his objections that New York law maintains its own standard regarding severance, which provides that severance is necessary "where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger . . . that the conflict alone would lead the jury to infer defendant's guilt." People v. Mahboubian, 74 N.Y.2d 174, 184 (1989). As stated above, the trial court's application of state law, even if erroneous, cannot serve as grounds for habeas relief. McGuire, 502 U.S. at 68. Nor can habeas relief be granted without clear and convincing evidence that the New York courts were wrong in their determinations of the extent of conflict between Castro and Davino's defenses and the jury's probable inferences therefrom. See 28 U.S.C. § 2254(e) (1). Castro has presented no such evidence.
3. Insufficiency of the Evidence Claim
The Report correctly determines that Castro's insufficient evidence claim is procedurally barred. The doctrine of procedural default is "grounded in concerns of comity and federalism."Coleman v. Thompson, 501 U.S. 722, 730 (1991); accord Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001). When a state court declines to address a prisoner's federal claims because the prisoner failed to meet a state procedural requirement and the state court "clearly and expressly states that its judgment rests on a state procedural bar," the procedural bar ordinarily constitutes an independent and adequate state ground for the decision, preventing federal review.Coleman, 501 U.S. at 735-36 (citation omitted).
An adequate and independent state ground barring federal review exists only where the state court "actually . . . relied on the procedural bar as an independent basis for its disposition of the case." Harris v. Reed, 489 U.S. 255, 261-2 (1989) (citation omitted). Accord Galarza, 252 F.3d at 637. "Because it can be `difficult to determine if the state law discussion is truly an independent basis for discussion or merely a passing reference, such reliance on state law must be `clear from the face of the opinion.'" Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000). Rather than examine "unexplained orders," federal habeas courts must assess whether "the last reasoned opinion on [a particular federal] claim explicitly imposes a procedural default." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000).
In rejecting Castro's insufficiency of the evidence claim, the Report concludes that New York law supplied the New York Supreme Court, New York County — which issued the "last reasoned opinion" on this issue — with an adequate and independent state ground to bar review of Castro's federal claims. Specifically, the Report determines that having "interpreted Castro's sufficiency of the evidence issue as a reiteration of the informant production, missing witness charge, and severance issues," the state court rightly rejected all of his claims under New York Criminal Practice Law § 440.10(2) (a), which bars review of issues raised on direct appeal. See N.Y. Crim. Proc. Law § 440.10 (a)(2). Despite Castro's objections that his Section 440 motion merely referred to his prior claims to demonstrate the state's failure to furnish credible evidence of his knowing possession of heroin, "there can be no doubt that the state court's decision . . . rested on an adequate and independent state bar." Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
A habeas petitioner may avoid a procedural default "by showing cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent." Sweet v. Bennett, 353 F.3d 135, 141 (2d Cir. 2003). With respect to cause and prejudice, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule," Amadeo v. Zant, 486 U.S. 214, 222 (1988), and convince the court of a reasonable probability that the trial's outcome would have been different so as to "undermine confidence in the verdict." Strickler v. Greene, 527 U.S. 263, 289 (1999) (citation omitted). Using these definitions, Castro has not shown cause and prejudice. In his objections, Castro merely argues that his Section 440 motion did not reargue his appellate claims and that his sufficiency of the evidence claim could not have been raised on direct appeal as the documents necessary to prove his claim, including certain police reports and notes, were not part of the trial record. He has neither provided a satisfactory explanation for his procedural default nor shown how the documents that were not part of the trial record reflect on the sufficiency of the evidence actually presented at trial.
Nor can Castro's procedural default be excused on the ground that he is actually innocent. According to the Supreme Court, "the fundamental miscarriage of justice exception is `extremely rare' and should be applied only in `the extraordinary cases.'"Sweet, 353 F.3d at 142 (quoting Schlup v. Delo, 513 U.S. 298, 321-22 (1995)). Actual innocence "means factual innocence, not mere legal insufficiency." Id. (citation omitted). Therefore, in order to show actual innocence, Castro "must show that it is more likely than not that no reasonable juror would have convicted him in light of . . . new evidence." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (quoting Schlup, 513 U.S. at 527). Although Castro insists in his objections that "he was nothing more than a driver, and is in fact innocent," he has furnished no new evidence to support this claim nor made the showing described above. Consequently, because Castro has not demonstrated cause and prejudice for his default, or a fundamental miscarriage of justice, his insufficiency of the evidence claim is procedurally barred.
4. Coram Nobis Claims
Lastly, the Report correctly concludes that both Castro's claim that the vehicle of coram nobis is "constitutionally infirm" and his claim of ineffective assistance of appellate counsel should be denied. A federal court may not grant habeas relief "unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(1)(A). Within the Second Circuit, a petitioner has exhausted his state remedies when he has "(i) presented the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts) and (ii) informed that court (and lower courts) about both the factual and legal bases for the federal claim."Ramirez v. Attorney Gen. of New York, 280 F.3d 87, 94 (2d Cir. 2001). "[T]he Supreme Court has held that when a `petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must deem the claim procedurally defaulted." Sweet, 353 F.3d at 139 (quotingColeman, 501 U.S. at 735 n. 1).
New York law allows thirty days from a party's receipt of an appellate order to seek a leave of appeal from that order, see N.Y. Crim. Proc. Law § 460.10(5) (a), and Castro did not seek leave to appeal the Appellate Division's denial of his coram nobis application within that time frame. As a result, the Report concludes that both his claims of ineffective assistance of appellate counsel and the defectiveness of coram nobis, which was never raised prior to his petition, are unexhausted but procedurally barred.
In his objections, Castro asserts that New York law did not allow for appeals from coram nobis applications "until well after petitioner had been denied coram nobis relief." Contrary to this assertion, as of November 1, 2002, New York law has allowed appeals from "an order granting or denying a motion to set aside an order of an intermediate appellate court on the ground of ineffective assistance or wrongful deprivation of appellate counsel." See N.Y. Crim. Proc. Law § 450.90(1). This statutory change not only predates the Appellate Division's September 30, 2003 denial of Castro's coram nobis application but also precedes his May 30 filing of the application itself. Therefore, Castro's coram nobis-related claims are procedurally barred. Since Castro makes no argument as to cause and prejudice relating to this procedural bar, nor presents new evidence as to his actual innocence, the procedural bar must stand.
Conclusion
The Report is adopted and the petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right, and appellate review is therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition.
SO ORDERED.