Sealed Defendant 2 v. USA
Filing
14
OPINION & ORDER: For the reasons set forth above, Castro's petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 is DENIED. The Court declines to issue a certificate of appealability because there has been no " ;substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); seq Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). The Court also finds, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from the denial of this motion would not be taken in good faith. See Feliz v. United States, No. 01 Civ. 3544 (JFK), 2002 WL 1964347, at *7 (S.D.N.Y. 2002). The Clerk of the Court is directed to terminate the action 10 Civ. 1680. (Signed by Judge Katherine B. Forrest on 12/11/2013) (mro)
UNITED STATES DISTRICT COURT
SOCTHERK DISTRICT OF NEW YORK
-------------------------------------lC
USDC SDNY
DOCUMEKT
ELECTROKICALLY FILED
DOC #: _ _ _ _ _ __
DATE FILED: DEC 1 1 2013
CESAR CASTRO,
Petitioner,
10 Civ. 1680 (KBF)
04 Cr. 664-2 (TPG)
-v-
OPINION & ORDER
UNITED STATES OF AMERICA,
Respondent.
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.) I Castro was found guilty of heroin conspiracy charges following a oneweek 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' supel'vised 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.2
I Because many of the pages in Castro's petition are not numbered, the page references in this
deeision correspond to the page numbers added by ECF to the header of each page.
2 No further evidentiary hearing is necessary in this action. The combined submissions of the parties
provide sufficient basis to deny the petition.
Chang v. United States, 250 F.3d 79, 86 (2d Cir.
2001).
I.
BACKGROUND
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)(I)(B) and 846. (04 Cr.
664, ECF No. L) 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 L)
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 CDEA"); an interpreter was also
present. (Id. at 417-18.) After the purpose ofthe 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
2
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.
at 46-52, 281-300.) The government also ebtablished 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.)
3
Moran also asked Castro about a prior arrest and subsequent conviction in
:\Jew 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).
(lc.L 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.
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
4
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, eJudge 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. \Vith 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. \Ve 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 other witness that
testified.
THE COURT: There are different degrees of interest.
MR. EGA1,: That's true.
THE COURT: They're not all the same.
MR. EGAL: Just that United States v. Gaines, it's that everyone's
testimony is the same, including the defendant's. I just want to bring
that to your attention.
5
THE COURT: Mr. Moran, anything on that?
MR. MORAN: Your Honor, I would have to concur with your Honor's
statements that there are varying degrees of interest as to witnesses
that provided testimony. Certainly my client's interest is vital. If Mr.
Egal would like to provide the case for my review and we could argue it
orally, I'm willing to do so.
THE COURT: Oh, no, no, but it's a little hard to erase the word. I'm
certainly not going to say all witnesses have the same degrge of
interest, that's simply wrong.
MR. EGAL: Your Honor, it appears that defense counsel has no issue
with your instructions, thus there is no issue.
THE CO URT: I don't see how I could usefully go back to that without
emphasizing.
MR. EGAL: All right. Thank you, your Honor.
THE COURT: If anybody has a suggestion or language, I certainly will
do it, but I don't care. Okay, Mr. Moran, please?
MR. MORAN: Your Honor, just to preserve that objection I placed on
record at sidebar concerning conscious
THE COURT: Well, you certainly have your record on that.
(Id. at 554-56.) As a result, the Court did not amend the jury instruction it
previously provided concerning Castro's testimony. Castro was later convicted of
the single count in the superseding indictment-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. (Id. at 561-62.)
Following trial and prior to sentencing, Castro fired Moran and retained new
counsel. On May 29, 2008, Castro was sentenced to the statutory mandatory
6
minimum of 120 months' imprisonment, five years' supervised release, and a $100
special assessment. (.Judgment at 1-4.)
On June 10, 2008, Castro filed a notice of appeal. (04 Cr. 664, ECF No. 33.)
On August 1, 2008, Castro moved for a new trial under Federal Rule of Criminal
Procedure 33 on the grounds that Moran provided ineffective assistance by (1)
recommending that Castro appear for the innocence proffer to explain his conduct;
(2) making statements during the course of trial about what took place at the
proffer, at which he was present; and (3) referring to his own daughter's heroin
addiction during his opening statement. (See Rule 33 Motion at 18, 30, 04 Cr. 664,
ECF No. 35.) On February 11, 2009, in a six-page opinion, Judge Griesa denied the
motion in its entirety. (Rule 33 Opinion at 6, 04 Cr. 664, ECF No. 42.) Castro
subsequently filed a notice of appeal of Judge Griesa's denial of his Rule 33 motion
on March 12, 2009. (04 Cr. 664, ECF No. 49.)
On June 23, 2009, after consolidating Castro's two appeals and hearing oral
argument, the Second Circuit issued a summary order affirming Castro's conviction.
See United States v. Beato, 330 F. App'x 314,315-16 (2d Cir. 2009). In so holding,
the court noted that, while the jury instruction concerning Castro's testimony
"almost certainly" violated its holding in United States v. Gaines, 457 F.3d 238 (2d
Cir. 2006Yl because the reference to Castro's "vital interest" in the outcome of the
case suggested Castro had an incentive to lie, Moran waived this argument at trial.
;3 In
the Second Circuit "denounce[dJ any instruction ... that tells a jury that a testifying
defendant's interest in the outcome of the case creates a motive to testify falsely," and found such an
instruction to be reversible error in a "close case" that "boiled down to the credibility of [the
defendant's] testimony." Gaine§, 457 F.3d at 246, 250.
7
Beato, 330 F. App'x at 316. The court stated that "[t]rial counsel's treatment of
the Gaines problem, as well as the other incidents of allegedly ineffective assistance
asserted both in Castro's direct appeal and in his appeal from the District Court's
denial of his Rule 33 motion, raise questions of whether his counsel was
constitutionally adequate." rd. at 316. Nevertheless, relying on Massaro v. United
States, 538 U.S. 500 (2003), the court "decline[d] to consider any of Castro's claims
of ineffectiveness on this appeal, and leave them for consideration in a properly filed
§ 2255 motion." Beato, 330 F. App'x at 316.
Castro then timely filed the instant petition on March 3, 2010, and the
petition became fully briefed on July 22, 2010. Judge Griesa subsequently held
hearings on September 16, 2011, September 28, 2011, and January 11, 2012 arising
out of Castro's present counsel's requests for discovery related to a potential conflict
of interest of Moran. 4 In a letter dated May 7,2012, Castro's counsel informed
Judge Griesa that, after receiving and reviewing this discovery, he was
withdrawing that particular argument (Point V) from Castro's petition.
Letter,
10 Civ. 1680, ECF No. 13.)
The petition was transferred to the undersigned on June 6, 2013.
I Moran was convicted pursuant to a guilty plea of federal racketeering charges on February 19,
2013. (09 Cr. 369, ECF Nos. 92,453-54,486,502.) Moran's charged criminal conduct took place
from in or about November 2003 to May 21, 2009
Superseding Indictment ~l 25, 09 Cr. 369, EGF
No. 92), during the same period when Moran represented Castro
Petition Ex. 7 ,r 1.) In light of
Moran's own criminal conduct, Castro sought discovery related to Moran's potential connections to
Beato. (JJ:L at 64-69.)
8
II.
DISCUSSION
Castro petitions this Court for relief under 28 U.S.C. § 2253 because he
alleges he received ineffective assistance of counsel from Moran, his trial counsel,5
Such a petition will only be granted if a petitioner can show that (1) his or her
counsel's performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) he or she was prejudiced by counsel's
deficient performance.
Strickland v. Washington, 466 U.S. 668, 687-96 (1984).
As to the first prong of the Strickland test, attorney conduct is subject to an
objective standard of reasonableness, and is accorded deference in light of the
"range of legitimate decisions" that accompanies the various circumstances
encountered by counsel. Id. at 688-89. Reviewing courts "must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance, bearing in mind that [tJhere are countless ways to provide
effective assistance in any given case and that [e]ven the best criminal defense
attorneys would not defend a particular client in the same way." United States v.
Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quotation marks omitted) (citing
Strickland, 466 U.S. at 689).
As to the second prong, because ineffective assistance may render the
outcome of a proceeding unreliable, a defendant need only demonstrate "a
"As the government notes (see Opp. at 10·12, 10 Civ. 1680, BCF No.4), to the extent Castro raises a
substantive challenge to his conviction based on the "vital interest" jury instruction related to his
testimony, this argument is procedurally barred.
Beato, 330 F. App'x at 316 (noting that Moran
waived this argument at trial); United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) ("It is well
established that a § 2255 petition cannot be used to relitigate questions which were raised and
considered on direct appeal.") (internal quotation marks omitted).
9
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694. Still, more is
required than a mere showing "that the errors had some conceivable effect on the
outcome of the proceeding," as "not every error that conceivably could have
influenced the outcome undermines the reliability of the result of the proceeding."
Id--, at 693. The Second Circuit has rejected § 2255 petitions based on ineffective
assistance of counsel because a petitioner is unable to show prejudice in light of
"overwhelming evidence of guilt adduced at trial." Strouse v. Leonardo, 928 F.2d
548, 556 (2d Cir. 1991); see United States v. Simmons, 923 F.2d 934, 956 (2d Cir.
1991) ("[G]iven the plethora of evidence against him, there is little reason to believe
that alternative counsel would have fared any better."); United States v. Reiter, 897
F.2d 639, 645 (2d Cir. 1990) (similar).
vVith respect to the three ineffective assistance arguments that Castro
previously raised in his Rule 33 new trial motion (Point II), Judge Griesa carefully
analyzed each of these arguments in his February 11, 2009 opinion, using the
required Strickland v. vVashington framework, and found them to be without merit.
(Rule 33 Opinion at 6.) This Court sees no reason to analyze these arguments any
differently, and adopts Judge Griesa's analysis G and conclusion that these
arguments do not show Castro received ineffective assistance of counsel. 7
r; With respect to Castro's argument that Moran was ineffective because he recommended that Castro
appear for an innocence proffer, the Court further notes that Castro stated on cross-examination at
trial that both he and Moran sought the meeting, that he understood its purpose, had an interpreter
present, and decided to continue with the meeting with that knowledge. (Trial Tr. at 417·18.)
7 Castro concedes that he included these arguments in his petition so as to pre"erve them for
appellate review in light of the fact that the Second Circuit declined to reach them. (See Petition at
23 n.20; Reply at 1, 10 Civ. 1680, ECF 1'\0. 5.)
10
Castro's remaining ineffective assistance arguments 8 are that: (A) Moran
failed to object to the "vital interest" jury instruction concerning his testimony; (B)
Moran introduced Castro's prior criminal conviction during his direct examination;
and (C) the combination of the alleged errors he has previously noted constitutes
ineffective assistance. Each of these arguments is without merit, and Castro is
entitled to no relief under § 2255.
A. Failure to Object to "Vital Interest" Jury Instruction
Castro argues that Moran's failure to object to the jury instruction Judge
Griesa gave concerning Castro's "vital interest" in the outcome of the case, after it
had already been given to the jury, constituted ineffective assistance. (Petition at
13.) According to Castro, Moran should have objected and moved for a mistrial, and
his failure to do so prejudiced Castro because it prevented direct appellate review of
the instruction. (Id. at 27.) Castro argues that this was a close case "essentially
pitting the defendant's version of events against the testimony of a cooperating
witness," with the outcome dependant on the believability of Castro's testimony.
(See id. at 14, 29-30, 33.)
Even assuming Moran's failure to object to the instruction, after it was
already given, fell below an objective standard of reasonableness,!) Castro fails to
meet his burden of showing that he suffered prejudice. As Judge Griesa noted in
As noted above, Castro withdrew his argument that a potential conflict of interest existed with
Moran in light of Moran's own criminal activity (Point V) in a letter dated YIay 7, 2012. (See Letter,
10 Civ. 1680, ECF No. 13.)
9 Though the Court need not reach this issue for purposes of this decision, the Court notes that
Moran's decision not to object certainly could have fallen within the range of legitimate decisions for
trial counseL As Judge Griesa himself noted on the record, any curative steps which could have been
taken at that point may have only served to further highlight the issue for the jury. (Trial TI'. at
554-56.)
il
11
his decision denying Castro's Rule 33 motion, the government introduced a "wealth
of evidence" concerning Castro's guilt.
Rule 33 Opinion at 4.) This was not, as
Castro argues, a close case; the evidence against Castro was indeed overwhelming,
especially when considered in light of Castro's own inconsistent and incredible
testimony. See, e.g., Strouse, 928 F.2d at 556.
Beato testified to Castro's extensive involvement in the heroin trafficking
activities of both himself and their co-conspirators. That testimony was
corroborated by independent evidence in the form of intercepted calls and DEA
agent surveillance-Castro was heard speaking (or referenced on) the calls, and was
observed by DEA agents with his co-conspirators (including driving a heroin courier
on one occasion). In contrast, Castro's self-serving testimony concerning Beato
that Castro merely acted as Beato's unknowing chauffeur, and that he believed
Beato to be a loan shark and international currency trader-was impeached
multiple times by his prior omissions and by the testimony of another DEA Agent
who was present at his November 2005 innocence proffer. Castro admitted to these
inconsistencies and provided no justification for them, nor does he in connection
with this petition. Though Castro argues that the case turned on the believability
of his version of events, it is unclear which version he expects the jury to credit-the
version he told prosecutors and DEA agents prior to trial, or the version he told at
trial. The Court finds that Castro's unbelievable testimony substantially bolstered
the wealth of evidence of guilt that the government already introduced against him
during its case-in-chief.
12
It is for this reason that the Court also declines to credit Castro's argument
that he suffered prejudice because Moran's failure to object prevented direct review
of the jury instruction on direct appeal. In Gaines, the court dismissed the
government's argument that the jury instruction error was harmless because it was
"close case" that "boiled down to the credibility of Gaines's testimony"-"the officers'
testimony was mistaken in material respects, and even if believed, it was not
inconsistent with Gaines's claim that the inoperable weapon hidden in the crevice of
the cab's back seat was not his." Gaines, 457 F.3d at 250.
Though the Second Circuit previously determined that the instruction at
issue here "almost certainly violated Gaines,"
=-"~=
330 F. App'x at 316, this is not
a similarly close case based on the evidence adduced at trial. As described above,
the government presented evidence in the form of (1) testimony from a cooperator
(Beato) who engaged in heroin trafficking on multiple occasions with Castro; (2)
testimony from DEA agents who conducted surveillance of Beato, Castro, and their
co-conspirators; and (3) intercepted calls involving Beato, Castro, and their co
conspirators that corroborated this testimony. On the other hand, Castro's own
testimony was wholly inconsistent with both the other evidence and his own prior
statements to law enforcement. The Court thus finds that, even if Castro was able
to obtain direct review of this potential Gaines error, such error would have been
found to be harmless in light of the wealth of evidence of guilt adduced at trial. Cf.
United States v. Brutus, 505 F.3d 80, 89-90 (2d Cir. 2007) (holding Gaines error
harmless in "not a close case," where defendant testified inconsistently with
13
statements made following her arrest, and where her testimony was otherwise not
believable) .
Accordingly, Castro is unable to meet his burden of showing that he suffered
prejudice as a result of Moran's alleged ineffective assistance in failing to object to
the jury instruction concerning Castro's testimony.
B. Introduction of Criminal Conviction
Castro next argues that Moran's decision to introduce Castro's prior arrest
and conviction in New Jersey for felony possession of an interception device on
direct examination was "unnecessary" and "without any strategy rationale," and
that Castro suffered prejudice as a result. (Petition at 52.) This argument is also
without merit.
Once Castro made the decision to testify at trial, Moran was required to
make a strategic decision about how best to deal with, inter alia, Castro's prior
felony conviction. As the government correctly notes (see Opp. at 21-24), the
government could have reasonably argued that this conviction was admissible
under Federal Rule of Evidence 609(a)(2)10 because the New Jersey statute Castro
violated made it illegal to possess an electronic, mechanical or other device,
knowing that the design of such a device was for the primary use of the
"surreptitious" interception of a wire, electronic or oral communication. 11
N.J.
10 The version of Rule 609(a)(2) in effect at the time of trial provided that "evidence that any witness
has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be
determined that establishing the elements of the crime required proof or admission of an act of
dishonesty or false statement by the witness." Fed. R. Evid. 609(a)(2) (2006).
J 1 As Castro was found guilty on October 16, 1997 and sentenced to one year probation on February
'27, 1998 ~ Opp. at 23-24), the introduction of this conviction at his August 2007 trial would have
been timely.
Fed. R. Evid. 609(b).
14
Stat. § 2A:156A-5(a). Cf. Jones v.
~.y'C.
Health & Hosp. Corp.,
~o.
00 Civ. 7002
(CEM), 2013 WI. 124270, at *1 (S.D.N.Y. June 3, 2003) (holding conviction for
embezzlement of public money under 18 U.S.C. § 641 admissible under Rule
609(a)(2». Thus, Moran's strategic decision about the manner in which to introduce
his client's felony conviction to the jury on direct examination-giving his client an
opportunity to explain his actions before being cross-examined-is entitled to
deference. See Strickland, 46G U.S. at G88-89.
The Court finds that Castro has failed to meet his burden of showing
ineffective assistance of counsel on the basis of Moran's questions concerning
Castro's prior felony conviction. 12
C. Cumulative Effect of Errors
Finally, Castro argues that the Court should apply a cumulative error
analysis to the alleged errors he has previously identified in order to establish
ineffective assistance of counsel under Strickland. (See Petition at 58-G4.) Such an
argument fails because, for the reasons set forth above, the Court finds that none of
Castro's allegations satisfy the requirements of Strickland-(I) performance that
fell below an objective standard of reasonableness under prevailing professional
norms; and (2) resulting prejudice. See Strickland, 466 U.S. at 687-96.
12 Additionally. for the reasons set forth in Part I1.A, li1lQ.I!;!, Castro also fails to show that he was
prejudiced by Moran's decision to ask questions about his prior felony conviction on direct because of
the wealth of evidence of his guilt, as well as Castro's own inconsistent and incredible testimony.
15
III.
CONCLUSION
For the reasons set forth above, Castro's petition to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255 is DENIED.
The Court declines to issue a certificate of appealability because there has
been no "substantial showing of the denial of a constitutional right." 28 U .S.C. §
2253(c)(2); seq Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012).
The Court also finds, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from the denial of this motion would not be taken in good faith. See Feliz v. United
States, No. 01 Civ. :3544 (JFK), 2002 \VL 1964347, at *7 (S.D.N.Y. 2002).
The Clerk of the Court is directed to terminate the action 10 Civ. 1680.
SO ORDERED.
Dated:
New York, New York
December _£_,_, 2013
L~ [?
~-.-
KATHERINE B. FORREST
United States District Judge
16
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