The United States of America Ex Rel. Antonio Roche, Relator-Appellant v. Charles J. Scully, Superintendent, Green Haven Correctional Facility

MANSFIELD, Circuit Judge:

Antonio Roche appeals from an order of -the Southern District of New York, John M. Cannella, Judge, denying his petition for a writ' of habeas corpus pursuant to 28 U.S.C. § 2254. Roche was convicted in the Supreme Court of the State of New York, Bronx County, of two counts stemming from his possession and sale of heroin. On appeal his counsel successfully argued that his conviction on one count charging sale of heroin must be reversed and remanded for a new trial because of the trial court’s failure to charge the jury on the defense’s theory that Roche was acting as…