Pizarro v. Bartlett

Decision Date05 November 1991
Docket NumberNo. 90 Civ. 5699 (MBM).,90 Civ. 5699 (MBM).
Citation776 F. Supp. 815
PartiesCarlos PIZARRO, Petitioner, v. George BARTLETT, Superintendent, Elmira Correctional Facility, Defendant.
CourtU.S. District Court — Southern District of New York

Carlos Pizarro, pro se.

Monica R. Jacobson, Asst. Atty. Gen. of State of N.Y., New York City, for defendant.


MUKASEY, District Judge.

Carlos Pizarro petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the writ is denied and the petition is dismissed.


On May 2, 1979, petitioner Carlos Pizarro was convicted in New York State Supreme Court, New York County, for robbery in the first degree. See N.Y. Penal Law § 160.15 (McKinney 1988). As a persistent felony offender, petitioner was sentenced to a prison term of 25 years to life. After exhausting state remedies, he filed this petition, claiming: (1) he was denied assistance of counsel when the trial court rejected his second request for reassignment of counsel; (2) he was denied his right to due process of law by the trial court's "failure to charge larcenous intent" as an element of robbery; and, (3) he was denied his right to due process of law by jury instructions that improperly shifted the burden of proof on the element of intent.

The petition was referred to Magistrate Judge Sharon E. Grubin who filed a report and recommendation on June 21, 1991. The magistrate judge recommended the petition be denied in its entirety. Petitioner now objects to the magistrate judge's conclusion that the trial court acted within its discretion in denying his second request for reassignment of counsel.

In response to a magistrate judge's recommendation for disposition of a habeas corpus petition, the district court must follow the procedures set forth in Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1). Pursuant to these provisions, the court is permitted to adopt those sections of the report to which no specific objection is made, so long as those sections are not facially erroneous. Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985); Mokone v. Kelly, 680 F.Supp. 679, 680 (S.D.N.Y.1988). When an objection is raised, the court is required to conduct a de novo review of the contested sections. Because 28 U.S.C. § 636(b) requires "a de novo determination" rather than a de novo hearing, the district court is free to place "whatever reliance ... in the exercise of sound judicial discretion, it chooses to place on a magistrate's proposed findings and recommendations." Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) (quoting United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980)). A hearing is not required. Id. Here, the uncontested sections of the report are not facially erroneous and are adopted. Regarding the contested sections, after reviewing the record, I agree with Magistrate Judge Grubin that the trial court acted within its discretion in denying petitioner's second request for reassignment of counsel.


The Sixth and Fourteenth Amendments require that a defendant in a state criminal trial be afforded the right to assistance of counsel. This right extends beyond the freedom to hire an attorney. An indigent defendant charged with a felony is entitled to have counsel appointed at state expense to assist in his defense. "In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963).

The State of New York made every effort to ensure that petitioner received adequate representation and a fair trial. Following petitioner's arrest in April 1978, Gary Greenberg of the Legal Aid Society was appointed to represent him. Greenberg made several court appearances on petitioner's behalf and filed several motions including motions for discovery, motions to suppress evidence, a motion for a bill of particulars and a motion to dismiss the indictment. In August 1978, alleging that Greenberg had been lax in conducting his defense, petitioner moved pro se for the appointment of new counsel. The court relieved Greenberg and appointed Jeffrey Traub on September 13, 1978.

During the next several months, Traub made more than a dozen court appearances, filed another motion to dismiss the indictment, and conducted a hearing on the motions to suppress that had been filed by Greenberg. At the conclusion of the January 30, 1979 hearing on the motions to suppress, petitioner requested that he be permitted to proceed pro se. The following colloquy ensued:

THE COURT: You would like to represent yourself?
THE COURT: You understand that you are charged with a very serious offense and if you are convicted you could get up to twenty-five years in jail, you understand that?
THE DEFENDANT: I'm aware of that too.
THE COURT: And you understand that you are not trained in law, you are not a graduate of law school, you understand that?
THE COURT: And although you have been in court on numerous times, you have never tried a case yourself?
THE DEFENDANT: There's a first time for everything.
THE COURT: You feel you could abide by the rules of the court?
THE COURT: You want to ask questions of the witnesses?
THE COURT: If you want to represent yourself you can represent yourself and Mr. Traub can remain as your legal advisor and if there's something you do not understand or don't know, you can turn it over to him.

(Minutes of January 30, 1979 pp. 2-4) As a result of this colloquy, petitioner's motion to proceed pro se was granted and Traub assumed the role of legal advisor. Once petitioner "knowingly, voluntarily, and unequivocally" waived his right to appointed counsel, the court was required to accede to his request to relieve Traub. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); Johnstone v. Kelly, 808 F.2d 214, 216 (2d Cir. 1986), cert. denied, 482 U.S. 928, 107 S.Ct. 3212, 96 L.Ed.2d 699 (1987).

Petitioner became dissatisfied with the arrangement. On March 9, 1979, repeating the exact allegations levelled at Greenberg, petitioner filed a motion requesting "reassignment of counsel." On March 29, 1979, Traub asked the court to address petitioner's application:

THE COURT: What is that application?
MR. TRAUB: I am acting as an advisor, he made the application to move pro se, but the application is to have me released.
THE COURT: Well — My notes indicate here that the defendant is going to represent himself and you're going to remain as his legal advisor. He can use you if he wants; he can ignore you if he prefers. That's his pleasure. Let him do whatever he's best advised to do.

(Minutes of March 29, 1979 p. 3) Thus, the case proceeded with petitioner representing himself and Traub acting as his advisor.

Proceedings resumed on April 30, 1979. When the court indicated that it would proceed with jury selection, petitioner requested an adjournment. The panel was nevertheless summoned, sworn, and examined by the court and prosecutor. Petitioner stated that he had no questions for the panel "because defendant is representing himself without counsel, and I need the time to prepare my defense ... I'm not ready to select a jury." (Tr. 12) Petitioner was urged to go forward with voir dire. He responded: "I'm not going to because I'm not ready, I'm not ready until you assign me a counsel or advisor to proceed. My motion was denied for counsel." (Tr. 16)

The trial judge advised petitioner to accept Traub's representation: "I strongly urge you to reconsider your position of representing yourself and letting Mr. Traub aid you in that regard. But that is your decision. You can do what you wish." (Tr. 7) Petitioner then reiterated his reasons for seeking Traub's dismissal, stating that Traub "hadn't done anything to prepare my defense," and that as a result he was being "forced to go pro se." (Tr. 9) The court replied that both Greenberg and Traub had performed admirably in petitioner's defense. (Tr. 10)

In his opening statement, petitioner attacked the court. He claimed that the court had refused to assign counsel or allow him to prepare a defense. He did not address the merits of the case. He then demanded that Traub leave the defense table. During the trial, petitioner refused to cross-examine any of the state's witnesses, and rested without presenting any evidence. The jury returned its verdict of guilty of robbery in the first degree.


Because the purpose of the Sixth Amendment is to guarantee the defendant a fair trial, Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984), the focus of its protection is "the adversarial process, not ... the accused's relationship with his lawyer as such." United States v. Cronic, 466 U.S. 648, 657 n. 21, 104 S.Ct. 2039, 2046 n. 21, 80 L.Ed.2d 657 (1984). There is no right to a "meaningful attorney-client relationship" or to be completely satisfied with counsel's performance. Morris v. Slappy, 461 U.S. 1, 12-15, 103 S.Ct. 1610, 1616-18, 75 L.Ed.2d 610 (1983). Nor does the Sixth Amendment guarantee that the defendant will be represented by the lawyer of his choice. A court need go no further than ensuring that each defendant has an "effective advocate." Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988).

These limitations apply whether an attorney is privately retained or appointed by the state. Although an indigent is entitled to appointed counsel, he is not guaranteed counsel of his choice. Burgos v. Murphy, 692 F.Supp. 1571, 1575 (S.D.N.Y.1988). This follows from the government's countervailing interest in the "fair and proper administration of justice." See United States v. Di Tommaso, 817 F.2d 201, 219 (2d Cir.1987). Allowing repeated substitution of counsel would...

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