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June 29, 1979

Smith CORDOBA, Petitioner,
David R. HARRIS, Superintendent, Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: STEWART


Smith Cordoba, proceeding Pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was indicted in New York County on August 19, 1974 on four counts of illegally possessing and selling cocaine. His first two trials ended in mistrials. *fn1" His third trial resulted in his conviction, on September 30, 1976, of two counts of selling a controlled substance in the first degree. N.Y. Penal Law § 220.43 (McKinney 1978). On November 15, 1976, he was sentenced to the statutory minimum of 15 years to life *fn2" on each count, the sentences to be served concurrently. Petitioner's appeal to the Appellate Division was denied without an opinion on June 6, 1978, People v. Cordoba, 63 A.D.2d 1123, 405 N.Y.S.2d 621. The Court of Appeals denied leave to appeal.

 Petitioner's indictment and conviction arose out of two sales of cocaine to undercover agents. On the evening of June 18, 1974, petitioner sold an eighth of a kilogram to two undercover New York City police officers for $ 3,600 at the apartment of an accomplice in Queens. On July 2, 1974, Petitioner sold a quarter of a kilogram to two undercover police officers for $ 7,000 at the same apartment. At petitioner's trial, both the officers participating in the buys and the backup and surveillance teams testified. In addition, a police chemist testified that the substance bought in each of these two sales did indeed contain quantities of cocaine.

 Petitioner does not here challenge the substantiality of the evidence against him. Rather, he claims that errors by the trial judge in his rulings and charge to the jury deprived him of his right to due process of law under the Fourteenth Amendment. In addition, he maintains that the decision of the trial judge to allow him to proceed as his own attorney deprived him of his Sixth Amendment right to counsel. Before proceeding to the merits of petitioner's claims, we must determine whether he has exhausted his state remedies *fn3" by presenting fully and fairly to the state appellate courts the constitutional claims made here. Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Wilson v. Fogg, 571 F.2d 91, 93 (2d Cir. 1978); United States ex rel. Gibbs v. Zelker, 496 F.2d 991, 994 (2d Cir. 1974).

 First, petitioner alleges that the trial court erred in stating to the jury that the District Attorney had drawn conclusions of fact in his summation. *fn4" In his brief submitted to the state appellate court, petitioner's attorney argued that this instruction would lead the jury to give weight to the summation as evidence. Nowhere did he hint that this claim was of constitutional dimension. Therefore, it is not enough that the petitioner presented the state court "with an opportunity to apply controlling legal principles to the facts", Picard v. Connor, supra, 404 U.S. at 277, 92 S. Ct. at 513, but rather to fulfill the exhaustion requirement, petitioner must also have presented the state courts with the constitutional theory he intended to raise. Not having done so, this claim is unexhausted and petitioner is precluded from raising it here. *fn5"

 Second, petitioner alleges that the trial judge erred in not instructing the jury that no inference can be drawn from petitioner's failure to testify on his own behalf, even though no such instruction was requested. Petitioner's brief on appeal clearly indicates that this point was argued solely on state law grounds and is therefore not exhausted. *fn6"

 Third, petitioner alleges that the trial judge erred in not allowing a letter he had written to be read by the jury. This claim, however, was not raised in any fashion by the petitioner on his appeal to the Appellate Division. His failure to raise it there precludes us from reviewing it here. *fn7"

 Petitioner further alleges that the trial judge committed error in his response to the jury when, during their deliberations, they asked why they could not see the letter. On appeal, petitioner's counsel characterized the judge's answer as discussing the contents of the letter. Petitioner's brief on appeal referred to a violation of "fundamental principles" but no further indication was given to the state courts that a constitutional issue was being raised. The court could well have read this claim without realizing a federal constitutional issue was involved United States ex rel. Gibbs v. Zelker, supra, 496 F.2d at 994. As a result, petitioner has failed to exhaust his state remedies as to this claim, precluding us from reviewing it here.

 Lastly, petitioner asserts that he was permitted to proceed Pro se at his trial without making a knowing and intelligent waiver of his right to counsel, in violation of his Sixth Amendment rights. On his state appeal, petitioner's counsel in his brief argued, "this does not add up to an intentional unequivocal, knowing and intelligent waiver of the constitutional right to counsel as discussed by the Court of Appeals in People v. Reason, 37 N.Y.2d 351, 372 N.Y.S.2d 614, 334 N.E.2d 572 (and the authorities cited therein)". Reply Brief at 3. The question is whether this sufficed to put the Appellate Division on notice that a constitutional argument based on the Sixth Amendment was being made.

 We think it did. In Picard, supra, 404 U.S. at 277, 92 S. Ct. at 513, the court conceded that, "obviously, there are instances in which the ultimate question for disposition will be the came despite variations in the legal theory or factual allegations urged in its support." Here, irrespective of whether petitioner's claim was based solely on state law grounds, his characterization of a "constitutional right to counsel" should have alerted the Appellate Division to the federal constitutional claim that is raised here. Therefore, we conclude that petitioner has exhausted his state remedies with respect to this claim, and we turn now to its merits. *fn8"

 It will be helpful at this point to recount the series of events that led up to petitioner's request to proceed Pro se.

 Toward the end of petitioner's second trial a plea-bargain offer *fn9" was made to him through his attorney. Petitioner, proclaiming his innocence, became extremely upset with his attorney and expressed a desire to have him removed from his case. The trial judge, after repeatedly inquiring of the petitioner whether he really desired to fire his attorney, and whether he understood the consequences of such an action, granted petitioner's request. Thereupon, a mistrial was declared and petitioner was remanded to prison to await yet a third trial.

 Three months later, at the start of his third trial, petitioner, appearing with his second court-appointed counsel, was once again offered the same plea-bargain arrangement. Petitioner said he would accept only on the condition that he be sent to a hospital. The trial judge explained that this would be beyond his power, but that he would order that petitioner be examined to determine whether he in fact did require hospitalization. When petitioner remained obdurate, the court apparently concluded that he did not wish to plead guilty and was about to begin the process of jury selection, when, after a short recess, the petitioner asked that he be allowed to dispense with his attorney and proceed Pro se. Part of this application was a request that his first counsel, whom he had dismissed at the close of his second trial, be re-appointed. The trial judge denied petitioner's request that his first counsel be re-appointed, saying, "I'm not going to assign Mr. Perl (his first counsel). That's all water over the dam. No defendant, not you or any other defendant can dictate what attorneys are going to be assigned". (Pre-trial hearing (hereinafter cites as PT.) at p. 26.)

 With respect to petitioner's application to proceed Pro se, *fn10" the trial judge first questioned petitioner as to whether he understood the consequences of his request, and whether he was capable of conducting his own defense. After completing these inquiries, the trial judge found that petitioner's Pro se application was "unequivocally and . . . timely made", (PT. p. 26) and that "I'm further satisfied that you intelligently are making this waiver" (PT. p. 26). The trial judge made these findings, despite the fact that his inquiries revealed that the petitioner could speak little English, *fn11" had no formal ...

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