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HODGE v. HENDERSON

July 27, 1990

ALLEN HODGE, PETITIONER,
v.
ROBERT HENDERSON, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge.

  MEMORANDUM AND ORDER

Petitioner Allen Hodge seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). Hodge is currently a New York State prisoner serving an indeterminate prison term of fifteen years to life upon conviction of robbery in the first degree. The sentence was imposed by the Supreme Court, New York County (Fraiman, J.) after a trial by jury. On appeal, the Appellate Division, First Department, affirmed Hodges' conviction and sentence without opinion. The New York Court of Appeals then denied leave to appeal.

  Hodge appears to have fully exhausted his state remedies as
required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982). He now seeks this petition on the grounds
that: (1) he was denied his constitutional right to
self-representation; (2) the court failed to suppress his
lineup identification; (3) police testimony improperly
bolstered the prosecution case; (4) he was precluded from
exercising his right to appear and testify before the grand
jury; (5) the prosecutor threatened his alibi witness; (6) the
court precluded Hodge from contesting the constitutionality of
his prior convictions; (7) ineffective assistance of counsel
and (8) the court improperly instructed the jury on (a) the
intent element of Robbery in the First Degree and the
instruction that the People were not required to prove that the
gun Hodge displayed was real; (b) Hodge's alibi defense; and
(c) "interested witnesses."
  I deal in this Memorandum and Order with each of Hodge's
claims in detail in the hope that this will be the end of his
many lawsuits.

FACTS

At 10:30 p.m. on February 10, 1983, Hodge robbed Rafael Zorrilla, a gypsy cab driver, at gunpoint and stole Zorrilla's taxicab and other of Zorilla's personal property. On February 11, 1983, Hodge was arrested.*fn1 At the lineup conducted on March 25, 1983, Zorrilla identified Hodge as the robber.

Pre-Trial Proceedings

Hodge was indicted by a grand jury for Robbery in the First Degree on April 27, 1983. At his arraignment in New York County on April 29, 1983, the court entered a plea of not guilty since counsel had not yet been appointed.

Although counsel was later appointed, on June 23, 1983, the court relieved Hodge's counsel, who requested to be relieved and against whom Hodge had filed a complaint with the bar association. The court stated: "You are going to end up representing yourself, but I'm going to give you one more attorney." Transcript ("Tr.") 2.

Subsequently, Saul Kobrick was appointed as new counsel. At a calendar call on September 7, 1983, the following took place before Justice Haft (who was not the trial judge):

    THE DEFENDANT: Your Honor, I haven't received
  none of my papers, disclosure, my indictment.
    THE COURT: Your lawyer has it. That's why he's a
  lawyer.
    THE DEFENDANT: I've been asking him and the
  lawyer before. I haven't received none of my
  papers.

What's going on?

    [DEFENSE COUNSEL]: Your Honor, just for the
  record, on August 16, I sent a letter to Mr. Hodge
  at the Bronx House of Detention where I indicated
  I just received the papers from his former
  attorney and enclosed copies of the voluntary
  disclosure form, indictment and the motion that
  was made on his behalf by his former —

THE DEFENDANT: I have received nothing.

    THE COURT: You didn't get the papers that your
  lawyer just said —
    THE DEFENDANT: I have been arrested since
  February 11.

THE COURT: Listen to what he said.

THE DEFENDANT: That's not good enough.

    THE COURT: That's all the papers that you are
  going to get.
    THE DEFENDANT: Just get him off my case then.
  I'll represent myself.
    PROSECUTOR: Your Honor, A.D.A. Consuelo
  Fernandez has this case.
    THE COURT. Let's put it on for the same date,
  September 13.
    THE DEFENDANT: For the record then, I don't want
  this lawyer.
    THE COURT: That application is denied. If you
  don't have —

THE DEFENDANT: Just railroad me. I don't care.

    THE COURT: Did you or did you not receive
  —
    THE DEFENDANT: I did not receive my former
  attorney's papers nor his papers. He says it. He
  says what he did.

THE COURT: I should not believe what he says.

    THE DEFENDANT: I don't believe what he's doing,
  period. I [am] just submitting a motion. There has
  been no announcement —
    THE COURT: You can't submit your own motion. You
  cannot submit your own motion when you're
  represented by counsel. You have to give —

THE DEFENDANT: He has to adopt it.

THE COURT: But did you give it to him?

THE DEFENDANT: I handed —

    THE COURT: [Defense counsel] will look at it and
  if he thinks it should be submitted —

[SECOND PROSECUTOR]: Adjournment by consent?

THE COURT: No, I'm not relieving —

THE DEFENDANT: I would like to represent myself.

    THE COURT: No, you've had two lawyers already.
  This is the second lawyer. There is no sufficient
  reason to and you're not going to have another
  lawyer.
    [DEFENSE COUNSEL]: Your Honor, just for the
  record, Mr. Hodge has taken back the papers that
  he wanted me to look at and has returned —
    THE DEFENDANT: Well, if [he's] not going to
  visit me, I don't know what I'm going to do in
  thirty seconds, thirty-second representation,
  hello and good-bye.

Tr. 3-6.

On October 25, 1983, Kobrick requested to be relieved as Hodge's attorney. The court, however, denied this request and continued Kobrick's representation. The court said, "[Since Hodge] hasn't asked to represent himself, I feel for me to require him [Hodge] to represent himself at this time would be error. . . ." Tr. 3. On October 27, 1983, the court also denied Kobrick's renewed request to be relieved as Hodge's attorney. During the same calendar call, Kobrick informed the court that on ...


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