The opinion of the court was delivered by: Freeh, District Judge.
In these related cases, Linares v. Senkowski (91-CIV-3195)
and Munoz v. Keane (91-CIV-0954), petitioners Zoilo Linares
("Linares") and David Munoz ("Munoz") seek writs of habeas
corpus, primarily on the grounds that their prosecution by an
individual not admitted to the bar of New York or any other
state violated the due process clause of the federal
constitution.*fn1 Linares and Munoz were codefendants, tried
by the same prosecutor, in a single trial. For the reasons
stated below, the petitions are denied.
On November 9, 1985, Linares and Munoz were arrested with
four other individuals*fn2 and charged with first degree
criminal possession and criminal sale of a controlled
substance (cocaine). In May 1986, Linares and Munoz were tried
on those charges along with Rosero and Sanchez-Medina,*fn3
and on June 19, 1986, they were convicted on both counts.
Linares was sentenced to concurrent prison terms of seventeen
years to life, and Munoz was sentenced to concurrent terms of
twenty years to life.
Both petitioners claim that because Penofsky was not an
attorney admitted to practice law in New York, their trial was
inherently unfair, in violation of the due process clause of
the 14th amendment.*fn4 Both petitioners have also raised
these claims in state court.*fn5
1. The Constitutional Claims
Linares and Munoz both claim that their prosecution by a
"layman" deprived them of the safeguards necessary to ensure
a fair trial. According to petitioners, the fact that Penofsky
committed fraud in representing himself as an attorney
indicates that he did not and could not comply with the
constitutionally-imposed obligations of a prosecutor, such as
the prosecutor's duty to (1) review evidence favorable to the
accused, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194,
1196-97, 10 L.Ed.2d 215 (1963); (2) disclose to the defense all
witness statements relating to a witness' testimony, Jencks v.
United States, 353 U.S. 657, 672, 77 S.Ct. 1007, 1015, 1
L.Ed.2d 1103 (1957); and (3) when challenged, present a neutral
explanation for any apparently discriminatory use of peremptory
challenges during jury selection. Batson v. Kentucky,
476 U.S. 79, 96, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986). (Linares
Petition at 15-16).*fn6
Petitioners claim that their trial was not a "fair legal
proceeding, as required by the Due Process Clause" because
"[e]ach statement and representation uttered by Penofsky
during the course of the trial and . . . pre-trial discovery
is tainted by his unlawful conduct." (Linares Petition at 15).
In essence, petitioners have formulated a new constitutional
right — the right to be prosecuted by a licensed attorney.
Apparently, no federal court has ever recognized such a right
under the due process clause of the fourteenth amendment.
Petitioners cite only one state case, People v. Munson,
319 Ill. 596, 150 N.E. 280 (1925), imposing a requirement that a
prosecuting attorney be licensed. In Munson, the Illinois
Supreme Court vacated a criminal conviction on the grounds that
the prosecutor was not an admitted attorney. In reaching that
result, the Court noted that neither the state constitution nor
any state statute required a criminal defendant to be
prosecuted by a licensed attorney. 150 N.E. at 281.
Nevertheless, the Court imposed such a requirement as a matter
of common law, stating:
[The state's attorney] is intrusted with broad
official discretion. He is given power to file
informations, sign indictments, and to sue out
writs of subpoena and summons, thereby, in a
measure, exercising the power of the court in
representing the people in their cases. Both
logic and the weight of authority require that
one who discharges those duties have the
qualifications of such an officer . . . [I]f he
be an attorney for the people, he must be
qualified to represent his client at law.
[Id. at 281-82.]
Despite the broad language quoted above, Munson is not
analogous to this case. The central issue in Munson was the
validity, as a matter of state law, of an indictment obtained
by an unlicensed attorney. 150 N.E. at 280. The New York courts
have already addressed that question in Carter. Moreover, the
Illinois court did not even discuss whether ...