United States District Court, Southern District of New York
November 5, 1991
CARLOS PIZARRO, PETITIONER,
GEORGE BARTLETT, SUPERINTENDENT, ELMIRA CORRECTIONAL FACILITY, DEFENDANT.
The opinion of the court was delivered by: Mukasey, District Judge.
OPINION AND ORDER
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
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
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. "[I]n 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,
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
THE COURT: You would like to represent yourself?
THE DEFENDANT: Yes, sir.
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 DEFENDANT: Yes.
THE COURT: And although you have been in court on
numerous times, you have never tried a case
THE DEFENDANT: There's a first time for
THE COURT: You feel you could abide by the rules
of the court?
THE DEFENDANT: Yes, sir.
THE COURT: You want to ask questions of the
THE DEFENDANT: Yes.
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
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
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 result
in excessive delay and would hinder the speedy and efficient
disposition of cases. Moreover, the potential for abuse is
obvious. As the Second Circuit has stated:
This Court has long recognized that certain
restraints must be put on the reassignment of
counsel lest the right be "manipulated so as to
obstruct the orderly procedure in the courts or to
interfere with the fair administration of
McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981) (quoting
United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert.
denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963)),
cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177
Whether or not to permit substitution of counsel is within
the discretion of the trial judge and turns on the facts of the
case. McKee, 649 F.2d at 931; People v. Arroyave, 49 N.Y.2d
264, 425 N.Y.S.2d 282, 286, 401 N.E.2d 393, 397 (1980). It is
not sufficient for defendant to request a new lawyer. "[A]
defendant seeking substitution of assigned counsel . . . must
afford the court with legitimate reasons for the lack of
confidence." McKee, 649 F.2d at 932; see United States v.
Perez, 904 F.2d 142, 151 n. 3 (2d Cir.), cert. denied, ___ U.S.
___, 111 S.Ct. 270, 112 L.Ed.2d 226 (1990). As the trial
approaches, the interest in avoiding delay and inconvenience
becomes stronger, and the defendant is required to make a
showing of "good cause" in order to warrant substitution.
McKee, 649 F.2d at 932; see Arroyave, 425 N.Y.S.2d at 286, 401
N.E.2d at 397.
The record shows conclusively that the trial court's refusal
to appoint a third attorney was not an abuse of discretion,
and, in fact, was the proper decision under the circumstances.
Traub remained available throughout the proceedings to assist
petitioner and, due to his familiarity with the case, could
have assumed petitioner's representation at any time. As a
result, petitioner had the choice of proceeding pro se with
Traub's assistance, proceeding pro se without assistance, or
permitting Traub to represent him. In McKee, supra, the Second
Circuit, held that such an arrangement satisfied the right to
assistance of counsel. There, defendant had a choice of
continuing with appointed counsel, proceeding pro se, or
retaining a private attorney. The Court held that in the
absence of "good cause" for reassignment such a choice was "not
constitutionally offensive." McKee, 649 F.2d at 931.
Applying McKee, the magistrate judge found that petitioner
could not make a showing of "good cause." Petitioner contests
this finding. His claim is that he was not given an opportunity
to state his reasons for requesting reassignment, and, if he
had been given that opportunity, his lack of legal training
would have prevented him from articulating those reasons. When
a defendant voices a "seemingly substantial complaint about
counsel," the court should inquire into the reasons for
dissatisfaction. McKee, 649 F.2d at 933 (quoting United States
v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972)). However,
petitioner's argument is flawed in several respects. First, his
complaint concerning Traub's performance was obviously without
merit and did not require a formal inquiry. In requesting
reassignment, petitioner simply repeated the same complaints he
raised against Greenberg. Instead of listing any substantive
complaints, he simply took a copy of the form he filed in
September and, where the name "Greenberg" appeared, substituted
"Jeffrey Traub." This suggested that the motion was without
substance and was no more than a dilatory tactic. Moreover, a
short inquiry was conducted regarding the only substantive
complaint raised by petitioner, Traub's failure to request a
Wade hearing. The trial court concluded that the complaint was
as it certainly was. There was no pre-trial identification
procedure that might have required a hearing under United
States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149
(1967). See Solomon v. Smith, 645 F.2d 1179, 1185-87 (2d Cir.
1981). In fact, after Traub explained the background of his
decision not to request the hearing, the court commended him
for not making "spurious and specious motions." Thus,
petitioner never voiced a "seemingly substantial complaint
about counsel" which would have required a formal inquiry. Id.
Second, in this case, even if a formal inquiry was required,
the failure to conduct the inquiry would not constitute grounds
for reversal of petitioner's conviction. Petitioner could not
have demonstrated "good cause" or even have suggested
"legitimate reasons" for substitution. He complained that Traub
"failed to visit [him] at [his] place of confinement; ha[d]
submitted no motions on [his] behalf; . . . and ha[d] not
conducted any fact-finding to prepare [his] defense." He later
repeated that Traub "hadn't done anything to prepare my
defense." (Tr. 9) It is clear from the record however that
petitioner could not have established these claims. Traub
provided petitioner with able representation, making numerous
motions and court appearances in conducting his defense. As the
trial judge stated, it is apparent "from examination of the
court file and . . . from Mr. Traub's previous conduct that he
had done everything in his power on [petitioner's] behalf."
(Tr. 10) Thus, petitioner's reasons for seeking substitution
were considered by the trial judge and found meritless. A
formal inquiry was therefore unnecessary. "'[W]hen . . . an
accused makes known to the court in some way that he has a
complaint about his counsel, the court must rule on the matter.
If the reasons are made known to the court, the court may rule
without more.'" McKee, 649 F.2d at 934 (holding that failure to
conduct formal inquiry was harmless error) (quoting Brown v.
United States, 264 F.2d 363, 369 (D.C. Cir.) (en banc) (Burger,
J. concurring), cert. denied, 360 U.S. 911, 79 S.Ct. 1299, 3
L.Ed.2d 1262 (1959)).
Petitioner's argument that, due to lack of legal training, he
was unable to articulate grounds for substitution is similarly
unpersuasive. The record reveals that prior to his decision to
stand mute at trial, petitioner was a vigorous and vocal
advocate on his own behalf. He filed, in addition to a
successful first motion requesting substitution of counsel,
numerous other motions including discovery motions, motions to
dismiss, and a motion to suppress. In addition, in his request
to proceed pro se, petitioner assured the court that he was
prepared to conduct legal proceedings. When it suited him,
petitioner was willing and able to explain his concerns and
utilize motion practice to advance his cause. In any event,
stating reasons for seeking substitution of counsel does not
require legal training. Petitioner managed to state his
reasons; they simply did not justify reassignment of counsel.
Petitioner was provided with two able lawyers to assist in
his defense. Instead of availing himself of their assistance,
he chose to stand by idly during his trial. Whether this tactic
was meant to delay the trial, create grounds for appeal, or
make some sort of statement, petitioner cannot now claim that
he was denied assistance of counsel. Rather, in appointing two
competent attorneys, New York adequately safeguarded
petitioner's Sixth Amendment rights. It was petitioner who
prevented counsel from assisting in his defense. Therefore,
Carlos Pizzaro's petition for a writ of habeas corpus is denied
and the petition is dismissed. Because the petition is
objectively frivolous, a certificate of probable cause will not
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