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PIZARRO v. BARTLETT

November 5, 1991

CARLOS PIZARRO, PETITIONER,
v.
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.

I

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.

II

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, 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 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 ...

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