The opinion of the court was delivered by: Mukasey, District Judge.
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 COURT: You understand that you are charged
with a very serious offense and if you are
convicted you could get up to twenty-five ...