The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.
Raymond Childs ("Childs"), incarcerated and represented by counsel,
petitions for a writ of habeas corpus under 28 U.S.C. § 2254,
attacking his 1994 New York State convictions for murder and robbery.
Childs argues that the trial court violated his Sixth Amendment right to
counsel and Fourteenth Amendment right to equal protection when it denied
his original court-appointed counsel's request for a continuance and
appointed new counsel just weeks before trial. Childs also moves to amend
his habeas petition to add a claim that he was denied equal protection
when the Supreme Court of the State of New York, Appellate Division,
First Department, denied his appellate attorney remuneration for work
related to this habeas petition.
For the reasons set forth below, both the § 2254 petition and
the motion to amend are denied.
FACTS AND PRIOR PROCEEDINGS
In 1994, Childs was convicted in New York State Supreme Court, Bronx
County (Sheindlin, J.), after a jury trial, of the 1992 murder and
robbery of David Schwartz ("Schwartz"), a prominent Manhattan attorney.
See Affidavit of Lisa Cuevas (Counsel for Respondent) in Opposition
("Cuevas Aff.") ¶ 5. Childs testified at trial that he had met
Schwartz the night before the murder. According to Childs, the two
socialized much of the following day, visiting Schwartz's Connecticut
home, shooting pool, and running errands together. Childs testified that
Schwartz lured him to a Bronx motel, promising that they were to meet
some friends and "get some girls." Instead, once at the motel, Schwartz
made several unwelcome sexual advances. Childs, eighteen at the time,
feared being raped by the stronger Schwartz and in a state of "frenzy"
stabbed him twenty-seven times. Childs then left the motel room with
Schwartz's wallet, credit cards, and car keys. Over the next few days,
Childs made several purchases with Schwartz's credit cards. See
generally Trial Transcript ("Tr.") at 1220-1308 (Childs's testimony).
Substitution of Counsel and Denial of Continuance
Roughly three weeks before the trial was scheduled to begin, Childs's
court-appointed attorney, Joel Peister ("Peister"), informed the trial
court that his recurring arthritis was inflamed and could hinder his
representation of Childs at trial. See Cuevas Aff. ex 14 (Calendar Call
Transcript ("Cal. Tr.")) at 3. The court therefore assigned another
attorney from the homicide panel, Larry Sheehan ("Sheehan"), to assist
Peister. About ten days later, one week before trial, Peister requested a
one-month adjournment, explaining that his arthritis had worsened and
would prohibit him from sitting in a courtroom all day and working
nights, as trying the case would entail. Cal. Tr. at 3. He gave no
assurance that he would be well enough to try the case after thirty
days, but argued that the continuance should nevertheless be granted
because he had been preparing for eighteen months, the case was complex
and highly publicized, and he and Childs had developed a "close
relationship." Cal. Tr. at 3-8.
Justice Sheindlin denied the request for a continuance and relieved
Peister. When Peister objected, asserting that "no harm" would come from
the continuance, the court replied that the case had been pending for
eighteen months and that further delay would indeed harm "the system."
Peister retorted that the prosecution and another judge were responsible
for much of the delay, but Justice Sheindlin reminded counsel that the
court had just a week earlier sought to avert any disruption from
counsel's ailment by assigning Sheehan to assist. Peister then told the
court that Childs wished to personally make a statement regarding his
representation, and the following colloquy transpired:
The Court: He has no choice in the matter, sir. I'm
not interested in what he wants.
Mr. Peister: He has the right to counsel of his own
The Court: He does? Yes, he does. Let him hire one.
Does he want to hire you, sir?
Mr. Peister: I'm sure he wishes he could.
The Court: Let him hire you. If he doesn't have a way
to hire a lawyer, he doesn't have a right to choose
his lawyer. I will hear him.
Cal. Tr. At 7. After hearing from Childs, who said he did not want a new
attorney, Justice Sheindlin reiterated his ruling and set the case down
for a pre-trial suppression hearing in two days. Cal. Tr. at 8. Peister
did not argue that any continuance was necessary to enable Sheehan to
prepare for the hearing or trial. In fact, Peister said that he had
anticipated the court's ruling and had already handed over almost the
entire case file to Sheehan. Two days later, a pre-trial suppression
hearing went forward with Sheehan representing Childs. Brief in Support
of the Petition ("Pet.") at 6-7. One week after Peister had been
relieved, the trial commenced, again with Sheehan representing Childs.
Pet. at 7. At no time did Sheehan move for a continuance or assert that
he was not prepared to represent Childs.
The jury, rejecting an extreme emotional disturbance ("EED") defense,
found Childs guilty of felony murder and robbery. Tr. at 1514-1519.
Childs is now serving concurrent prison terms of from twenty-five years
to life on the murder conviction and eight and one-third to ...