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May 7, 2001


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.


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 choice.
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 ...

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