United States District Court, Southern District of New York
May 7, 2001
RAYMOND CHILDS, PETITIONER,
VICTOR HERBERT, SUPERINTENDENT, RESPONDENT.
The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.
DECISION AND ORDER
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 twenty-five
years on the robbery conviction. See Cuevas Aff. ¶ 5.
Appeal and Collateral Attack
On direct appeal, Childs was represented by Andrea G. Hirsch
("Hirsch"), appointed under Article 18-B of New York County Law § 722
("18-B"). Childs unsuccessfully argued, among other things, that he was
denied his right to counsel of choice and equal protection when the trial
court relieved counsel and denied the continuance. See Cuevas Aff. ex. 1
(Brief for Defendant-Appellant). Childs also filed a supplemental pro se
brief on appeal, which, if read liberally, asserts among other things
that the newly assigned counsel provided constitutionally ineffective
assistance in his presentation of the EED defense. See Cuevas Aff. ex. 3
(Appellant's Pro-se Supplemental Brief).
The Appellate Division, First Department affirmed the conviction,
holding that the trial court had permissibly removed counsel:
The obvious concern of the trial court . . . was the
possible delay in the trial that might result from
assigned counsel's physical ailment. The record
justifies the court's concern. Although assigned counsel
requested a 30-day adjournment, he did not provide the
court with any reasonable assurance that he would be
ready to try the case at that time. Nor was there any
objective basis to conclude that counsel would timely
recover. He admitted being "ill" for months and stated
that lately his condition had been "getting worse." As
the case was 18 months old, and there were no indications
when counsel would recover, we find that the necessary
"overriding concerns of fairness and efficiency" existed
to substitute assigned counsel on the eve of trial.
People v. Childs, 670 N.Y.S.2d 4
, 10 (quoting People v. Knowles,
88 N.Y.2d 763, 769 (1996)) leave to appeal denied 92 N.Y.2d 849 (1998).
The court was silent as to the equal protection claim and the pro se
argument regarding ineffective assistance of counsel.
In June 1999, Childs filed this timely § 2254 petition. Hirsch
submitted a voucher to the appellate division seeking compensation for
work related to this petition, but it was denied because her work was
performed "in contemplation of a federal writ." Declaration of Andrea
Hirsch, dated October 7, 2000 ("Hirsch Decl.") ¶¶ 2, 3. Childs then
applied to this Court for Hirsch to be appointed as counsel under the
Criminal Justice Act. Hirsch. Aff. ¶ 7. Judge Koeltl denied the
request, holding that the petition did not meet the threshold requirement
of likely merit. See Order dated 8/13/99 (citing Cooper v. Sargenti,
877 F.2d 170, 172 (2d Cir. 1989) (stating standard for appointment of
counsel)). Nevertheless, Hirsch continues representing Childs pro bono.*fn1
Habeas Claims: Denial of the Rights to Counsel and Equal Protection
Child argues, as he did on direct appeal, that the trial court violated
his rights to counsel and equal protection by replacing assigned counsel
so shortly before trial and denying the continuance. Childs avers that
the trial court denied the continuance because he was indigent, and that
had he hired counsel, the continuance would have been granted. In this
petition, Childs does not claim, as an independent basis for federal
habeas relief, that his replacement counsel was constitutionally
Childs also seeks to amend his § 2254 petition to add another
equal protection claim based on the appellate division's denial of
Hirsch's voucher. See Hirsch Decl. ¶ 6. Childs argues that habeas
petitioners who are represented by the Legal Aid Society ("Legal Aid")
receive fully compensated representation in federal habeas proceedings
pursuant to a contract between Legal Aid and the City of New York, whereas
similarly situated petitioners represented by 18-B attorneys do not
receive state-funded representation.
A. DENIAL OF CONTINUANCE AND DISMISSAL OF COUNSEL
In general, broad discretion is granted to a trial court's decision to
grant or deny a continuance. See Ungar v. Sarafite, 376 U.S. 575, 589
(1964). When a denial of a continuance forms the basis for a habeas
claim, the petitioner must show not only that the trial court abused its
discretion, but also that the denial was so arbitrary and fundamentally
unfair that it violated constitutional principles of due process. See
Ungar at 589; United States v. Ellenbogen, 365 F.2d 982, 986 (2nd Cir.
1966); Hicks v. Wainwright, 633 F.2d 1146, 1149 (5th Cir. 1981); Shirley
v. North Carolina, 528 F.2d 819, 822 (4th Cir. 1975). The Supreme Court
has cautioned, however, that "a myopic insistence upon expeditiousness in
the face of a justifiable request for delay can render the right to
defend with counsel an empty formality." Ungar at 589.
Where a continuance is sought to retain or replace counsel, the right
to choose counsel must be carefully balanced against the public's
interest in the orderly administration of justice. See United States v.
Burton, 584 F.2d 485, 490 (D.C. Cir. 1978). While indigent defendants
have no right to choose their appointed lawyer, see United States v.
Mills, 895 F.2d 897, 904 (2d Cir. 1990), once counsel is assigned, the
Sixth Amendment right to counsel of choice attaches and counsel may not
be removed arbitrarily. See Fuller v. Diesslin, 868 F.2d 604, 607 (3d
The Supreme Court's holding in Morris v. Slappy, 461 U.S. 1, 5 (1983)
is instructive in guiding an assessment of arbitrariness in the context
of a request for a delay of trial. There, the Court concluded that the
trial court did not abuse its discretion or deny defendant's right to
counsel when it denied his mid-trial motion for a continuance to allow
better preparation by his attorney, who had been appointed to represent
petitioner just six days prior to trial after petitioner's originally
appointed counsel was hospitalized for emergency surgery. Morris 461 U.S.
at 5. The Supreme Court, in reversing the circuit court's grant of
habeas, noted that petitioner's new counsel had repeatedly assured the
court of his readiness, a claim that was reinforced by his securing a
hung jury on two of the most serious charges against the petitioner in
his first trial. Additionally, the Supreme Court found that the
petitioner's repeated and "contumacious" requests for his original
attorney were veiled attempts at delaying the trial. Id. at 12. The Court
also held that the circuit court had improperly extended the Sixth
Amendment's reach to guarantee a "meaningful relationship" between an
accused and counsel. Id. at 14.
Determining what is a reasonable delay necessarily depends on all the
surrounding facts and circumstances. See United States v. Burton,
584 F.2d 485, 490 (D.C. Cir. 1978) In this connection, the District of
Columbia Circuit has delineated several factors to consider:
(1) the length of the requested delay; (2) whether other
continuances have been requested and granted; (3) the
balanced convenience or inconvenience to the litigants,
witnesses, counsel, and the court; (4) whether the
requested delay is for legitimate reasons, or whether it
is dilatory, purposeful, or contrived, whether the
defendant contributed to the circumstance which gives
rise to the request for a continuance; (5) whether the
defendant has other competent counsel prepared to try the
case, including the consideration of whether other
counsel was retained as lead or associate counsel; (6)
whether denying the continuance will result in
identifiable prejudice to the defendant's case, and if
so, whether the prejudice is of a material or substantial
nature; (7) the complexity of the case; and (8) other
relevant factors which may appear in the context of any
Id. at 490; accord United States v. Cicale, 691 F.2d 95
, 106-07 (2d
In Linton v. Perini, 656 F.2d 207 (6th Cir. 1981), the Sixth Circuit
granted a habeas petition, holding that the trial court had abused its
discretion and arbitrarily denied petitioner's request for a
continuance. Petitioner's originally retained counsel had requested a
one-month continuance due to obligations which prevented him from
properly preparing for the case as scheduled. The court denied the
request. Counsel withdrew and the court appointed another lawyer, who
immediately moved for a continuance. This request was also denied, as was
counsel's renewed motion on the day of trial. The petitioner was
The court of appeals held that the trial court had acted arbitrarily.
Applying the Burton factors it found that (1) the two to three-week delay
was reasonable given the complexity of the case; (2) this was the
defendant's first request for a continuance; (3) there was no evidence
that the request would be an inconvenience to the parties or any
witnesses; (4) no evidence suggested that the defense was using the
request as a scheme to delay the trial; (5) prior counsel had withdrawn,
leaving no one to try the case; (6) according to Holloway v. Arkansas,
435 U.S. 475 (1978), harmless error tests did not apply to the
deprivation of a procedural right so fundamental as the right to
counsel; (7) the case was quite complex, involving five serious felony
counts along with an issue about the credibility of witnesses, requiring
the new attorney to investigate the complainant's background.
The court concluded that the denial of the continuance violated the
petitioner's Sixth Amendment right to have retained counsel represent
him, and stated that "where the request is reasonable, where there have
been no prior adjournments, where the length of delay is moderate, and
where the adjournment seems to be for legitimate reasons, the court
should allow a reasonable adjournment. . . ." Id. at 209.
Here, Childs requested a month-long continuance for a seemingly
legitimate reason — his attorney's health. But the reasonableness
of this request must be weighed against the absence of any assurance that
counsel would be able to proceed after the adjournment. Childs's trial
involved felony charges and complex issues which required the attorney to
have extensive knowledge of Childs's personal history, but Childs's
replacement counsel, upon assuming his role as lead counsel, did not move
for a continuance. Nor did he object to the timing of the suppression
hearing or the trial, or state that he was unprepared to proceed as
scheduled. It may be presumed that, after eighteen months of
preparation, Childs's original attorney was more knowledgeable about the
case and better prepared for trial than his substitute. But the measure
of due process is not taken strictly by the numbers. Replacing a long
prepared but ailing attorney with an able though hastily prepared attorney
does not in itself equate to ineffective representation that offends due
Whatever this Court may have decided had it been considering the issue
de novo, the trial court's decision does not violate due process unless
it was arbitrary. See Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.
1978). Justice Sheindlin did not deny the continuance or dismiss counsel
without justifiable reason. The case had been pending for eighteen months
already, frustrating the interests of the defendant, the relatives of the
victim, and the public in a speedy resolution. Attempting to maintain the
orderly administration of justice and avert further delay, yet safeguard
the defendant's right to be represented by able counsel, Justice
Sheindlin appointed counsel to assist Peister two weeks prior to the
request for a continuance and three weeks prior to trial. Peister
ultimately could not proceed with the trial as scheduled, but the court
had prepared for this very exigency. While under some circumstances this
Court may view a thirty-day adjournment in a serious felony case as
modest, see, e.g., Linton, 656 F.2d at 211; United States v. Scopo,
861 F.2d 339 (2d Cir. 1988) (court did not err in denying counsel a
four-month continuance), it cannot characterize the trial court's ruling
here as so arbitrary as to deny petitioner his right to due process.
Arbitrariness in connection with a denial of a continuance cannot be
gauged in a vacuum, merely by mechanical reckoning of the number of days
requested. Thirty days may mean far more to an attorney who comes into a
case entirely unfamiliar and unprepared than it does to another, such as
replacement counsel here, who has already expended three weeks on the
matter, who had anticipated the contingency and had prepared for it, and
who had the experience of a week as lead attorney and did not himself
manifest feeling so unready as to prompt his own request for a
continuance. Justice Sheindlin was within his discretion to relieve
Peister and deny the continuance under the circumstances.
Childs makes much of the trial court's failure to expressly consider
the D.C. Circuit's Burton factors, but Burton binds neither Justice
Sheindlin nor this Court, and as the Supreme Court noted in this regard,
there are no mechanical rules to determine when a denial of a continuance
violates due process. See Ungar, 376 U.S. at 589. Rather, "the answer
must be found in the circumstances present in every case, particularly in
the reasons presented to the trial judge at the time the request is
denied." Id.; accord Ellenbogen, 365 F.2d at 986.
Childs argues that the trial court's denial of the continuance and
dismissal of counsel not only violated his Sixth Amendment's right to
counsel, but also his Fourteenth Amendment's right to equal protection.
He points to the trial court's remarks regarding his ability to hire
counsel as proof that it would have granted the continuance if counsel
were hired rather than appointed, and therefore that the Court denied his
right to equal protection under the law. He argues that the implication
of the trial court's comment was precisely what the Supreme Court decried
in Powell v. Alabama, 287 U.S. 45, 57-58 (1932), and that counsel here
was discharged "at such time or under such circumstance as to preclude
the giving of effective aid in the preparation and trial of the case."
Id. at 71.
Read in isolation, the colloquy Childs cites may suggest, as Childs
asserts, that the trial court acted with animus toward him because of his
indigency. Read in context, however, the comment appears at worst to have
been an acerbic, if perhaps excessive, retort during an exchange where
Childs's attorney steadfastly advocated for the continuance after the
Court had already denied the request. Prior to this comment, the court
had stated to Childs's attorney, "[y]ou have my complete sympathy. I'm
sorry that you are not feeling well, but you are not capable of trying
this case alone. I appreciate that and I'm sorry for it, so, therefore,
sir, the answer to the problem is you are respectfully relieved." Cal.
Tr. at 5.
Childs does not raise a constitutionally ineffective assistance claim
in his petition, but he does indeed aver that replacement counsel was
ineffective in his presentation of Childs's EED defense. This argument
forms part of Childs's analysis with respect to whether the denial of a
continuance and replacement of counsel caused him prejudice. This Court
need not reach the issue directly and declines to do so. First, the
denial of the right to counsel is not subject to harmless error
analysis. See, e.g., Fuller, 868 F.2d at 609; United States v. Panzardi
Alvarez, 816 F.2d 813 (1st Cir. 1987); Linton, 656 F.2d at 212; Burton,
584 F.2d at 491 n. 19. So even if this Court had determined that Childs's
right to counsel had been violated, it is academic whether the
replacement of counsel in turn caused him any prejudice at trial.
Second, Childs did not place the question directly before this Court for
consideration as part of his habeas petition — it is simply not
presented here as an independent claim.
Accordingly, for the reasons stated above, the Court denies Childs's
petition claiming that his rights to counsel and equal protection were
violated by the trial court's denial of his request for a continuance of
the trial and replacement of counsel.
B. PETITIONER'S MOTION TO AMEND
Childs's equal protection claim based upon the appellate division's
denial of his 18-B appellate attorney's request for remuneration lies at
one of the many intersections of the federal habeas corpus statute,
28 U.S.C. § 2254, and the Civil Rights Act, 42 U.S.C. § 1983.
Both "provide access to a federal forum for claims of unconstitutional
treatment at the hands of state individuals." Heck v. Humphrey,
512 U.S. 477, 480 (1994). The two statutes differ, however, in their
scope and operation. The habeas statute provides that a district court
shall entertain a petition for a writ of habeas corpus "in behalf of a
person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. § 2254 (a); see also
Preiser v. Rodriguez, 411 U.S. 475, 486 n. 7 (1973) ("traditional meaning
and purpose of habeas corpus [is] to effect release from illegal
custody"). Hence, for all practical purposes, federal habeas corpus
relief is limited to claims that the state court proceedings leading to
the petitioner's detention were tainted with federal constitutional
Historically, petitioners who asserted constitutional errors in
collateral proceedings were heard through habeas petitions, even when the
habeas requests did not directly attack the petitioner's detention. See
Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir 1996) (per curiam)
(citing Lane v. Brown, 372 U.S. 477 (1963); Smith v. Bennett, 365 U.S. 708
(1961)). The modern approach, however, precludes the use of habeas to
redress procedural errors in collateral proceedings. See Franza v.
Stinson, 58 F. Supp.2d 124, 151 (S.D.N.Y. 1999) (citing cases); Ortiz v.
Stewart, 149 F.3d 923, 939 (9th Cir. 1998); Trevino v. Johnson,
168 F.3d 173, 180 (5th Cir. 1999); Williams-Bey v. Trickey, 894 F.2d 314,
317 (8th Cir. 1990). Courts now take the view that "habeas relief is only
available to address errors at trial, and thus possible infirmities in
post-conviction proceedings do not raise constitutional issues that are
cognizable in a petition for habeas relief." Banks v. People, 1994 WL
661100 (S.D.N.Y. 1994) (citing Williams-Bey v. Trickey, 894 F.2d 314, 316
(8th Cir. 1990).
Childs is in custody because of his conviction of state crimes. The
equal protection claim he now seeks to add to his habeas petition does
not allege any constitutional flaw in the prosecution, trial, or direct
appeal of his case. If successful on this equal protection argument,
Childs's petition would not result in his immediate release from
Such claims, however, are appropriately brought under § 1983. See
Murray v. Giarratano, 492 U.S. 1 (1989); Bounds v. Smith, 430 U.S. 817
(1977). In Murray, 492 U.S. at 3, the Supreme Court held that the claims
of indigent death row inmates who complained that the United States
Constitution required that they be provided with counsel at the state's
expense for the purpose of pursuing collateral proceedings related to
their convictions and sentences could be heard under § 1983.
Similarly, in Tunin, actions that challenged the validity of New York
State's parole procedures were held cognizable as § 1983 claims
because, while the petitioners alleged systemic discrimination within
parole decisions, they did not assert a right to release or commutation of
Accordingly, since Childs's proposed equal protection claim is not
cognizable in a habeas proceeding, his motion to amend is denied.
Childs's petition under 28 U.S.C. § 2254 for a writ of habeas
corpus is denied; and the motion to amend the petition is denied.
Because Childs has not made a "substantial showing of the denial of a
constitutional right," this Court will not grant a certificate of
appealability. See Lucidore v. New York State Div. of Parole, 209 F.3d 107,
112 (2d Cir.) (holding that a substantial showing exists where (i) the
issues involved in the case are debatable among jurists of reason or (ii)
a court could resolve the issues in a different manner or (iii) the
questions are adequate to deserve encouragement to proceed further).
The Clerk of Court is directed to amend the judgment to reflect the
denial of a certificate of appealability, and Childs's time to file a
notice of appeal shall begin to run from the entry of such amended