Pierotti v. Walsh
| Decision Date | 24 August 2016 |
| Docket Number | August Term, 2015,Docket No. 15–1944–pr |
| Citation | 834 F.3d 171 |
| Parties | John Pierotti, Petitioner–Appellant, v. James Walsh, Superintendent at Sullivan Correctional Facility, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Daniel D. Adams, Latham & Watkins LLP, New York, NY, for Petitioner–Appellant.
Sarah S. Rabinowitz (Tammy J. Smiley, Judith R. Sternberg, on the brief), for Madeline Singas, District Attorney for Nassau County, Mineola, NY.
Before: POOLER, LIVINGSTON, and LOHIER, Circuit Judges.
POOLER
, Circuit Judge:
John Pierotti claims that he was sentenced to life in prison after a trial that he could not hear. Pierotti suffers from a hearing impairment that requires him to use hearing aids, but those aids were broken during Pierotti's trial for murder. He says that although he told his trial counsel that he could not hear during his trial, counsel never requested an accommodation for Pierotti's disability.
Pierotti now contends that he received ineffective assistance of counsel. He presented this argument to a state court on collateral review, but the court declined to address its merits, concluding that the claim was procedurally barred because Pierotti could have brought it on direct appeal. The district court held that this decision rested on a state procedural ground that was “independent” of federal law and “adequate” to preclude federal habeas review.
We disagree. We hold that this case falls within the limited category of exceptional cases where the “exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.” Lee v. Kemna , 534 U.S. 362, 376, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002)
. Accordingly, the district court was not precluded from reviewing the merits of Pierotti's ineffective assistance of counsel claim. We vacate the judgment of the district court and remand for the court to consider the merits of Pierotti's claim.
In 1998, John Pierotti shot and killed two men outside of a bar. He was arrested and charged principally with two counts of first-degree murder. Pierotti admitted to shooting the men, but, at trial, argued that he acted in self-defense. The jury disagreed and convicted Pierotti of murder. The judge sentenced him to life imprisonment without the possibility of parole.
Pierotti has had a hearing impairment since he was a child. An audiologist has determined that Pierotti has a “bilateral sensorineural hearing loss
,” which is a “hearing impairment due to an abnormality of the functioning of the auditory nerve located in the inner ear.” App'x at 1147. Pierotti accordingly wears hearing aids in both of his ears.
Shortly before a pretrial hearing, the only hearing aid that Pierotti had with him in jail broke. At the beginning of the hearing, the clerk asked Pierotti if he was ready to proceed. Pierotti responded, “No.” App'x at 141. Pierotti's lawyer at the hearing told the court that Pierotti's hearing aid had been broken in jail and that Pierotti was having “extreme difficulty hearing,” so that, if the court was going to proceed, it would have to “make some accommodations for his hearing loss.” App'x at 141. Counsel requested a continuance, but the court denied the request. The following colloquy then ensued:
App'x at 147-48. Pierotti then testified and responded to questions. At times he asked the prosecutor to repeat certain questions.
Pierotti was represented by new counsel at trial. The trial record does not indicate whether counsel was aware that Pierotti had a hearing impairment. According to Pierotti, his hearing aid was still broken during his trial. The trial was conducted in a different, larger courtroom than the pretrial hearing. Pierotti claims that he “was only able to understand limited parts of [his] trial,” that it was “most difficult for [him] to understand when more than one person was speaking at a time or when the person speaking was at a distance or facing away from [him],” and that he had a “very difficult time understanding witnesses who were testifying from the witness stand.” App'x at 1119. He says that he told his trial counsel many times that he was unable to hear what witnesses were saying and that counsel often responded by telling Pierotti to be quiet. He says that trial counsel refused to explain to him what witnesses were saying during the trial, that counsel would sometimes explain the proceedings outside of court but told him that he “did not need to hear all of the proceedings,” and that counsel “did not once ask the judge to make any accommodations for [his] hearing impairment.” App'x at 1120.
Following his conviction, Pierotti filed a notice of appeal. He was again represented by new counsel on appeal. Pierotti's appellate counsel raised a number of issues, but he did not argue that Pierotti's trial counsel was ineffective in failing to secure an accommodation for Pierotti's hearing impairment. The Appellate Division affirmed the conviction on direct appeal, and a judge of the New York Court of Appeals denied leave to appeal.
Pierotti then filed a timely petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254
. In his federal habeas suit, Pierotti asserted that he was denied his constitutional right to effective assistance of counsel because of his trial counsel's failure to secure accommodations for his hearing impairment. He requested that the district court stay his federal habeas proceedings so that he could exhaust this claim in state-court collateral proceedings. The court granted the request.
Pierotti then filed a motion to vacate his conviction in state court pursuant to N.Y. Criminal Procedure Law § 440.10
.1 He argued principally that his trial counsel was ineffective in failing to secure an accommodation for his hearing impairment. In support of his petition, Pierotti submitted twelve exhibits that were not part of the trial record. Included in these exhibits was an affidavit from trial counsel in which counsel acknowledged—for the first time on the record—that Pierotti told him that he normally wore hearing aids to help with his hearing ability, but that he did not have any working aids during the trial. Counsel further acknowledged the following:
App'x at 1141. None of this information was part of the trial record.
Pierotti's exhibits also included four hearing tests performed by the department of corrections documenting the severity of his hearing disability, an affidavit from Pierotti attesting to his inability to hear witnesses and counsel at trial and that he advised trial counsel of that fact, affidavits from four family members, three of whom witnessed Pierotti visibly struggling to hear during trial and who told trial counsel that Pierotti could not hear the proceedings, and an affidavit from an expert audiologist who analyzed the courtroom in which Pierotti was tried and concluded that Pierotti's disability would have made it difficult for him to understand his trial proceedings without accommodations. Again, none of this information was part of the trial record.
The state court denied Pierotti's Section 440.10
motion on procedural grounds without a hearing. The court held that because “the issue of the defendant's hearing impairment was available pre appeal, the issue could have been raised upon appeal and [Pierotti's] failure to do so preclude[s] consideration of his claim now” pursuant to Section 440.10(2)(c). App'x at 1238.2 A justice of the Appellate Division denied leave to appeal.
With his state remedies exhausted, Pierotti returned to federal court to assert his ineffective assistance of trial counsel claim. A magistrate judge reviewed the record that had been before the state court, including the twelve exhibits Pierotti submitted, and recommended denying Pierotti's petition. Over Pierotti's objection, the district court adopted the magistrate judge's recommendation, holding that it could not review the merits of Pierotti's claim because the state court had rejected the claim on state procedural grounds, which were, in the district court's view, “adequate” to preclude federal habeas review. The court granted a certificate of appealability on the issue, however. The court also stated that, were it to address Pierotti's claim on the...
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