Petrucelli v. Coombe, 915

Decision Date18 May 1984
Docket NumberNo. 915,D,915
Citation735 F.2d 684
PartiesJohn PETRUCELLI, Petitioner-Appellant, v. Phillip COOMBE, Jr., Superintendent, Eastern New York Correctional Facility, Respondent-Appellee. ocket 83-2313.
CourtU.S. Court of Appeals — Second Circuit

Lawrence A. Vogelman, New York City (Barry C. Scheck, Cardozo Criminal Law Clinic, New York City, of counsel, Lisa Sarnoff, Sanford Strenger, Law Students, on brief), for petitioner-appellant.

Jeremy Gutman, Asst. Dist. Atty., Bronx County, New York City (Mario Merola, Dist. Atty., for Bronx County, Billie Manning, Asst. Dist. Atty., Bronx County, New York City, of counsel), for respondent-appellee.

Before FEINBERG, Chief Judge, and MANSFIELD and MESKILL, Circuit judges.

MESKILL, Circuit Judge:

John Petrucelli appeals the dismissal of his petition for a writ of habeas corpus by the United States District Court for the Western District of New York, Curtin, C.J. He asserts that his right not to be placed in double jeopardy was violated when the state court prosecutor deliberately attempted to provoke a mistrial and when the state trial court admitted evidence that he committed a murder after he had already been acquitted of the murder in a previous trial. We hold that Petrucelli did not exhaust his state remedies for his second double jeopardy claim. Accordingly, we remand Petrucelli's petition to the district court with instructions to dismiss for failure to exhaust state remedies.


In the evening hours of December 22, 1968, Joseph Gernie and Liberto Moresco entered a Bronx bar together. About half an hour later, appellant Petrucelli walked into the bar along with Anthony Zinzi and Ernest Coralluzzo. Shortly thereafter, a car mechanic heard gunfire erupt from the bar and saw three men dart out of the building. The mechanic notified two policemen who were close by. The policemen called for assistance, entered the bar and found Gernie on the floor, dead from gunshot wounds.

Immediately before the police arrived, a witness across the street from the bar saw a man later identified as Moresco walking in the parking lot with a gun in his hand. An automobile pulled up to Moresco and the witness then saw Moresco fly into the air, apparently having been hit by the car. Moresco died shortly thereafter, but his death, like Gernie's, was caused by gunshot wounds.

Petrucelli had fled the scene and did not reappear until about four years later, when he voluntarily surrendered to authorities. In his first trial, he was acquitted of Moresco's murder but was found guilty of first degree manslaughter in the death of Gernie. The Appellate Division reversed the conviction on grounds of prosecutorial misconduct. After Petrucelli's motion to prevent a second trial for Gernie's death was denied, he was tried and convicted again for the first degree manslaughter of Gernie. His conviction was affirmed without opinion by the Appellate Division and he was denied leave to appeal to the New York Court of Appeals.

After his conviction was affirmed, Petrucelli sought a writ of habeas corpus in federal court. The district court determined that he had not exhausted his state remedies on his claims and dismissed the habeas petition. Petrucelli returned to the state court system seeking collateral relief on the ground that the prosecutor's misconduct at his first trial barred his retrial for the same crimes. His application was denied by the state trial court. The Appellate Division affirmed and he was denied leave to appeal to the Court of Appeals.

Petrucelli then returned to the federal courts seeking habeas corpus relief on two grounds. One was his claim that prosecutorial misconduct barred his retrial for the manslaughter of Gernie. The other was a constitutional collateral estoppel claim that his double jeopardy rights were violated when, at the second Gernie manslaughter trial, the prosecution attempted to prove that he murdered Moresco (the "Moresco evidence"), despite his having been acquitted of that crime previously. Petrucelli also claimed that even if the trial court could have admitted the Moresco evidence, it was constitutionally required to issue a jury instruction stating that Petrucelli had been acquitted of the Moresco murder. See, e.g., United States v. Mespoulede, 597 F.2d 329 (2d Cir.1979). 1

On August 3, 1982, the district court conditionally granted a writ of habeas corpus. 544 F.Supp. 627 (W.D.N.Y.1982). It held that Petrucelli had exhausted his state remedies on both claims and that the prosecutor at the first Gernie trial intentionally attempted to provoke a mistrial by engaging in serious misconduct. See Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). It also analyzed the Moresco evidence claim, apparently concluding that its admission violated Petrucelli's double jeopardy rights and was not harmless error. However, the court did not base the habeas relief it granted on that ground.

The condition the district court attached to the habeas relief it granted was that before the writ issued, the state would be allowed to introduce evidence of the motives for the prosecutor's conduct in the first Gernie trial. After an adversary hearing in which the state offered such evidence, the district court issued another opinion. 569 F.Supp. 1523 (W.D.N.Y.1983). First, it held again that Petrucelli had exhausted his state remedies on both claims. Next, the court held that the prosecutor did not intentionally attempt to improve his chances for a conviction by deliberately provoking a mistrial. Accordingly, it held that relief was not warranted under Oregon v. Kennedy. Finally, the court also reconsidered the constitutional collateral estoppel claim and held that (1) issue preclusion was not a constitutional doctrine, and (2) even if the evidence was admitted in error or a limiting jury instruction was necessary, the error was harmless because the evidence of guilt was overwhelming. Accordingly, the court dismissed Petrucelli's habeas petition on the merits. Petrucelli now appeals.


A prisoner is required to exhaust his state remedies before a federal writ of habeas corpus can be granted (unless state procedures would make exhaustion futile). 28 U.S.C. Sec. 2254(b), (c) (1982); Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam). This requirement gives the state courts "an opportunity to consider and correct any violation of federal law," and thus "expresses respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, --- U.S. ----, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984). Where a petition containing exhausted and unexhausted claims is presented to a federal district court, that court must dismiss the petition, thus giving the prisoner the option of returning to state court to litigate his unexhausted claims or amending his district court petition to delete them. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). If the district court reaches the merits of a petition containing unexhausted claims, a Court of Appeals will remand the petition to the district court for dismissal. See, e.g., Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam); Rose v. Lundy, 455 U.S. at 522 n. 14, 102 S.Ct. at 1205 n. 14; see also Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam).

In order to satisfy the exhaustion requirement, a prisoner must have "fairly presented" the same legal claim to the state courts that he presents in his federal habeas petition. Daye v. Attorney General, 696 F.2d at 191-92. Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982), a habeas petition must put state courts on notice that they are to decide federal constitutional claims. See, e.g., Daye, 696 F.2d at 192. It is not necessary for a habeas petitioner to cite "book and verse" of the Constitution, id. (quoting Picard v. Connor, 404 U.S. 270 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971)), but adequate notice to the state courts that they are to decide federal constitutional claims at least includes:

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Id. at 194.

In his Appellate Division brief, Petrucelli--who was represented by counsel--contended that the introduction of the Moresco evidence "deprived him of fair trial [sic] and due process of law." People v. Petrucelli, No. 621/1975, Br. of Defendant-Appellant, at 10 (hereinafter "Appellant's State Brief"). We do not find that this necessarily "call[ed] to mind a specific right protected by the Constitution" or otherwise put the Appellate Division on notice that it was to decide a constitutional double jeopardy claim. "Alleging lack of a fair trial does not convert every complaint about evidence or a prosecutor's summation into a federal due process claim." Daye v. Attorney General, 696 F.2d at 193 (quoting Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir.1982)). Similarly, a mere statement that "due process" rights have been violated does not necessarily give rise to a specific federal constitutional claim. "Due process," like "fair trial," can be a catchphrase used by habeas petitioners as part of an allegation about any type of trial court error, including errors in rulings based on state law. See, e.g., Nelson v. Hutto, 597 F.2d 137, 138 (8th Cir.1979) (per curiam). Indeed, appellant here used the...

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