Petrucelli v. Smith

Decision Date03 August 1982
Docket NumberNo. CIV-80-1056C.,CIV-80-1056C.
Citation544 F. Supp. 627
PartiesJohn PETRUCELLI, Petitioner, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent.
CourtU.S. District Court — Western District of New York

Philip B. Abramowitz, Buffalo, N. Y., for petitioner.

Robert Abrams, Atty. Gen., State of N. Y. (Patrick O. McCormack, Asst. Atty. Gen., Buffalo, N. Y., of counsel), for respondent.

CURTIN, Chief Judge.

INTRODUCTION

This habeas corpus action challenges John Petrucelli's second conviction for the murder of Joseph Gernie who, along with Liberto Moresco, was killed in a barroom shootout in Bronx County, New York in 1968. Because he was a fugitive for several years, Petrucelli was not tried until 1973 for the murders of both men and the felonious possession of a weapon. The jury acquitted him of Moresco's murder, but found him guilty on two other counts: manslaughter in the first degree for Gernie's death, and the illegal possession of a weapon. He was sentenced to concurrent prison terms of eight and one-third years to twenty-five years for the manslaughter charge and up to seven years on the weapons charge.

Petrucelli appealed his conviction to the New York Supreme Court, Appellate Division, First Department. On March 31, 1974, that court reversed the conviction due to the pervasive "unethical" and "prejudicial" misconduct by the prosecutor. People v. Petrucelli, 44 A.D.2d 58, 353 N.Y.S.2d 194 (1st Dep't 1974). Petrucelli immediately moved to ban his second trial on grounds different from those raised here. When that motion was denied, he was retried in 1975. Once again, Petrucelli was convicted of manslaughter in the first degree for Gernie's death and the felonious possession of a weapon. Again he appealed. Among other grounds raised on that appeal, Petrucelli contended the prosecutor's introduction of testimonial evidence relating to Moresco's death violated his rights because he had been acquitted of Moresco's murder at his first trial. The Appellate Division affirmed his second conviction without opinion. Leave to appeal to the New York Court of Appeals was denied on May 26, 1978.

Petrucelli then came to this court seeking collateral federal relief from his state conviction. After listening to argument, I determined he had not exhausted his state remedies on his claims. I therefore dismissed his application with leave to renew after he fulfilled his prerequisites to federal court intervention. Order, CIV-78-477C (September 28, 1978).

Petrucelli returned to the state courts for redress. There he applied for a state writ of habeas corpus, objecting to his second conviction on double jeopardy grounds. He alleged for the first time that the prosecutor's misconduct at his first trial barred his retrial for the same crimes under United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Justice John S. Conable denied the application in a written Memorandum and Order on March 16, 1979. The New York Supreme Court, Appellate Division, Fourth Department affirmed Justice Conable's decision without opinion. On June 30, 1980 the New York Court of Appeals concurrently dismissed petitioner's appeal and denied leave to appeal.

Having by this time completed his protracted trek through the state judicial system, Petrucelli once again seeks a federal writ from this court. He advances two grounds for habeas relief. First he claims that his second trial was constitutionally barred under the Double Jeopardy Clause of the Constitution by virtue of the prosecutor's misconduct at his first trial. As a second basis for relief, he asserts that the prosecutor's use of evidence relating to Moresco's murder, of which he was acquitted at his first trial, infringed his constitutional rights "Moresco evidence claim".1

FACTUAL BACKGROUND

The facts surrounding Petrucelli's conviction can be briefly summarized. In the evening of December 22, 1968 the victims, Joseph Gernie and Liberto Moresco, entered the Glass Post Bar in Bronx County together. John Petrucelli, Anthony Zinzi, and Ernest Coralluzzo walked into the same bar approximately half an hour later. At that time the only other people in the bar were John Ferolito, the bar owner, and Geraldine Paciulli, a bartender. As soon as Petrucelli, Zinzi, and Coralluzzo came in, Ferolito sent Paciulli to the White Castle Restaurant across the street for coffee.

Within minutes, James Donlan, a car mechanic, heard gunfire and other noises as he drove past the Glass Post Bar. He also saw three men dart out of the building. Driving off, Donlan spotted two policemen who called for assistance and returned to the bar with him. Ferolito was standing outside and told them that someone had been shot. Inside the bar, Joseph Gernie lay on the floor, dead from gunshot wounds.

The two police officers proceeded to cross the street to the White Castle Restaurant parking lot. Immediately before the police appeared, Theresa Napoli, a White Castle carhop, observed a man later identified as Moresco walking in the parking lot with a gun in his hand. She then saw a blue automobile pull up to Moresco with its horn blowing persistently. As she watched, Moresco flew into the air, apparently having been hit by the car which quickly sped away. When the two policemen arrived five minutes later, Moresco was kneeling on the ground and bleeding. The police rushed him to the hospital where he died of gunshot wounds half an hour later.

Petrucelli fled the scene with his girlfriend, Joan Platta. Platta later testified for the prosecution, stating that Petrucelli told her he had killed Moresco in self-defense. Petrucelli voluntarily surrendered to the authorities in November 1972.

In the meantime, Petrucelli, Coralluzzo, Zinzi and Ferolito were indicted for two counts of murder. Coralluzzo was tried and acquitted. Zinzi pled guilty to assaulting Moresco, and Ferolito pled guilty to criminal solicitation for his participation in the incident of December 22, 1968. Petrucelli was not tried for Gernie's murder until several years after the conclusion of the criminal proceedings against the others.

EXHAUSTION OF STATE REMEDIES

The threshold inquiry of every federal habeas court is whether the habeas applicant has fully exhausted all available state court remedies. 28 U.S.C. § 2254(b) & (c). Recognizing that the exhaustion requirement in this circuit is quite stringent, see Klein v. Harris, 667 F.2d 274, 282-83 (2d Cir. 1981); Johnson v. Metz, 609 F.2d 1052, 1053-54 (2d Cir. 1979); Sabino v. LeFevre, 490 F.Supp. 183, 186-87 (S.D.N.Y.), aff'd, 630 F.2d 919 (2d Cir. 1980), respondent argues that Petrucelli has failed to exhaust his state remedies in compliance with federal law. The state court records of Petrucelli's two trials reveal that respondent is incorrect with respect to both of petitioner's claims.

The exhaustion doctrine requires that the state courts must have had a full and fair opportunity to consider an applicant's federal constitutional claims before federal habeas relief on those grounds can be granted. Klein v. Harris, supra; Johnson v. Metz, supra. Petrucelli asked the state courts to resolve his constitutional Moresco evidence claim on direct appeal from his second conviction. He argued that the evidence concerning the circumstances of Moresco's death should not have been introduced at trial because he had previously been acquitted of Moresco's murder. Although the federal constitutional dimensions of this claim were not artfully described, petitioner asserted that the "admission of the Moresco evidence ... deprived him of a fair trial and due process of law.2 Brief of Defendant-Appellant, Appellate Division, First Department, p. 10 (Trial II). He later argued that "it is inconsistent with the fundamental principles of due process to have admitted such evidence." Id. at 13. As in Twitty v. Smith, 614 F.2d 325, 332 (2d Cir. 1979), petitioner's mention of "due process" instantly brings into focus the fourteenth amendment's due process guarantees. See Rivera v. Smith, 492 F.Supp. 1017, 1018 (S.D.N.Y.1980). But cf. Taylor v. Scully, 535 F.Supp. 272, 274-75 (S.D.N.Y. 1982) (more than reference to "due process" is required).

Petrucelli also cited several federal cases to buttress his claim, including, notably, United States v. Phillips, 401 F.2d 301 (7th Cir. 1968). In the section of the Phillips opinion discussed at length in Petrucelli's appellate brief, pp. 19-20, the Seventh Circuit relied on United States v. Kramer, 289 F.2d 909, 916 (2d Cir. 1961). In that case, Judge Friendly articulated the federal constitutional foundation of a claim such as petitioner's.

For these reasons petitioner has satisfactorily presented his federal constitutional Moresco evidence claim to the state courts for resolution. He is entitled to have the merits considered by this court. See Klein v. Harris, supra at 282; Daye v. Attorney General, 663 F.2d 1155, 1156-57 (2d Cir. 1981) (reargument en banc April 13, 1982).

Petitioner's constitutional prosecutorial misconduct-based double jeopardy claim is in a different posture before the court than his Moresco evidence claim. He presented this ground for redress to the state judiciary for the first time in an application for a state writ of habeas corpus after he completed his direct appeals from his second trial. Justice John S. Conable denied the petition, declaring:

If there had been no appeals, this Court would grant the relief sought. In view of the outcome of those appeals, however, this Court feels that it's sic instincts about the law are wrong. Both the Appellate Division decision and the action of the Court of Appeals were long after U.S. v. Dinitz was decided. This Court feels that the Appeal where Double Jeopardy was argued has established the law as it applies to this particular case. This Court is bound by the action of the Appellate Division.

Memorandum and Order, New York Supreme Court, Wyoming County, p. 3 (March 16, 1979). The ...

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