Pierotti v. Walsh, Civil Action No. 03-3958 (DRH)
| Decision Date | 13 May 2015 |
| Docket Number | Civil Action No. 03-3958 (DRH) |
| Parties | JOHN PIEROTTI, Petitioner, v. JAMES WALSH, Superintendent, Sullivan Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
For Petitioner:
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022
By: Christopher Harris, Esq.
Daniel D. Adams, Esq.
For Respondent:
Nassau County District Attorney
262 Old Country Road
Mineola, NY 11501
By: Jason P. Weinstein, Esq.
Margaret E. Mainusch, Esq.
John Pierotti ("Pierotti" or "Petitioner") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, vacating his conviction for two counts of murder in the first degree, one count of criminal possession of a weapon in the third degree, and one count of criminal possession of a weapon in the third degree. In support of the petition, Petitioner maintains he was denied a fair trial because he could not hear the proceedings (the "audibility claim"), and was denied effective assistance when trial counsel failed to insist on accommodations. Additionally, Petitioner asserts he was denied his right to effective assistanceof appellate counsel as a result of that counsel's failure to raise the audibility claim and the ineffectiveness of trial counsel. For the reasons set forth below, the petition is denied.
The crimes underlying Petitioner's conviction were the December 23, 1998 shooting deaths of Willis Frost and Gerard Kennedy outside the Dragger Inn, a bar in Baldwin, New York. The evidence at trial suggested that Petitioner had been drinking that evening and was armed with a loaded handgun. Outside of the Dragger Inn, Petitioner became involved in an altercation with Frost and Kennedy, who were in a van parked next to the bar. When the altercation ended, both Frost and Kennedy were dead. In statements to the police, Petitioner admitted he shot both individuals but claimed he was acting in self-defense. Petitioner was arrested, indicted and subsequently convicted of two counts of first degree murder, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree after a jury trial in Nassau County.
Petitioner now claims that, due to a severe hearing impairment and two broken hearing aids, he was unable to hear major portions of his trial and was therefore deprived of his Sixth Amendment rights. According to Petitioner, because of the nature of his hearing impairment he was only able to hear and understand a speaker speaking directly to him while facing him and that, any time there were multiple speakers, or a single speaker facing away from him, his hearing was severely limited. Petitioner normally wears two hearing aids but at the time of the trial his only working hearing aid had been broken.
A multi-day pretrial hearing was conducted in January and February 2000 on the issue of the voluntariness of certain statements by Petitioner. Pierotti was represented at the hearings by Michael Fishman, Esq. ("Fishman"). Prior to the February 28, 2000 session, the direct examination of Pierotti was concluded. At the beginning of the February 28 session, when the Clerk inquired if Defendant was ready, Pierotti answered "no." Fishman then went on to explain to the judge that Petitioner's had an issue concerning medication. He also advised the judge that Pierotti's "hearing aid was broken in the jail" and that "he has extreme difficulty hearing, so that if we are going to proceed, we have got to make some accommodations for his hearing loss at this time." (Tr. 132.)1 The judge denied the request for a continuance, focusing on the medication issue. After addressing some housekeeping matters, Pierotti was called back to the stand and the following colloquy took place:
Mr. Walsh, please keep your voice up.
Mr. Pierotti, if you have any problem hearing anything, you let me know.
All right, you may inquire, counsel.
(Tr. 138-39.) Pierotti then testified and responded to questions; at times he asked the prosecutor to repeat certain questions. (See id. at 139-97.) Once, Pierotti responded, "I didn't hear you." (Id. at 188.) The prosecutor repeated the question and Pierotti reponded. After that exchange Pierotti did not indicate any problem with an ability to hear. (See generally Hearing Tr.). Later in the hearing he evidenced an ability to follow the proceeding when he interrupted a detective's testimony by yelling out, "That's a lie." (Id. at 203.)
II. Trial and Sentencing
The trial commenced in June 2000 with Pierotti now represented by Mark Goidell, Esq. ("Goidell"). At that time Petitioner's hearing aid was still broken. (Hinckle Declar. ¶ 8.) The transcript does not reveal that the Judge was apprised of that fact; nor does it reveal any requests or complaints by Petitioner or his counsel regarding any hearing problems. (See generally Trial Tr.) During the charge conference, the court directly questioned Petitioner regarding his decision not to request certain manslaughter instructions. Petitioner was asked if he understood what was going on and responded "yes." He did not complain of or mention an inability to hear. Pierotti asserts that he continuously advised Mr. Goidell that he could not hear the proceedings. (Hinckle Declar. ¶ 8.) According to an affidavit submitted by Goidell, Pierotti told him he had no working hearing aids during one of their early meetings at the jail. (Hinkle Declar. Ex. 14-G.) He recalls "but [is] not certain, that the court turned on the assisted listening devices,[2] either in response to a direct request that I made or perhaps sua sponte" and does not recall any other steps taken to assist Pierotti." (Id.) The record, however, does not reveal any such request. Goidell further stated:
On June 26, 2000, the jury found Pierotti guilty on two counts of first degree murder, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. (Trial Tr. 852-56.)
Petitioner was sentenced on August 31, 2000. During several exchanges with the court, neither Pierotti nor his counsel referenced an inability to hear either then or during the trial.
On appeal, Pierotti was represented by new counsel, Mark Diamond, Esq. The brief on appeal contained seven arguments, none of which related to claims of ineffective trial counsel or the lack of accommodation at trial for Pierotti's hearing impairment.
According to Petitioner, he attempted to contact Diamond several times to discuss several issues including his inability to hear the trial proceedings and trial counsel's failure to raise the hearing issue during the trial. After several letters to Diamond, Petitioner finally received a letter in response dated June 1, 2001, explaining that the brief had been filed and why Diamond did not raise some of the arguments Pierotti raised in his letters.
The Appellate Division, Second Department, affirmed Pierotti's conviction on February 25, 2002 and leave to appeal to the New York State Court of Appeals was denied on June 25, 2002. People v. Pierotti, 291 A.D.2d 574, 737 N.Y.S.2d 879 (2d Dept.), leave to appeal denied, 98 N.Y.2d 679 (2002).
Petitioner timely filed the instant pro se petition for a writ of habeas corpus on August 7, 2003, asserting the same seven arguments presented in his state appeal. With the petition, Pierotti filed other papers which, as discussed below, referenced his inability to hear and the ineffectiveness of counsel. Thereafter the Legal Aid Society and Latham & Watkins entered the case as Pierotti's pro bono counsel and filed a reply addressing the following issues: Petitioner's inability to hear during his trial and the ineffective assistance of both his trial and appellate
In November 2006 Petitioner's counsel informed this Court that Petitioner intended to exhaust the three...
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