Wednesday, August 24th, 2016

Second Circuit Updates – August 24, 2016 – Part 2

I. A state court’s ruling denying collateral review of a “mixed claim” of  ineffective assistance of counsel (involving matters on the record and outside of the record),  on the procedural ground that the claim was not raised on direct appeal, was not “adequate” to bar federal habeas corpus review (28 U.S.C. § 2254).

Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), holds that a state prisoner’s claim of ineffective assistance of counsel (“IAC”) was not procedurally barred under 28 U.S.C. § 2254 .

A. The state trial

Petitioner Pierotti has been hearing impaired since childhood. He “wears hearing aids in both ears,” and “the only hearing aid he had with him in jail broke.”  At a pretrial hearing, his lawyer asked for a continuance to make “some accommodation for his hearing loss.”  The judge denied the request saying “this is a very small courtroom” and suggesting that Pierotti’s hearing was fine.  Pierotti then testified at the pretrial hearing, but at times “asked the prosecutor to repeat certain questions.”

At trial, however,  Pierotti was  “represented by new counsel”;  the trial was conducted “in a different, larger courtroom than the pretrial hearing”; and the “trial record does not indicate whether counsel was aware that Pierotti had a hearing impairment.”  Mr. Pierotti “says 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.”

  B. Post-trial proceedings in state court

On the State appeal, appellate counsel raised several 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 conviction was affirmed.

Mr. Pierotti subsequently initiated a state-court collateral proceeding — a motion to vacate the judgment under N.Y. Crim. Proc. Law § 440.10. His 440 motion presented 12 exhibits that had not been part of the trial record. It included an affidavit from his trial lawyer relating off-the-record conversations with Pierotti concerning his difficulty hearing during the trial. Also included were 4 hearing tests of the department of corrections documenting the severity of Mr. Pierotti’s  hearing disability; an affidavit from an “expert audiologist” about the difficulty the particular courtroom in which he was tried presented to his ability hear;  and affidavits from Pierotti, and from family members who attended the trial,  describing his hearing problems during the trial.

The State judge “denied Pierotti’s Section 44.10 motion on procedural grounds without conducting a hearing.” Op. at 9.  The judge relied on § 440.10(2)(c) which provides that a 440 motion must be denied when there are sufficient facts on the record to permit a claim to be reviewed on direct appeal, but the movant failed to raise it. The Appellate Division denied leave to appeal.

C. Federal habeas corpus petition: “adequacy” of state procedural bar

On Pierotti’s motion for federal habeas corpus relief, under 28 U.S.C. § 2254, the district court concluded that it was barred from reviewing the merits of his IAC claim because the state judge’s rejection of the claim rested on an “independent and adequate state ground.” Op. 13.  It granted a certificate of appealability on the issue.

On appeal, Pierotti did not dispute that the state procedural bar was “independent” of federal law. “The only question is whether it was ‘adequate’ to preclude federal habeas review.” Op. at 13.

There are “two kinds of challenges to the adequacy” of a state court bar.  First, the bar must be “firmly established and regularly followed by the state in question.”Op. at 13-14 (citations and internal quotation marks omitted).  Second, even if a procedural bar is “firmly established and regularly followed,” the adequacy of the bar can be challenged “where the state court’s application of the rule is ‘exorbitant,’ ‘render[ing] the state ground inadequate to stop consideration of a federal question.’” Op. at 14 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)).

It was not disputed “that Section 440.10 is ‘firmly established and regularly followed.” Op. at 14.  But the Circuit concluded that the state judge’s reliance on the rule to bar Pierotti’s IAC claim represented “an ‘exorbitant application’ of the state rule.” Op. at 22.

The Circuit’s guideposts were the three considerations identified in Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir.  2003): i.e., whether the procedural violation was actually relied on in the trial court; whether state caselaw indicated that compliance with the rule was demanded “in the specific circumstances presented”; and whether the petitioner substantially complied with the rule and whether demanding “perfect compliance” would serve legitimate government interests. Op. at 14-15.

The weight of New York caselaw showed that  § 440.10(2)(c) does not ordinarily bar IAC claims based on off-the-record conversations between a defendant and counsel. Op. at 15-17. On the contrary, when an IAC claim turns on facts not on the record, “the claim must be brought in collateral proceedings, not on direct appeal.” Op. at 17 (emphasis in original).  And in the case of a “mixed” IAC claim — where some of the allegations of ineffectiveness are on the record, while others are outside of the record — a 440 motion is the appropriate forum for reviewing those claims. Op. at 18-21.

Here, the Circuit concluded that “the essential facts of Pierotti’s claim (namely, Pierrotti’s alleged hearing difficulties at trial, the extent of those difficulties, and trial counsel’s awareness of them) are dependent on evidence outside the trial record.” Op. at 21.  Since New York law did not indicate that “claims like Pierotti’s must be raised on direct appeal under Section 440.10(2)(c),” the state judge’s reliance on that procedural bar was an “‘exorbitant application’ of the state rule” and therefore “inadequate” to preclude federal habeas review of Pierotti’s IAC claim. Op. at 22.

II. Supervised Release:  district court’s power to revoke supervision and impose a sentence after the term has expired (18 U.S.C. § 3583(i)).

The issue in United States v. Owen Edwards, No. 15-741-cr (Circuit Judges: Sack, Raggi, and Droney), concerns a district court’s power — under 18 U.S.C. § 3583(i) — to revoke a supervised release term, after the term expires, based on violations that were not charged in the warrant or summons that was filed before the term of supervision was scheduled to end.

A few months before Edwards’s 3-year term of supervised release expired, he was charged with a single Grade C violation: traveling without authorization outside of the supervision district (of Connecticut) to California.  The warrant petition and the warrant for his arrest were issued in June 2014.  The supervised release term was scheduled to expire on December 4, 2014.  Prior to that expiration date, on August 15, 2014, the Probation Office submitted a Violation Report formally charging  him with the Grade C travel violation.  The Report stated that his presence in California was discovered (in April 2014), during a traffic stop in which approximately $700,000 was found in a bag. Op. at 6.

Only after the date that the supervised release term was to expire (which, as noted, was December 4, 2014),  did Probation charge three additional violations, including a Grade A violation.  (It did this in 2 amended Violation Reports filed on Dec. 23, 2014, and Feb. 11, 2015).

The three added charges were: (1) failing truthfully to answer the Probation Officer’s inquiries about the seizure of the $700,000; (2) associating with a convicted felon  (a person who, in a California proceeding,  said the money was his and Edwards) ; and (3)  committing the crime of conspiring to traffic drugs and launder drug proceeds.  Op at  3, 17, 20-22.  The district court found him in violation of these 3 additional charges as well as the travel violation. It ordered him imprisoned for the 24-month maximum (and an additional 1-year term of supervision) “without distinguishing among the various violation charges” in pronouncing the sentence. Op. at 24-25.

On appeal, Edwards argued that, under 18 U.S.C. § 3583(i), the court exceeded its authority by revoking his supervised release “based on certain violations formally charged only after the expiration of his supervision term.” Op. at 25 (emphasis added). These were the charges that he failed truthfully to answer his Probation Officer’s questions about the seizure of the $700,000, and that he had conspired to traffic drugs and launder drug proceeds.  Op at 3.

Section 3583(i) provides that a court’s power to revoke supervision “extends beyond the expiration of the term” for a period reasonably necessary to adjudicate “matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.Id. § 3583(i) (emphasis added). The Circuit held that, under 3583(i) , a court’s “extended revocation authority” is not limited to the specific violation charged in the triggering warrant. Op. at 29-30.  It held that “the plain language of 3583(i) empowers a district court to revoke supervised release based on such additional violations where, as here, those violations involve conduct related to the violation charged in the timely warrant, which conduct was disclosed to the defendant so as to afford adequate notice and opportunity to be heard.” Op. at 32 [footnote omitted].

The Circuit said its decision rested on rules of statutory construction. Op. at 29-35. It also rejected Edwards’s analogy to the relation-back rule that applies to superseding indictments filed after the statute of limitations expires.  (Such superseding indictments may present charges that relate back to an earlier timely-filed indictment only if the superseding indictment “does not materially broaden or substantially amend the original charges.” Op. at 36-37).  The Circuit stated that the relation-back rule “does not extend a statute limitations,” but merely identifies charges that are narrow enough to be filed without violating the statute of limitations. And, unlike a conviction, revocation of supervised release “does not punish the conduct violating supervised release” but only “assesses the betrayal of trust evidenced by the violation.” Op. at 36-37.

Comments are closed.