Hearing-impaired criminal defendant may bring habeas petition for ineffective assistance of counsel

This guy was convicted of murder even though he claimed self-defense. He brings a habeas corpus petition, claiming ineffective assistance of counsel because his lawyer did not do anything about the fact that the defendant was hard of hearing and could not hear what was happening at trial. The Court of Appeals says the defendant may have a point.

The case is Pierotti v. Walsh, decided on August 24. The defendant is a sympathetic party here, as the Court of Appeals (Pooler, Livingston and Lohier) notes that he complained to the judge that he could not hear what as happening in his own case. The Court rules in his favor, but not on the actual question of whether his lawyer blew it in not requesting an accommodation for his disability. Instead, the Second Circuit says merely that the district court has authority to hear this case despite the lower court's finding that the murder conviction could be sustained on independent state-law grounds. (Habeas petitions challenge the federal constitutionality of criminal convictions).

The issue of whether someone's conviction can be challenged in a federal habeas petition in light of an "adequate state law grounds" objection is complicated, but for this case, the bottom line is that while the failure to follow certain state-law procedures in initially challenging the conviction may provide a basis to prevent the federal court from entertaining the habeas petition, there are exceptions to that rule, including if the procedural bar was required in the particular facts of each case.

In this case, New York law held that Pierotti did not have to raise his ineffective assistance claim on direct appeal from his conviction. So, his failure to do so here is not fatal to his federal habeas claim. This is so because some ineffective assistance claims cannot be raised on direct appeal because there is no trial court record to reply upon in support of such an appeal. You have to bring what we call a 440-action to create a new record in support of your criminal appellate challenge. That is what Pierotti did here, as "his claim depended on some facts appearing on the trial record, such as his trial counsel's failure to secure an accommodation for Pierotti's hearing impairment, but his claim ultimately turns on facts appearing outside the record, such as his trial counsel's alleged awareness of Pierotti's hearing impairment.

What it all means for this guy is that the federal trial court has authority to decide Pierotti's habeas claim that his trial lawyer dropped the ball for him at trial. It does not mean that he walks free. It means he has the opportunity to prove to the lower federal court judge that this alleged ineffective assistance deprived him of a fair trial.