Pallonetti v. Racette
MEMORANDUM AND ORDER: For the foregoing reasons, Pallonetti's petition for a writ of habeas corpus is denied. Ordered by Judge Sandra L. Townes on 8/19/2014. c/m to pro se Petitioner (fwd for judgment) (Fernandez, Erica)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
l l-CV-3563 (SLT)
-againstSTEVEN E. RACETTE,
TOWNES, United States District Judge:
IN ClER~S OFFICE
U.S. Dll'TcaG'r COURT E.. N.Y.
AU:J 19 2014
Petitioner, James Pallonetti, proceeding prose, brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks relief from his conviction in the Supreme
Court of the State ofNew York, Kings County, for murder in the second degree, criminal
possession of a weapon in the second degree, criminal possession of a weapon in the third
degree, and petit larceny. His petition initially asserted both exhausted and unexhausted grounds
for relief, however Petitioner has agreed to voluntarily withdraw his unexhausted claims so that
this Court can review his exhausted claims that are properly before the Court. Rose v. Lundy,
455 U.S. 509, 520 (1982) (allowing a petitioner to delete his unexhausted claims and proceed
with his exhausted claims in a mixed petition). 1 Petitioner's outstanding grounds for relief are
that (I) he was denied due process when the trial court failed to, sua sponte, order an
examination to determine his competency to stand trial; (2) the verdict, which rejected his
extreme emotional disturbance ("EED") defense, was against the weight of the evidence; and (3)
his appellate counsel was constitutionally ineffective. For following reasons, his petition his
Petitioner's letter which voluntarily withdraws unexhausted claims is styled as a
motion, [Docket No. 11], which, out of an abundance of caution, this Court hereby grants.
The Underlying Crime
Pallonetti worked at a bar, B & R Stars Bar, located in Bay Ridge, Brooklyn, which was
co-owned by James Croney and James Trippett. (Pet. at 4-5.) On the night of November 19,
2004, Pallonetti was drinking at the bar, as was Dorothy Adinolfi, Pallonetti's ex-fiancee. (Id. at
3.) Two days before, Adinolfi had broken off their engagement and informed Pallonetti that she
had terminated her pregnancy. (Id. at 3) Pallonetti contends that on the night in question, he had
been off of his prescribed antidepressant and anti psychotic medications and had taken
"tranquilizers to excess." (Id.) He asserts that Trippett flirted and danced provocatively with
Adinolfi to "egg him on," because he and Trippett had an "antagonistic" relationship. (Id. at
10, 12.) According to Pallonetti, he confronted Trippett, but Trippett cursed at him and hit him
over the head with a blunt object. (Id. at 10.) None of the witnesses at the bar, however,
observed Trippett hit Pallonetti. (Id. at 25.) At around 2:00 a.m., Pallonetti took a gun from
behind the bar and used it to fatally shoot Trippett. (Id. at I 0-11.) Petitioner then took cash from
the cash register and fled the scene to a house in Staten Island where he was later arrested. (Id. at
According to the record, Pallonetti was examined by three mental health experts: a
pychologist, Dr. Cheryl Paradis, and two psychiatrists, Ors. Alexander Bartley and Marc Tarle.
None of the three reported any doubts about Pallonetti' s competence to stand trial. Dr. Paradis,
who testified on behalf of the defense, opined that on the night of the shooting, Pallonetti "was
overwhelmed by such strong emotions that ... he was acting out of extreme emotional
disturbance." (Tr. 290: 10-13.) Dr. Bartley, also testifying on behalf of the defense, similarly
concluded that in addition to "an altered mental state because of the various drugs or medications
he had in him[,] ... what he felt that day with regard to the loss of the child, the ending of the
relationship and then the dancing between - and the flirting between Mr. Trippett and Miss
Adinolfi, ... overwhelmed his threshold [such that h]e lost the ability at that moment to rationally
control his behavior and it caused him to act under the influence of an extreme emotional
disturbance" (Id. at 354: 17-355:6.) Dr. Tarle, who testified as a rebuttal witness on behalf of the
prosecution, disagreed with Dr. Bartley's diagnosis of schizoaffective disorder, and opined that
Petitioner was not suffering from EED at the time of the shooting. (Id. at 401 :7-9.) Dr. Tarle
explained that he believed that Pallonetti was not credible. (Id. at 402:1-412:3.) He rejected Dr.
Bartley's diagnosis of schizoaffective disorder, and instead diagnosed Pallonetti with episodic
bipolar disorder or major depressive disorder. (Id. at 416:23-417:4.) He opined that Pallonetti's
"episodic" mental disorders were not consistent with finding EED. (Id. at 412:4-420:15).
Finally, Dr. Tarle opined that nothing that occurred on the night of the shooting was of a
sufficiently "shocking, immediate value" to trigger EED, because tension between Pallonetti and
Adinolfi was ofa "chronic nature." (Id. at 421:15-18; 423:11-16.)
Pallonetti consented to a non-jury trial before Justice Tomei of the Kings County
Supreme Court. Pallonetti admitted to committing the charged acts but asserted that he was
acting under the influence ofEED. Justice Tomei found Pallonetti guilty on all counts and
sentenced him, on June 5, 2006, to a term of imprisonment of twenty years to life.
Pallonetti appealed on the grounds that (I) the trial court should have, sua sponte, ordered a
competency hearing and (2) the trial court's decision to reject his EED defense was against the
weight of the evidence. On May 26, 2009, the Supreme Court ofNew York, Appellate Division,
Second Department, affirmed his conviction. (Id
lO(c)-(d); People v. Pallonetti, 62 A.D.3d
1027, 878 N.Y.S.2d 910 (2d Dept. 2009)). On November 13, 2009, the New York Court of
Appeals denied leave to appeal. (Id.
IO(f); People v. Pal/onetti, 13 N.Y.3d 861, 920 N.E.2d
On December 27, 2010, Pallonetti filed for a writ of error coram nobis in the Supreme
Court of New York, Appellate Division, Second Department alleging that his appellate counsel
was constitutionally ineffective in (I) failing to raise the argument that the trial court erred by not
designating the counts upon which it rendered its verdict as required by NYCPL § 320.20(5), and
(2) failing to raise the ineffectiveness of trial counsel in neglecting to request a competency
hearing or object to the trial court's noncompliance with NY CPL§ 320.20(5). (Pet. Coram
Nobis Br. at 11-13.) The Supreme Court of New York, Appellate Division, Second Department
denied that petition on May 17, 2011. People v. Pallonetti, 84 A.D.3d 1118, 1119, 922 N.Y.S.2d
804 (2d Dept. 2011 ). The New York Court of Appeals denied leave to appeal on November 8,
2011. People v. Pallonetti, 17 N.Y.3d 954, 959 N.E.2d 1029 (2011).
On July 15, 2011, Pallonetti filed his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. After this Court ordered Petitioner to show cause why his petition should not be
dismissed as a mixed petition, on June 26, 2014, Petitioner voluntarily withdrew his unexhausted
claims. Currently before the Court are Petitioner's outstanding claims, namely:
(I) "Petitioner was denied due process when the Court, aware of his psychiatric history
including hospitalizations and his then-current use of medications including an
antipsychotic drug, failed to order, sua sponte, a C.P.L. § 730.30 Examination to
determine his competency to stand trial." (Pet. Br. at 29-35.)
(2) "The verdict rejecting petitioner's EED defense was against the weight of the
evidence when the defense['s] psychiatric proof showed that petitioner, no longer
taking his antipsychotic and antidepressant medications on the night of the shooting,
lost the ability to rationally control his behavior when he saw his ex-fiance flirting
with his boss with whom he had a long-term antagonistic relationship, and shot his
boss as a result." (Id at 36-50.)
(3) "Petitioner was deprived effective assistance of ... appellate counsel" because
appellate counsel did not raise trial counsel's (I) failure to request a competency
hearing, and (2) failure to object when the trial court did not put the counts it was
considering on the record, as required by NYCPL § 320.20(5), thereby depriving him
of "his defense guaranteed him by the Sixth Amendment to the United States
Constitution and New York State Constitution Article I,§ 6." (Id at 57-65.)
A district court may entertain an application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a state court "on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see
also Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. I 04-132,
110 Stat. 1214 (1996).
A. Competence to Stand Trial
Petitioner's argument that he was denied due process when the trial court failed to, sua
sponte, order a competency hearing fails. The Supreme Court has "repeatedly and consistently
recognized that the criminal trial of an incompetent defendant violates due process." Cooper v.
Oklahoma. 517 U.S. 348, 354 (1996) (internal quotation marks omitted). Thus, a trial court must
order an evaluation if"the evidence [raises] a sufficient doubt as to defendant's competence to
stand trial." Perez v. Ercole, No. 09-CV-1985 (SLT), 2010 WL 5475649, at* 11 (E.D.N.Y. Dec.
30, 2010) (quoting Nicks v. United States, 955 F.2d 161, 168 (2d Cir. 1992)). However, there is
such no obligation ifthe trial court "has not been given reasonable cause to believe that the
defendant may be incompetent." Id. (quoting Medina v. McGinnis, No. 04 Civ 2515 (SHS)
(AJP), 2004 WL 2088578, at *12 (S.D.N.Y. Sept. 20, 2004)).
Here, there is absolutely no evidence in the record to suggest that Pallonetti was not
competent to stand trial, and as such, there was no obligation on the trial court to hold a
competency hearing. Pallonetti was examined by three different mental health experts, two of
whom were retained by the defense, and not one of those experts even intimated that Pallonetti
was unable to comprehend the nature of the proceedings or assist in his defense. See United
States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986) ("[S]ince incompetency involves an
inability to assist in the preparation of a defense or rationally to comprehend the nature of the
proceedings, [the absence of] such difficulties provides substantial evidence of the defendant's
competence."). 2 Accordingly, his petition on these grounds is denied.
B. Weight of the Evidence
Petitioner's argument that the verdict rejecting his EED defense was against the weight of
the evidence also fails, because federal habeas relief is not available to a petitioner who
challenges a state conviction on state law grounds. See 28 U.S.C. § 2254(a) (permitting federal
habeas corpus review only where the petitioner has alleged that he is in state custody in violation
of"the Constitution or a federal law or treaty"); Lewis v. Jeffers, 497 U.S. 764, 780
(1990) ("[F]ederal habeas corpus relief does not lie for errors of state law.") "A 'weight of the
evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law §
470.15(5)' which empowers New York State intermediate appellate court[s] to make weight of
the evidence determinations." Garrett v. Perlman, 438 F. Supp. 2d 467, 470 (S.D.N.Y. 2006)
(citing Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N. Y. 2001) (holding that this Court is
"precluded[, on a Section 2254 petition,] from considering [a weight of the evidence] claim.")). 3
Indeed, even Dr. Bardey's psychiatric evaluation, which is appended to the instant
petition (which was not introduced at trial) reports that, at the time he was evaluated,
"Pallonetti' s speech was clear and coherent and there was no evidence of a thought disorder. He
did not appear illogical, circumstantial or tangential. He reported no hallucinations or
delusions .... He was alert and oriented in all spheres and did not appear to harbor specific
cognitive deficits at this time .... His judgment appeared currently intact.. .. " (Pet. Ex. 1at14).
Nor could Petitioner successfully recast his weight of the evidence claim as a claim
alleging legal insufficiency - a claim that sounds in federal due process principles. Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979) (holding that the Fourteenth Amendment requires that
Accordingly, because Petitioner has not made out a cognizable habeas claim, his petition on
these grounds is denied.
C. Ineffective Assistance ofAppellate Counsel
Finally, Petitioner's argument that his appellate counsel was ineffective for neglecting to
raise the trial court's failure to comply with NYCPL § 320.20(5) and to raise trial counsel's
ineffectiveness in neglecting to request a competency hearing or object to the trial court's
noncompliance with NY CPL § 320.20(5) fails. It should be noted that the merits of these
underlying claims are not before this Court because they are unexhausted; rather this Court
reviews the claim that was properly exhausted by Petitioner's corum nobis petition - that is, the
alleged ineffectiveness of his appellate counsel's performance. Turner v. Artuz, 262 F.3d 118,
123 (2d Cir. 2001) (per curium).
Under Strickland v. Washington, in order to prevail on an ineffective assistance of
appellate counsel claim, petitioner must (I) "show that counsel's performance was deficient" and
(2) show that "the deficient performance prejudiced the defense." 466 U.S. 668, 687 (1984);
Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) ("Strickland's two-prong test applies ... to
claims of ineffective assistance of appellate counsel on a defendant's first appeal as of right.").
The Supreme Court ofNew York, Appellate Division, Second Department held that Pallonetti
"failed to establish that he was denied the effective assistance of appellate counsel." People v.
Pallonetti, 84 A.D.3d 1118, 1119, 922 N.Y.S.2d 804 (2011). As a state court has already
''record evidence could reasonably support a finding of guilt beyond a reasonable doubt.")
Where a petitioner raises the sufilciency of the evidence, "the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt." Id. (emphasis
in original). Here, the evidence is clearly legally sufficient. Petitioner never disputed that he
shot Trippett. The only disputed fact was whether he was suffering from EED at the time he shot
Trippett. The prosecution's psychiatrist, Dr. Tarte, who the factfinder evidently credited, opined
that he was not.
adjudicated Pallonetti's ineffective assistance of appellate counsel claim on the merits, to prevail
on the instant petition he must establish that the state court's decision is "contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States" or "resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding." 28
U.S.C. § 2254(d). He can do neither, because it was neither contrary to law nor unreasonable for
the Supreme Court ofNew York, Appellate Division, Second Department to conclude that
appellate counsel's was not ineffective. Given that the case rested on Pallonetti's mental state,
appellate counsel was entirely reasonable in focusing on the EEO defense and Petitioner's
competence to stand trial, and concomitantly excluding the weaker arguments that Petitioner
now wishes had been raised. See Dominique v. Artus, 09-CV-623 WFK, 2014 WL 2740581, at
* 13 (E.D.N. Y.
June 17, 2014) ("[T]he Supreme Court has ... noted that experienced appellate
advocates understand 'the importance of winnowing out weaker arguments on appeal and
focusing on one central issue if possible, or at most on a few key issues."') (citations omitted).
Accordingly, Pallonetti's petition based on ineffective assistance of appellate counsel is denied.
For the forgoing reasons, Pallonetti's petition for a writ of habeas corpus is denied.
s/Sandra L. Townes
/SANDRA L. TOWNES '
United States District Judge
Dated: fl~,.,, &'1014
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