Smith v. Fischer

Filing 31

OPINION: For the reasons set forth in this Order, the petition for a writ of habeas corpus is denied. Pursuant to 28 U.C.C. § 2253(c), a Certificate of Appealabilty should issue, where a habeas petitioner "has made a substantial showin g of the denial of a constitutional right." 28 U.S.C. § 2253 (c). The touchstone of such a showing is whether resolution of the petition "was debatable among jurists reason." Because reasonable jurists could debate, a Certificate of Appealability is granted as to Petitioner's ineffective assistance of counsel and due process claims. Additional relief as set forth in this Order. (Signed by Judge Robert W. Sweet on 3/1/2012) (pl) Modified on 3/5/2012 (pl).

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----x
PATRICK SMITH,
Petitioner,

07 Civ. 2966
OPINION

against

BRIAN FISCHER, Superintendent,
Respondent.

----­ ------­ -x
A P PEA RAN C E S:
At

Petitioner

EPSTEIN & WElL
225 Broadway, Suite 1203
New York, NY 10007
Lloyd Epstein Esq.
l

Attorney for Respondent
BRONX COUNTY DISTRICT ATTORNEY/S OFFICE
198 East 161st Street
Bronx, NY 10451
By: Robert Johnson, Esq.
Jason Whitehead, Esq.
Allen Saperstein, Esq.

Sweet, D. J.

Petitioner Pat

ck Smith ("Smith" or the "Petitioner")

has petitioned for a writ of habeas corpus pursuant to 28 U.S.C.
§

2254/

which

has

been

opposed

by

respondent

Superintendent

Brian Fischer (the "Respondent" or the "State").

The

instant

matter

centers

on

informant in Petitioner's criminal trial.
here

are

whether

(1 )

Petitioner's

the

testimony

of

an

The issues presented

trial

counsel

provided

ineffective assistance by failing to seek a hearing with respect
to the informant, pursuant to Massiah v. United States! 377 U.S.
201

(1964) /

statements,
N.Y.2d

to

preclude

pursuant to

286,

("NYCPLfI)

or

§

289

(1961)

240.45[

or

the
v.

and
(2)

New

confessions
Rosario,
York

Petitioner

prior

to

opening

213 N.Y.S.2d 448!

Criminal
was

Procedure

deprived

of

9

Law
due

process by statements made by the state prosecutor with regard
to the informant and the informant's testimony.

Based on the conclusions set forth below, the petition
is denied.

1

I. Prior Proceedings

By an
Bronx

County

on or about

charged

Jury

filed

Petitioner

second-degree

successfully

and

5,

2002,

Kevin

the

a

Alston

course

of

to

(armed) ,

robbery

Prior

possession.
moved

June

a

(intentional and felony murder),

first-degree

manslaughter,
weapons

(in

murder

first-degree

second-degree murder

first-degree

counsel

Grand

with

("Alston" )
robbery),

indictment

dismiss

to

four

tri

and
fense

counts

of

the

indictment on statute of limitations grounds and to preclude the
use

Petitioner's statement to the police.

On
Scacc

November

announced

18,

that

2003,

she

the

intended

state
to

call

prosecutor,
an

Ms.

informant

to

testify regarding conversations the two men had while they were
incarcerated

together

at

that

Smith

indicated to Ferguson that he participated in the crime.

(Tr1.

Prompted by this

Rikers

Island,

disclosure,

the

including

trial

judge,

Justice

The trial transcripts are not paginated consecutively and so are
denoted by volume, with volume one, pretrial proceedings, denoted Trl. [page
number], volume two, trial proceedings, denoted Tr2., and volume three,
sentencing proceedings, denoted Tr. 3.
The docket number and dates of the
transcript volumes are as follows:
Trl. (Dkt. No. 23) (November 18, 2003) i
2

Thomas A. Farber
it

1

l

asked the prosecutor whether "[a]t this point

your representation that he

S

is not an agent.

sent by you or police or anybody else?l1

Prior to opening statements
1

the

He was not

The prosecutor

(Trl. 7).

responded "No.1f

2003

(Id.)

l

Court

again

inquired

1

on Thursday November 20

regarding

the

informant

1

as

follows:

THE COURT: My understanding is that
matter of the potential witness
incarcerated and we don't have
that we need for him; is that right
1

we still have the
who is currently
1 the information
Miss Scaccia?

MS. SCACCIA: That1s correct. I have enough information
that I have been able to put in a request for his rap
sheet. I do need to speak to the detective that he
contacted to determine whether there was any sort of
confidential informant relationship between him and
this detective or if it was just somebody that he had
a working relationship with.
THE COURT: But based on our discussion yesterdaYI you
will not refer to him in your opening and there will
be no need to mention that in connection with any of
the witnesses who testify today.
MS. SCACCIA: That's correct.
THE COURT: And so Mr. Bendish, so long as we have that
by tomorrow that's satisfactory.
1

MR. BENDISH (defense counsell: Yes, your Honor.
I
think, Judge, the record should also reflect Miss
Tr2. (Dkt. No. 24,25,26,27)
26, 2003; Dec. 1-3, 2003); Tr3.

(Nov. 20-21, 2003; Nov. 21, 2425,2003;
(Dkt. No. 28) (Dec. 22, 2003).

3

Nov.

Scaccia gave me Grand Jury minutes which I had not
received and
so rep sheets of the witnesses that she
intends to call.
So I believe other than the inmate
I think she has completed Rosario obligations.
I

THE COURT: ObviouslYI if any issues arise, we will
deal with them as they come up.
It/s always nice when
there aren/t since Rosario obligation does commence
right about now.

(T2.3-4.)

Following
counsell

Mr.

decision

regarding

informant I

opening

the

same

daYI

an

outer

time

frame

the

State

was

going

as

William

requested

Bendi

later

statements

whether

identified

and that he did not

to

Ferguson

defense
for

call

a
the

("Ferguson ll

)

"want it to be like they give it to me in

the morning and he is taking the stand in an hour and a half.
(Tr. 37.)

assume that you will have all

(Id.

The Court

that

"[t] he

only

thing

responded,

the information tomorrow i

is no reason why you shouldn't. II

stated

11

The prosecutor stated that the informant would not be

testifying before the next week.

There

I

I

may

Id. )

not

have

"I

right.

The prosecutor
by

tomorrow

is

Detective Dellasandro's2 position as to whether or not he was a
C. I .

II

(Tr2 .

37 . )

The

Court

assured

defense

counsel

that

he

would have the name of the informant and his rap sheet by the
next
2

day,

November

211

2003.

The

prosecutor

said

she

would

The detective's name is spelled in a variety of ways throughout the
transcripts and by the parties.
The Court adopts "Dellasandro" for ease and
has altered quotations from the transcripts accordingly.
4

probably not be able to meet with the detective until the next
Monday

or

Tuesday,

November

24

or

25,

and

defense

counsel

expressed concern that he might not be informed of the State's
decision as to whether she would call the informant until after
that

(Tr.

point.

The

37 - 3 8 . )

Court

responded

that

the

prosecutor would know "on Monday whether there is any reason to
believe that the

[informant]

is a C. I.

or is getting a benefit

of any kind for testifying or is a agent or anything like that.
And then we will

deal

with it."

(Tr.

accepted this outcome, saying "[o]kay."

The
disclosed
sheet.

what

(T2.

contact

following
she

Monday

stated

221.)

She

Detective

was

stated

that

Dellasandro

counsel

Id. )

November
the

Defense

38 •)

24,

the

informant's
she

had

prosecutor

complete

been

("Dellasandro") ,

rap

unable
whom

to
the

informant had initially contacted, and that she did "not believe
at this point just from looking at his rap sheets that he was a
confident
believe.

informant but
r

will

find

out

I

am obviously not going on what
for

sure

and

tell

counsel."

I

(rd.)

Defense counsel acknowledged receipt of the rap sheet and asked
"that

if

there

were

any

notes

taken

of

his

interview

or

interviews by either Detective Tracy or any other detective or
the

Assistant

D.A.

that

they
5

be

turned

over

as

soon

as

going

to

The

(Id. )

possible."

permit

everything

is

you

Court

to

turned

responded,

call

over

him

well

until

ahead

"[c]learly,
we

of

are
time.

prosecutor confirmed this, stating "Absolutely."

At
counsel
proof"

Court

the

asked,
that

if

the

stated,

end
the

State

eyewitness

t

called

informant was

"I

representation,

of

believe

not

that

you

is that correct?"

"an agent."

(Id. )

The

(Id.)

for

defense

"affirmat

(T2.
to

391.)

The

make

that

lowing colloquy

then took place:

MS. SCACCIA: Absolutely, that he was clearly not an
agent and he was not sent in there to speak
any way
with the defendant by the police or by our office.
And, in fact, that he contacted, he contacted the
Police Department who then contacted Detective Tracy,
this case detective, because he was the one assigned
to the case.
I have not even, at
s point, met Mr.
Ferguson.
I did not send him in there.
He is not a
stered conf
ial informant.
THE COURT:
Do we know how it is that he came in
contact with the detective he came in contact with?
Why he called him as opposed to any other detective?
MS.
SCACCIA:
The detective that he
called is a
detecti ve by the name of Dellasandro. And I
lieve
that Detective Dellasandro has been involved with him
regarding Brooklyn arrests. I mean he reached out to
him because he obviously knew who
was.
I don't
know, I know that he's not his confidential informant.
If he knows him it's because he's locked him up on one
of
s 26 arrests or because he works, he lives, or is
6

that

(Id. )

II

prepared
The

am not

satisfied

testimony,

Ferguson,

are

I

known to frequent the precinct I that
YOU
but he reached out to the police.

I

can I t

answer

I

MR. BENDISH:
Judge
againl I am not
I am speaking
from a little bit without knowing how many times this
guy allegedly even talked to my client.
I mean I
donlt have any idea whether, you know , he went in
there once and he might have called this guy and the
guy said , weIll when you see him again, ask him about
- I don't know.
I have no ideal so I'm asking before
we actually put him on the stand that we have some
definitive statement by the prosecutor.
And I am not
asking for it now because I recognize she hasn't
talked to the guy but it seems to me that she hasn't
talked to the Brooklyn detective either so .
I

I

MS. SCACCIA:
It's my understanding that the
I was
made by the inmate to the detective.
After that call
was made to the Brooklyn Detective Dellasandro, he
reached out for Detective Tracy.
Detective Tracy then
went and spoke to Mr. Ferguson himself.
I believe it
was the following day.
THE COURT:
Okay and did Detective Dellasandro take
any notes about this? He must have.
MS. SCACCIA:
THE COURT:

Detective Dellasandro?
Yes.

MS. SCACCIA:
That I don't want to say.
the answer to that.

I don' t know

THE COURT:
Do you have Detective Dellasandro coming
in tomorrow?
MS. SCACCIA:

I did not, no.

MR. BENDISH:
There's a gap there.
I don't know how
Dellasandro all of a sudden would come up with Tracy.
THE COURT:
That s not, I mean he finds out who the
homicide investigator detective is.
I

MR. BENDISH:
Again, Judge, I am not asking for
answers now, but it would seem to me that we are not
7

even sure how many times they're saying he allegedly
spoke to the client.
Obviously, if it's more than
once, that there may be, that he was sent in the
second time and either at the suggestion
He wasn't
MS . SCACCIA:
issue, he wasn't sent in.

sent in.
That's the whole
If I were to send him in

MR. BENDISH:
The Assistant D.A. is speaking without
any personal knowledge of that, so I am asking for an
of
of proof so that we can have somebody to say
that.
MS. SCACCIA:
Actually, I am speaking not out of turn
because when I became aware of this, there was some
question by the detective, my detective, to me and
from Dellasandro, is there anything we can do to send
him in there? And you know what, it was my choice not
to try to have anybody wired up or put in the
microphone room because unless the person just sat
there as a mute and let Mr. Smith do the talking then
he would be acting as my agent, and I wouldn't be able
to use that statement any way the conversation had
taken place.
No further steps were taken to send Mr.
Ferguson back in as a plan to try to get either
defendant.
He made the statements to the defendant.
Counsel has a position that these were not statements
made by the defendant but rather this was found out by
the other inmate by going through paperwork.
That s
his position.
He is allowed to have it.
That is not
the sense I am getting from the conversations my
detective had with the individual.
I will be in this
courthouse by probably 9: 30
9 : 45 tomorrow awai t ing
Mr.
Ferguson's
arrival
because
I
mean
he
is
incarcerated.
. As soon as he gets here, I want to
speak to him.
As soon as I speak to him, I will run
down prior to 11:30 and I will tell counsel everything
I have found out.
1

1

MR. BENDISH:
Again, Judge, I am just, I have no
problem with that, but as long as there's an offer of
proof before he physically takes the stand, and then
we will go from there.
THE COURT:
All right, we can do that.
It does occur
to me that it's not unlikely that when an inmate calls
8

a detective, that the detective has his pen out.
I
mean it would be rather foolish, it seems to me, even
in light of Rosario rules for a detective on a
telephone
1 like this not to at least wri te down
some information.
MS. SCACCIA:
I am pretty certain he had to wri te at
least
Patrick Smith down someplace
so he could
remember who it was when he was calling around to the
case detective.
That's
Wouldn't I be entitled to that?
MR. BENDISH:
why I don't understand where the gap is if there's an
unknown detective in Brooklyn who somehow has a prior
connection to this guy.
I think
THE COURT:
Detective Dellasandro.

you

ought

to

be

speaking

to

MS. SCACCIA:
I will.
I will.
And if need be, I will
get him here for these purposes, or I will have him
fax his notes.
I will get as much information as I
possibly can.
THE COURT:
Okay.
If we need to, we can put Detective
Tracy on at 11:30 and call the inmate after lunch.
MR. BENDISH:
Again, I have no problem.
Just, I
will put on the record now that I want an offer of
proof.
I understand that we're going to do [it] in
the morning.
MS. SCACCIA:
would say?

An offer of proof that what the inmate

MR.
BENDISH:
I
think it's incumbent upon the
prosecutor to
that I talked to people and I have
firsthand knowledge other than double hearsay.
She
never talked to anybody_
She hasn't hasn't (sic)
talked to the inmates.
So her statements, while I
have no reason to believe they are not accurate at
this point, I ask for an of
of proof and for them
to call this witness, there has to be more on the
record.

9

THE COURT:
Okay.
Obviously, Miss Scaccia is not
going to call the witness unless she knows that she
actually heard or believed in good faith that he heard
something
rectly from Mr. Smith but you have to make
whatever inquiry you have to make in person to rule
out any Rosario or agent problems.
(Tr2. 39197.)

The
spoken

with

next

day

Detective

the

prosecutor

Dellasandro

reported

that

she

learned

that

Ferguson

and

had

called Detective Dellasandro and told him that Patrick Smith had
told him about

a

robbery homicide.

(Tr2.

404.)

Dellasandro,

according to the prosecutor, looked up Smith in the computer and
determined that Detective Tracy was in charge of Smith's case
and reached out to him on October 21, 2003.

(Tr2. 405.)

returned his call the next day,

October 22,

Dellasandro

Rikers

and

Tracy

to

Island

Ferguson.

(Tr2.

interview,

and according to the prosecutor,

and

last
al.

405.)

went

conversation
(Tr2.

405).

II

and that day

and

spoke

with

Neither officer made any notes of

that
She

Detective Dellasandro but
informant.

2003,

Tracy

Ferguson
asserted

had

that was the first

with

that

this witness was

the

Tracy

prior

to

Ferguson

ftknew

of

not

a

confidential

(Tr2. 406.)

The prosecutor acknowledged that Ferguson had provided
law enforcement with information in the past, but that the only
10

prior

instance

never

went

concerned

anywhere.

a

murder,

(Tr2.

408.)

and

that

Defense

the

information

counsel

repeatedly

stated that he would like to know how accurate the information
was

that

Ferguson

previous

previously provided

statements

(Tr .

his

After a

408 - 11 . )

that

to

understanding

provided

information

incident

[wherein]

to giving
whether

his

own

Ferguson

(Tr2.411.)
to Ferguson.

in

the

and

whether

Ferguson's

police

were

made

to

discussion,

the

trial

judge concluded

was

that

the

the

only

past

was

"in

time

Dellasandro.

Ferguson

connection with

had
an

he acted more or less as conduit as opposed
information,"
provided

that

but

the

information

The prosecutor briefly 1
(Tr2. 411.)

that, according to Ferguson,

court

t

was

to

not

clear

Dellasandro.

the courtroom to speak

When she returned, Scaccia explained
in 2001 while he was incarcerated,

another inmate approached him about killing that inmate's wi
Ferguson then reached out to Detective Lanigan, who he had grown
up with,

and Lanigan introduced him to Detective Dellasandro,

Lanigan's partner.

(Tr2.412.)

Ferguson was then removed from

the situation and an undercover officer was
inmate who had spoken about the murder.

introduced to the

(Tr2.

412.)

However,

Ferguson was not called upon to testify and received no benefit.
(Id. )

11

Based on the prosecution/s representations I
determined that

"[t] here

is

no

indication on

the

the court

record

that

this individual is engaged as an agent with the People or police
or

state

stated,

in

any

way

assum [e]

"I

I will have to live with

cross examination

changes what we know,

counsel

inmate

(Id. )

that.1I

and

if

something

comes

out

point,

happen. "

there

is

that

there will be consequences that we will

have to deal with then up to and including mistrial.
this

to

So right now it's basically on

The Court responded "I agree.
for

Defense

the representations made by the

prosecution is correct.

you

(Tr2.413.)

II

no

reason

to

suspect

that's

But at
going

to

Id. )

At trial,

Ferguson testified that Smith and he first

met at the Rikers Island medical clinic several weeks before the
trial.

(Tr2. 421.)

At that first meeting, the men had a five

or ten minute conversation in which Smith told Ferguson what he
was charged with.

Ferguson

(Tr2. 496.)

testifi

that

met

consecutive evenings later that week,
Saturday (October 23,

24, and 25,

with

Smith

on Thursday

2003).

I

on

Friday

(Tr2. 445-6.)

three
I

and

On each

of these occasions, Ferguson was in the law library and asked a
12

corrections officer to bring Smith down to the library

which

I

Ferguson testified he was able to make possible because he had a
job at Rikers and the corrections officer would accommodate him.
(T2. 443.)

Ferguson testified that following the second meeting

(the first

in the law 1 ibrary)

Thursday
(Tr2.

(October

22.

I

However,

509 12.)

Detective

23)

Dellasandro met

(Tr2. 591-93.)

he

which he stated occurred on a

I

contacted

Detective

Dellasandro.

Detective Tracy testified that he and
with Ferguson on Wednesday,

October

The trial testimony thus conflicts as to the

timing of Ferguson's meeting with the police.

Ferguson

testified

that

Tracy,

Dellasandro,

and

two

other detectives interviewed him regarding Smith and asked him
if he would testi

and Ferguson agreed.

(Tr2.

stated

the

Assistant

that

neither

police

nor

the

449 - 53 . )

He

District

Attorney asked him to attempt to get Smith to speak or take any
of his paperwork or act as an informant in any way, and that he
was receiving no benefit from his testimony.

Ferguson

testified

occurred

three

or

four

Ferguson

had

Smith

cal

that

days
to

after
the

the

first

the
law

library

clinic
library

preparing for his parole violation hearing.
13

(Tr2. 451-52.)

meeting

meeting,
where

(Tr2. 422.)

he

when
was

At that

second

on

meeting /

paperwork

regarding

October

Thursday /
their

cases,

and

the

23/

Ferguson

two

shared

testified

that

Smith told him that he was attempting to get his case severed
from his co-defendant/s and expected to "beat the case" because
his co-defendant did the shooting and all he did was punch the
other guard.

422. )

(T2.

Ferguson

said he

pressed Smith

for

further information and tried to gain his confidence by sharing
s own background because it

"didn' t

sit well with him"

that

which an "old man" was shot.

Smith was involved in a robbery
(Tr2. 425/ 427 28/ 449.)

According to Ferguson,

in his third

meeting with Smith on Friday, October 24/

(second library)

Smith told him that a

fense investigator determined that the eye witnesses had seen
the crime from a
maj or

plus"

Ferguson

considerable distance /

for

the

testified

accomplice

were

that

seen

identification
Smith

fleeing

also

by

a

and that
defense.

said

young

that
police

this was
(Tr2.
he

"a

444. )

and

his

officer,

and

wondered how the officer could identify them after seven years
(T2.

441,

444).

October 25,

Ferguson further

testified that on Saturday /

Smith told him that he was happy that his case had

been severed from that of the co defendant/s, but upset with his
lawyer,

who

told

Smith

that

his
14

fee

was

$20,000,

but

told

Smith's

father

that

it

was

(Tr2.

$25,000.

446-47.)

Ferguson

further testified that over the course of these library meetings
s co-defendant stole a six-figure

Smith confessed that he and

hospital payroll, that they dropped it in a waiting vehicle, and
(Tr2. 440-41.)

that a young officer spotted them.

Ferguson stated on direct

examination that

he

had a

federal felony conviction which did not appear on the rap sheet
the

prosecutor

had

disclosed.

then handed defense

counsel

Id. )

this conviction.

(Tr2.

The

425-27.)

an additional

prosecutor

page which

included

Defense counsel cross-examined Ferguson

as to that conviction and his broader criminal history,

cocaine

abuse,

477-91,

and

514-17.)

use

of

On cross,

mUltiple

identities.

(Tr2.

454-59,

Ferguson disclosed that he worked as a paid

informant for a Brooklyn narcotics detective named Jimmy Irving.
(Tr2.

455 58.)

At that

time,

defense counsel moved to stri

the informant's testimony on the grounds that "there hasn't been
total discovery and an inadequate
460. )

Defense

(sic)

counsel did not move

to

background check."

(T2.

suppress or request

a

hearing on Massiah or Rosario grounds.

The
Ferguson's

court

testimony,

denied
but

the

Defendant's

granted
15

counsel

motion
an

to

strike

opportunity

to

examine Ferguson about his history as an informant outside of
the

jury's

(Tr2.

presence.

At

460. )

the

elaborated on his work for Detective Irving,

hearing,

Ferguson

primarily in 1999

and involving Ferguson being paid by Irving to buy drugs

and

then convey information regarding who he had made the purchase
from,

where it was,

purchase

occurred.

and the layout of the place in which the
(Tr2.

Following

461 73.)

defense counsel stated his position that

this

testimony,

"it is the burden of

the District Attorney to affirmatively make more inquiries with
Detective Irving or his superiors, whoever the sergeant was the
Lieutenant
monies,

was

and

to

produce

undercover buys,

some

documentation

however you want

to

label

to
it

these
and,

I

think it should have been done prior to the witness taking the
stand."
his

(Tr2. 473-74.)

cross-examination

inquiries
Irving.

as

to

The court directed counsel to continue
and

Ferguson,

(Tr2. 474 -75. )

the

prosecutor

including with

to

regard

make
to

further
Detective

Ferguson testified further regarding his

work for Detective Irving but did not disclose any additional
work that he had done for the police.

The
prosecution

following
had

an

day,

(Tr2. 477-86.)

defense

obligation

to

counsel

clear

up

argued
the

that

the

relationship

between Ferguson and Irving and that he was not sure that the
16

prosecution

could

rest

without

that.

(Tr2.

531-32.)

The

prosecutor stated that she was trying to locate Irving but had
not yet been able to contact him,

and the Court concluded that

the prosecution could rest but that the case could be re-opened
if necessary.

(Id.)

In
testimony

summation,

and

the

Smith's

prosecutor

confessions

emphasized

including

those

which Ferguson elicited after Ferguson had agreed

Ferguson's
statements
to

testify.

(Tr2. 71014.)

After the jury charge,

the prosecutor stated that she

had determined that Ferguson was not "a registered confidential
informant,l/

that she had still not spoken to Detective Irving,

but that Tracy had called Irving's command and she was trying to
(Tr2. 795.)

get in touch with him.
would

take

surfaced,

appropriate

steps

if

The Court observed that it
any

additional

information

saying "if it turns out that he was an informant and

there is information that somehow affects the testimony, we will
have to deal with it."

(Tr2. 796.)

On December 2,
Ferguson's

testimony

2003,

during

the jury asked for read backs of
deliberations
17

(Tr2.

770)

I

and

returned

its

guilty

Second Degree
(Tr2.

two

counts

After

to

the

verdict,

provide

the

information

requested as soon as possible.

On

on

of

(intentional and felony murder)

804-07)

prosecutor

verdict

December

22,

the

the

Murder

in

the

lowing day

Court

directed

the

fense

counsel

had

(Tr2. 809.)

2003,

prior

to

sentencing,

defense

counsel moved to set aside the verdict,
based
on
the
last
minute
introduction
of
Mr.
Ferguson's
testimony,
in
that
it
would
be
my
suggestion that
defense wasn't given all of the
information at the proper time that it should have
been.
For instance, it wasn't given during the normal
Rosario turn over period.
I
understand that their
argument is that this was a late witness that came to
their attention, although from the testimony of the
witness during the hearing l i t was obvious that they
had been aware of his existence prior to the start
the trial.
Besides not giving us the Rosario or
necessary document before the beginning of the trial,
they were basical
giving us things, dribs and drabs.
As we stand here today, I am actually not even sure
whether they have given us all of the information that
they had initially said they were going to give us.
For instance, I'm not - I'm pretty sure that there's
been no communication given to me that they had even
communicated to the individual detective.
I know one
detective was contacted by counsel, but I don/t think
the other detective had ever been contacted.
So for
the record I am asking that the verdict be set aside
because of the improper usage of the jailhouse snitch.
(Tr3.9.)

The prosecutor replied that both defense counsel and

the court were aware of the witness, but that she had not spoken
18

to Detective Irving.

(Tr3.

The trial

9-10.)

judge agreed that

it would be best for the State to speak with Irving, and invited
the defense to file a post-judgment motion "if something turns
up somewhere down the road" with regard to the informant:
THE COURT: Look, if something turns up somewhere
down the road at any time that would suggest that
this informant was not what he appeared to be,
you're always welcome to make a post judgment
motion. It is reasonably clear to me, based upon
the quality of the eyewitness testimony in this
case, that the jailhouse informant had to be a
reasonably important witness.
(Tr3. 11-12.)

Smi th

was

sentenced

to

two

concurrent

indeterminate

sentences of imprisonment of from twenty years to life.

(Tr3.

21.)

New
violation

fense

transcripts

counsel
in

subsequently

which

Ferguson

uncovered
scussed

history regarding his relationship with the police.

parole

additional
At a parole

hearing on October 1, 2002, over a year prior to Smith's trial,
Ferguson

testified

that

had

been

"locally" for approximately four years.
21) . )

supplying

(Parole Tr1. 5

At a parole hearing on November 10,

prior to Smith's tri

information

2003,

(Dkt. No.

several weeks

Ferguson testified that on the morning
19

of September 4,
parole

for

2003,

the day he was arrested for violating his

allegedly

assaulting

his

girlfriend

he

l

met

with

Detective Dellasandro and one other homicide detective because
fferent agencies out in the street

"I do different things for

and they were going to get me registered with the ATF.1t
Tr2. 101-02

ATF,

Ferguson further testified that "I

(Dkt. No. 22).)

was

in

the

okay,

{Parole

Downtown

Brooklyn,

with

two

homicide

detectives that were vouching for me because of the information.
I

was getting ready to make a phone call on the phone in the ATF

office,

right there,

if Parole would have gave them the okay.1t

(Parole Tr2. 116 17).

After that meeting, Ferguson was arrested

for violating his parole conditions.

In

September

of

2005,

Petitioner,

through

counsel,

appealed his case, raising four claims before the New York State
Supreme

Court,

prosecutor's

Appellate

delinquency

denied Smith the

right

prosecution1s witness.
No.

20).)

in

at

including

identifying

to present

a

Ferguson

defense

{Whitehead Decl.,

Ex.

that
ef

the
tively

and confront
4

at 15-20

the
(Dkt.

Smith cited to Ferguson's undisclosed parole minutes

as an example of what earl
(1d.

Division,

18

n.3.)

On

April

r

disclosure might have disclosed.
4,

2006

modified the judgment of conviction,
20

the

Appellate

Division

vacating the DNA databank

fee

and

reducing

amounts

ctim assistance fees

crime

respectively,
Smith,
2006,

the

812
the

of

the

512

(N.Y.

New York State

surcharge

and

from $200 and $10 to $150 and $5,

but otherwise affirming

N.Y.S.2d

mandatory

the

App.

Div.

of

Appeals

Court

On

2006).

People v.

application for leave to appeal.

v.

judgment.
June

23,

denied petitioner's
Smith,

7 N.Y.3d 763

(2006) .

On March 21,
for

a

writ

of

2007,

habeas

Petitioner filed a pro se petition

corpus

with

the

United

Court for the Southern District of New York.
July

31,

2007,

this

Court

granted

States
(Dkt.

Petitioner's

District

No.1.)

On

request

to

withdraw his habeas petition without prejudice in order to allow
him to exhaust

unexhausted claims

in the

State

courts.

(Dkt.

No.6. )

On May 17,
Smith filed

pending,

2007,
a

pursuant to under NYCPL

while

the

motion
§

federal

habeas motion was

to vacate

his

conviction

440.10 in the Bronx Supreme Court, and

attached the minutes of informant's parole hearing to his reply
papers.

(Whitehead Decl.

argued

that

request

a

his

trial

missing

Ex.

counsel

witness

8.)
was

charge
21

Among

other points,

ineffective
on

Detective

for
Irving

Smith

iling
I

to

saying

"[i]f,

as

Mr.

William

Ferguson

declared

on

the

stand,

actually worked as a paid informant for detective Irving,

he
then

it was defense counsel's responsibility to properly investigate
the facts surrounding Mr. Ferguson's declaration and thereafter,
his responsibility to request his production in Court so that he
could

cross-examine

him

and

veri

the

of

veracity

Mr.

Ferguson's position, while at the same time serve as someone to
either substantiate and/or disprove Mr. Ferguson's contentions."
Id. at 20-21) .

In

pro

se

petitioner argued,
effective

reply

papers

dated

among other points,

assistance

of

counsel

by

October

11,

2007,

that he was denied the
the

failure

to

call

or

request a missing witness charge on Detective Irving, as well as
that his due process rights under Brady v. Maryland, 373 U.S. 83
(1964),

were violated by the prosecution's failure to disclose

Ferguson's

entire

criminal

Ferguson's parole hearing.
argued

that

"bears on
of

fit."

hearing

[Ferguson's]

varacity

fabricate

the

(sic)"

record,

the

minutes

of

(Whitehead Decl. Ex. 10.) Petitioner
minutes

and

the

information

therein

credibility" and showed Ferguson's "lack
and

"willingness

and spin his own tales

(Id.)

including

and

capacity

to

for whatever reason he

lie,
sees

However, Petitioner did not contend that Ferguson's
22

parole hearing minutes supported his claim that he had a history
working

of

documentation,
of

Petitioner attached to his reply papers two pages

the parole hearing transcript,

the parole hearing.

sought

appeal
his

a

and three pages

in = - - - se
-­

writ

of

error

papers

coram nobis

dated

The

6.)

counsel

was

ineffective

coram

nobis

petition

for

failing

repeated

raised in the Section 440.10 motion.

Smith's NYCPL
Torres,

not

transferred

5,

him

2007,

a

new

the
to

trial

§

440.10

judge,

Manhattan.

se

on

(Whitehead Decl.
the

same

grounds

Id.

motion was assigned to Justice

because
In

to

an

the

Order

trial

judge had been

entered

November

19,

Justice Torres denied petitioner's pro se Section 440.10

motion.
claims

of

in the Appellate Division including on the grounds that

appellate

2007,

June

granting

appeal that his trial counsel was ineffective.
Ex.

of notes

(Id.)

Additionally,
Smith

supporting

As

informant.

government

a

as

Justice Torres declined to reach the merits
and

ruled

that

(1)

Petitioner

from asserting his claims of

was

procedurally

Smith's
barred

ineffective assistance of counsel

because Petitioner had a direct appeal pending in the Appellate
Division,

First Department,

and

(2)
23

the court would not rule on

whether

the

prosecutor

improperly withheld

the

parole

because Smith submitted the minutes with his reply,
main papers.

minutes

rather than

While declining to rule

(Whitehead Decl. Ex. 11).

on the issue, the court noted that Smith's Brady claim "does not
al record established that Ferguson

hold water" because the

had been questioned fully regarding his criminal history and as
such a hearing is not warranted.

(Id.).

Smith moved for leave

to appeal.

On

March

2008,

12t

the

State

moved

for

leave

to

reargue the Court's denial of petitioner's Section 440.10 motion
on the grounds that the court had been incorrect in its belief
that Petitionerts direct appeal was pending.
Ex.

12.)

440.10
issue.

(Whi tehead Decl.

The district attorney requested that Smith's Section

motion

aga

be

Petitioner

denied t

did

not

but

oppose

that

a

corrected

granting

the

opinion

government

reargument t and again asserted that his motion to vacate should
be granted.

On

(Whitehead Decl. Ex. 13).

May

6,

2008

t

the

Petitionerts coram nobis application.

24

Appellate

Division

denied

(Whitehead Decl. Ex. 14.)

On July 1, 2008, Judge Torres granted the government's
motion

to

reargue,

vacated

the

previous

petitioner's Section 440.10 motion.

decision,

and

(Whi tehead Decl.

denied

Ex.

With regard to Smith's ineffective assistance claim for

15.)

lure

to call or request a missing witness charge on Detective Irving,
the court held the

lowing:

At issue under this claim is the testimony of Mr.
William Ferguson,
a prosecution witness and paid
informant
for
Detective
Irving.
The
Defendant
contends that it was defense counsel's responsibility
to properly investigate the facts surrounding Mr.
Ferguson's responsibilities to Detective Irving and
either
substantiate
or
disprove
the
witness'
contentions by calling the detective to the stand or
at the least requesting a missing witness charge.
Being a Brooklyn Narcotics Detective unassigned to the
Defendant's case,
the Court
strains to see how
Detective
Irving
could provide
any noncumulative
information relevant to a material issue in the case.
This claim does not
lege a ground constituting a
legal basis for the motion and hence f Is.
(Id. )

In deciding Petitioner's claim that the State had failed

to turn over Ferguson's entire criminal record and, specifically
withheld

information

about

Ferguson's

criminal

open during the pendency of Smith's trial,
this Court ruled previous

case

that

was

the court held \\ [a] s

the function of reply papers are to

address the opposition and not to raise new issues,
parole hearing transcripts are not reviewable.

hence the

It is clear

from the record that Mr. Ferguson was questioned in detail about
25

his

criminal

history

up

until

that

open

As

case.

such

Defendant's motion based on this ground is denied pursuant
C.P.L.

§440.30(4) (c)

which

C.P.L.

§440

motion

if

the

motion

is

support

documentary proof.'ff

On

indicates

'an

that

allegation

conclusively

a

of

court
fact

refuted

may deny

essential

by

a
to

unquestionable

rd.

August

19,

2008,

the

New

York

Court

denied Petitioner's application for leave to appeal
of his coram nobis application.

Smith

to

then

hired

of

Appeals

the denial

(Whitehead Decl. Ex. 16.)

an

attorney.

In

January,

2009,

through counsel, Petitioner filed a second NYCPL § 440.10 motion
in the Bronx Supreme Court.

(Whi tehead Decl.

Petitioner

Smith

claimed

that

(1)

was

Ex.

deprived

17.)
of

In it,
effective

assistance when his trial counsel failed to move to suppress or
preclude Smith's statements to Ferguson on Massiah grounds and
consented to commencing trial without receiving the informant's
criminal

record and prior statements

under

373

Rosario,

213

Smith's

Brady

prosecutor's

N.Y.S.2d 448,
and

failure

9 N.Y.2d

Rosario
to

U.S.

rights

disclose
26

required to be disclosed
83

(1964),

286,
were

289

and

People

(1961);

violated

Ferguson's

status

v.

and

(2)

by

the

as

an

"almost" registered confidential informant and Ferguson's parole
minutes.

The State opposed the motion on the grounds that

(rd.)

the trial attorney's omissions were strategic,
the

trial

attorney failed

believed

that

the

to make

trial

informant outside the

court's

the

trial

failure

to

timely

attorney

felt

that

court

and

allowing

to

turn
such

sanction

over
a

trial
the

Rosario

request

him

to

examine

the

"obviated the need for a

the

(2)

(1)

Massiah motion because he

jury's presence

separate Massiah hearing,"
request

a

arguing that

attorney did not

prosecutor

would

have

her

because

material

for

the

been

denied

in

light of the circumstances and would have been "unhelpful to him
and might

have

only served

Decl.

18.)

According

Ex.

to

to

aggravate
the

the

jury. 'I

(Whitehead

prosecutor,

these

assertions

were based on conversations with the Defendantls trial attorney,
though no affidavit from the trial attorney was submitted.

On
moot

March

Petitioner's

3,

2009,

application

November 19,

2007,

denial

grounds

that

decision

that

the
for

of his

Appellate
leave

Division

to

Section 440.10

had been vacated.

Ex. 19.)

27

appeal

rd.

denied
the

as

first,

motion on the

(Whitehead

Decl.

On February 8,
second NYCPL
were

2010,

Judge Torres denied Petitioner's

440.10 motion,

§

procedurally barred,

ruling

that

under NYCPL

i

claims

440.10 (3) (c),

§

Petitioner s

because

se all issues he now

Smith "was in the position to adequately

makes in the previous motion but chose not to.1I
Ex. 20.)

(Whitehead Decl.

While the Court stated that it "declines to reach the

merits of Defendant's counsel claims

it found that the motion

ll

was "meritless" and that Defendant's "bare claims
assistance do not meet the Strickland
19,

2010,

the

Appellate

Division,

ineffective

rd.

standard.

ll

First

On July

Department,

deni

Smith's application for leave to appeal the denial of his second
NYCPL

II.

§

440.10 motion.

(Exhibit 21.)

Conclusions of Law

Smith
first

argues

raises
that

two

his

t

challenges
I

to

counsel

his

conviction.

provided

He

ineffective

assistance by failing to seek a hearing under Massiah v. United
States,
based

U.S.

377

upon

the

201;

moving to preclude

prosecutor's

under

e

v.

Rosario,

trial

prior

to

receipt

failure

9 N.Y.2d
of

all

to

286;

Rosario

Ferguson's
meet
or

its

testimony

obligations

agreeing

to

information.

begin
Smith

additionally contends that the state prosecutor deprived him of
due

process

by

misrepresenting
28

the

informant's

status

as

a

government

agent

perjured testimony.

I.

as

well

as

by

the

informant's

allegedly

These arguments are addressed in turn.

The Ineffective Assistance of Counsel Claim

A. The Standard for Habeas Relief Based on Ineffective
Assistance of Counsel

Under the

deferential

standard of

review established

by the Antiterrorism and Effective Death Penalty Act of 1996,

where the petitioner's claim was adj udicated on
the merits in State court proceedings, as here,
we may only grant habeas relief if the state
court's adjudication was contrary to, or involved
an
unreasonable
application
of,
clearly
established Federal law as determined by the
Supreme Court of the United States, or was based
upon an unreasonable determination of the facts
light of the evidence presented.

_R_a_m_c_h_a_i_r _v . ______~, 601 F.3d 66, 72-73
_ __

(2d Cir. 2010)

tations

and internal quotation marks omitted) .

B.

The Standard for Ineffective Assistance of Counsel

The Sixth Amendment provides that a criminal defendant
"shall enjoy the right

to have the Assistance of Counsel
29

for his defense.

U. S.

II

"right to counsel
counsel.

Amend.

VI.

The Sixth Amendment

is the right to the effective assistance of

McMann v.

1f

Const.

Richardson

397 U.S.

l

759

771 n.14

1

(1970).

The Supreme Court has established a two-part test for evaluating
claims of ineffective assistance.
U.S.
39 1

668

43

687

1

(2d

(1984)

Cir.

Strickland v.

466

accord Morales v. United States

i

2011).

"First

the

I

counsel/s performance was deficient.

defendant

must

635 F.3d

l

show

that

This requires showing that

counsel made errors so serious that counsel was not functioning
as

the

Strickland
that
While

guaranteed

'counsell

the

466 U. S.

l

defi

at

ent

687.

by

the

"Second

performance

Sixth

the defendant must

l

prejudiced

the

the defendant must prove both deficient

prejudice

"there

l

is

no

reason

Amendment.

for

a

defense.

II

1I

show
rd.

performance and

court

deciding

an

ineffective assistance claim to approach the inquiry in the same
order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.

Under

Strickland/s

presumption

that

objectively

reasonable.

528
counse1 / s

U.S.

the

470

performance

first

assistance

1

466
477
must

prong

rendered

U.S.

at

(2000)
be

l

rd. at 697.

there
by

688-89;

an

is

a

strong

attorney

is

Roe v.
------------------

("[J]udicial

highly

30

II

scrutiny

deferentiall!)

of

(quoting

u.s.

466

Stricklan~,

inquiry

performance

The

689) .

at

accordingly examines the reasonableness of counsel's performance
"from counsel' s

perspective at

and/or

this

regard,

omissions

time"

and

"considering all

rickland, 466 U.S. at 688, 689.

the circumstances."

In

the

it

taken

by

is

well settled

"[a]ctions

strategic

for

counsel

that

purposes

generally do not constitute ineffective assistance of counsel."
555 F.3d 112,

Gibbons v.

law and

facts

2009)

relevant

complete

assistance-so

to plausible options

and

unchallengeable,"
than

(2d Cir.

strategic

even

investigation
long

as

the

do

known

choices

are

made

not

amount

facts

made

to
it

U.S.

at

690-91.

Moreover,

an

attorney

virtually
after

less

ineffective

reasonable

believe that further investigation was unnecessary.
466

(citation

"[S]trategic choices made after thorough investigation

omitted)
of

122

is

to

Strickland,
under

no

obligation "to advance every nonfrivolous argument that could be
made."

io v. Artuz, 269 F.3d 78, 95

Evitts v.
Barnes,

463

reasonable

469 U.S.
U.S.

745,

754

professional

387,

394

(1983)
judgments

(1985))

i

(citing

see also Jones v.

("For judges to second-guess
and

counsel a duty to raise every 'colorable'

31

(2d Cir. 2001)

impose

on

appointed

claim suggested by a

client

would disserve

the

very goal

of vigorous

and effective

advocacy") .

The

second

S rickland

showing of prejudice.
612 F.3d 118,
respect

requires

an

466 U.S. at 694 95; Gueits v.

(2d Cir.

probability

that,

rick,

Ki

but

for

as he must

counsel's

show a

unprofessional

the result of the proceeding would have been different."

Strickland,

466 U.S.

614 F.3d 30,
finding a

46

at 694i

(2d Cir.

accord United States v.

2010).

\\ [T]here is generally no basis

Sixth Amendment violation unless

show how specific errors of

counsel

the accused can

undermined the

of the finding of guilt." United States v. Cronic,
659

affirmative

The petitioner's burden with

2010).

to prej udice is similarly stringent,

"reasonable
errors,

122

prong

n. 26

(1984).

In

applying

this

standard,

reliability

466 U.S.

"[a]

648,

reasonable

probability is a

probability sufficient to undermine confidence

in the outcome."

Strickland,

Mazzuca, 570 F.3d 490,

507

466 U. S.

(2d

r.

at

2009).

694 i

accord Wilson v.

"[T]he ultimate focus

of inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged." Strickland, 466 U.S. at 694.

C.

The Sixth Amendment Standard

32

initiated,

been

has

process

judicial

adversary

the

Once

the Sixth Amendment guarantees a defendant the right

to have counsel present at all critical stages of the criminal
proceedings.
2079,

2085

(2009)

v.

Louisiana,
ates v.

i

556

U.S.

Wade,

778,

129

388 U.S.

S.

218,

Ct.

227-28

Interrogation by the state constitutes a critical stage

(1967)
for

Montejo

Sixth Amendment

Montejo,

purposes.

United States,

377

129

U.S.

(citing

v

=S~t~a~t~e~s~v:.~'~~~L'

S.

at

Ct.

at

2085

United

204-05i

447 U.S. 264, 274 (1980)).

With regard to state

informants,

it

is

well

settled

that a defendant is denied "the basic protections" of the Sixth
Amendment

when there [is] used against him at his trial
evidence of his own incriminating words, which
federal agents had deliberately elicited from him
after he had been indicted and in the absence of
his counsel.

Massiah v.
attaches,

United States,
'the

prosecution's
from

a

Sixth

case

defendant

counsel. '

If

in

377

U.S.

Amendment
chief

without

an

at

206.

renders

statements
express

United States v.

"Once

inadmissible
deliberately

waiver

of

506 F.3d 108,
33

the

the
135

right

in

the

elicited
right

to

(2d Cir.

2007)
see

(quoting Michigan v.
also

States l
274;

Montejo,

129

494 U.S.

HarveYt

S.

Ct.

2079

348

344 t

(2009);

Massiah v.

377 U.S. at 204-05; United States v. Henry,

cf.

Kansas v.

Ventris,

556 U.S.

586

(1990));

(2009)

United

447 U.S. at
(holding such

evidence is, however, admissible for impeachment purposes) .

The Supreme Court has noted that the "primary concern
of

the

Massiah

investigatory
police

line

of

techniques

interrogation."

(1986) .

Thus,

to

informant

must

engage

that

listening,

decisions
are

Kuhlmann

in

was

some

secret

the

v.

violate Massiah

remarks.

incriminating

that

is

equivalent

Wilson,
t

477

of

U.S.

law enforcement

affirmative

designed

interrogation

act

"beyond

deliberately
477

II

to

U.S.

direct

436,
and

by

459
their

merely
elicit

at

459.

"[D]eliberate elicitation under the Sixth Amendment 'covers only
those statements obtained as a result of an intentional effort'
on

the

part

of

government

statements from the accused.

officials
II

at 135 (emphasis in original)

to

secure

United States v.

incriminating

RommYf

506 F. 3d

(quoting United States v. Stevens,

83 F.3d 60, 64 (2d Cir. 1996))

It

is

likewise

well

established

becomes a government agent

that

only when the
34

"an

informant

informant has

been

instructed

by

the

particular defendant."
346

(2d Cir.

police

information

about

Birbal,

F.3d 342,

The Sixth Amendment

1997)

of

incriminating

statements
attached.

is

II

from

the

Kuhlmann

accused
v.

not

113

after

Wilson,

the

violated when

[Government]

happenstance-the

luck

has

get

United States v.

"whenever-by

counsel

to

the

477

U.S.

obtains
right

to

at

459

(internal quotation marks and citation omitted)

The Massiah rule covers only those statements obtained
as a result of an intentional effort on
the government,
so information gotten before the
inmates became agents/ informants is not protected by
the rule.
If, however t an informant obtains some
initial evidence, approaches the government to make a
deal on the basis of that information, and then-with
the backing of the government-deliberately elicits
further evidence from an accused t the materials gotten
after such government contact are properly excluded
under the Massiah rule.
~~~~-~~~--~

United

States

v.

Stevens,

original) .

Thus!

defendant's

statements,

respect

later

Henry,

to

447 U.S.

once

83

F.3d

an inmate
he

elicited

at 271

at

60

informs

becomes

a

statements.

(emphasis

64

the government

government
See

of

agent

United

the

information

government
from

a

with

State

v.

(holding that even though the informant

was given specific instructions not to question Henry about
case,

in

had

Henry,

in

fact

"deliberately

stating!

statement that he did not intend that
35

"[e)ven

if

elicited
the

ll

s
the

agentts

[the informant) would take

affirmative

steps

to

secure

incriminating

information

is

accepted, he must have known that such propinquity likely would
lead

to

that

result.");

see

(implicitly recognizing that
agent

once

he

government but
government

reported

the

also

Birbal,

1113

involved,

at

346

the informant became a government
defendant's

statements

finding no violation because

became

F.3d

[the

"[a] s

to

soon as the

stopped

informant]

the

asking

questions; he simply listened to Birbal's bragging and reported
it

to

the

constitutional
(citations

As

previously

in

the

government.
violation

omitted)

i

noted,

absence

of

accord United States

v.

there

is

no

solicitation.")
Pannell,

510

F.

Supp. 2d 185, 191 (E.D.N.Y. 2007).

However,
inmate

are

"[t]he Sixth Amendment rights of a talkative

not

entrepreneurial

violated

way

to

seek

when

a

jailmate

information

of

acts

in

potential

an

value,

without having been deputized by the government to question that
defendant./I

rbal,

113

F. 3d

at 346.

"[T]

0

treat every inmate

who hopes to cut some future deal as a 'government informant' is
to extend the idea behind Massiah far beyond its natural reach,
and that we are not willing to do." United States v. Stevens, 83
F.3d

at

64.

statements

Moreover,
made

the

completely

Massiah

rule

voluntarily
36

by

does
an

not

apply

accused.

to
rd.

(citing

v.

Accardi,

342 F.2d 697,

701

(2d Cir.),

cert. denied, 382 U.S. 954 (1965)).

D. Procedural Bar
Federal courts "will not review a question of federal
law decided by a state court if the decision of that court rests
on state

law that

adequate

to

U.S.

722,

is

support

729

independent

the

of

judgment.

(1991); see also

the

federal

question and
501

Coleman v.

/I

Messia~

v. Duncan,

435 F.3d 186,

195 (2d Cir. 2006); Cotto v. Herbert, 331 F.3d 217, 238
"To

2003).

bar

federal

habeas

review,

however,

(2d Cir.

the

state

court's decision must rest not only on an independent procedural
bar

under

state

law,

support the judgment.
(2d Cir. 2007)
Cir.

but
I

also

on

Murden v.

fI

one

that

Artuz,

is

'adequate

497 F.3d 178,

191-92

(quoting Jimenez v.Walker, 458 F.3d 130, 138

2006)).

to

(2d

The question of whether a default discerned by a

state court is sufficiently adequate and independent to preclude
federal

habeas

review

is governed by federal

Kuhlman,

433

F.3d

236,

Herbert,

331

F.3d

at

241
239

(2d Cir.
("[T}he

2006)

law.

Monroe v.

(quoting

question

of

Cotto v.

when

and

how

defaults in compliance with state procedural rules can preclude
consideration
question.

II

);

Lee

v.

a

federal question is

Kemna,

534
37

U.S.

362,

itself a

375

(2002)

federal
("[T]he

adequacy of state procedural bars to the assertion of
questions .
decide;

federal

is not within the State's prerogative finally to

rather adequacy is itself a federal question."}}.

The

Second Circuit has summari zed the standard for the adequacy of
state procedural bars as follows:

A state procedural bar is "adequate" if it "is firmly
established and regularly followed by the state ln
question" in the specific circumstances presented in
the instant case. Monroe v. Kuhlman, 433 F.3d 236, 241
(2d Cir. 2006)
(citation omitted). The "guideposts"
for analyzing the issue of adequacy, articulated in
the context of a procedural default occurring at
trial, are:
(1) whether the alleged procedural violation was
actually relied on in the trial court,
and
whether perfect compliance with the state rule
would have changed the trial court's decision;
(2)
whether
state
caselaw
indicated
that
compliance with the rule was demanded in the
specific circumstances presented; and (3) whether
pet ioner had "substantially complied" with the
rule
given
"the
realities
of
trial,"
and,
therefore, whether demanding perfect compliance
with
the
rule
would
serve
a
legitimate
governmental interest.
Cot to v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003)
(citation omitted)
The Cotto guideposts also apply
to testing the adequacy of a procedural default raised
in a state collateral proceeding. See, . e.g., Clark v.
Perez, 450 F.Supp.2d 396, 426 (S.D.N.Y. 2006). Because
of comity concerns, a decision that a state procedural
rule is inadequate should not be made "lightly or

38

without clear support in state law." Garcia v. Lewis,
188 F.3d 71, 77 (2d Cir. 1999) (citation omitted).

Murden

v.

factors

are not

inquiry"

Artuz,

and,

procedural

497

a

F.3d

three-prong test:

"there

lS

Clark v.

round holes."

The bar

states

that

Harris v.

review
its

Reed,

to
a

489 U.S.

Indeed,

a

ground,

Cotto

to

to aid

adequacy of a

force

510 F.3d 382,

square
391

state

pegs

(2d Cir.

into
2008)

433 F.3d at 242) .

federal

decision

"the

they are guideposts

need

review occurs

petitioner's

F.3d at 195.
procedural

no

Perez,

(citing Monroe v. Kuhlman,

to

However,

191-92.

with regard to analyzing the

bar,

court

at

rests
255,

claim

on a

263

when the

clearly

state

last

and

expressly

procedural

(1989); Messiah v.

state

bar.

See

Duncan,

435

where a state court has decided a claim on
the

court

may

reach

the

meri ts

of

the

federal

claim in an alternative holding while still

foreclosing

federal

habeas

n.10;

v.

Bartlett,

U.S.

1108

1990)
claims

review.

See Harris,

98 F.3d 721,

725

(1997); Velasquez v.

489 U.S.

(2d Cir.

1996),

Leonardo,

at

264

cert.

898 F.2d 7,

("we are barred from reaching the merits of
[where]

procedural default

a

state

court

has

expressly

as an independent and adequate

Glenn

denied,
9

[the]

520

(2nd Cir.
federal

relied

on a

state ground,

even where the state court has also ruled in the alternative on
39

the merits of

the

federal

A subsequent order by the

claim").

state's highest court denying leave to appeal without rendering
an opinion does

not

Nunnemaker,

501 U.S.

opinion on

the

[federal

eliminate
797,

803

the procedural

courts]

will

presume

imposes

that

See Ylst v.

Where "the last reasoned

(1991).

claim explicitly

bar.

a

a

procedural

later decision

default,
rej ecting

the claim did not silently disregard that bar and consider the
merits." Ylst, 501 U.S. at 803.

A petitioner
demonstrates

"cause

may

for

the

overcome
default

result of the alleged violation of

the

procedural

and actual
federal

law,

bar

if

prej udice

as

he
a

or demonstrate

that failure to consider the claims will result in a fundamental
miscarriage
Dretke

v.

of

justice."
541

Hal

procedurally

barred

Coleman,

U.S.
a

386,

petitioner

501
393
my

U.S.

at

(2004)
obtain

750;
(if

a

see

also

claim

review

if

is
he

demonstrates "cause and prejudice for the procedural default" or
that the

"constitutional violation has probably resulted in the

conviction of
offense"

one

who

is

actually

innocent

of

the

substantive

(citations and internal quotation marks omitted)).

- - - - - -Ineffective Assistance of Counsel Claim Is
­

e Procedural Ground

40

Here,
agreed,

the

State

argued,

the

state

trial

..

pursuant

to NYCPL

§

440.10 motion were procedurally

440.10 (3) (c)

§

since he

,3

was

position to raise the Massiah claim in his first NYCPL
motion.

court

that the - - ­ ineffective assistance claims made by
Massiah

Petitioner in his second NYCPL
barred,

and

(Whitehead Decl.

Ex.

in a
440.10

§

While the Court stated that

20.)

it "declines to reach the merits of Defendant's counsel claims"
it

that

concluded

Defendant's

motion

the

"meritless"

was

and

that

"bare claims of ineffective assistance do not meet

the Strickland" standard (Whitehead Decl. Ex. 20.)

Petitioner claims that he raised his Massiah claim in
NYCPL

his first
of

Ferguson's

parole

§

440.10 motion,

hearing

implicitly raised that issue.
However,

the

record

shows

and that his attachment

minutes
(Pet.

that

to

Mem.

38-39

petitioner

raise a Massiah claim in either his
reply papers.
was

charges

for

comments
on

reply
(Dkt.

did

not

papers

No.

13).)

explicitly

motion or his pro se

Instead, Petitioner argued that his trial counsel

ineffective

summation

his

several

failing

and

for

to

object

failing

to

individuals

to

the

seek a

including

prosecutor's

missing witness

Detective

Irving.

NYCPL § 440.10(3) (c) states that "the court may deny a motion to vacate
a judgment when:/I "(c) Upon a previous motion made pursuant to this section,
the defendant was in a position adequately to raise the ground or issue
underlying the present motion but did not do sO./I

41

Id.

Petitioner additionally contended that the State violated
ling to turn over Ferguson's entire

his rights under

ly attacking

criminal record, which prevented him from suffic
Ferguson's credibility

(Whitehead Decl.

Ex.

and it was in

8)

support of this contention that Petitioner attached excerpts of
Ferguson's
10. )

parole

However,

excerpt

of

attached

minutes

he

made

Ferguson's
not

did

to
no

concern

on

was

include

reargument

with

trial

reply.

mention

of

parole

relationship with the police.
submission

his

hearing
any

ad

Massiah.

Decl.

Ex.

Indeed,

(Whit

the

s

t

discussion

that

of

Ferguson's

(Whitehead Decl. Ex. 10.)4

could

be

counsel's

to
i

clarify
to

call

Smith

Smith's
that
Detect

Irving, as he knew Ferguson, so that he could testify as to
lack of credibility.

In
requirement,

the

his

s

(Whitehead Decl. Ex. 10.)

context

of

analyzing

the

exhaust

courts have clarified that there is no obI

ion

that a habeas petitioner in state proceedings cite "chapter and
verse of the Constitution," Daye v. Att'y Gen. of N.Y., 696 F.2d
186,

194

(2d Cir.

1982)

(en banc)

"A claim has

'fairly

presented' if the state courts are apprised of 'both the factual
4
As such, the Court does not address Petitioner's argument that the
state
rule in question here is the state court's refusal to
consider the probation minutes attached to Petitioner's first 440.10 reply
papers, and that there is no
enforced New York procedural bar
regarding rejection of evidence attached to pro se reply papers.

42

and the legal premises of the claim [the petitioner]
federal

court.'
(quoting

1997)

constitutional

Jones v.

/I

Daye,

F.2d

696

provision

Vacco,

or

126 F.3d 408,

at

relying

on

413

"Citing

191)

federal

asserts in
(2d Cir.

a

specific

constitutional

precedents alerts state courts of the nature of the claim."

Id.

However,

the

a

petitioner

can

appraise

the

state

court

of

constitutional nature of his claims through:
"(a) reliance on pertinent federal cases employing
consti tutional analysis, (b) reliance on state cases
employing
constitutional
analysis
like
fact
situations, (c) assertion of the claim in terms so
particular as to call to mind a specific right
protected by the Constitution, and (d) allegation of a
pattern of facts that is well within the mainstream of
constitutional litigation." "In all such circumstances
the federal habeas court should assume that the state
courts, which are obliged, equally with the courts of
the Union,
to guard, enforce, and protect every
right granted or secured by the Constitution of the
United States, have been alerted to consider, and have
considered, the constitutional claim./1

Smith v. Duncan, 411 F.3d 340, 348

(2d Cir. 2005)

(quoting

696 F.2d at 194.)

At best,
brief)
a

Smith's assertion

(in his original

§

440.10

that his counsel was ineffective because he did not seek

missing

"properly
testimony,

witness

charge

investigate

the

on

Detective

facts

Irving

surrounding"

and

failed

Ferguson and

including his work as a "paid informant for Detect
43

to
his

Irving" presents facts that suggest a Massiah issue.

(Whitehead

From the record it

the State

Decl.

Ex.

8)

court

could

have,

440.10 motion,

when

faced

is apparent

with

that

Petitioner's

first

Section

addressed an ineffective assistance claim on the
As such,

basis of counsel's failure to make a Massiah motion.

it is arguable that Smith "substantially complied" with NYCPL
440.10 (3) (c),

particularly given "the realities"

§

of his pro se

status and that the judge reviewing his Section 440 motions was
not

the

trial

judge and was

However,

record.

the

state

therefore
court

less

found

familiar

that

with the

Smith's

Massiah

ineffective assistance claim, made in his second Section 440.10
motion, was procedurally barred as previously not raised.
well settled that,
is

a

question

federal

while the adequacy of a state procedural bar

of

courts

It is

federal

must

law,

give

in

due

conducting

deference

habeas

to

review,

state

court

determinations of state procedural law. See Maula v. Freckleton,
972 F.2d 27,28

(2d Cir.

U.S.

(1991)).

62,

67 68

aware of,

1992)

(citing Estelle v.

Petitioner

cites,

and

McGuire,
the

502

Court

no case refusing to apply Section 440.10(3) (c)

is

or a

similar state procedural bar on similar grounds.

The
Section

440.10

state

court

motion,

likewise

which

denied

raised
44

the

Petitioner's
Rosario

second

ineffective

assistance claims he now asserts,

as procedurally barred as not
did not assert

Petit

raised in his first motion.

ive assistance of counsel

first Section 440.10 motion an inef

claim on the basis that his counsel did not

witness
noted,

charge

on

Smith's

Irving was

that

credibili

Irving

submission

could have

(Whitehead Decl.

Ex.

that the parole minutes would

failed to seek a

Irving.
on

However,

reargument

's failure to
testified
10.)

as

Similarly,

I

to

as

arified
Detective
Ferguson's

Smith argued

further tarnished Ferguson's

and additionally

credibili

counsel

Detective

that his concern with trial couns

it

parole

the prosecutor failed to turn over t

minutes prior to trial and that his

previous

st,

At

a Rosario issue indirectly

could be said that Petitioner rai

missing

lude

seek to

provided.

Rosario information that was not t

by asserting

in his

the prosecution's

failure

to

turn over the parole minutes prior to the withdrawal of the plea
offer

forced

minutes
the pol
basis

him to go

attached did

not

to

t

al.

discuss

(rd. )

the

parole

Ferguson's

relationship with

Thus, while an ineffective assistance claim on
a failure to

a Rosario motion could conceivably

have been reached on Pet

ioner's first Section 440.10 motion,

the state court found

that issue was procedurally barred as

not previously raised,

and this Court f
45

no sound reason to

question that conclusion. See Maula,

972 F.2d at 28.

Moreover,

with

transcripts,

New

respect

Court

of

deemed

to

Ferguson's

Appeals

in

the

has

parole

clarified

control

of

that

county

parole

252

(1996)

("We

are

York

minutes

are

not

and

are

not

Kelly,

88

prosecutors

so

People v.

subject to the Rosario rule in any event.
N.Y.2d 248,

the

persuaded and

satisfied

that

records of the State Division of Parole should not generally be
deemed to be in the control of 62 county prosecutors, nor of any
other prosecutorial office subject to the Rosario rule.")

Petitioner does not deny that NYCPL

§

a regularly followed procedural bar in New York.
Indeed t

the

440.10 (3)

(c)

Circuit

Second

may operate as

procedural

bart

"district

courts

C.P.L.

440.10 (3) (c)

§

this

an

independent
497

Circuit

constitutes

have
an

(3)

(c)

Section

that

and adequate

F.3d

is

(Pet. Mem. 38.)

recognized

v . . Artuz t

Murden
in

has

440.10

at

state

191-93,

and

consistently held

that

adequate

and

independent

state ground barring habeas review t " Rosario v. Bennett t 2002 WL
31852827,
20,

at

2002)

(Report and Recommendation t

(collecting cases)

January 21,
2006 WL

*21

2003)

1114053

S.D.N.Y.

ed 2003 WL 151988

t

-~~-

December
(S.D.N.Y.

i

see

also ---------~~--~~~~~-~~~
Collins v.
rintendent

at

*3

(S.D.N.Y.

Schriver t 2002 WL 1226859 at *3

April

26,

2006);

Lamberty v.

(S.D.N.Y. April 9, 2002)
46

i

ols

v. Greiner
v . Mann

2001 WL 477046 at *6-*7

l

73 F.

I

Supp . 2 d 24 11

201 F.3d 432 (2d

(S.D.N.Y. May 41 2001) ;

248 & n. 7

(E . D . N.

1 998)

Y.

af f d

I

I

1999) .

the

AccordinglYI

court/s

state

Petitionerls Section 440.10 motion

dismissal

is determined to rest on

an independent and adequate state ground.

Because the Appellate

Division subsequently denied Petit

application for leave

to

appeal

from

the

denial

comment

on

court s

holding was

claim.

See Nunnemaker

I

merits

In

order

of

ion

(Whitehead

the
l

last

tor

state court 111
actual
(1991)

ll

21)

the

I

for

a

petitioner

to

overcome

al
1

s

such

McCles

there

v.

was

"some
aim in

Zant

a

l

reasonable

499

U.S.

467 1

probability

the proceeding would have been different

v.

527 U. S.

1

a

or caused Petitioner to suffer

--------~------------

263

t

ficient cause l in

outcome
Greene I

without

501 U.S. at 803.

and that that

that

Ex.

motion

that impeded his efforts to raise

udice l
I

Decl.

440

reasoned opinion on petit

procedural default l he must show
objective

IS

289 96

(1999).

at 750.

47

that

the

Strickler

I

See Coleman

493-94

l

501 U.S.

Petitioner

Here,

has

not

asserted

cause

for

his

default.

Accordingly,

the Court need not consider whether Smith

suffered

prej udice .

See

(1986) ;

Engle

Isaac,

v.

Petitioner makes

no

claims will result
Coleman,

Smith

v.

456

argument

Murray,

failure

527,

n.43

533

(1982) .

to

consider

the

fundamental miscarriage of

in a

the

U.S.

134,

107,

U.S.

that

477

justice.

See

501 U.S. at 750.

Petitioner' s

ineffective

assistance

of

counsel

claims

are accordingly barred.

Were

this

not

the

ineffective assistance claim might
It

is

well

accused

to

settled
an

that

informant

access to the accused,
respect
State v.
F.3d at
Here,

to

require a

the
is

Smith's

government

aware

that

447

Massiah

different outcome.
singles

the

informant

the

out

has

that informant is a government agent with

later deliberately elicited statements.

Henry,
64;

once
and

however,

case,

U.S.

at

United States v.

271;

United States v.

Pannell,

510

F.

Supp.

See United
Stevens,
2d at

83

191.

both parties recognize that Ferguson deliberately elicited

statements

from

Smith

after

Ferguson

48

met

with

the

police

and

On each of these occas

agreed to testify against Smith. 5
Ferguson

had

corrections

Smith

brought

officer,
tried

meetings

and

to

him

in

the

that

Ferguson testif

gain

Smith's

library

confidence

by

during

by

a

these

telling

him

That Ferguson appeared as an informant on

about his own case.

the heels of the trial
to the police,

to

judge's preclusion of Smith's statement

that the police officers took no notes of their

with Ferguson or Ferguson's initial call to Dellasandro,

meet

Ferguson, as an inmate, was

and

e to have Smi

to him

the library by a corrections

quest ions

as

to whether

the

pol ice

effort to secure Smith's incriminat

brought

ficer all raise serious

engaged

in an

statements.

intent ional
Regardless,

viewing the evidence

the 1 ight most favorable to the state,

the

that

record establi

least

two of

aga

t Smith,6 that the detectives were aware that Ferguson had

access

to

the

Ferguson deliberately elicited at

Smi th

library statements after agreeing to testify

ter their meet

that

this was

or should

have been apparent to Smith's counsel at trial, and that Smith's
counsel failed to make a Massi
library
standard,

statements.
these

Even
s

motion to suppress any of
under

demonstrate

a

Strickland's
manifest

deferenti

ficiency.

In

As previous
noted, the record is not clear whether all three, or
of the library meetings occurred after Ferguson's agreement to testi
Smith.
The state makes no argument that Ferguson
listened in the
library meetings, nor could it on this record.

two,

49

addition,

absent the library statements,

the eyewitness testimony as

trial

quality of

due to

trial

judge noted

11-12), Petitioner may well have made a showing

II.

A.

(Tr3.

prejudice.

Petitioner's Due Process Claims

Them:l:J~gal

Standard

ft[T]he

suppress

by

the

prosecution

of

evidence

favorable to an accused upon request violates due process where
the

evidence

is

material

ther

irrespective of the good
Brady v.
Dretke,

Maryland,
540

373

U.S.

668,

to

guilt

U.S.
695

constitutionally

process. ff)

83,

87

(2004)

(1963)

must

show that

accused,

impeaching;
State,

that

either

have ensued.

bound

the

either

ff

because

to

it

or

Strickler v.

is

have

was

been

inadvertently;
Greene,

also

II

Banks v.
decl

ng

is not tenable

a

defendants

due

claim, a petitioner

exculpatory,

must

see

accord

ssed evidence

evidence

will

punishment,

e

( "A

In order to succeed on a

•

to

th or bad faith of the prosecution.

'prosecutor may hide, defendant must seek,'
system

or

527 U. S.

"favorable
or

because

suppres
and

to
it
by

prejudice

at 281 82.

the
lS

the
must

In this

context, prejudice means "a reasonable probability that, had the
evidence been disclosed, the result
50

the proceeding would have

fferent."

Cone v.

Bell,

556 U.S.

449,129 S.

Ct.

1769,

1783 (2009).

Additionally,
a

conviction

testimony
is

is
any

the Supreme Court "has consistently

obtained

fundamentally
reasonable

by

the

unfair,

knowing
and

likelihood

that

could have affected the judgment of the
427 U.S.
U.S.

150,

97,
153

103

(1976)

(1972)

i

must

ld

use
be

the

set

false

asi

if

testimony

jury."

see also

405

The Second Circuit

elaborated this

standard as follows:

In United States v.
Wallach,
we
summarized the
materiality standard under
aining that the
question is whether the jury's
ct "might" be
altered.
We have interpreted
Court precedent
as holding that
if
it
is
ished that
the
government knowingly permitt
roduction of
false testimony reversal is
ly automatic.
This
strict standard of mat
ity is appropriate not just
because
[such cases]
involve prosecutorial
misconduct, but more importantly because they involve
a corruption of the truth
function of the
trial process.

Drake v.

Portuondo,

553 F.3d 230,241

and internal quotation

B.

Petitioner's Due Process

(2d Cir.

2009)

omitted) .

s Were Not Violated

51

(citations

1.

Ferguson's Parole Transcripts
the

Here,
material
tered

that
the

was

prosecution

did

non-cumulative
The

verdict.

or

not

suppress

otherwise

transcripts

from

any

likely

Brady

to

Ferguson's

have

parole

hearing before the New York State Division of Parole were not in
the prosecutor's possession, nor were they in the custody of the
District Attorney's Office i
agency not
this

connected with

question

Appeals

has

in

the

found

they were
Smith's

Rosario

that

created by another state

prosecution.

context,

prosecutors

are

In

addressing

the

New

York

not

Court

deemed to

of

possess,

and therefore do not suppress, parole minutes that are not known
to a

state prosecutor,

there

appears

while

due

no

reason

diligence

discovered

the

transcripts,

People v .. Kelly,

on

minutes,

to

88 N.Y.2d at

reach another

behalf
absent

of

the

resul there.

prosecutor

knowledge

252,

and

Thus,

might

have

or possession of

the

the Court declines to deem them in the prosecutor's

possession for Brady purposes.

Moreover,
establish that

as

explained below

Ferguson was

a

I

the

government

transcripts

agent

of

do

Detective

Tracy or Dellasandro or otherwise or with respect to Smith otherwise

provide

The law does not

evidence

absent

which

Smith

was

or

prej udiced.

"automatically require a new trial whenever
52

not

'a

combing of the prosecutors'
evidence possibly useful

2.

to the defense but not

Giglio v. United States,

changed the verdict."
(1972)

files after the trial has disclosed
likely to have

405 U.S.

150,153

(citation omitted) .

Ferguson's Alleged Perjury
Petitioner

Second,

argues

that

the

repeatedly and falsely represented to both the

prosecutor

trial

court

and

defense counsel that Ferguson was not a government agent when he
el ici ted

admissions

prosecutor knew,
the

Smith.

Pet it ioner

or should have known that

informant's

omitted that

from

testimony was

misleading

contends

that

the

her presentation of

because

the

informant

just before he elicited the statements from Smith,

Detective

Dellasandro

informant

with

the

was

facilitating

his

registration

presumably

the

Federal

"ATF,"

as

an

Bureau

of

Alcohol, Tobacco, Firearms and Explosives.

First,
her office

was

there

is

no

indication

in possession of

that

the

minutes

parole

hearing

the prosecutor or
or

knew

of

their

existence.

Second,
establish that

he,

Ferguson's

or the prosecutor,
53

was

minutes

do

not

untruthful when they

represented that

Ferguson had not been acting as a government

agent when he elicited incriminating statements from Smith.

Ferguson
ini tial

parole

or

made
his

little
revocation

with New York City detectives.
1,

2002,

reference
hearing

[he] wanted it to go.

So,

to

his

either

his

relationship

At Ferguson's hearing on October

when he was still incarcerated,

"came to a realization that

during

[his]
[he]

he testified that he

life was going not

the way

implemented a change .

have been giving up information local

I

for four years.

II

(Parole Tr1. 5.)

At
10,

2003,

he

Ferguson's parole revocation hearing,
made

a

reference

to getting

on November

"registered"

during

examination at the hearing about Ferguson's alleged assault of
his girlfriend, the asserted reason for his parole revocation:

[COUNSEL]: When did you first become aware that
there was some allegation that you had assaulted
her?
MR. FERGUSON: When I went to parole on September
4th. Wait. Did I suspect? No, there was no
reasonable - - wait, the morning, the morning of
September
4th,
I
met
with
two
homicide
detectives, okay. Two homicide detectives, I met
with
them
at
approximately
10
0' clock
in
Brooklyn. We were then to go
54

[COUNSEL] : What was the meeting about?
MR. FERGUSON: The meeting was about me going
going to the ATF and being registered with the
Alcohol,
Firearms
and Tobacco.
The
Alcohol,
Tobacco and Firearms in - ­
[COUNSEL]: Did that
[your girlfriend]?

have

anything

to

do

with

MR.
FERGUSON:
Okay.
Earlier
part
of
the
conversation was Danny
Danny Dellasandro,
okay, who is a homicide detective with the Cocai
[sic] Squad, okay, was called by [my girlfriend] .
At which time, at which time, Danny Dellasandro
called her and in front of me, said to her, that
I will not talk to her, contact her, not a
problem.
She said okay.
Now, we
we
discussed our business I do different things for
different agencies out in the street and they
were going to get me registered with the ATF.
Upon which time, they had to contact parole.
Parole never told them anything. They just said,
just after Mr. Ferguson's finished, have him come
in. So, okay, and they got real uptight that
because they should have brought me in anyway.
(Parole Tr2. 101-02).

Later,

while

Ferguson

was

discussing

attempts

obtain employment, he stated:
I went there and tried out and showed them that I
could [use]
certain tools, cutting glass and
everything and I asked him, give me a shot and he
said he would. Okay. And at which time, also,
too, Your Honor, I do make cases since I don't
now what
- okay, and that's what I do, okay.
It's a form of giving back, Your Honor.
It's my
form of giving back, all right, and I have people
right here that can validate it, I have names and
55

to

I have phone numbers, okay.
I was in the ATF I
okay,
Downtown
Brooklyn,
with
two
homicide
detectives that were vouching for me because of
the information.
I was getting ready to make a
phone call on the phone in the ATF office, right
there, Parole would have gave them the okay about

(Parole Tr2. 116-17.)

The final time Ferguson mentioned a relationship with
during his testimony at his parole revocation hearing

detect

was while he discussed being assisted by "these same detectives"
during

an

eviction

from

an

assertedly

illegal

apartment.

Ferguson testified that

these same detectives, helped
~ helped me with
the martial [sic], when the martial [sic] came, I
said, sir, look, I'm totally at a loss here.
Look, I'm a regular guy, a straight-up guy. Could
you could I call this detective and you talk
to him and the guy gave me like three hours to
move stuff.

(Parole Tr2. 120.)

At

no

point

did

Ferguson

say

that

he

was

in

the

process of becoming registered as an informant for the New York
City

Police

Department,

Detective

Tracy,

prosecutor

in

the

Smith's

or

that

District
case.

he

was

Attorney's

Rather,
56

working

he

on

Office,

said

that

behalf

of

or

the

he

first

learned

about

the

assault

allegations

when

he

met

with

the

homicide detectives so that he could be registered with the ATF.
The significance of the statement is further diminished because
Ferguson testified that he believed he was being registered with
that ATF, a federal law enforcement agency,

not the NYPD or the

Bronx County District Attorney.

In

light

of

all

the

evidence,

it

is

not

reasonably

probable that had the jury known about Ferguson's testimony at
his parole hearing, the verdict would have been different, since
that

testimony

was

in

the

main

cumulative

of

the

trial

testimony.

Ferguson's substantial criminal history and use of

deceit

multiple

and

identities

was

well

before

the

provided ample grounds to impeach his credibility.
Basciano,

384 Fed. Appx.

28,

31

(2d Cir.

2010)

jury

and

See U. S. v.

("As this court

has frequently observed, withheld information is not material in
the

sense

detailed

in

if

it

'merely

furnishes

an

additional basis on which to impeach a witness whose credibility
has

already

been

shown

to

be

questionable.')

States v. Parkes, 497 F.3d 220,
Ferguson

testified

Detective

Irving

that
in

the

he

233

had

past

(2d

r.

worked

as

and

defense

(quoting

2007)).
an

United

Moreover,

informant

counsel

had

for
an

opportunity to inquire about Ferguson's history as an informant
57

Ferguson's
through

449-87.)

As such,

relationship

with

(Tr2.

for Irving.

past
Irving,

if

not

additionally

questioned

"contacts

the

in

parole violation.

and

in

the

Defense

ability

Department"

for

to

police
counsel

calIon

conjunction

his

with

his

in

the

(Tr2. 186 - 8 7 . )

Because

parole

the

minutes

prosecution's

possession

and

confidence

the

verdict,

in

work

Dellasandro.

Ferguson's

Police

the jury was informed of

jury's

do

not
no

were

not

reasonably
due

process

undermine
violation

occurred here.

Conclusion

For the

reasons set

forth above,

the petition for a

writ of habeas corpus is denied.

Pursuant

to

28

U.C.C.

§

2253(c),

a

Certificate

of

Appealabilty should issue, where a habeas petitioner "has made a
substant
28

U.S.C.

showing of
§

2253

(c).

the
The

denial

of

a

touchstone

constitutional
of

such

a

right."

showing

is

whether resolution of the petition "was debatable among jurists
reason."

Miller El v. Cockrell, 537 U.S. 322, 336
58

(2003).

A

"substantial

showing of

the denial

of

a

constitutional

right"
. the

requires that "reasonable jurists could debate whether .

petition should have been resolved in a different manner or that
the issued presented were adequate to deserve encouragement to
proceed further.

1/

2001 )

Slack

(quoting

Rhagi v.
v.

(ellipses in original (
granting

a

Artuz,

309 F.3d 103,

McDaniel,

529

U.S.

106

473,

(2d Cir.

484

(2000)

internal quotation marks omitted)).

Certificate

of

Appealability,

a

district

court

In
in

this circuit must specify the issue or issues for which it is
granted.

Blackman v. Ercole, 661 F.3d 161 (2d Cir. 2011).

Because reasonable jurists could debate,
of

Appealability

is

granted

as

to

Petitioner's

a Certificate
ineffective

assistance of counsel and due process claims.

It is so ordered.

New York, NY
March

J '

2012

ROBERT W. SWEET
U.S.D.J.

59