Smith v. Fischer
Filing
51
OPINION: For the foregoing reasons, Petitioner's petition for writ of habeas corpus is granted. It is so ordered. (Signed by Judge Robert W. Sweet on 7/12/2013) (cd)
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------------------- -------- --x
PATRICK SMITH,
Petitioner,
07 Civ. 2966 (RWS)
- against
OPINION
BRIAN FISCHER
Respondent.
------------ - -------------- ----x
A P PEA RAN C E S:
Attorney for Petitioner PATRICK SMITH
EPSTEIN & WEILD
225 Broadway, Suite 1203
New York, New York 10007
Lloyd Epstein, Esq.
r Respondent BRIAN FISCHER
BRONX COUNTY DISTRICT ATTORNEY'S OFFICE
198 East 161st Street
Bronx, NY 10451
By:
rt Johnson, Esq.
Jason Whitehead, Esq.
len Saperstein, Esq.
Sweet, D.J.
Petitioner Patrick Smith ("Mr. Smith" or "Petitioner") has
petitioned for a writ of habeas corpus pursuant to 28 U.S.C.
§
2254, opposed by respondent Superintendent Brian Fischer ("Mr.
Fischer" or the "Respondent").
The instant matter centers on the testimony of an informant
The issue presented here is
in Petitioner's criminal trial.
whether Petitioner's 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) .
For the reasons set forth below, Petitioner's motion is
granted.
I. PRIOR PROCEEDINGS
By an
indictment filed on or about
June 5,
2002,
County Grand Jury charged Petitioner and Kevin Alston
with first-degree murder
degree
murder
manslaughter,
weapons
(in the course of a
(intentional
first-degree
possession.
and
felony
robbery
Prior
successfully moved to dismiss
to
(armed),
trial,
and
Bronx
("Alston")
robbery),
murder),
a
second-
first-degree
second-degree
defense
counsel
four counts of the indictment on
1
statute
of
limitations
grounds
Petitioner's statement to
On November
announced
that
regarding
18,
she
2003,
(Trl.
6-7.)
Justice
the
1
Thomas
A.
call
two
the
use
of
an
men
Ms.
informant
had
while
Scaccia,
to
testi
they
were
rs Island, including that Mr. Smith
informant
Prompted
preclude
state prosecutor,
to
int
incarcerated together at
the
to
police.
conversations
indicated to
and
he
s
by
Farber,
icipated in the
disclosure,
the
as
the
prosecutor
crime.
trial
judge,
whether
"[a] t
s point, it's your representation that he is not an agent. He
was
not
sent
by
you
or
prosecutor responded "No."
police
or
anybody
else?"
(Id.)
The
(Trl. 7).
Prior to opening statements, on Thursday November 20, 2003,
Court again inquired regarding
rmant as follows:
THE COURT: My understanding is t
we still have the
matter of the potential witness who is currently
incarcerated and we don't have all the information
that we need for him; is that
, Miss Scaccia?
MS. SCACCIA: That's correct. I have enough information
I have been able to put
a re
st for his rap
I do need to speak to the
ecti ve that he
contact
to determine whether there was any sort of
confi
ial informant relationship between him and
The trial trans
s are not paginated consecutively and so are denoted by
volume, with volume one, pretrial proceedings, denoted Tri.
number] ,
volume two, trial proceedings, denoted Tr2., and volume three,
The docket number and dates of the t
, denoted Tr. 3.
volumes are as follows:
Trl. (Dkt. No. 23) (November 18, 2003); Tr2. (Dkt.
No. 24, 25, 26, 27) (Nov. 20-21, 2003; Nov. 21, 24-25, 2003; Nov. 26, 2003;
Dec. I 3, 2003); Tr3. (Dkt. No. 28) (Dec. 22, 2003).
1
2
this
ive or if it was just somebody that he had
a working relationship with.
THE COURT: But based on our discussion yesterday, you
will not refer to him in your opening and there will
no need to mention that in connection with any of
t
tnesses who testify today.
MS. SCACCIA: That's correct.
THE COURT: And so Mr. Bendish, so long as we have that
by tomorrow, that's satis ctory.
MR. BENDISH (defense counsel): Yes, your Honor.
I
ink, Judge, the record should also reflect Miss
Scaccia gave me Grand Jury minutes which I had not
received and also rep s
s of the witnesses that she
intends to call.
So I believe other than the inmate,
I think she has completed Rosar
obligations.
THE COURT: Obviously, if
issues arise, we will
deal with them as they come up.
It's always nice when
there aren't since Rosa
obligation does commence
right about now.
(T2.
3 4.)
Following opening statements the same day,
Mr.
defense counsel,
Bendish,
for
regarding
requested
whether
the
an
outer
State was
time
going
later identified as William Ferguson
frame
to
("Mr.
call
a
the
sion
in
rmant,
Ferguson"),
that
he did not "want it to be like they give it to me in the morning
If."
and he is taking
stand in an hour and a
The prosecutor stat
that the informant would not be testifying
before the next week.
(Id.)
The Court responded,
you will have all
information tomorrow;
3
(Tr.
37.)
"I assume that
right.
There is no
reason why you shouldn't."
"[t]he
only
Dellasandro'
name
of
the
in
rmant
2003.
to meet
Tuesday,
may
not
have
by
tomorrow
is
Detective
c.r."
(Tr2.
assured defense counsel that he would have the
November 21,
able
I
The prosecutor stated that
position as to whether or not he was a
The
37.)
be
thing
(Id. )
his
rap
sheet
by
next
day,
The prosecutor said she would probably not
with
November
concern that
and
24
the
detect
or
25,
until
and
the
defense
next
Monday or
counsel
expressed
of the State's
might not be
ision as
to whether she would call the informant until after that point.
(Tr. 37-38.)
"on
Monday
[informant]
Court responded t
whether
there
is a C. I.
testifying or is a
will deal with it."
is
any
prosecutor would know
reason
221. )
stated
The
the
(Tr.
De
38.)
e
the
counsel accepted
is
(Id. )
prosecutor dis
rap
informant's
sheet.
(T2.
She stated that she had been unable to contact Detective
Dellasandro
t
was
that
And then we
agent or anything like that.
The following Monday November 24,
she
believe
or is getting a benefit of any kind for
outcome, saying "[o]kay."
what
to
("Det.
Dellasandro") ,
whom
informant
had
lly contacted, and that she did "not believe at this point
detective's name is
t
s and by the parties.
has altered quotations from the
in a variety of ways throughout the
The Court adopts "Dellasandro" for ease and
accordingly.
4
just from looking at his rap s
s that he was a confidential
informant but
going on what
I
am obviously not
will find out for sure and tell counsel.
acknowledged receipt of the rap
were any notes taken of his
Detective
Tracy or
u
until we are satisfi
time.
u
int
ly.n
At
asked,
the
or
the
"I
(Id. )
D.A.
Court
that everything is turned over
confirmed
eyewitness
testimony,
1 ahead
this,
stating
defense
counsel
(Id.)
end
of
informant was
s
Assistant
I am not going to permit you to call him
if the State called Mr. Ferguson,
that
counsel
ew or interviews by either
prosecutor
(Id. )
I
and asked "that if there
any other detect
"[c]learly,
lieve.
De
(Id.)
they be turned over as soon as possible. n
responded,
I
believe
representation,
not
r "affirmative
"an agent.
1/
you
prepared
is that correct?U
are
(Id. )
391. )
to
The Court
make
SCACCIA: Absolutely, that he was
rly not an
and he was not sent in there to speak
any way
wi
the defendant by the police or by our office.
And, in fact, that
contacted, he contacted the
ice Department who then contacted Detective Tracy,
this case detective, because he was the one assigned
to
case.
I have not even, at this point, met Mr.
Ferguson.
I did not s
him in there.
He is not a
registered confidential in rmant.
5
that
lowing colloquy
then took place:
MS.
U
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 believe
that Detective Dellasandro has been involved with him
regarding Brooklyn arrests. I mean he reached out to
him because he obviously knew who he 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 his 26 arrests or because he works, he lives, or is
known to frequent the precinct, that I can't answer
you, but he reached out to the police.
MR. BENDISH:
Judge, again, 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
don't have any idea whether, you know, he went in
there once and he might have called this guy and the
guy said, well, when you see him again, ask him about
- I don't know.
I have no idea, so I'm asking before
we actually put him on the stand that we have some
defini ti ve 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 .
MS. SCACCIA:
It's my understanding that the call 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
any notes about this? He must have.
MS. SCACCIA:
THE COURT:
Dellasandro
take
Detective Dellasandro?
Yes.
That I don't want to say.
MS. SCACCIA:
the answer to that.
6
I don't know
THE COURT;
Do you have
in tomorrow?
MS. SCACCIA:
Detective Dellasandro coming
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:
Tha t' s not, I mean he
homi de investigator detect
is.
nds out who the
MR. BENDISH:
Again, Judge, I am not asking for
answers now, but it would seem to me that we are not
even sure how many times they're saying he allegedly
spoke to the
ient.
Obviously, if it's more than
once, that there may be, that he was sent in the
second time and either at the suggestion
MS. SCACCIA:
He wasn't
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
r an
of r 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
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
ther
defendant.
He made the statements to the defendant.
Counsel has a position that these were not statements
by
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 awaiting
7
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
I will tell counsel everything
I have found out.
MR. BENDISH:
Aga
Judge, I am just, I have no
problem with
, 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
ght, we can do
to me that it's not unli ly that
a detective, that the
ctive
mean it would be rat
lish,
in light of Rosario ru s
telephone call like this not to
some information.
that.
It does occur
when an inmate calls
has his pen out.
I
it seems to me, even
a detective on a
at least write down
MS. SCACCIA:
I am pretty certa
he had to write at
least
Patrick
Smith down
someplace
so
he
could
remember who it was when
was calling around to the
case detective.
MR. BENDISH:
Wouldn't I be entitl
to that?
That's
why I don't understand where t
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
I will.
I will.
And if
be, I will
MS. SCACCIA:
him here for these purposes, or I will have him
I will get as much in rmation as I
his notes.
possibly can.
THE COURT:
Okay.
If we need to, we can put
ect
Tracy on at 11:30 and call the inmate after lunch.
Just, I
MR. BENDISH:
Again, I have no problem.
will put on the record now that I want an offer of
I understand that we're going to do [it]
8
MS. SCACC
An offer of proof that what the inmate
would say?
MR.
BENDISH:
I
think
it's
incumbent
upon
the
pros
or to say that I talked to people and I have
firsthand knowledge other than double hearsay.
She
never talked to anybody.
hasn't hasn't (sic)
talked to the inmates.
So
statements, while I
have no reason to believe t
are not accurate at
this
int, I as k for an offer of proof and for them
to call this witness, there has to be more on the
record.
THE COURT:
Okay.
Obviously, Miss Scaccia is not
going to call the witness unless she knows that
actual
heard or believed in good faith that he
something directly from Mr.
th but you have to ma
whatever inquiry you have to make in person to rule
out any Rosario or agent problems.
(Tr2. 391-97.)
next
day
the
prosecutor
with Detective Dellasandro and
Detect
h
about
reported
rned that Mr.
Dellasandro and told him that
a
robbery
she
had
Ferguson called
ked up Mr.
404. )
Dellasandro,
Smith in the computer
and determined that Detect
Tracy was in charge of Mr.
case and reached out to
on October 21,
Tracy returned his call t
Mr.
Ferguson.
interview,
(Tr2.
and acco
last conversat
405.)
2003.
next day, October 22,
day Dellasandro and Tracy went to Rikers
spoken
Patrick Smi th had told
(Tr2.
homic
to the prosecutor,
that
lsI
Smith's
(Tr2.
405.)
2003, and that
and spoke with
Neither officer made any notes of the
ng to the prosecutor,
that Mr.
that was
the first
Ferguson had with Tracy prior to
9
t
She asserted t
405) .
Dellasandro but
Detect
informant. II
this
Mr.
witness
was
instance
never
went
concerned
anywhere.
a
(Tr2.
that
Mr.
Ferguson's
Ferguson
previous
concluded
that
his
Defense
information
counsel
edly
statements
provided
to
the
police
After a discussion,
understanding
was
that
rmation in the
[wherein]
and
whether
were
made
Mr.
to
the trial judge
t
only
time
Mr.
st was "in connection
ss as conduit as
court was not
Mr.
Ferguson
(T
411.)
speak to
Mr.
lasandro.
courtroom to
he
was
provided
The
incarcerated,
him
to
whom he
Detect
(Tr2.
information
briefly
another
inmate
left
the
When
411.)
according to Mr.
to
she
Ferguson,
approached
in
him
Mr. Ferguson then reached out
about killing that inmate's wi
Detective Lanigan,
that
prosecutor
son.
Fe
that,
Scaccia expla
while
introduced
the
he acted more or
whether
returned,
t
ving his own information," but
opposed to
to
Ferguson had provided
and
previously
Ferguson had provided in
with an incident
murder,
408.)
(Tr. 408-11.)
Dellasandro.
2001
confidential
to know how accurate the information
stated that he would Ii
clear
a
rcement with information in the past, but that the only
prior
was
not
(Tr2. 406.)
The prosecutor acknowledged that Mr.
lawen
rguson "knew of
grown
Dellasandro,
10
up with,
and
Lanigan's
gan
partner.
(Tr2.
412.)
Mr.
Ferguson was
then
removed
from
the
situation
and an undercover officer was introduced to the inmate with whom
he
had
spoken
about
the
murder.
(Tr2.
412.)
However,
Mr.
Ferguson was not called upon to testify and received no benefit.
(Id. )
Based
on
determined
the
that
prosecution's
"[t] here
is
no
representations,
indication
on
the
record
the
Court
that
this individual is engaged as an agent with the People or police
or
state
stated,
in
"I
any
way
assum [e]
the
you
for
responded "I
what
we
have
to
deal
with
this
point,
happen."
At
first
know,
there
Mr.
by
the
counsel
inmate
So right
and
if
there will
no
to
reason
something
be
and
now
it's
(Id. )
basically on
comes
consequences
out
that
we
including mistrial.
to
suspect
to
that's
that
will
But
at
going
to
(Id. )
trial,
met
at
Mr.
the
before the trial.
had a
agree.
then up
is
made
Defense
I will have to live with that."
cross-examination
changes
413.)
representations
prosecution is correct.
The Court
(Tr2.
"
five
or
Ferguson
Rikers
(Tr2.
testified
Island
421.)
that
medical
Mr.
clinic
Smith
several
At that first meeting,
ten minute conversation in which Mr.
Ferguson what he was charged with.
11
(Tr2.
496.)
and
he
weeks
the men
Smith told
Mr.
Ferguson testified that he met with Mr.
er that week,
consecutive evenings
Saturday
of
(October 23,
these
asked
a
corrections
library,
which
possible
Mr.
because
and 25,
2003).
Ferguson
was
0
cer
to
Ferguson
he
had
a
following
1
y),
he
the
which he
contacted
second
(Tr2.
in
bring
Mr.
job
443.)
stated occurred on a
Detective
Dellasandro.
down
and
Mr.
and
the
make
corrections
Ferguson testified
rst
Thursday
(T
to
to
the
and
On each
library
was
(the
meeting
law
Smith
kers
at
Friday,
445-6.)
the
testified
officer would accommodate him.
that
on Thursday,
Mr.
occasions,
24,
Smith on three
the
law
(October 23),
50912.)
However,
Detective Tracy testified that he and Detective Dellasandro met
wi th Mr.
trial
Ferguson on Wednesday,
testimony
thus
October 22.
conflicts
as
to
(Tr2.
the
591-93.)
timing
The
of
Mr.
and
two
Ferguson's meeting with the police.
Mr.
Ferguson
other detectives
testified
that
and Mr.
He
the
that
Dellasandro,
interviewed him regarding Mr.
him if he would testify,
stated
Tracy,
nei
r
Smith and asked
Ferguson agreed.
police
nor
Attorney asked him to attempt to get Mr.
the
(Tr2.
449-53.)
Assistant
District
Smith to speak or take
any of his paperwork or act as an informant in any way, and that
he was receiving no bene
t from his testimony.
12
(Tr2. 45152.)
Mr.
Ferguson
testified
first
that
Smith called to
on
meeting,
Thursday,
aring.
October
Mr.
paperwork regarding their cases,
Mr.
Smith
told
him
that
he
was
his
co-defendant
punch the
Mr.
guard.
Smith
did
(T2.
(Tr2.
23,
422.)
the
shooting
t
422.)
Mr.
ion
confidence by sharing his own
to
and
to
meeting with Mr.
that
Mr.
and
tr
to
kground because
Ferguson,
third
Smith on
Ferguson testified that Mr.
444) .
his
(second
his
f
ing
that
eye
a
young
could identify
Mr.
Ferguson
13
further
witnesses
and that this
(Tr2.
Smith also s
by
library)
Smith told him
for the identification
wondered how the off
441,
gain
ry in which
considerable distance,
Mr.
(T2.
in
determined
"a major plus"
seen
did was
"didn't sit
day, October 24, Mr.
was
were
he
449.)
had seen the crime from a
accomplice
case
Ferguson said he pressed
(Tr2. 425, 427-28,
investigator
a
shared
s
all
well with him" that Mr. Smith was involved in a
According
two
expected to "beat the case"
further
an "old man" was shot.
At that
Ferguson testified that
attempting
severed from his co-defendant's
because
when Mr.
law library where he was
preparing for his parole violation
second
meeting
inic meeting,
occurred three or four days after t
Ferguson had Mr.
library
444.)
that he and his
police
officer,
and
after seven
testified
that
on
Saturday, October 25, Mr.
Smith told h
that he was happy that
his case had been severed from that of the co
upset
with
his
lawyer,
$20,000, but told Mr.
446-47.) Mr.
who
Mr.
Smith
Smith's father t
that
his
e
it was $25,000.
but
was
(Tr2.
Ferguson further testified that over the course of
these library meetings Mr.
Smith confessed that he and his co
defendant stole a six-fi
it
told
fendant's,
hospital payroll, that they dropped
a waiting vehicle,
and that a young officer spotted them.
440-41.)
Mr.
Ferguson
stat
on
direct
examination
he
had
federal felony conviction which did not appear on the rap
the
prosecutor
had
disc
then handed defense
this
(Tr2.
counsel
conviction.
an
additional
De
(Id. )
425-27.)
e
counsel
The
a
et
prosecutor
page which
included
cross-examined
Mr.
Ferguson as to that conviction and his broader criminal history,
coca
abuse,
477-91,
514-17.)
worked as
named
a
Jimmy
and
use
On
of
cross,
paid informant
Irving.
(Tr2.
identities.
multip
Mr.
for
a
Ferguson
Broo
45558.)
counsel moved to strike the
460. )
454-59,
disclosed
he
yn narcotics detective
At
that
time,
formant's testimony on
that "there hasn't been total discove
background check."
(Tr2.
de
e
grounds
and an inadequate
(sic)
Defense counsel did not move to
suppress or request a hearing on Massiah or Rosario grounds.
14
The
court
Ferguson's
testimony,
examine Mr.
of
the
denied
the
Defendant's
but
granted
presence.
(Tr2.460.)
Ferguson elaborated on his work
in 1999 and involving Mr.
from,
the
where
purchase
it
was,
and
strict
with
Detective
was
t
primarily
layout
Attorney
to
Irving or
documentation to these monies,
the
place
Following
affirmatively
his
was
s
iors,
and
to
in
this
make
more
whoever the
produce
some
undercover buys, however you want
think it should have
witness taking the stand."
of
his position that "it is the
Lieutenant
I
Mr.
by Irving to buy
461-73. )
the
to label it and,
the
occurred.
burden
sergeant
to
hearing,
Detective Irving,
defense counsel stat
ries
Mr.
opportunity
At
Ferguson being pa
testimony,
of
an
strike
formation regarding who he had made the
drugs and then convey
which
counsel
to
Ferguson about his history as an informant outs
jury's
purchase
motion
(Tr2.
done prior to the
473-74.)
The court
rected
counsel to continue his cross-examination and the prosecutor to
rna
to
further inquiries as to Mr.
Detective
further
Irving.
regarding
his
Ferguson,
(Tr2.
474-75.)
work
for
sclose any additional work that
(Tr2. 477-86.)
15
Detect
including with regard
Mr.
Ferguson
Irving
he had done for
but
testified
did
not
police.
between Mr.
Ferguson and Irving and that he was not
could
rest
to
clear
without
that.
up
the
that
had
prosecution
obligation
argued
prosecution
the
an
counsel
defense
day,
following
The
(Tr2.
the
relationship
sure that
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.
In
(Id.)
summation,
the
prosecutor
emphasized
Mr.
Ferguson's
testimony and Mr. Smith's confessions including those statements
which
Mr.
testify.
Ferguson
elicited
after
Mr.
Ferguson
had
agreed
to
(Tr2. 710-14.)
After the
jury charge,
determined that Mr.
the prosecutor stated that she had
Ferguson was not "a registered confidential
informant," that she had still not spoken to Detective Irving,
but that Tracy had called Irving's command and she was trying to
(Tr2.
get in touch with him.
would
take
surfaced,
appropriate
steps
795.)
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
2003,
testimony
the jury asked for read backs of Mr.
during
deliberations
16
(Tr2.
770) ,
and
returned
its
guilty
verdict
on
(intentional and
Second
(Tr2.
804 07).
prosecutor
request
to
two
counts
lony murder)
After
the
verdict,
provide
the
i
as soon as possible.
On December 22,
2003,
of
Murder
in
the following day
Court
ion
the
directed
defense
counsel
(Tr2.809.)
prior to sentencing,
defense counsel
moved to set aside the verdict,
on
the
last
minute
introduction
of
Mr.
Ferguson's
testimony,
that
it
would
be
my
s
ion that the defense wasn't given all of the
information at the p
time that it should
For instance, it wasn't given during the normal
Rosario turn over pe od.
I
understand that
ir
argument is that this was a late witness that came to
ir attention, although
the testimony of
wi tness during the hea ng, it was obvious that they
had been aware of his
stence prior to the start of
the trial.
Besides not giving us the Rosa 0 or
necessary document be
t
beginning of the t
they were basically gi ng us things, dribs and d
s.
As we stand here today, I am actually not even sure
whether they have given us all of the information t
they had initially sa
they were going to give us.
For instance, I'm not
I'm pretty sure that t
re's
been no communication
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 detect
had ever been contacted.
So for
the record I am as
that the verdict be set aside
because of the improper usage of the jailhouse
tch.
ied that both de
counsel and
the court were aware of
witness, but that s
had not spoken
to Detective Irving.
9-10.)
(Tr3.
9.)
The prosecutor
(Tr3.
17
The trial
judge agreed that
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
time that would suggest t
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
the eyewitness testimony
this
case, that the j
Ihouse informant had to
a
reasonably
witness.
(Tr3. 11-12.)
Mr.
Smith
was
to
sentenced
two
concurrent
indeterminate
sentences of imprisonment of from twenty years to life.
New
defense
transcripts
in
regarding his
counsel
whi
subsequently
Mr.
Ferguson
uncove
paro
discussed
relationship with the police.
(Tr3.21.)
violation
additional
At a parole hearing on
October 1, 2002, over a year prior to Mr. Smith's trial, Mr.
testified
that
he
had
trial,
2003,
on
r
Mr.
son
the
assaulting
other
supplying
rs.
approximately
hearing
been
(Parole Trl.
10,
2003,
testified
that
y he was arrested for
s girlfriend,
on
ion
wee
prior
morning
Ferguson
"locally"
5 (Dkt. No. 21).}
several
history
to
of
for
At a parole
Mr.
Smith's
September
olating his parole for al
4,
y
he met with Detective Dellasandro and one
detective because "I do different things for dif
agencies out in the street and they were going to get me
18
stered
wi th
(Parole
the ATF."
further
testified
that
Tr2.
"I
101-02
was
in
(Dkt.
No.
the ATF,
Mr.
22).)
okay,
Ferguson
Downtown Brooklyn,
with two homicide detectives that were vouching for me because of the
I
information.
was getting ready to make a phone call on the phone
in the ATF office,
right
(Parole Tr2.
okay."
there,
116-17).
if
Parole would have
After that meeting,
gave
Mr.
them the
Ferguson was
arrested for violating his parole conditions.
In September of 2005,
his case,
delinquency
in
Smith
Division,
right
the
20).)
minutes
Mr.
as
disclosed.
an
including
identifying Mr.
to
a
Smith cited to Mr.
(Id.
Division modified
at
of
18
the
what
n.3.)
the
appealed
Declo,
and
Ex.
denied
confront
4 at
15-20
Mr.
the
(Dkt.
Ferguson's undisclosed parole
earlier
disclosure
On
April
of
judgment
prosecutor's
effectively
defense
(Whi tehead
example
that
Ferguson
present
prosecution's witness.
No.
through counsel,
raising four claims before the New York State Supreme
Appellate
Court,
Petitioner,
4,
2006
conviction,
might
the
have
Appellate
vacating
the
DNA
databank fee and reducing the amounts of the mandatory surcharge
and crime victim assistance fees
$5 ,
v.
respectively,
Smith,
2006,
the
but otherwise affirming the
812 N.Y.S.2d 512
New
from $200 and $10 to $150 and
York
State
(N.Y.
Court
App.
Div.
of Appeals
19
judgment.
People
2006).
On June 23,
denied
petitioner's
People v. Smith, 7 N.Y.3d 763
application for leave to appeal.
(2006) .
On March 21, 2007, Petitioner filed a pro se pet
ion for a
writ of habeas corpus with the United States District Court for
(Dkt.
the Southern District of New York.
2007,
this
habeas
Court
petition
granted
Petitioner's
without
prejudice
in
No.
request
to withdraw his
order
to
May
pending,
Mr.
17,
2007,
Smith
while
led
a
the
federal
pro
se
conviction pursuant to under NYCPL
§
allow
habeas
motion
to
440.10 in t
Mr.
Smith
argued
(Whitehead Decl. Ex. 8.)
that
his
trial
counsel
to
motion
was
vacate
his
Bronx Supreme
Court, and attached the minutes of informant's paro
his reply papers.
him
(Dkt. No.6.)
exhaust unexhausted claims in the State courts.
On
On July 31,
1.)
hearing to
Among other points,
was
ineffective
r
iling to request a missing witness charge on Detective Irving,
saying "[iJf,
as Mr. William Ferguson
clared 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 therea
r,
his responsibility to request his production in Court so that he
could
cross-examine
him
and
verify
the
veracity
of
Mr.
Ferguson's position, while at the same time serve as someone to
20
either substantiate and/or disprove Mr.
Ferguson's contentions."
(Id. at 20-21).
In pro se reply papers dated October II,
argued,
among
assistance
other points,
of
counsel
by
that
the
he
was
failure
2007,
denied
to
call
Petitioner
the
or
effective
request
a
missing witness charge on Detective Irving,
as well as that his
due process rights under Brady v. Maryland,
373 U.S.
were
vi
ated
by
the
prosecution's
Ferguson's entire criminal record,
Ferguson's
that
the
"bears
on
hearing
[Ferguson's]
"lack of varacity
fabricate
minutes
and
a
own tales
However,
history
of
for
Petitioner
working
as
a
pages
role
of
the
a
the
n
Ferguson's
writ
pro
of
se
error
reason
contend
papers
he
sees
that
Mr.
aim that
informant.
attached
hearing
pages of notes of the parole hearing.
in
not
government
papers
sought
showed Mr.
supported his
Petitioner
Smi th
Mr.
Petitioner
information
whatever
did
documentation,
Addi tionally,
the
and
supporting
two
disclose
(sic)" and "willingness and capacity to lie,
Ferguson's parole hearing minutes
had
(1964),
including the minutes of Mr.
credibility"
and spin his
(Id. )
"
to
(Whitehead Decl. Ex. 10.)
role hearing.
argued
failure
83
to
transcript,
his
and
he
As
reply
three
(Id.)
dated
coram nobis
June
5,
2007,
Mr.
granting
him a
new
appeal in the Appe1la te Division including on the grounds that
21
his
appellate
counsel
was
ineffective
for
failing
appeal that his trial counsel was ineffective .
Ex.
6.)
The
coram
nobis
petition
repeated
Torres,
Smith's NYCPL §
not
the
trial
440.10 motion was
judge,
raise
on
(Whitehead Decl.
the
same
grounds
(Id.)
raised in the Section 440.10 motion.
Mr.
to
because
the
assigned to Justice
tr
1
judge had been
In an Order entered on November 19,
transferred to Manhattan.
Justice Torres denied petitioner's pro se Section 440.10
2007,
Justice
motion.
Smi th' s
barred
counsel
claims
from
Torres
and
ruled
asserting
because
that
his
Division,
not
on
First
whether
to
(1)
reach
of
had
direct
a
merits
was
ineffective
Department,
the
the
Petitioner
claims
Petitioner
Appellate
rule
declined
appeal
and
prosecutor
(2)
of
Mr.
procedurally
assistance
pending
the
improperly
in
court
of
the
would
withheld
the
parole minutes because Mr.
Smith submitted the minutes with his
reply,
papers.
rather
than
main
(Whitehead
While declining to rule on the issue,
Smi th' s
Brady
claim
"does
record established that Mr.
regarding
warranted.
his
criminal
(Id.).
not
hold
De
Ex.
11).
the court noted that Mr.
water"
because
the
trial
Ferguson had been questioned fully
history
and
as
such
a
hearing
is
not
Mr. Smith moved for leave to appeal.
On March 12, 2008, the State moved for leave to reargue the
Court's
denial
of
petitioner's
Section
22
440.10
motion
on
the
grounds
that
the
Peti tioner' s
direct
440.10
motion
again
Petitioner
issue.
had been
appeal
was
incorrect
pending.
strict attorney requested
The
12. )
court
be
denied,
did
not
but
its
belief
(Whi tehead
Mr.
that
oppose
in
a
that
Decl.
Ex.
Smith's Section
corrected
granting
the
opinion
government
his motion to vacate should
asserted t
reargument,
and aga
be granted.
(Whitehead Decl. Ex. 13).
On Ma y 6,
2008 ,
t
coram nobis application.
On
motion
July
to
1,
2008,
reargue,
Appellate Division denied Petitioner's
(Whitehead Decl. Ex. 14.)
Judge
vacated
t
Torres
previous
petitioner's Section 440.10 motion.
With
regard
to
Mr.
th's
granted
the
government's
decision,
and
(Whitehead Decl.
ineffective
assistance
de
Ex.
ed
15.)
claim
failure to call or request a missing witness charge on Detect
Irving, the court held the following:
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
fense counsel's re
sibility
to properly investigate the facts surrounding Mr.
Ferguson's responsibilities to Detect
Irving and
either
substantiate
or
disprove
the
witness'
contentions by calling the detect
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
Detecti ve
Irving
could provide
any
noncumulative
information relevant to a material issue in the case.
This
aim does not allege a ground consti tut
a
ils.
1 basis for the motion and hence
23
for
(Id. )
to
's claim that the State had
In deciding Petit
turn
over
entire
Ferguson's
Mr.
criminal
specifically withheld information about Mr.
court
ruled
th's tr
pendency of Mr.
\\ [a] s
s
Court
record
and
Ferguson's criminal
case that was open during
held
led
previously
the
1, the
function
of
reply papers are to address the opposition and not to raise new
issues, hence the parole hearing transcripts are not reviewable.
It is c
in
As
il about
such
pursuant
may
ar from the record that Mr.
deny
essential
his
criminal history up
Defendant's
to
a
C. P. L.
motion
based
§4 40.30 (4) (c)
C.P.L.
to
§440
support
19,
Mr.
Smith
through couns
in
indicates
is
that
'an
motion
allegation
is
conclusively
denied
a
court
of
fact
refuted
by
(Id.)
the New York Court
of Appeals denied
leave to appeal the
ial of his
(Whitehead Decl. Ex. 16.)
hired
,
open case.
ground
if
Petitioner's application for
coram nobis application.
this
that
motion
the
2008,
on
until
which
unquestionable documentary proof.'"
On August
Ferguson was questioned
an
attorney.
In
January,
2009,
Petitioner filed a second NYCPL § 440.10 motion
Bronx Supreme Court.
(Whitehead Declo
17.)
(1)
assistance when his t
1 counsel failed to move to suppress or
Mr.
th's
Smith was deprived of ef
In it,
Petitioner claimed that
preclude
Mr.
Ex.
statements
24
to
Mr.
son
on
ctive
Massiah
grounds and consented to commencing trial without receiving the
informant's criminal record and prior statements required to be
Brady v.
disclosed
under
People v.
Rosario,
and
Mr.
(2)
Maryland,
parole
Smith's Brady and Rosa
registered
minutes.
that
the
The
arguing
that
(1)
trial
the
ghts
0
sclose Mr.
confidential
(Id.)
grounds
U.S.
83
(1964),
213 N.Y.S.2d 448,9 N.Y.2d 286,289
the prosecutor's failure to
"almost"
373
trial
were violated by
and
Mr.
the
motion
opposed
attorney's
omissions
attorney
(1961);
Ferguson's status as an
informant
State
and
failed
were
Ferguson's
on
the
strategic,
to make
a
Massiah
motion because he believed that the trial court's allowing him
to examine the
the
need
informant outside the
a
did
attorney
for
separate
not
ring,"
Massiah
request
the
jury's presence "obviated
trial
and
court
(2)
to
sanction
prosecutor for her failure to timely turn over Rosa
because the
denied
in
attorney
light
of
It that
the
such a
the
0
and
would
the
material
request would have
rcumstances
trial
have
been
been
"unhelpful to him and might have
only served to aggravate the
jury. "
(Whitehead
According
these
assertions
Declo
were
Ex.
based
Defendant's trial attorney,
attorney was submitted.
18.)
on
to
conversations
though no affidavit
(Id.)
25
the
prosecutor,
with
the
from the trial
On
March
3,
2009,
the
Appellate
Division
denied
as
Petitioner's application for leave to appeal the first,
19,
2007,
denial
of
his
Section
440.10
that that decision had been vacated.
On
second
were
February
NYCPL
§
8,
2010,
440.10
procedurally
barred,
Torres
ruling
under
on
November
the
grounds
(Whitehead Declo Ex. 19.)
Judge
motion,
motion
moot
denied
that
NYCPL
Petitioner's
Petitioner's
440.10 (3) (c),
§
claims
because
Mr. Smith "was in the position to adequately raise all issues he
now makes
in the previous motion but chose not to. "
Declo
Ex.
20.)
While
reach
the
merits
of
the
Court
Defendant's
stated
counsel
that
it
claims"
(Whitehead
"declines
it
found
to
that
the motion was "meritless" and that Defendant's "bare claims of
ineffective
(Id. )
On
Department,
assistance
July
19,
denied Mr.
do
not
2010,
Smith's
meet
the
the
Strickland"
Appellate
application
for
the denial of his second NYCPL § 440.10 motion.
standard.
Division,
leave
First
to appeal
(Exhibit 21.)
The Petitioner then filed an amended petition for a writ of
habeas corpus on December 3, 2010,
raising the same two claims
of ineffective assistance of counsel that he raised in the
second N.Y.C .P.L § 440.10 motion. Petitioner did not assert
cause for his procedural default of his Massiah claim in state
court.
(Dkt. No. 12).
26
In an opinion dated March 1, 2012, this Court denied the
Petitioner's habeas corpus petition. See Fischer r 2012 WL
695432.
In the March 1 Opinion, the Petitioner's Massiah claim
was found to be procedurally barred because the state court had
denied
claim due to the Petitioner's failure to raise it in
his first collateral motion and because the Petitioner had not
asserted cause for his default in state court.
The rul
determined that the state court's
Id. at *17
O.
cision rested on
an independent and adequate state ground, which barred fede
review.
. at *19.
Further, in denying the Petitioner's
process claim, the Court noted that the prosecutor did not
possess any "mate
likely to have a
that was non-cumulative or otherwise
d the verdict U since "prosecutors are not
do not suppress, parole minutes
deemed to possess, and there
that are not known to a state prosecutor.
1
on also s
u
. at *20.
March
that "Ferguson's parole hearing minutes do
prosecutor, was untruth
not establish that, he, or
when
they represented that Mr. Ferguson had not been acting as a
government agent when he eli
ted incriminating statements from
Petitioner.]U Id. at *21.
On March 22, 2012, the Petitioner moved this Court to
reconsider, pursuant to Ru
59 of the
ral Rules of Civil
Procedure, its denial of his habeas corpus petition based on
27
Supreme Court's decision in Martinez v. Ryan, --- U.S. ----, 132
S.Ct. 1309 (2012).
On January 25, 2013, this Court granted
Petitioner's motion to reconsider, recognizing Martinez to
establish that,
Where, under state law, claims of ineffective assistance of
trial couns
must be raised in an initial review
collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, at the initial-review
collateral proceeding, there was no counselor counsel in
that proceeding was ineffective.
Id. at 1320.
The Court found that the holding in Martinez was
applicable to Petitioner's case, and that Petitioner's claim of
ineffective counsel based upon the failure of defense counsel to
suppress the informant's testimony under Ma
reconsidered.
ah would be
Fischer, 2013 WL 357604, at *7.
On March 12, 2013, Petitioner submitted a motion in further
support of Petitioner's habeas corpus petition.
This motion was
heard and marked fully submitted on May 22, 2013.
I. STANDARD OF REVIEW
A. The Standard for Ineffective Assistance of Counsel
The Sixth Amendment provides that a criminal defendant
"shall enjoy the right ... to have the Assistance
Counsel for
his defense." U.S. Const. Amend. VI. The Sixth Amendment "right
28
to counsel is the right to the effective assistance of counsel."
McMann v.
chardson, 397 U.S. 759, 771 n. 14
(1970). The
Supreme Court has established a two-part test
claims of ineffective assistance. St
evaluating
ckland v. Washington, 466
U.S. 668, 687 (1984); accord Morales v. United States, 635 F.3d
39, 43 (2d
counsel's
r.2011). "First, the
fendant must show that
rformance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning
as the 'counsel' guaranteed by the Sixth Amendment." S
466 U.S. at 687. "Second, the
ckland,
fendant must show that
deficient performance prejudiced the defense." Id. While the
defendant must prove both defi
ent performance and prejudice,
"there is no reason for a court deciding an ineffect
assistance claim to approach
inquiry in the same order or
even to address both components of the inquiry if the defendant
makes an insuffi
showing on one." Id. at 697.
Under Strickland's first prong, there is a strong
presumption that
assistance rendered by an atto
is
objectively reasonable. 466 U.S. at 688 89; Roe v. Flores
Ort
,528 U.S. 470, 477
(2000)
("[JJudicial scrutiny of
counsel's performance must be highly
rential")
Strickland, 466 U.S. at 689). The pe
rmance inqui
(quoting
accordingly examines the reasonableness of counsel's performance
29
"from counsel's perspective at the time U and "considering all
the circumstances. u Strickland, 466
u.s.
at 688,
689.
In this regard, it is well settled that "[a]ctions and/or
omissions taken by counsel for strategic purposes generally do
not constitute ineffective assistance of counsel. u Gibbons v.
Savage, 555 F.3d 112, 122
(2d Cir.2009)
(citation omitted).u
[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually
unchallengeable,u and even strategic choices made after less
than complete investigation do not amount to ineffective
assistance-so long as the known facts made it reasonable to
believe that further investigation was unnecessary. Strickland,
466
u.s.
at 690-91. Moreover, an attorney is under no obligation
"to advance every nonfrivolous argument that could be made.
Aparicio v. Artuz, 269 F.3d 78,
v. Lucey, 469
463
u.s.
u.s.
745, 754
387, 394
(1983)
95
(2d Cir.2001)
U
(citing Evitts
(1985)); see also Jones v. Barnes,
("For judges to second-guess reasonable
professional judgments and impose on appointed counsel a duty to
raise every 'colorable' claim suggested by a client would
disserve the very goal of vigorous and effective advocacyU).
The second Strickland prong requires an affirmative showing
of prejudice. 466 U.S. at 694-95; Gueits v. Kirkpatrick, 612
F.3d 118, 122 (2d Cir.2010). The petitioner's burden with
30
respect to prejudice is similarly stringent, as he must show a
"reasonable probabil
y that, but
counsel's unpro
ssional
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694; accord United States v. Caracappa,
614 F.3d 30, 46 (2d Cir.2010). "[T]
re is generally no basis
for finding a Sixth Amendment violation unless the accused can
show how speci
c errors of counsel undermined the reliability
of the finding of guilt." United States v. Cronic, 466 U.S. 648,
659 n. 26 (1984). In applying this standard, "[a] reasonable
probability is a probability sufficient to undermine confidence
in the outcome." Strickland, 466 U.S. at 694; a
Mazzuca, 570 F.
490,507
(2d
Wilson v.
r.2009). "[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.
B.
The Sixth Amendment Standard
Once
adversary judi
Sixth Amendment guarantees a
present at all critical st
1 process has been initiated,
fendant the right to have counsel
s of the criminal proceedings.
Montejo v. Louisiana, 556 U.S. 778
Wade, 388 U.S. 218, 227
s a critical
const
Mon
0,
(2009); United States v.
8 (1967). Inte
ion by the state
for Sixth Amendment purposes.
129 S.Ct. at 2085 (citing Massi
31
v. United States, 377
U.S. at 204 05; United States v. Henry, 447 U.S. 264, 274,
(1980) ) .
With regard to state informants, a defendant is denied "the
basic protections"
aga
the S
h Amendment "when there [is] used
t him at his trial evidence of his own incriminating
words, which federal agents had deliberately elicited from him
a
Mas
ence of his counsel."
he had been indicted and in the
ah v. United States, 377 U.S. at 206. "Once t
attaches,
right
'the Sixth Amendment renders inadmissible in the
prosecution's case in chief statements deliberately elicited
from a defendant without an express wa
of the right to
counsel.' " United States v. Rommy, 506 P.3d 108, 135 (2d
Cir.2007)
(quoting Mi
(1990)); see also Mont
gan v. Harvey, 494 U.S. 344, 348
0,
United States, 377 U.S. at
556 U.S. 778
204~05;
U.S. at 274; cf. Kansas v. Vent
such evidence is, however, admiss
The S
(2009); Ma
ah v.
United States v. Henry, 447
s, 556 U.S. 586 (2009)
(holding
for impeachment purposes).
h Amendment is not, however, violated when
"whenever-by luck of happenstance-the [Government] obtains
incriminating statements from the accused after the right to
counsel has attached." Kuhlmann v. Wilson, 477 U.S. 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 part of the
32
government, so information gotten before the inmates became
agents/informants is not protected by the rule. If,
however, 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, the materials gotten after such government contact
are properly excluded under the Massiah rule.
United States v. Stevens, 83 F.3d 60 at 64
(emphasis in
original). Thus, once an inmate informs the government of a
defendant's statements, he becomes a government agent with
respect to later
icited statements. See United State v. Henry,
447 U.S. at 271 (holding that even though the informant was
given specific instructions not to question Henry about his
case, the government had in fact "deliberately elicited" the
formation from Henry, stating, "[e]ven if the agent's
statement that he did not intend that [the informant] would take
affirmative steps to secure incriminating information is
accepted, he must have known that such propinquity li
ly would
lead to that result."); see also Birbal, 1113 F.3d at 346
(implicitly recognizing that the informant became a government
agent once he reported the defendant's statements to the
government but finding no violation because "[a]s soon as the
government became involved,
[the informant] stopped asking
questions: he simply listened to
rbal's bragging and reported
it to the government. As previously noted, there is no
constitutional violation in the absence of solicitation.")
33
(citations omitted); accord Unit
States v. Pan n
1, 510 F,
Supp.2d 185, 191 (E.D.N.Y.2007).
II.
PETITIONER'S CLAIM IS REVIEWED DE NOVO
"Where this Court reaches the merits of a claim that has
not been decided by the state court on substant
grounds
the pre-AEDPA de novo standard of review applies." Santana v.
Brown, 2013 WL 2641460, at *6 (S.D.N.Y. June 12, 2013); see also
Connelly v. Senkowski, 2012 WL 5463915, at *4
2012)
(E.D.N.Y. June 8,
("Since the Appellate Division did not reach the merits
this claim, this Court's review is de novo."); Sellan v.
Kuhlman, 261 F.3d 303, 311 (2d Cir.2001)
"adjudicated on the merits" means "a
(noting that
cision finally resolving
the parties' claims, with res judicata effect, that is based on
the substance of the claim advanced, rather than on a
procedural, or other, ground").
Here, in rejecting Petitioner's
C.P.L. §§440.10 motion dated January 6, 2009, the state court
asserted: "[t]his Court declines to reach the merits of
Defendant's counsel claims."
People v. Smith, Bronx County
Supreme Court, February 8, 2010 (Judge Torres)
I.").
("People v. Smith
The state court ruled instead that Petitioner's
aims
were procedurally barred, under NYCPL § 440.10(3) (c), because
Mr. Smith "was in the position to adequately raise all issues he
now makes in the previous motion but chose not to." (Whitehead
34
Decl. Ex. 20.}
Appellate Division, First Department's order
on July 19, 2010 likewise denied leave to appeal the state
court's decision wi
any
scussion of the merits because it
found that "there [wa]s no question of law or fact presented
which ought to be
e v. Smith, New York
"
Appellate Division, July 19, 2010 (Judge Tom)
("People v. Smith
II") .
The state court's opinion
s articulate that, "[tJhe
People are correct in their assertion
procedurally barred and meri
the instant motion is
ess," and later a
Strickland standard, that the "de
has
any evidence showing that counsel was
er citing the
f
Smith I, at 4-5 (emphasis added).
iled to provide
"
se
trigger deferential review or undermine
People v.
references do not
state court's ruling
that it "declines to reach the merits of
case."
Id.; see
also Aparicio, 269 F.3d at 93 (in determining
an opinion
is decided on the merits, courts look to
state
court's opinion suggests reliance upon procedural grounds rather
than a determination on the merits")
at 314).
(quot
Additionally, the state court specif
ruling is on procedural grounds and, aside from
lan, 261 F.3d
s
s
icat
Strickland standard, neither mentions a single case in re
to Petitioner's ineffective assistance claims, nor goes into
35
the
of Pet
Cardell v. Fischer,
ioner's arguments or evidence.
2004 WL 2070820, *1 (E.D.N.Y. Sept. 14,2004)
("[WJhere the
record does not otherwise preclude the possibility that the
ied on procedural grounds H as opposed to on the
claim was
meri ts,
claim may be entitled to
novo review rather than
rential standard afforded under AEDPA even when the
state court adjudicated the claim on the merits; "rather
at
to decipher whether the state court ruled on the
S,H
novo review); see also Su v.
the court employed a
lion, 335 F.3d 119, 126 n. 3
Cir.2003)
to contemplate situations in
the state courts have
ch, because of uncert
y as to
Id, no procedural bar exists and
red. H); Miranda v. Bennett, 322
no AEDPA deference is
F.3d 171, 178
("[OJur cases seem
(2d Cir.2003)
(hoI
ng that "where a state court's
ruling does not make clear whether a claim was rej
procedural or substant
reasons and where the re
otherwise preclude the poss
1
r
does not
Y that the claim was denied on
we
procedural grounds, AEDPA deference is not given,
cannot say that the state court's decision was on t
Apa
merits.
cia, 269 F.3d at 93 (quoting Sellan, 261 F.3d at 314)
determine whether a state court has disposed of a
merits, courts consider:
similar cases;
H
)
;
("To
aim on the
'(1) what the state courts have done in
(2) whether the history of the case suggests that
36
the state court was aware of any ground for not adjudicating the
case on the merits; and (3) whether the state court's opinion
suggests reliance upon procedural grounds rather than a
Accordingly, de novo review
determination on the merits.''').
applies.
Alternat
ly, relief is appropriate even under the more
deferential standard of 28 U.S.C. § 2254.
Under 28 U.S.C. §
2254, Mr. Smith's entitlement to federal habeas relief turns on
showing that the state court's resolution of his claim of
inef
ckland v.
ctive assistance of counsel under S
Washington, "resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States," § 2254 (d) (1); see also Rompilla v. Beard, 545 U.S. 374,
380
(2005).
An "unreasonable application" occurs when a state
court "identifies the correct governing legal principle from
t
s Court's decisions but unreasonably appl
to the facts'
s that
of petitioner's case." Wiggins v.
520, 123 S.Ct. 2527
(quoting Williams v.
Smith, supra, at
Taylor, 529 U.S. 362,
413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)
O'Connor, J.)). That is, \\
inciple
(opinion of
state court's decision must have
been [not only] incorrect or erroneous [but] objectively
unreasonable." Wiggins v. Smith, supra, at 520-521, 123 S.Ct.
37
2
7 (quoting Williams v. Taylor, supra, at 409, 120 S.Ct. 1495
(internal quotation marks omitted)) .
The state court in this case did not articulate
rat
denying Petitioner's claim and only explained
e
that,"
s
fendant has failed to provide any evidence showing that
People v. Smith I., at 4-5.
counsel was ineffective."
If the
state court's reasoning were to be construed as a merits
anal
is, "when a state court fails to articulate the rationale
underlying
reject
s e c t i o n of a petitioner's claim, and when that
is on t
review on
r
unreasonable
precedent."
merits, the federal court will focus its
t
state court's ultimate decision was an
ication of c
Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003)
); accord Aeid v. Bennett, 296 F.3d
(internal citations omitt
58, 62
rly established Supreme Court
i
(2d Cir.), cert.
154 L.Ed.2d 641 (2002).
,537 U.S. 1093, 123 S.Ct. 694,
Because the state court's decision
rejecting Petitioner's inef
assistance claim "involved an
unreasonable application of[]
ly established Federal law,"
Petitioner would still be entit
to
U.S.C.
§
2254.
See Williams v.
f even under 28
or, 529 U.S. 362, 363 (2000)
(petitioner was entitled to habeas relief because lower court
"failed to evaluate the totality of,
to accord appropriate
weight to, the available mitigation
nce./I) .
38
III. PETITIONER HAS ESTABLISHED INEFFECTIVE COUNSEL UNDER
STRICKLAND
Petitioner argues that his t
ineffective assistance by
I counsel provided
iling to seek a
aring under
Massiah v. United States, 377 U.S. 201 (1964), to suppress
certain statements elicited from Mr. Smith, and that these
statements (the "library statements" or "library conversations")
prejudiced Petitioner under St
ckland's "prejudice" prong.
Under Strickland's first prong, to determine whether a
counsel's conduct is deficient, "[t]he court must ... determine
whether, in light of
1 of the circumstances,
identified
acts or omissions were outside the wide range of pro
competent assistance."
Strickland,
466 U.S. at 687.
ssionally
Though
this was not an instance where Petitioner's counsel f
all points to provi
led at
adequate representation, counsel's
to even alert the court to the Massi
ilure
issue, which pertained to
substantial evidence in the case, raises constitutional
concerns.
The Massiah issue in this case is straightforward.
It is
well settled that once the government singles out the accus
with an informant and is aware that the informant has access to
the accused, that informant is a government agent with respect
to later deliberately elicited statements. See United State v.
39
Henry, 447 U.S. at 271; United States v. Stevens, 83 F.3d at 64;
United States v. Pannell, 510 F.Supp.2d at 191.
Here,
Petitioner's defense counsel was aware, and indeed Mr. Ferguson
testified at trial (see Tr.2 449-53), that Mr. Ferguson had
agreed to testify for the prosecution before deliberately
eliciting at least the second two library conversations from Mr.
Smith.3
Mr. Ferguson's testimony on this issue was enough that
defense counsel knew, or should have been aware, that a Massiah
violation had occurred and that the statements should be
suppressed.
Despite this knowledge, defense counsel asked only
for a hearing on Mr. Ferguson pertaining to his history as an
informant, and never moved to exclude Mr. Ferguson's testimony
under Massi
or its progeny. See Mayo v. Henderson, 13 F.3d
8, 533 (2d Cir.1994)
("[A] petitioner may establish
constitutionally inadequate performance if
shows that counsel
omitted significant and obvious issues while pursuing issues
that were clearly and significantly weaker.").
The record
before us does not articulate any strategic considerations
3 As previously noted, the record is not clear whether all three, or only two,
of the library meetings occurred after Mr. Ferguson's agreement to testify
Smith.
Smith, 2012 WL 695432, at *19 n.5.
During trial, however,
Mr. Ferguson testified on direct examination "that the law library meetings
with Petitioner took place on three consecutive days - Thursday, Friday, and
Saturday . . . which were October 23, 24, 25 of 2003." (District Attorney's
Main Brief, "DA Br.", at 11.)
Det.
testified that he received a
telephone message from Det. Dellsandro on Wednesday, October 22, 2003, and
that they both went to interview Ferguson that same day." (Id.)
40
accounting for counsel's failure to raise this pivotal issue,4
nor could counsel provide any plausible explanation for
neglecting to move to exclude such damning testimony.
Jackson v. Leonardo, 162 F.3d 81, 86 (2d Cir. 1998)
See
(writ of
habeas should be granted without a hearing from the defense
counsel in the "highly unusual case where no plausible
explanation for an attorney's actions exists").
As this Court found in the March 1 opinion,
On each of these occasions, Ferguson had Smith brought to
him in the library by a corrections officer, and Ferguson
testified that during these meetings he t
ed to gain
Smith's confidence by telling him about
s own case. That
Ferguson appeared as an informant on the heels of the trial
judge's preclusion of Smith's statement to the pol
, that
the police officers took no notes of their meeting with
Ferguson or Ferguson's initial call to Dellasandro, and
that Ferguson, as an inmate, was able to have Smith brought
to him in the library by a corrections officer all raise
serious questions as to whether the police engaged in an
intentional effort to secure Smith's incriminating
statements. Regardless, viewing the evidence in t
light
most favorable to the state, the record establishes that
Ferguson deliberately elicited at least two of the library
4 The State, in opposing Petitioner's motion in state supreme court, argued
that the trial attorney
decided not to make a Massiah motion
because he believed that the trial court's allowing him to examine the
informant outside the jury's presence "obviated the need for a separate
Massiah hearing."
(Whitehead Decl. Ex. 18.) However, no affidavit from the
trial attorney was submitted. Additionally,
the informant as to
his prior history as an informant would have no impact on counsel's ability
to raise the Massiah issue; as soon as Mr. Ferguson testified that he had
agreed to testi
Mr. Smith before deliberately eliciting further
information from Petitioner, counsel knew or should have known that a Massiah
violation had occurred and should have moved to suppress the subsequent
statements.
41
statements a er agreeing to testify against Smith,S that
the
ctives were aware that Ferguson had access to Smith
ir meeting, that this was or should have been
apparent to Smith's counsel at trial, and that Smith's
counsel failed to make a Massiah motion to suppress any of
the library statements. Even under Stri
and's
ferent 1
standard, these
cts demonstrate
deficiency.
Smith, 2012 WL 695432, at *19.
Indeed, in United States v. Henry,
447 U.S. 264
(1980), the
Supreme Court found a Massiah and Sixth Amendment violation in
analogous circumstances.
In Henry, a fellow inmate Nichols, a
paid informant for the government,
"some conversations with
was in jail and Henry's incriminatory statements
Henry while
were the product of these conversations."
though the government insist
that t
Id. at 271.
y did not instruct the
informant to question Henry about the robbery, t
explained that "even if t
informant] would ta
information .
.
.
Even
Supreme Court
government did not intend that [the
affirmative steps to secure incr
[they] must
nating
known that such propinquity
likely would lead to that result.
. When the accused is
the company of a fellow inmate who is acting by prearrangement
as a Government agent .
rcumstances may
[c]onversations stimulated in such
icit information that an accused would not
intentionally reveal to persons known to by Government agents."
Respondent makes no argument that Mr.
on
meet
, nor could it on this record.
42
listened in the
Id. n.S.
The Supreme Court also noted that given"
power
1
psychological inducements to reach for aid when a person is in
confinement[,]
. the mere fact of custody imposes pressures
on the accused" and should factor into Massiah considerations.
Id. at 274.
Ultimately, the Court found that because
informant had an agreement with the government and was
"intentionally creating a situation likely to induce Henry to
make incriminat
statements without the assistance of
counsel," and because the informant was not merely a "pass
listener" but using his fellow inmate status "as a person
sharing a common
ight" to gain Henry's confidence, a Ma
violation had occurred.
Similarly
ah
Id. at 273 7; 264 n. 12.
, though the
ect
maintain that they
did not affirmatively ask Mr. Ferguson to elicit more
information, the detectives knew that Mr. Ferguson had access to
Mr. Smith and should have "known that such propinquity likely
would lead to that result./I
Id. at 274.
Additionally, Mr.
Ferguson was already under agreement to testify against Mr.
Smith when he intentionally brought Mr. Smith to the 1
or three additionally times to eli
from a
t more information.
ssive listener, Mr. Ferguson admitted that
ry two
6
Far
"pressed
Mr. Ferguson had also been supplying information "loyally" to the
ice for
approximately four years and was "nearly" an ATF
(Parole Trl. 5 (Dkt.
6
No.
21).)
43
to gain his confi
formation and t
Smith
sharing his own background."
(T
counsel's awareness of this
formation and subsequent failure
Defense
Is
this testimony
to move under Massiah to exc
"wide range of pro
outsi
. 425, 427-8.)
by
ssionally competent assistance,"
Strickland, 466 U.S. at 690, and the state court finding
otherwise involved an unreasonable application of clearly
established law.
See Lindstadt v. Keane, 239 F.3d 191, 205 (2d
Cir. 2001); see also Grate v. Stinson, 224 F. Supp. 2d 496, 520
(E.D.N.Y. 2002)
(because it was constitutional error
defendant's counsel not to raise a
im available and essential
to the defense, it was "erroneous" and "unreasonable"
court to reject
fendant's Strickland
r state
aim and the pet
ion
for writ of habeas was granted).
Respondent's cited precedent that no Massiah violation
occurred is eit
r inapposite, or confirms that Mr. Ferguson was
in fact acting as an agent.
For instance, in United States v.
Pannell, 510 F. Supp. 2d 185 (E.D.N.Y. 2007), the court wrote
that a Massiah violation occurs when a "government informant
. deliberate engaged
at 189.
elicitation."
Pannell, 510 F. Supp. 2d
In contrast, Respondent's other c
only that informants are not agents where t
precedent shows
re was not an
agreement with the government to cooperate or testify against
44
defendant, and where the defendants spontaneously initi
contact with
informants and the informants were mere
"listening posts."
342 (2d Cir. 1997)
ted States v. Birbal, 113 F.3d
See, e.g.,
(the informant was not a government agent
e he had not been asked to get information from the
defendant and
was no "soli
F.2d 132, 135-7 (4th Cir. 1983)
ion") i
Thomas v. Cox, 708
(informant was not an "agent"
government because he "had
no proper 'arrangement' with
t
Commonwealth to procure information from or testify against
t
accused" and contact by the informant was "s
(emphasis added); United States v. Stevens,
Cir. 1996)
83 F.3d 60,
formants to
affirmat
64
(2d
(allowing testimony from informants where, though
informants were promised financial compensation, t
told
initiated")
government
mere "listening posts" and not to
ly initiate contact; instead, the defendant initiated
conversations with
information).
informants and "spontaneously" offered
As discussed, here Mr. Ferguson had already
agreed to testify before the library conversations, and admits
that
iberately brought Mr. Smith to the libra
purpose of eliciting
rmation from him.
with the
See Smith, 2012 WL
695432, at *19.
Respondent next asserts that even if there were a Ma
violation, Petitioner's counsel was not ineffective
ah
he
45
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _...
__
l1l!it~'".,
did conduct what was effectively a "Massiah" hearing. See
Massiah v. United States, 84 U.S. 201 (1964).
The record shows,
however, that defense counsel only questioned Mr. Ferguson in a
short hearing outside the presence of the jury about his history
as an informant as an objection to a lack of total discovery on
the informant by the prosecution.
(Tr2. 460.)
In addition,
after the verdict, defense counsel moved to suppress Mr.
Ferguson's testimony solely on the basis that the prosecution
had been inadequate
turning over full discovery materials
relating to Mr. Ferguson.
(Tr3. 9.)
At no point did
fense
counsel ask that Mr. Ferguson's testimony be suppressed under
Massiah or its progeny, or say anything that would alert the
court to the Massiah issue as it stood. 7
Petitioner is therefore
correct that counsel failed to appreciate the legal significance
of the Massiah issue, see Smith v. Fischer, No. 07 Civ. 2966
(RWS), 2013 WL 357604, at *8 (S.D.N.Y. Jan. 25, 2013), and that
this failure
reasonableness.
low below an object
standard of
See Strickland, 466 U.S. at 690.
Whether Mr. Ferguson was an agent was briefly discussed before trial.
However, defense counsel maintained that "as long as there's an offer of
proof before [the informant] physically takes the stand" from the prosecution
that Mr. Ferguson was not an agent, that was "sufficient."
(Tr2. 391 97.'
Defense counsel did not re-raise the issue at any point during or following
the trial, including after Mr.
testified as to his agreement with
the detectives and his further solicitation of information from Mr. Smith.
7
46
and's second prong, t
With respect to S
state court
its application of Strickland
was "objectively unreasonable"
prejudice for two independent reasons.
First, the state court's
opinion incorrectly cited the standard for prejudice regarding
pleas, instead of trials: "t
counsel's constitutionally
judice prong, on whether
ive performance af
f
outcome of the plea process .
ed the
[Mr. Smith] must show that
there is a reasonably probability that, but for counsel's
errors, he would not have pled guilty and would have insisted on
(People v. Smith I., at 5) (emphasis
going to trial."
Second, due to the weaknesses
which the t
.
the eyewitness testimony,
1 judge noted (Tr3. 11-12), and the lack
scientific or physical evidence 1
)
any
king Mr. Smith to the crime,
Petitioner has shown a "reasonable probability" that he would
have been acquitted but for his counsel's failure to
Mr. Ferguson's testimony under Massi
695432, at *19.
ss
See Smith, 2012 WL
Aside from Mr. Ferguson's testimony as to Mr.
Smith's confess
s, the evidence at trial consisted of
eyewitnesses whose
inconsistent with t
script ions of the pe
rators were
of Mr. Smith, and whose memories had
faded over the seven years between the
and the trial.
(Petitioner Memorandum ("Pet. Mem."), at 4-5.) Mr. Smith was not
arrested until six
after the crime, and there was no
47
physical or scientific evidence tying him to it.
ted evidence aside from the in
1
Given the
's testimony, the
prosecutor emphasized Mr. Ferguson's statements in summation,
luding those statements which Mr. Ferguson elicited after he
had agreed to testify.
(Tr2. 710 14.)
During deliberations, the
jury asked for read backs of Mr. Ferguson's testimony on
December 2, 2003 and returned
day.
s guilty verdict the following
(Tr2. 770.) The state court judge who tried the case
observed, "[iJt is reasonably c
to me, based upon the
quality of the eyewitness testimony in this case, that the
jailhouse informant had to
a reasonably important witness."
Smith, 2012 WL 695432, at *9.
In similar situations, courts in this circuit have
Strickland prejudice.
In Harrison v. Cunningham, 2013 WL
627723, at *2 (2d Cir. Feb. 21, 2013), for instance,
Second
Circuit affirmed
r's
strict court in granting petit
habeas petition, finding prejudice under St
though the
ckland, where, even
f witness and arresting officer "asserted that
there was a hundred
rcent no doubt in [his] mind
the
ence of
defendant had committed the crime," because of the"
physical
tying [the defendant] to the cr
in th[e] case turned on each witness's credibility.
the
I
the proof
Given
tical importance of the relevant testimony to the central
48
issue be
Second Ci
the jury" which counsel's errors prevented, the
held that "no court could justifiably find that
there was not even a reasonable probability that, but for
couns
would
's unprofessional errors, the result of the proceeding
been different."
937 F. Supp. 227, 233-234
Idi see also Frankos v. Sendowski,
(S.D.N.Y. 1996)
rs relevant to whether counsel
testimony is prejudicial under St
(finding the following
ficiently allowing
ckland: "the importance of
ness' testimony in the prosecution's case, whether the
testimony was cumulative, the
corroborating or contradict
sence or absence of evi
the testimony of the witness on
material points, the extent of cross-examination othe
permitted, and, of course, t
se
overall strength of t
prosecution's case.").
Given the similar
testimony to the cent
tical importance of Mr. Ferguson's
issue before the jury in this case, no
court could justifiably find that there was not a "reasonable
fense counsel's failure to suppress
probability" that, but
Mr. Ferguson's testimony, Mr. Smith might have
St
acquitted.
ckland, 466 U.S. at 694.
Respondent cont
that if the first 1
conversation
took place before Mr. Ferguson spoke to the government and
became an "agent," which the record remains unclear on, then
49
no Massiah violation and st
there wou
initial I
ements from that
ry conversation would
Respondent further
asserts that because the initial conversation would be admitted,
the second two library conversations would be harmless error and
thus no prejudice occurred from counsel failing to raise the
Ma
ah issue.
ry conversation were
However, even if the first I
al
, the second two statements were not harmless error.
In
the first library conversation, Mr. Ferguson was looking at Mr.
Smith's paperwork, and Mr. Smith s
"beat the case" because
that he was trying to
s
all he did was punch the guard.
conversations, Mr. Smith arti
case that could not be dete
did the shooting and
In the second two library
specific details about his
from the paperwork Mr.
Ferguson saw in the initial meetings, including dollar amounts
Mr. Smith's attorneys and details of the eyewitnesses during
the crime.
See Smith, 2012 WL 695432, at *4.
Before trial, defense counsel specified that his position
would be to argue t
Mr. Ferguson was lying, that he learned
any information he testified about from the paperwork itself,
and that Mr. Smith had not told him any details of the crime.
Id. The details of the statements from the se
conversations made t
s argument futile.
50
I
two library
, instead of
being "cumulative" to t
original information, the second two
ails that made Mr. Ferguson
library conversations added
credible and his te
imony signi
cantly more damaging.
Additionally, a series of confessions, if made to t
person,
rein
to assess the
each other and can be us
credibility of statements legally obtained.
Arizona v.
same
For instance,
inante, 499 U.S. 279 (1991), the Court determined
that the presence of the first confession af
cted the
"assessment of [the second confession's] credibil
y, and hence
the reliability of the second confession might well have been
influenced by the corroborative effect of
admitted first confession." Id. at 302.
erroneously
The Court therefore
found that the admittance of the first confession was not
harmless error despite its simila
ty to the second confession
because it reinforced and made credible the second confession,
e
Id.
ially where the other
timately,
dence in t
case was 1
ted.
the Court held that although the decision might
have been the same even without the first confession, "it [was]
impossible to s
so beyond a reasonable doubt."
here, there is a "reasonable li
. Similarly
lihood" that without Mr.
Ferguson's corroborating testimony of explicit details from t
second two library conversat
, testimony which the jury
specifically requested in deliberations and which the
51
prosecution relied heavily on in summations, the jury would have
found Mr. Ferguson not credible and Mr. Smith would have been
acquitted.
2000)
See Wray v. Johnson, 202 F.3d 515, 526 (2d Cir.
(in assessing wrongly admitted testimony's importance,
court looked to importance of the testimony and whether "the
prosecution has emphasized the wrongly admitted evidence) .
Thus, regardless of whether the first library conversation
occurred before or after Mr. Ferguson agreed to testify, the
second two library conversations are sufficient to constitute
prejudice under Strickland's second prong.
52
IV.
CONCLUSION
For the foregoing reasons, Petitioner's petition for writ
of habeas corpus is granted.
It is so ordered.
New York, NY
July 1
2013
v:
ROBERT W. SWEET
U.S.D.J.
53
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