Smith v. Fischer
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)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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07 Civ. 2966 (RWS)
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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
rt Johnson, Esq.
Jason Whitehead, Esq.
len Saperstein, Esq.
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
For the reasons set forth below, Petitioner's motion is
I. PRIOR PROCEEDINGS
indictment filed on or about
County Grand Jury charged Petitioner and Kevin Alston
with first-degree murder
(in the course of a
successfully moved to dismiss
four counts of the indictment on
Petitioner's statement to
rs Island, including that Mr. Smith
incarcerated together at
icipated in the
s point, it's your representation that he is not an agent. He
prosecutor responded "No."
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
st for his rap
I do need to speak to the
ecti ve that he
to determine whether there was any sort of
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.
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).
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
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.
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
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.
Following opening statements the same day,
later identified as William Ferguson
he did not "want it to be like they give it to me in the morning
and he is taking
stand in an hour and a
The prosecutor stat
that the informant would not be testifying
before the next week.
The Court responded,
you will have all
"I assume that
There is no
reason why you shouldn't."
assured defense counsel that he would have the
The prosecutor stated that
position as to whether or not he was a
The prosecutor said she would probably not
of the State's
might not be
to whether she would call the informant until after that point.
Court responded t
is a C. I.
testifying or is a
will deal with it."
prosecutor would know
She stated that she had been unable to contact Detective
And then we
agent or anything like that.
The following Monday November 24,
or is getting a benefit of any kind for
outcome, saying "[o]kay."
lly contacted, and that she did "not believe at this point
detective's name is
s and by the parties.
has altered quotations from the
in a variety of ways throughout the
The Court adopts "Dellasandro" for ease and
just from looking at his rap s
s that he was a confidential
going on what
am obviously not
will find out for sure and tell counsel.
acknowledged receipt of the rap
were any notes taken of his
until we are satisfi
that everything is turned over
I am not going to permit you to call him
if the State called Mr. Ferguson,
ew or interviews by either
and asked "that if there
any other detect
they be turned over as soon as possible. n
is that correct?U
SCACCIA: Absolutely, that he was
rly not an
and he was not sent in there to speak
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
I have not even, at this point, met Mr.
I did not s
him in there.
He is not a
registered confidential in rmant.
then took place:
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?
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.
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.
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 .
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.
Okay and did Detective
any notes about this? He must have.
That I don't want to say.
the answer to that.
I don't know
Do you have
Detective Dellasandro coming
I did not, no.
There's a gap there.
I don't know how
Dellasandro all of a sudden would come up with Tracy.
Tha t' s not, I mean he
homi de investigator detect
nds out who the
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
Obviously, if it's more than
once, that there may be, that he was sent in the
second time and either at the suggestion
issue, he wasn't sent in.
That's the whole
If I were to send him in -
The Assistant D.A. is speaking without
any personal knowledge of that, so I am asking
of r of proof so that we can have somebody to say
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
No further steps were taken to send Mr.
Ferguson back in as a plan to try to get
He made the statements to the defendant.
Counsel has a position that these were not statements
defendant but rather this was found out by
the other inmate by going through paperwork.
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
. 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.
Judge, I am just, I have no
, but as long as there's an offer of
proof before he physically takes the stand, and then
we will go from there.
ght, we can do
to me that it's not unli ly that
a detective, that the
mean it would be rat
in light of Rosario ru s
telephone call like this not to
It does occur
when an inmate calls
has his pen out.
it seems to me, even
a detective on a
at least write down
I am pretty certa
he had to write at
remember who it was when
was calling around to the
Wouldn't I be entitl
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.
be, I will
him here for these purposes, or I will have him
I will get as much in rmation as I
If we need to, we can put
Tracy on at 11:30 and call the inmate after lunch.
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]
An offer of proof that what the inmate
or to say that I talked to people and I have
firsthand knowledge other than double hearsay.
never talked to anybody.
hasn't hasn't (sic)
talked to the inmates.
statements, while I
have no reason to believe t
are not accurate at
int, I as k for an offer of proof and for them
to call this witness, there has to be more on the
Obviously, Miss Scaccia is not
going to call the witness unless she knows that
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.
with Detective Dellasandro and
rned that Mr.
Dellasandro and told him that
ked up Mr.
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
next day, October 22,
day Dellasandro and Tracy went to Rikers
Patrick Smi th had told
to the prosecutor,
2003, and that
and spoke with
Neither officer made any notes of the
ng to the prosecutor,
Ferguson had with Tracy prior to
She asserted t
After a discussion,
rmation in the
the trial judge
st was "in connection
ss as conduit as
court was not
according to Mr.
Mr. Ferguson then reached out
about killing that inmate's wi
he acted more or
ving his own information," but
Ferguson had provided
Ferguson had provided in
with an incident
to know how accurate the information
stated that he would Ii
rcement with information in the past, but that the only
The prosecutor acknowledged that Mr.
rguson "knew of
and an undercover officer was introduced to the inmate with whom
Ferguson was not called upon to testify and received no benefit.
this individual is engaged as an agent with the People or police
before the trial.
I will have to live with that."
prosecution is correct.
At that first meeting,
ten minute conversation in which Mr.
Ferguson what he was charged with.
Ferguson testified that he met with Mr.
er that week,
stated occurred on a
officer would accommodate him.
Smith on three
Detective Tracy testified that he and Detective Dellasandro met
wi th Mr.
Ferguson on Wednesday,
Ferguson's meeting with the police.
interviewed him regarding Mr.
him if he would testify,
Smith and asked
Attorney asked him to attempt to get Mr.
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.
Smith called to
paperwork regarding their cases,
confidence by sharing his own
meeting with Mr.
Ferguson testified that Mr.
and that this
Smith also s
Smith told him
for the identification
wondered how the off
ry in which
"a major plus"
day, October 24, Mr.
had seen the crime from a
Ferguson said he pressed
(Tr2. 425, 427-28,
well with him" that Mr. Smith was involved in a
expected to "beat the case"
an "old man" was shot.
Ferguson testified that
severed from his co-defendant's
law library where he was
preparing for his parole violation
occurred three or four days after t
Ferguson had Mr.
that he and his
Saturday, October 25, Mr.
Smith told h
that he was happy that
his case had been severed from that of the co
$20,000, but told Mr.
Smith's father t
it was $25,000.
Ferguson further testified that over the course of
these library meetings Mr.
Smith confessed that he and his co
defendant stole a six-fi
hospital payroll, that they dropped
a waiting vehicle,
and that a young officer spotted them.
federal felony conviction which did not appear on the rap
then handed defense
Ferguson as to that conviction and his broader criminal history,
counsel moved to strike the
yn narcotics detective
formant's testimony on
that "there hasn't been total discove
and an inadequate
Defense counsel did not move to
suppress or request a hearing on Massiah or Rosario grounds.
Ferguson elaborated on his work
in 1999 and involving Mr.
documentation to these monies,
undercover buys, however you want
think it should have
witness taking the stand."
his position that "it is the
by Irving to buy
to label it and,
defense counsel stat
Ferguson being pa
formation regarding who he had made the
drugs and then convey
Ferguson about his history as an informant outs
done prior to the
counsel to continue his cross-examination and the prosecutor to
further inquiries as to Mr.
sclose any additional work that
including with regard
he had done for
Ferguson and Irving and that he was not
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
testimony and Mr. Smith's confessions including those statements
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
get in touch with him.
The Court observed that it
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,
the jury asked for read backs of Mr.
as soon as possible.
On December 22,
the following day
prior to sentencing,
moved to set aside the verdict,
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.
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
Besides not giving us the Rosa 0 or
necessary document be
beginning of the t
they were basically gi ng us things, dribs and d
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
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.
the record I am as
that the verdict be set aside
because of the improper usage of the jailhouse
ied that both de
the court were aware of
witness, but that s
had not spoken
to Detective Irving.
judge agreed that
would be best for the State to speak with Irving, and invited
the defense to
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 eyewitness testimony
case, that the j
Ihouse informant had to
sentences of imprisonment of from twenty years to life.
relationship with the police.
At a parole hearing on
October 1, 2002, over a year prior to Mr. Smith's trial, Mr.
y he was arrested for
5 (Dkt. No. 21).}
At a parole
olating his parole for al
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
with two homicide detectives that were vouching for me because of the
was getting ready to make a phone call on the phone
in the ATF office,
Parole would have
After that meeting,
arrested for violating his parole conditions.
In September of 2005,
Smith cited to Mr.
Ferguson's undisclosed parole
raising four claims before the New York State Supreme
databank fee and reducing the amounts of the mandatory surcharge
and crime victim assistance fees
but otherwise affirming the
812 N.Y.S.2d 512
from $200 and $10 to $150 and
On June 23,
People v. Smith, 7 N.Y.3d 763
application for leave to appeal.
On March 21, 2007, Petitioner filed a pro se pet
ion for a
writ of habeas corpus with the United States District Court for
the Southern District of New York.
to withdraw his
conviction pursuant to under NYCPL
440.10 in t
(Whitehead Decl. Ex. 8.)
Court, and attached the minutes of informant's paro
his reply papers.
exhaust unexhausted claims in the State courts.
On July 31,
Among other points,
iling to request a missing witness charge on Detective Irving,
as Mr. William Ferguson
clared on the stand,
actually worked as a paid informant for detective Irving,
it was defense counsel's responsibility to properly investigate
the facts surrounding Mr.
Ferguson's declaration and therea
his responsibility to request his production in Court so that he
Ferguson's position, while at the same time serve as someone to
either substantiate and/or disprove Mr.
(Id. at 20-21).
In pro se reply papers dated October II,
missing witness charge on Detective Irving,
as well as that his
due process rights under Brady v. Maryland,
Ferguson's entire criminal record,
"lack of varacity
pages of notes of the parole hearing.
(sic)" and "willingness and capacity to lie,
Ferguson's parole hearing minutes
including the minutes of Mr.
and spin his
(Whitehead Decl. Ex. 10.)
appeal in the Appe1la te Division including on the grounds that
appeal that his trial counsel was ineffective .
Smith's NYCPL §
440.10 motion was
raised in the Section 440.10 motion.
assigned to Justice
judge had been
In an Order entered on November 19,
transferred to Manhattan.
Justice Torres denied petitioner's pro se Section 440.10
Smi th' s
parole minutes because Mr.
Smith submitted the minutes with his
While declining to rule on the issue,
Smi th' s
record established that Mr.
the court noted that Mr.
Ferguson had been questioned fully
Mr. Smith moved for leave to appeal.
On March 12, 2008, the State moved for leave to reargue the
Peti tioner' s
strict attorney requested
his motion to vacate should
(Whitehead Decl. Ex. 13).
On Ma y 6,
coram nobis application.
Appellate Division denied Petitioner's
(Whitehead Decl. Ex. 14.)
petitioner's Section 440.10 motion.
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.
a prosecution witness and paid
contends that it was
fense counsel's re
to properly investigate the facts surrounding Mr.
Ferguson's responsibilities to Detect
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
information relevant to a material issue in the case.
aim does not allege a ground consti tut
1 basis for the motion and hence
's claim that the State had
In deciding Petit
specifically withheld information about Mr.
pendency of Mr.
\\ [a] s
case that was open during
reply papers are to address the opposition and not to raise new
issues, hence the parole hearing transcripts are not reviewable.
It is c
ar from the record that Mr.
criminal history up
C. P. L.
§4 40.30 (4) (c)
the New York Court
of Appeals denied
leave to appeal the
ial of his
(Whitehead Decl. Ex. 16.)
Petitioner's application for
coram nobis application.
unquestionable documentary proof.'"
Ferguson was questioned
Petitioner filed a second NYCPL § 440.10 motion
Bronx Supreme Court.
assistance when his t
1 counsel failed to move to suppress or
Smith was deprived of ef
Petitioner claimed that
grounds and consented to commencing trial without receiving the
informant's criminal record and prior statements required to be
Smith's Brady and Rosa
213 N.Y.S.2d 448,9 N.Y.2d 286,289
the prosecutor's failure to
were violated by
Ferguson's status as an
motion because he believed that the trial court's allowing him
to examine the
informant outside the
jury's presence "obviated
prosecutor for her failure to timely turn over Rosa
request would have
"unhelpful to him and might have
only served to aggravate the
Defendant's trial attorney,
attorney was submitted.
though no affidavit
from the trial
Petitioner's application for leave to appeal the first,
that that decision had been vacated.
(Whitehead Declo Ex. 19.)
440.10 (3) (c),
Mr. Smith "was in the position to adequately raise all issues he
in the previous motion but chose not to. "
the motion was "meritless" and that Defendant's "bare claims of
the denial of his second NYCPL § 440.10 motion.
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
(Dkt. No. 12).
In an opinion dated March 1, 2012, this Court denied the
Petitioner's habeas corpus petition. See Fischer r 2012 WL
In the March 1 Opinion, the Petitioner's Massiah claim
was found to be procedurally barred because the state court had
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.
determined that the state court's
Id. at *17
cision rested on
an independent and adequate state ground, which barred fede
. 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.
on also s
. at *20.
that "Ferguson's parole hearing minutes do
prosecutor, was untruth
not establish that, he, or
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
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
Where, under state law, claims of ineffective assistance of
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
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
his defense." U.S. Const. Amend. VI. The Sixth Amendment "right
to counsel is the right to the effective assistance of counsel."
chardson, 397 U.S. 759, 771 n. 14
Supreme Court has established a two-part test
claims of ineffective assistance. St
ckland v. Washington, 466
U.S. 668, 687 (1984); accord Morales v. United States, 635 F.3d
39, 43 (2d
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
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
assistance rendered by an atto
objectively reasonable. 466 U.S. at 688 89; Roe v. Flores
,528 U.S. 470, 477
("[JJudicial scrutiny of
counsel's performance must be highly
Strickland, 466 U.S. at 689). The pe
accordingly examines the reasonableness of counsel's performance
"from counsel's perspective at the time U and "considering all
the circumstances. u Strickland, 466
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
[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,
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
(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
respect to prejudice is similarly stringent, as he must show a
y that, but
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.
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.
The Sixth Amendment Standard
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
(2009); United States v.
8 (1967). Inte
ion by the state
for Sixth Amendment purposes.
129 S.Ct. at 2085 (citing Massi
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
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
ence of his counsel."
he had been indicted and in the
ah v. United States, 377 U.S. at 206. "Once t
'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
(1990)); see also Mont
gan v. Harvey, 494 U.S. 344, 348
United States, 377 U.S. at
556 U.S. 778
U.S. at 274; cf. Kansas v. Vent
such evidence is, however, admiss
United States v. Henry, 447
s, 556 U.S. 586 (2009)
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
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
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
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.")
(citations omitted); accord Unit
States v. Pan n
1, 510 F,
Supp.2d 185, 191 (E.D.N.Y.2007).
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
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
(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
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)
("People v. Smith
The state court ruled instead that Petitioner's
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
Decl. Ex. 20.}
Appellate Division, First Department's order
on July 19, 2010 likewise denied leave to appeal the state
court's decision wi
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
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
any evidence showing that counsel was
er citing the
Smith I, at 4-5 (emphasis added).
iled to provide
trigger deferential review or undermine
references do not
state court's ruling
that it "declines to reach the merits of
also Aparicio, 269 F.3d at 93 (in determining
is decided on the merits, courts look to
court's opinion suggests reliance upon procedural grounds rather
than a determination on the merits")
Additionally, the state court specif
ruling is on procedural grounds and, aside from
lan, 261 F.3d
Strickland standard, neither mentions a single case in re
to Petitioner's ineffective assistance claims, nor goes into
Cardell v. Fischer,
ioner's arguments or evidence.
2004 WL 2070820, *1 (E.D.N.Y. Sept. 14,2004)
record does not otherwise preclude the possibility that the
ied on procedural grounds H as opposed to on the
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
to decipher whether the state court ruled on the
novo review); see also Su v.
the court employed a
lion, 335 F.3d 119, 126 n. 3
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
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
Y that the claim was denied on
procedural grounds, AEDPA deference is not given,
cannot say that the state court's decision was on t
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:
aim on the
'(1) what the state courts have done in
(2) whether the history of the case suggests that
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.''').
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
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,
An "unreasonable application" occurs when a state
court "identifies the correct governing legal principle from
s Court's decisions but unreasonably appl
to the facts'
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, \\
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.
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
denying Petitioner's claim and only explained
fendant has failed to provide any evidence showing that
People v. Smith I., at 4-5.
counsel was ineffective."
state court's reasoning were to be construed as a merits
is, "when a state court fails to articulate the rationale
s e c t i o n of a petitioner's claim, and when that
is on t
merits, the federal court will focus its
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
rly established Supreme Court
(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
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
III. PETITIONER HAS ESTABLISHED INEFFECTIVE COUNSEL UNDER
Petitioner argues that his t
ineffective assistance by
I counsel provided
iling to seek a
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,
acts or omissions were outside the wide range of pro
466 U.S. at 687.
this was not an instance where Petitioner's counsel f
all points to provi
adequate representation, counsel's
to even alert the court to the Massi
issue, which pertained to
substantial evidence in the case, raises constitutional
The Massiah issue in this case is straightforward.
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.
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.
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.
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
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
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.").
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, 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.)
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.)
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)
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
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
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
(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 a er agreeing to testify against Smith,S that
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
Smith, 2012 WL 695432, at *19.
Indeed, in United States v. Henry,
447 U.S. 264
Supreme Court found a Massiah and Sixth Amendment violation in
In Henry, a fellow inmate Nichols, a
paid informant for the government,
"some conversations with
was in jail and Henry's incriminatory statements
were the product of these conversations."
though the government insist
Id. at 271.
y did not instruct the
informant to question Henry about the robbery, t
explained that "even if t
informant] would ta
government did not intend that [the
affirmative steps to secure incr
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 .
[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.
, nor could it on this record.
listened in the
The Supreme Court also noted that given"
psychological inducements to reach for aid when a person is in
. 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
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.
Id. at 273 7; 264 n. 12.
, though the
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.
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
t more information.
ssive listener, Mr. Ferguson admitted that
Mr. Ferguson had also been supplying information "loyally" to the
approximately four years and was "nearly" an ATF
(Parole Trl. 5 (Dkt.
to gain his confi
formation and t
sharing his own background."
counsel's awareness of this
formation and subsequent failure
to move under Massiah to exc
"wide range of pro
. 425, 427-8.)
ssionally competent assistance,"
Strickland, 466 U.S. at 690, and the state court finding
otherwise involved an unreasonable application of clearly
See Lindstadt v. Keane, 239 F.3d 191, 205 (2d
Cir. 2001); see also Grate v. Stinson, 224 F. Supp. 2d 496, 520
(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
aim and the pet
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
Pannell, 510 F. Supp. 2d
In contrast, Respondent's other c
only that informants are not agents where t
re was not an
agreement with the government to cooperate or testify against
defendant, and where the defendants spontaneously initi
informants and the informants were mere
342 (2d Cir. 1997)
ted States v. Birbal, 113 F.3d
(the informant was not a government agent
e he had not been asked to get information from the
was no "soli
F.2d 132, 135-7 (4th Cir. 1983)
Thomas v. Cox, 708
(informant was not an "agent"
government because he "had
no proper 'arrangement' with
Commonwealth to procure information from or testify against
accused" and contact by the informant was "s
(emphasis added); United States v. Stevens,
83 F.3d 60,
(allowing testimony from informants where, though
informants were promised financial compensation, t
mere "listening posts" and not to
ly initiate contact; instead, the defendant initiated
informants and "spontaneously" offered
As discussed, here Mr. Ferguson had already
agreed to testify before the library conversations, and admits
iberately brought Mr. Smith to the libra
purpose of eliciting
rmation from him.
See Smith, 2012 WL
695432, at *19.
Respondent next asserts that even if there were a Ma
violation, Petitioner's counsel was not ineffective
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _...
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.
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.
At no point did
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
low below an object
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.
and's second prong, t
With respect to S
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
judice prong, on whether
ive performance af
outcome of the plea process .
[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
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.
See Smith, 2012 WL
Aside from Mr. Ferguson's testimony as to Mr.
s, the evidence at trial consisted of
inconsistent with t
script ions of the pe
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
physical or scientific evidence tying him to it.
ted evidence aside from the in
'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
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
In Harrison v. Cunningham, 2013 WL
627723, at *2 (2d Cir. Feb. 21, 2013), for instance,
strict court in granting petit
habeas petition, finding prejudice under St
ckland, where, even
f witness and arresting officer "asserted that
there was a hundred
rcent no doubt in [his] mind
defendant had committed the crime," because of the"
tying [the defendant] to the cr
in th[e] case turned on each witness's credibility.
tical importance of the relevant testimony to the central
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
's unprofessional errors, the result of the proceeding
937 F. Supp. 227, 233-234
Idi see also Frankos v. Sendowski,
rs relevant to whether counsel
testimony is prejudicial under St
(finding the following
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
overall strength of t
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
ckland, 466 U.S. at 694.
that if the first 1
took place before Mr. Ferguson spoke to the government and
became an "agent," which the record remains unclear on, then
no Massiah violation and st
ements from that
ry conversation would
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
ry conversation were
However, even if the first I
, the second two statements were not harmless error.
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
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
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.
, instead of
being "cumulative" to t
original information, the second two
ails that made Mr. Ferguson
library conversations added
credible and his te
cantly more damaging.
Additionally, a series of confessions, if made to t
to assess the
each other and can be us
credibility of statements legally obtained.
inante, 499 U.S. 279 (1991), the Court determined
that the presence of the first confession af
"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.
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,
ially where the other
dence in t
case was 1
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
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
prosecution relied heavily on in summations, the jury would have
found Mr. Ferguson not credible and Mr. Smith would have been
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.
For the foregoing reasons, Petitioner's petition for writ
of habeas corpus is granted.
It is so ordered.
New York, NY
ROBERT W. SWEET
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