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)

----~=====i1
11LfSDt: S-6NY

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

! I ~)OClTt\.1ENT
~: :,~:.LECTKON1Ct\IJY
;1 ;)OC #:

FILED

!"\"'J;
r
, .)," ~_ f"-l,:l:::-L':".- -13

~ __
.'L_!..,-~ ..Lt:~...J~~_;:=!J

:1

If

------------------- -------- --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