Fischer v. Smith, No. 13-3022 (2d Cir. 2015)
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Smith was charged with murder, based on a 1996 Bronx armed robbery. The prosecution called an incarcerated witness, Ferguson, to whom Smith had made incriminating statements while in jail, indicating that Ferguson was not a government agent. Ferguson later admitted that he had previously been a paid informant. Defense never moved to suppress the incriminating statements. Following his conviction, Smith’s new counsel uncovered undisclosed evidence that Ferguson had collaborated with law enforcement for four years before Smith’s trial. State courts rejected direct appeals. Smith, pro se, moved to vacate his conviction. The state court denied the motion as unsupported by the record. Smith, through counsel, filed another motion, arguing for the first time that counsel was ineffective for failing to move to suppress. The state court denied the motion as “procedurally barred and meritless … defendant was in the position to adequately raise all issues … in the previous motion [and] failed to establish … ineffective assistance of counsel.” Smith sought habeas relief under 28 U.S.C. 2254, reasserting the ineffective assistance claim. The district court granted the writ, finding that the state court decision rested on procedural grounds. The Second Circuit reversed: the decision was adjudication on the merits, entitled to AEDPA deference, and not so lacking in justification as to warrant habeas relief.
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13-3022-pr Fischer v. Smith 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: June 19, 2014 Decided: March 17, 2015) Docket No. 13 3022 _____________________________________ BRIAN FISCHER, Superintendent, Respondent Appellant, v. PATRICK SMITH, Petitioner Appellee. _____________________________________ Before: CALABRESI, LYNCH, and LOHIER, Circuit Judges. Petitioner appellee Patrick Smith was convicted in State court of two counts of second degree murder based largely on the testimony of a jailhouse informant. The State Court denied Smith’s motion to vacate his conviction on ineffective assistance grounds. Smith then filed a federal habeas petition, which the District Court granted after determining that the State Court decision was not an “adjudication on the merits” entitled to significant deference under the Antiterrorism and Effective Death Penalty Act of 1996 and that Smith’s counsel failed to provide effective assistance. We REVERSE. 1 13-3022-pr Fischer v. Smith LLOYD EPSTEIN, Epstein & Weil LLC, New York, NY, for Petitioner Appellee. ORRIE A. LEVY (Joseph N. Ferdenzi, on the brief), for Robert T. Johnson, District Attorney, Bronx County, Bronx, NY, for Respondent Appellant. 1 2 3 4 5 6 7 8 9 10 LOHIER, Circuit Judge: The principal issue on appeal is whether the State Court decision 11 denying Patrick Smith’s application to vacate his conviction on ineffective 12 assistance of counsel grounds is an “adjudication on the merits” to which we 13 must defer under the Antiterrorism and Effective Death Penalty Act of 1996 14 (“AEDPA”). The United States District Court for the Southern District of 15 New York granted Smith’s petition for a writ of habeas corpus pursuant to 28 16 U.S.C. § 2254 after determining that the State Court decision rested on 17 procedural grounds and that Smith’s trial counsel had provided ineffective 18 assistance when he failed to move to suppress the testimony of a jailhouse 19 informant. We conclude that the State Court decision was, to the contrary, an 20 adjudication on the merits entitled to AEDPA deference and not so lacking in 21 justification as to warrant habeas relief. Accordingly, we reverse the decision 22 of the District Court. 2 13-3022-pr Fischer v. Smith BACKGROUND 1 2 In June 2002 Patrick Smith was charged in the Bronx with first and 3 second degree murder (among other crimes) for his role in a 1996 armed 4 robbery that resulted in the death of a payroll delivery worker. On the eve of 5 trial, the prosecutor informed the Bronx County Supreme Court that the 6 Government intended to call an incarcerated witness, William Ferguson, to 7 whom Smith had made incriminating statements while in jail awaiting trial 8 post indictment. The State Court asked the prosecutor whether Ferguson was 9 a government agent. The prosecutor said no. At trial, defense counsel 10 requested an offer of proof regarding Ferguson’s testimony and asked 11 whether he was a government agent. This time the prosecutor responded 12 that Ferguson had not been sent by the government to gather incriminating 13 statements from Smith, but rather that Ferguson had independently contacted 14 and relayed information to a Brooklyn detective named Danny Dellasandro. 15 The prosecutor agreed to get more information about Ferguson’s interactions 16 with government officials. 17 The next day, the prosecutor reported that Ferguson had reached out to 18 Detective Dellasandro and revealed the details of Smith’s robbery homicide. 19 The prosecutor acknowledged that Ferguson had provided information to 3 13-3022-pr Fischer v. Smith 1 law enforcement prior to contacting Detective Dellasandro but stated that, 2 according to Ferguson, the information had never been pursued. Based on 3 the prosecutor’s representations, the State Court determined that there was 4 no basis to believe that Ferguson was a government agent. 5 Ferguson thereafter testified that he met Smith four times on Rikers 6 Island and that each time Smith made inculpatory statements regarding the 7 crimes for which he had been indicted. On cross examination, Ferguson 8 admitted that he had served as a paid informant for another narcotics 9 detective, Jimmy Irving, who had not previously been mentioned by the 10 prosecutor. Defense counsel moved to strike Ferguson’s testimony, arguing 11 that the government had failed to provide any discovery relating to 12 Ferguson’s role as a paid informant. The court denied the motion but allowed 13 defense counsel to question Ferguson outside the presence of the jury about 14 his relationship with the government. Defense counsel did so while pressing 15 his position that the prosecution had to disclose more information about 16 Ferguson’s history and his relationship with Detective Irving. Nothing came 17 of the questioning or the demand for more discovery, and defense counsel 18 never moved pursuant to Massiah v. United States, 377 U.S. 201 (1964), to 19 suppress Smith’s incriminating statements to Ferguson. The jury ultimately 4 13-3022-pr Fischer v. Smith 1 returned a guilty verdict on two counts of murder in the second degree. 2 Smith was sentenced principally to two concurrent indeterminate terms of 3 twenty years’ to life imprisonment. 4 Following trial, Smith’s new defense counsel uncovered previously 5 undisclosed evidence that Ferguson had collaborated with law enforcement 6 for four years prior to Smith’s trial. In 2005 Smith, through counsel, filed a 7 direct appeal of his conviction, claiming that inadequate discovery abridged 8 his right to confront Ferguson at trial. As relevant here, the Appellate 9 Division affirmed the conviction, and Judge Graffeo of the New York Court of 10 11 Appeals denied leave to appeal. In 2007 Smith, now proceeding pro se, filed a motion in the Bronx 12 County Supreme Court to vacate his conviction pursuant to New York 13 Criminal Procedure Law § 440.10. The State Court ultimately denied the 14 motion because his claims were unsupported by the record. 15 In 2009 Smith, through counsel, filed a second § 440.10 motion, arguing 16 for the first time that his trial counsel was ineffective for failing to move 17 pursuant to Massiah to suppress the incriminating statements made to 18 Ferguson. The State Court denied Smith’s § 440.10 motion on February 8, 19 2010. After extensively reciting Smith’s various claims of ineffectiveness of 5 13-3022-pr Fischer v. Smith 1 trial counsel, denial of a fair trial, and assorted trial errors, the court wrote the 2 following in its conclusions of law: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 This court declines to reach the merits of Defendant’s counsel claims. The People are correct in their assertion that the instant motion is procedurally barred and meritless. The defendant was in the position to adequately raise all issues he now makes in the previous motion but chose not to. Moreover, defendant has failed to establish sworn allegations supporting defendant’s claim of ineffective assistance of counsel. In evaluating ineffective assistance of counsel claims, New York’s Court of Appeals has consistently applied a “flexible” approach. “So long as the evidence, the law, and the circumstances of a particular case, viewed in the totality and as of the time of the representation, reveal that the attorney provided meaningful representation,” a defendant’s constitutional right to the effective assistance of counsel will have been met. Thus, the standard in New York has long been whether the defendant was afforded “meaningful representation”. The Court of Appeals has clarified “meaningful representation” to include a prejudice component which focuses on the “fairness of the process as a whole rather than [any] particular impact on the outcome of the case”. Moreover, the defendant’s bare claims of ineffective assistance do not meet the Strickland [standard]. Strickland v. Washington, 466 U.S. 688 (1984). In Strickland, the Supreme Court adopted a two part test for evaluating claims of ineffective assistance of counsel. A “defendant 6 13-3022-pr Fischer v. Smith 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 must show that counsel’s performance was deficient,” and “that the deficient performance prejudiced the defense”. The first prong of the Strickland test is a restatement of attorney competence, which requires a showing that counsel’s representation fell below an objective standard of reasonableness. The second prong, also known as the prejudice prong, “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process”. In order to satisfy this prong, a “defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial”. In the case at bar, defendant has failed to provide any evidence showing that counsel was ineffective. Joint App’x at 12 13 (citations omitted). After additional State court litigation, Smith filed a counseled habeas 21 petition under 28 U.S.C. § 2254, reasserting the ineffective assistance claim 22 raised earlier in his counseled § 440.10 motion. The District Court initially 23 denied the petition, holding that Smith’s ineffective assistance claim was 24 procedurally defaulted. It then reconsidered the default and granted the writ 25 in light of Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012), which held that the 26 lack of counsel at a defendant’s first opportunity to appeal a conviction based 27 on a claim of ineffective assistance at trial may establish cause to excuse a 28 procedural default on that claim. The District Court read the Bronx County 7 13-3022-pr Fischer v. Smith 1 Supreme Court’s decision as resting on procedural grounds and applied de 2 novo review. Proceeding to the merits, the District Court held that Smith’s 3 trial counsel provided ineffective assistance by failing to make a motion 4 under Massiah to suppress Ferguson’s testimony. It also held that Smith 5 would prevail even if AEDPA deference applied because the Bronx County 6 Supreme Court’s decision rejecting Smith’s ineffective assistance of counsel 7 claim involved an unreasonable application of Strickland. 8 This appeal followed. DISCUSSION 9 10 I. AEDPA Deference 11 Where a State court decision adjudicates a petitioner’s claim “on the 12 merits,” AEDPA demands that the decision be accorded substantial 13 deference. Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009). We have 14 described an “adjudication on the merits” as one that “(1) disposes of the 15 claim ‘on the merits,’ and (2) reduces its disposition to judgment.” Sellan v. 16 Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). “To determine whether a state 17 court disposition is ‘on the merits,’ this Court examines (1) the state court’s 18 opinion, (2) whether the state court was aware of a procedural bar, and (3) the 8 13-3022-pr Fischer v. Smith 1 practice of state courts in similar circumstances.” Spears v. Greiner, 459 F.3d 2 200, 203 (2d Cir. 2006). 3 In Zarvela v. Artuz, we treated as an adjudication on the merits a State 4 court decision that determined “petitioner’s claim to be unpreserved, and, in 5 any event, without merit.” 364 F.3d 415, 417 (2d Cir. 2004) (emphasis added). 6 Here, the Bronx County Supreme Court initially stated that it “decline[d] to 7 reach the merits” of Smith’s ineffective assistance claim. Joint App’x at 12. 8 Had it stopped there, we would regard the decision as resting on procedural 9 grounds rather than the merits. But the court did not stop there. The very 10 next sentence described Smith’s claim as “procedurally barred and meritless.” 11 Id. (emphasis added). And the remainder of the decision clearly and in 12 considerable detail addressed the merits of Smith’s ineffective assistance of 13 counsel claim. See id. (“Moreover, [Smith] has failed to establish sworn 14 allegations supporting [his] claim of ineffective assistance of counsel.” 15 (emphases added)); id. at 13 (“Moreover, the defendant’s bare claims of 16 ineffective assistance do not meet the Strickland [standard].” (emphases 17 added)). Therefore, in the particular circumstances of this case, we view the 18 decision as addressing the merits of Smith’s claim in the alternative rather 19 than declining to reach them altogether. 9 13-3022-pr Fischer v. Smith 1 II. The Merits of Smith’s Ineffective Assistance Claim 2 We turn, then, to the State Court’s adjudication of the merits of Smith’s 3 ineffective assistance claim — an adjudication which we accord significant 4 deference under AEDPA. 5 Where a State court decision adjudicates a petitioner’s claim on the 6 merits, a district court may grant habeas relief only if the decision was 7 “contrary to, or involved an unreasonable application of, clearly established 8 Federal law, as determined by the Supreme Court of the United States.” 28 9 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 98 (2011). 10 “Establishing that a state court’s application of Strickland was unreasonable 11 under § 2254(d) is all the more difficult. The standards created by Strickland 12 and § 2254(d) are both highly deferential, and when the two apply in tandem, 13 review is doubly so.” Richter, 562 U.S. at 105 (citations omitted) (quotation 14 marks omitted). On habeas review “[a] federal court may reverse a state 15 court ruling only where it was so lacking in justification that there was 16 . . . [no] possibility for fairminded disagreement.” Vega v. Walsh, 669 F.3d 17 123, 126 (2d Cir. 2012) (second alteration in original) (quotation marks 18 omitted). 10 13-3022-pr Fischer v. Smith 1 As an initial matter, Smith pointed out at oral argument that in 2 discussing the prejudice prong of Strickland the State Court applied the 3 wrong standard, mistakenly suggesting that Smith had pleaded guilty rather 4 than been convicted after a jury trial. Because Smith has not raised this 5 argument in his briefing, it is not properly presented to us. See Vincent v. 6 Yelich, 718 F.3d 157, 175 (2d Cir. 2013). 7 In any event, the argument is unpersuasive. True, Smith’s case 8 obviously involved a trial, not a guilty plea. And insofar as the State Court 9 citations to plea bargain cases suggested otherwise, that suggestion was 10 simply wrong. But the State Court correctly cited the Strickland standard as 11 the rule of constitutional law governing Smith’s claim, and its elaboration of 12 the performance prong of that standard was fully applicable to the present 13 case. Moreover, the State Court’s reference to the guilty plea in the 14 conclusions of law appears to have been a clerical or drafting error rather 15 than a substantive or legal error. Indeed, prior to its conclusions of law, the 16 court detailed at length the procedural history of the case with explicit 17 references to the jury trial. See Joint App’x at 9 12. These references show 18 that the trial judge understood the claims Smith was actually making and did 19 not believe that the case concerned ineffective advice leading to a guilty plea. 11 13-3022-pr Fischer v. Smith 1 As for the underlying issue of ineffective assistance of counsel, we 2 would hope that most lawyers would spot the Massiah issue in this case. 3 Ideally, Smith’s trial counsel would have made a motion raising the issue. 4 However, Smith’s trial counsel could have reasonably determined that, based 5 on Ferguson’s testimony outside the presence of the jury and the prosecutor’s 6 representations, Ferguson was not acting as a government agent when he 7 elicited incriminating statements from Smith. If so, moving to suppress these 8 statements at the time could reasonably have been viewed as baseless. Even 9 if we thought counsel’s choice was not reasonable, we cannot say that it was 10 unreasonable for the State Court to take the contrary view. Because we 11 accord State court decisions a double measure of deference on Strickland 12 challenges, we are hard put to say on this record that there was “[no] 13 possibility for fairminded disagreement” that Smith’s trial counsel provided 14 ineffective assistance. Vega, 669 F.3d at 126. CONCLUSION 15 16 17 For the foregoing reasons, we REVERSE the decision of the District Court. 12
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