Smith v. Fischer, No. 1:2007cv02966 - Document 51 (S.D.N.Y. 2013)

Court Description: OPINION: For the foregoing reasons, Petitioner's petition for writ of habeas corpus is granted. It is so ordered. (Signed by Judge Robert W. Sweet on 7/12/2013) (cd)

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----~=====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

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