by Matthew Keller
Court finds state trial counsel ineffective for failing to spot "straightforward" Massiah issue during trial.
Smith v. Fischer, No. 07 Civ. 2966 (S.D.N.Y. Jul. 16, 2013)
In 2012, the Supreme Court held in Martinez v. Ryan that having an ineffective lawyer (or having no lawyer at all) in a state collateral proceeding could excuse a petitioner's failure to raise an ineffective-assistance-of-trial-counsel claim. I thought this was a good decision because it would allow the lower federal courts to expend their scarce resources evaluating the merits of ineffectiveness claims rather than hashing out comparatively esoteric considerations of cause and prejudice. In light of the onerous AEDPA standard, I didn't expect too many petitions to be granted after a merits review. But last week, the Southern District of New York did just that. Smith v. Fischer may very well be the first decision in the Second Circuit (or anywhere?) granting a 2254 habeas petition that had been resurrected by Martinez.
In March 2012, the district court denied Patrick Smith's 2254 petition as procedurally barred: the state court decision was based on Smith's failure to raise his ineffectiveness-of-trial-counsel claim in his first 440.10 (NY state collateral) motion. Smith had filed that first collateral motion pro se.
A few weeks later, SCOTUS issued Martinez. Two days after that, Smith moved for reconsideration. It took the district court eight months, but this past January it decided that Martinez applied and, therefore, the court could reach the merits of Smith's petition.
The Case of the Serendipitous Snitch
In 2003, a jury convicted Smith of intentional and felony murder for the killing of a security guard during an armed robbery. Smith was sentenced to twenty to life. He exhausted his direct appeals in June 2006 and filed his first 2254 petition in 2007.
The prosecution had faced substantial obstacles to trying Smith. He was not arrested until seven years after the crime. Indeed, the defense was able to have four counts of the six-count indictment dismissed on statute of limitations grounds. The prosecution had eyewitness ID testimony, but that testimony described someone who didn't resemble Smith very much and, in any event, those IDs were seven years old. This gave the defense ample opportunity to impeach the State's identification witnesses based on the passage of time and degradation of memory. Finally, during pretrial motion practice the trial court excluded Smith's incriminating statements to the police, further weakening the State's case.
Then, a few weeks before trial, the prosecutor annouced a surprise witness - a jailhouse snitch to whom Smith allegedly confessed. At trial, William Ferguson testified that, over the course of several days while they were incarcerated together, Smith told Ferguson about his involvement in the crime. On cross, Ferguson admitted that he pressed Smith for information and attempted to gain Smith's confidence by "sharing his own background" and discussing his own crime. On postconviction review, Smith's ineffective assistance claim was that trial counsel should have moved, pursuant to Massiah,* to exclude Ferguson's testimony because Ferguson was acting as the government's agent when he elicited the incriminating statements.
The 2254 Decision
The Southern District reviewed Smith's ineffectiveness claim de novo. It held that the state court did not make a merits determination of the ineffectiveness claim, even though the state court had referred to the claim as "meritless." Prior to that, the state judge stated that it "declines to reach the merits of Defendant's [ineffective assistance of] counsel claims." The district court took the state court at its word. It held that the state court's "bare references"* to the merits of the claim following its assertion of a state procedural bar did not "undermine state court's ruling that it 'declines to reach the merits of case.'"
* This appears to be a dig at the state court decision, which analyzed the "merits" of Smith's ineffectiveness claim in approximately 12 words: Smith's "bare claims of ineffective assistance do not meet the Strickland" standard.
The district court had little problem finding ineffectiveness on the part of trial counsel. It held that "[t]he Massiah issue in this case is straightforward:"
"Mr. Ferguson testified at trial that [he] had agreed to testify for the prosecution before deliberately eliciting incriminating statements from Smith. 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."
As for Strickland prejudice, the district court had this to say about the probability of an acquittal in the absence of Ferguson's testimony:
"due to the weaknesses the eyewitness testimony, which the trial judge noted, and the lack any scientific or physical evidence linking Mr. Smith to the crime, Petitioner has shown a 'reasonable probability' that he would have been acquitted but for his counsel's failure to suppress Mr. Ferguson's testimony under Massih. Aside from Mr. Ferguson's testimony as to Mr. Smith's confessions, the evidence at trial consisted of eyewitnesses whose descriptions of the perpetrators were inconsistent with that of Mr. Smith, and whose memories had faded over the seven years between the and the trial. Mr. Smith was not arrested until six after the crime, and there was no physical or scientific evidence tying him to it. Given the limited evidence aside from the informant's testimony, the prosecutor emphasized Mr. Ferguson's statements in summation, including those statements which Mr. Ferguson elicited after he had agreed to testify. During deliberations, the jury asked for read backs of Mr. Ferguson's testimony . . . and returned a guilty verdict the following day. The state court judge who tried the case observed, '[i]t is reasonably clear to me, based upon the quality of the eyewitness testimony in this case, that the jailhouse informant had to be a reasonably important witness.'"
Perhaps anticipating that the Second Circuit might disagree that the state court decision was not on the merits, the district court held that the state court denial also didn't survive AEDPA deference: the state court's application of Strickland was "objectively unreasonable" because, "[g]iven the similar critical importance of Mr. Ferguson's testimony to the central issue before the jury in this case, no court could justifiably find that there was not a 'reasonable probability' that, but for defense counsel's failure to suppress Mr. Ferguson's testimony, Mr. Smith might have acquitted."
Finally, kudos to SDNY District Judge Sweet for calling it like he saw it here, once again demonstrating the benefits of life tenure free from electoral and other political pressures. On the issue of whether the police had sent Ferguson in to get something from Smith, the judge was skeptical that it could be otherwise:
"That Ferguson appeared as an informant on the heels of the trial judge's preclusion of Smith's statement to the police, that the police officers took no notes of their meeting with Ferguson or Ferguson's initial call to [an NYPD Detective], 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."
That's not Monday morning quarterbacking (which, to be fair, federal courts do indulge in from time to time when reviewing state court trial proceedings). That's calling the state court out for a serious lapse in sound trial management. That's what 2254 should be about.