13-3022-pr Fischer v. Smith 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2013 5 6 (Argued: June 19, 2014 Decided: March 17, 2015) 7 8 Docket No. 13‐3022 9 10 _____________________________________ 11 12 BRIAN FISCHER, Superintendent, 13 14 Respondent‐Appellant, 15 16 v. 17 18 PATRICK SMITH, 19 20 Petitioner‐Appellee. 21 22 _____________________________________ 23 24 Before: 25 26 CALABRESI, LYNCH, and LOHIER, Circuit Judges. 27 28 Petitioner‐appellee Patrick Smith was convicted in State court of two 29 counts of second‐degree murder based largely on the testimony of a jailhouse 30 informant. The State Court denied Smith’s motion to vacate his conviction on 31 ineffective assistance grounds. Smith then filed a federal habeas petition, 32 which the District Court granted after determining that the State Court 33 decision was not an “adjudication on the merits” entitled to significant 34 deference under the Antiterrorism and Effective Death Penalty Act of 1996 35 and that Smith’s counsel failed to provide effective assistance. We REVERSE.

1 13-3022-pr Fischer v. Smith 1 LLOYD EPSTEIN, Epstein & Weil LLC, 2 New York, NY, for Petitioner‐Appellee. 3 4 ORRIE A. LEVY (Joseph N. Ferdenzi, on the brief), for 5 Robert T. Johnson, District Attorney, Bronx County, 6 Bronx, NY, for Respondent‐Appellant. 7 8 LOHIER, Circuit Judge: 9 10 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

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 1 BACKGROUND

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,

(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 Appeals denied leave to appeal.

11 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 This court declines to reach the merits of 4 Defendant’s counsel claims. The People are 5 correct in their assertion that the instant motion is 6 procedurally barred and meritless. The 7 defendant was in the position to adequately raise 8 all issues he now makes in the previous motion 9 but chose not to. Moreover, defendant has 10 failed to establish sworn allegations supporting 11 defendant’s claim of ineffective assistance of 12 counsel. In evaluating ineffective assistance of 13 counsel claims, New York’s Court of Appeals has 14 consistently applied a “flexible” approach. “So 15 long as the evidence, the law, and the 16 circumstances of a particular case, viewed in the 17 totality and as of the time of the representation, 18 reveal that the attorney provided meaningful 19 representation,” a defendant’s constitutional right 20 to the effective assistance of counsel will have 21 been met. Thus, the standard in New York has 22 long been whether the defendant was afforded 23 “meaningful representation”. The Court of 24 Appeals has clarified “meaningful 25 representation” to include a prejudice component 26 which focuses on the “fairness of the process as a 27 whole rather than [any] particular impact on the 28 outcome of the case”. 29 30 Moreover, the defendant’s bare claims of 31 ineffective assistance do not meet the Strickland 32 [standard]. Strickland v. Washington,

688 (1984). In Strickland, the Supreme Court 34 adopted a two‐part test for evaluating claims of 35 ineffective assistance of counsel. A “defendant

6 13-3022-pr Fischer v. Smith 1 must show that counsel’s performance was 2 deficient,” and “that the deficient performance 3 prejudiced the defense”. The first prong of the 4 Strickland test is a restatement of attorney 5 competence, which requires a showing that 6 counsel’s representation fell below an objective 7 standard of reasonableness. The second prong, 8 also known as the prejudice prong, “focuses on 9 whether counsel’s constitutionally ineffective 10 performance affected the outcome of the plea 11 process”. In order to satisfy this prong, a 12 “defendant must show that there is a reasonable 13 probability that, but for counsel’s errors, he 14 would not have pleaded guilty and would have 15 insisted on going to trial”. In the case at bar, 16 defendant has failed to provide any evidence 17 showing that counsel was ineffective. 18 19 Joint App’x at 12‐13 (citations omitted).

20 After additional State court litigation, Smith filed a counseled habeas

21 petition under

, 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,

(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.

9 DISCUSSION

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,

(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,

(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,

(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.”

(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

(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

(“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

(d)(1); Harrington v. Richter,

(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,

(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,

(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,

(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,

.

15 CONCLUSION

16 For the foregoing reasons, we REVERSE the decision of the District

17 Court.

12