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Fischer v. Smith

United States Court of Appeals, Second Circuit

March 17, 2015

BRIAN FISCHER, Superintendent, Respondent-Appellant,
v.
PATRICK SMITH, Petitioner-Appellee

Argued June 19, 2014

Page 557

Petitioner-appellee Patrick Smith was convicted in State court of two counts of second-degree murder based largely on the testimony of a jailhouse informant. The State Court denied Smith's motion to vacate his conviction on ineffective assistance grounds. Smith then filed a federal habeas petition, which the District Court granted after determining that the State Court decision was not an " adjudication on the merits" entitled to significant deference under the Antiterrorism and Effective Death Penalty Act of 1996 and that Smith's counsel failed to provide effective assistance. We REVERSE.

LLOYD EPSTEIN, Epstein & Weil LLC, New York, NY, for Petitioner-Appellee.

ORRIE A. LEVY (Joseph N. Ferdenzi, on the brief), for Robert T. Johnson, District Attorney, Bronx County, Bronx, NY, for Respondent-Appellant.

Before: CALABRESI, LYNCH, and LOHIER, Circuit Judges.

OPINION

Page 558

LOHIER, Circuit Judge.

The principal issue on appeal is whether the State Court decision denying Patrick Smith's application to vacate his conviction on ineffective assistance of counsel grounds is an " adjudication on the merits" to which we must defer under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ). The United States District Court for the Southern District of New York granted Smith's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 after determining that the State Court decision rested on procedural grounds and that Smith's trial counsel had provided ineffective assistance when he failed to move to suppress the testimony of a jailhouse informant. We conclude that the State Court decision was, to the contrary, an adjudication on the merits entitled to AEDPA deference and not so lacking in justification as to warrant habeas relief. Accordingly, we reverse the decision of the District Court.

BACKGROUND

In June 2002 Patrick Smith was charged in the Bronx with first- and second-degree murder (among other crimes) for his role in a 1996 armed robbery that resulted in the death of a payroll delivery worker. On the eve of trial, the prosecutor informed the Bronx County Supreme Court that the Government intended to call an incarcerated witness, William Ferguson, to whom Smith had made incriminating statements while in jail awaiting trial post-indictment. The State Court asked the prosecutor whether Ferguson was government agent. The prosecutor sad no. At trial, defense counsel requested an offer of proof regarding Ferguson's testimony and asked whether he was a government agent. This time the prosecutor responded that Ferguson had not been sent by the government to gather incriminating statements from Smith, but rather that Ferguson had independently contacted and relayed information to a Brooklyn detective named Danny Dellasandro. The prosecutor agreed to get more information about Ferguson's interactions with government officials.

The next day, the prosecutor reported that Ferguson had reached out to Detective Dellasandro and revealed the details of Smith's robbery homicide. The prosecutor acknowledged that Ferguson had provided information to law enforcement prior to contacting Detective Dellasandro but stated that, according to Ferguson, the information had never been pursued. Based on the prosecutor's representations, the State Court determined that there was no basis to believe that Ferguson was a government agent.

Ferguson thereafter testified that he met Smith four times on Rikers Island and that each time Smith made inculpatory statements regarding the crimes for which he had been indicted. On cross-examination, Ferguson admitted that he had served as a paid informant for another narcotics detective, Jimmy Irving, who had not previously been mentioned by the prosecutor. Defense counsel moved to strike Ferguson's testimony, arguing that the government had failed to provide any ...


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