Fischer v. Smith

LOHIER

Reversed.

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.

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.

After additional State court litigation, Smith filed a counseled habeas petition under 28 U.S.C. § 2254, reasserting the ineffective assistance claim raised earlier in his counseled § 440.10 motion. The District Court initially denied the petition, holding that Smith's ineffective assistance claim was procedurally defaulted. It then reconsidered the default and granted the writ in light of Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 1315, 182 L.Ed.2d 272 (2012), which held that the lack of counsel at a defendant's first opportunity to appeal a conviction based on a claim of ineffective assistance at trial may establish cause to excuse a procedural default on that claim. The District Court read the Bronx County Supreme Court's decision as resting on procedural grounds and applied de novo review. Proceeding to the merits, the District Court held that Smith's trial counsel provided ineffective assistance by failing to make a motion under Massiah to suppress Ferguson's testimony. It also held that Smith would prevail even if AEDPA deference applied because the Bronx County Supreme Court's decision rejecting Smith's ineffective assistance of counsel claim involved an unreasonable application of Strickland.

This appeal followed.

I. AEDPA Deference

Where a State court decision adjudicates a petitioner's claim “on the merits,” AEDPA demands that the decision be accorded substantial deference. Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir.2009). We have described an “adjudication on the merits” as one that “(1) disposes of the claim ‘on the merits,’ and (2) reduces its disposition to judgment.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001). “To determine whether a state court disposition is ‘on the merits,’ this Court examines (1) the state court's opinion, (2) whether the state court was aware of a procedural bar, and (3) the practice of state courts in similar circumstances.” Spears v. Greiner, 459 F.3d 200, 203 (2d Cir.2006).

In Zarvela v. Artuz, we treated as an adjudication on the merits a State court decision that determined “petitioner's claim to be unpreserved, and, in any event, without merit.” 364 F.3d 415, 417 (2d Cir.2004) (emphasis added). Here, the Bronx County Supreme Court initially stated that it “decline[d] to reach the merits” of Smith's ineffective assistance claim. Joint App'x at 12. Had it stopped there, we would regard the decision as resting on procedural grounds rather than the merits. But the court did not stop there. The very next sentence described Smith's claim as “procedurally barred and meritless.” Id. (emphasis added). And the remainder of the decision clearly and in considerable detail addressed the merits of Smith's ineffective assistance of counsel claim. See id. (“ Moreover, [Smith] has failed to establish sworn allegations supporting [his] claim of ineffective assistance of counsel.” (emphases added)); id. at 13 (“ Moreover, the defendant's bare claims of ineffective assistance do not meet the Strickland [standard].” (emphases added)). Therefore, in the particular circumstances of this case, we view the decision as addressing the merits of Smith's claim in the alternative rather than declining to reach them altogether.

We turn, then, to the State Court's adjudication of the merits of Smith's ineffective assistance claim—an adjudication which we accord significant deference under AEDPA.

Where a State court decision adjudicates a petitioner's claim on the merits, a district court may grant habeas relief only if the decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). “Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at 105, 131 S.Ct. 770 (citations omitted) (quotation marks omitted). On habeas review “[a] federal court may reverse a state court ruling only where it was so lacking in justification that there was ... [no] possibility for fairminded disagreement.” Vega v. Walsh, 669 F.3d 123, 126 (2d Cir.2012) (second alteration in original) (quotation marks omitted).

As an initial matter, Smith pointed out at oral argument that in discussing the prejudice prong of Strickland the State Court applied the wrong standard, mistakenly suggesting that Smith had pleaded guilty rather than been convicted after a jury trial. Because Smith has not raised this argument in his briefing, it is not properly presented to us. See Vincent v. Yelich, 718 F.3d 157, 175 (2d Cir.2013).

In any event, the argument is unpersuasive. True, Smith's case obviously involved a trial, not a guilty plea. And insofar as the State Court citations to plea bargain cases suggested otherwise, that suggestion was simply wrong. But the State Court correctly cited the Strickland standard as the rule of constitutional law governing Smith's claim, and its elaboration of the performance prong of that standard was fully applicable to the present case. Moreover, the State Court's reference to the guilty plea in the conclusions of law appears to have been a clerical or drafting error rather than a substantive or legal error. Indeed, prior to its conclusions of law, the court detailed at length the procedural history of the case with explicit references to the jury trial. See Joint App'x at 9–12. These references show that the trial judge understood the claims Smith was actually making and did not believe that the case concerned ineffective advice leading to a guilty plea.

As for the underlying issue of ineffective assistance of counsel, we would hope that most lawyers would spot the Massiah issue in this case. Ideally, Smith's trial counsel would have made a motion raising the issue. However, Smith's trial counsel could have reasonably determined that, based on Ferguson's testimony outside the presence of the jury and the prosecutor's representations, Ferguson was not acting as a government agent when he elicited incriminating statements from Smith. If so, moving to suppress these statements at the time could reasonably have been viewed as baseless. Even if we thought counsel's choice was not reasonable, we cannot say that it was unreasonable for the State Court to take the contrary view. Because we accord State court decisions a double measure of deference on Strickland challenges, we are hard put to say on this record that there was “[no] possibility for fairminded disagreement” that Smith's trial counsel provided ineffective assistance. Vega, 669 F.3d at 126.

For the foregoing reasons, we REVERSE the decision of the District Court.