Habeas win is gone

In this case, Smith was convicted of murder after a jailhouse informant testified at trial that Smith made incriminating statements about the killing. The federal court granted Smith's motion for habeas corpus on the ground that Smith's lawyer was ineffective in failing to move to preclude the informant's testimony. The Court of Appeals reverses, the conviction stands, and Smith remains in jail.

The case is Fischer v. Smith, decided on March 17. At the criminal trial, the prosecutor said the informant had independently contacted the detective about Smith's incriminating statements. Post-trial, Smith's new lawyer learned that the informant had collaborated with law enforcement for four years prior to Smith's trial. Since Smith's trial counsel had not moved to suppress the informant's testimony under the Supreme Court's 50 year-old precedent, Massiah, Smith won his habeas petition.

That victory is now taken away by the Second Circuit (Lohier, Calabresi and Lynch). The leading case on ineffective assistance of counsel is the Supreme Court's ruling in Strickland. This is a problem for Smith, as ineffective assistance claims are hard to win. All the more difficult because habeas petitions are hard to win. Here is how the Court of Appeals summarizes the state of the law:

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); ... “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.” 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.”

So Smith has to overcome double deference here. Note that a state trial court can commit an unconstitutional mistake at trial but the inmate still loses the habeas petition if the mistake was not clearly unreasonable. True, the Court of Appeals says, "we would hope that most lawyers would spot the Massiah issue in this case. But, the Court reasons:

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.