Judge Robert Sweet
Smith was sentenced to two concurrent sentences of 20 years to life in prison after being found guilty, in 2003, on two counts of second-degree murder. State appellate court modified conviction but otherwise affirmed judgment in 2006. New York’s high court denied leave to appeal. In July 2007 district court allowed Smith to withdraw his March habeas corpus petition. In pro se state court motions filed during the federal habeas motion’s pendency, Smith argued trial counsel’s ineffectiveness for failing to seek a missing witness charge against a detective for whom an informant—a trial witness against Smith—worked. State court found Smith’s ineffectiveness claims, grounded on Massiah v. United States, procedurally bound as not raised in Smith’s first May 17, 2007, motion under New York Criminal Procedure Law §440.10. District court’s March 1, 2012, order denied Smith habeas relief. Based on the effect the Supreme Court’s 2012 ruling in Martinez v. Ryan has on Coleman v. Thompson, district court granted Smith reconsideration of its March 1, 2012, order. The court found Smith’s Massiah-based claim of counsel’s ineffectiveness colorable, not procedurally barred.