Long v. United States, 36 A.3d 363

Colie L. Long was convicted of armed first-degree murder, conspiracy to commit murder, assault with a dangerous weapon, and related offenses; Tilghman testified against Long in the first trial leading to a hung jury.
A superseding indictment added a conspiracy-to-murder charge before the second trial.
On remand, the trial court conducted an evidentiary hearing on Long’s DC Code §23-110 ineffective-assistance claim and denied relief.
Long appealed the §23-110 ruling, and this court affirmed the conviction and the denial of the §23-110 motion, also denying a Rule 35 motion regarding sentence.
The issue on appeal includes whether trial counsel’s performance was deficient for failing to call Plummer or introduce his first-trial testimony, and whether the sentence issues under Apprendi were properly handled.
There is a separately authored dissent questioning defense counsel’s handling of Plummer’s first-trial testimony and its impact on outcome.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Baer’s failure to call Plummer or introduce his first-trial testimony constitute ineffective assistance?	Long contends Baer’s omission deprived him of exculpatory evidence from Plummer.	Baer made strategic decisions based on credibility concerns and Fifth Amendment issues; the omissions were tactical.	No reversible error; Baer’s decisions were strategic and not deficient.
Was Long prejudiced by Baer’s decisions regarding Plummer, such that the second-trial result cannot be trusted?	Plummer’s testimony was crucial to Long’s theory that Tilghman, not Long, committed the murder.	Even without Plummer, the conspiracy theory and other evidence supported conviction; prejudice not shown.	Not shown by the majority; no demonstrated prejudice from the decisions.
Is Long’s Apprendi challenge to his sentence procedurally barred or retroactively inapplicable?	Apprendi renders the sentencing factors improper because the jury did not determine aggravating factors.	Issue was procedurally barred and Apprendi does not apply retroactively on collateral review.	Procedurally barred; Apprendi does not apply retroactively.
Did the court err in treating Baer’s post hoc statements about strategy as binding findings of trial conduct?	Baer’s contemporaneous lack of awareness means no deliberate strategic decision occurred.	Baer’s trial strategy is not invalidated by later statements.	No reversible error; strategic decision supported by record.

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes standard for ineffective assistance of counsel; deficient performance and prejudice)
Cosio v. United States, 927 A.2d 1106 (D.C. 2007) (en banc; proper measure is reasonable professional performance under Strickland)
Brown v. United States, 934 A.2d 930 (D.C. 2007) (trial tactical decisions generally not ineffective assistance)
Zanders v. United States, 678 A.2d 556 (D.C. 1996) (counsel’s strategic choices respected unless deficient)
Strozier v. United States, 991 A.2d 778 (D.C. 2010) (reaffirms deference to informed strategic decisions)
Murray v. Carrier, 477 U.S. 478 (U.S. 1986) (isolate errors can violate Sixth Amendment if egregious and prejudicial)
Schriro v. Summerlin, 542 U.S. 348 (U.S. 2004) (retroactivity of new rules of criminal procedure; Apprendi not retroactive)