SURUR FATUMABAHIRTU v. UNITED STATES, 148 A.3d 260

Background

In 2008 Fatuma Bahiru Surur was convicted after a bench trial for attempted possession of drug paraphernalia with intent to sell based largely on an undercover purchase on June 28, 2007 and a warrant execution on July 6, 2007 that found paraphernalia while Surur was working. The conviction was affirmed on direct appeal.
The government’s proof of mens rea depended on Officer Jose Garcia’s testimony that the clerk who sold him a glass ink pen plus a copper scouring pad (useful to make crack pipes) was Surur.
At trial Surur testified she had never seen Officer Garcia before and did not recall selling those items; defense counsel focused on lack-of-intent rather than asserting mistaken identity.
Post-conviction, Surur petitioned for a writ of error coram nobis alleging trial counsel was ineffective for failing to investigate a mistaken-identification defense and moved under the Innocence Protection Act to set aside the conviction.
Evidence at the coram nobis hearing showed another female employee, Hayat Ousman, more closely matched the officer’s description (height, weight, clothing) and worked more frequently, while Surur worked only about two days per week; counsel did not seek time sheets, clothing information, or otherwise probe identification facts.
The trial court denied relief; on appeal the D.C. Court of Appeals reversed, finding counsel’s investigation was objectively unreasonable and that prejudice was shown such that coram nobis relief (a new trial) was warranted.

Issues

Issue	Surur’s Argument	Government’s Argument	Held
Whether counsel’s failure to investigate potential misidentification was constitutionally deficient	Counsel failed to investigate whether Surur was the clerk on June 28; basic inquiries (hours, clothing, other employees) would have supported a misidentification defense	Misidentification irrelevant because Surur admitted being present July 6; counsel’s choice was strategic to avoid confusing the factfinder	Counsel’s failure to investigate was objectively unreasonable; no strategic justification supported the omission
Whether deficient performance prejudiced Surur under Strickland	A reasonable investigation likely would have produced evidence creating a reasonable doubt that Surur was the June 28 clerk and thus undermining mens rea for the July 6 offense	Evidence at hearing was equivocal; owner’s belief and Surur’s affidavit suggested she worked June 28, so no reasonable probability of a different outcome	Prejudice established: reasonable probability a hypothetical impartial judge would have had reasonable doubt absent counsel’s errors
Whether coram nobis is proper relief for the Strickland claim when petitioner is not in custody	Coram nobis is the proper vehicle because §23-110 relief is unavailable to non-custodial petitioners	Government argued standard for coram nobis not satisfied	Court held coram nobis appropriate and requirements met given meritorious Strickland showing
Whether Innocence Protection Act relief (actual innocence) was warranted	Surur also sought relief under the IPA	Government argued evidence did not meet clear-and-convincing actual-innocence standard	Court did not reach IPA relief; concluded post-conviction evidence did not establish actual innocence by clear and convincing evidence

Key Cases Cited

Cosio v. United States, 927 A.2d 1106 (D.C. 2007) (reasonableness of investigation, not mere strategy, is the focus of Strickland review)
Wiggins v. Smith, 539 U.S. 510 (2003) (counsel’s duty to investigate; tactical choices must rest on reasonable investigation)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)
Vaughn v. United States, 93 A.3d 1237 (D.C. 2014) (articulating Strickland standards in D.C. context)
Blakeney v. United States, 77 A.3d 328 (D.C. 2013) (prejudice inquiry need not show outcome more likely than not; reasonable probability standard)