Diamen v. United States

the cur- posed by “pendens, this remains lis Sousa, DIAMEN, Joseph Nick of our law. A.

rent status Michael Joseph Wayne Eastridge, Accordingly, reverse the trial court’s we Appellants, summary judgment insofar as grant of v. prop- purchased declares Jordan to erty good faith. STATES, Appellee. UNITED 96-CO-299, 96-CO-295, 96-CO-301.

No. III. Appeals. District of Columbia Court Investment, Dismissal: Jordan Argued 1997 *. Dec. v. Inc. Lewis Feb. Decided grant This decision to reverse

summary judgment in Brooks v. GMAC also of the trial court’s deci

affects the outcome grant appellee Motion to

sion to Jordan’s Investment, in Jordan Inc. v. Lewis.

Dismiss

Because the court’s decision to dismiss large part was on collateral

case based

estoppel judicata stemming and res from the summary judg grant

November

ment, reverse, which we we must also re appel

verse and remand on the dismissal of Skadden,

lants’ of Title. v. Plea Wallace Slate, Flom,

Arps, Meagher & 715 A.2d (D.C.1998)(judgment grounds

887 n. 29 on judicata underlying final

res where the reversed); partially

order is Stutsman Plan, Found.,

Kaiser Health (D.C.1988) (finality judgment is a

prerequisite estoppel ju for collateral res apply).

dicata to

Judgment part reversed in and affirmed part; proceed- case remanded for further

ings opinion. consistent with this pending, appeal and he was re- appeal initially heard March while

*This by Judge Schwelb. The consisting placed division a division of appeal Judges was then reheard reconstituted Ferren and Ruiz and Senior Associate Judge Judge the court division. Kern. Ferren retired from VA, Alexandria, Zwerling, K. for ap-

John pellant Diamen. ** Alyza

Arthur F. Mathews and D. Lew- in, Weissman, whom Andrew B. Sara E. DC, Emley, Gray, Washington, and David G. brief, appellants were on the for Sousa Eastridge.

Channing Phillips, D. Assistant United Holder, Attorney, Eric H. States with whom Jr., Attorney at United States the time the filed, Roy brief was and John R. Fisher and III, W. McLeese Assistant United States brief, Attorneys, appellee. were on the RUIZ, Before Associate SCHWELB KERN, Judge. Judges, and Senior SCHWELB, Judge: Associate 6, 1975, January following On a five-week trial, Diamen, appellants Joseph Michael A. Sousa, Wayne Eastridge Joseph Nick by jury first-degree mur were convicted - armed, 22-2401, §§ der while D.C.Code (1996), stabbing connection with death of Battle. March Johnnie On convictions were affirmed States, court. Sousa v. United 400 A.2d 1036 denied, (D.C.), cert. (1979).

484, 485, 62 L.Ed.2d 408 April following earlier unsuccess- attempts by Eastridge1 ful and Diamen to (D.C. regret 84-1358 **The court notes with that Mr. Mathews 2. Diamen v. United No. during pendency appeal. 31, 1985) (Memorandum died Judg- of this July Opinion and ment). (D.C. Eastridge v. United No. 82-387 1983) (Memorandum Opinion Judg- June ment). aside, group, with Richter and his their convictions set three was familiar joint employee deny filed motion vacate them service. directed restaurant, pursuant Pagans convictions D.C.Code As left the en- (1996). men, The motion was based dis- group young black in- countered a evidence, covered and the also decedent, In- cluding the Battle. Johnnie judge claimed the trial had committed exchanged, sults hostile words by preclud- constitutional error their trial Pagan popcorn threw at one of the black eliciting any each defendant from unpleasantness men. into escalated witness or codefendant violence, went car threats of and Battle to his (cid:127) inculpate any codefendant. tend handgun. to arm himself with a As he was restaurant, walking Battle back towards the the motion motions denied with- by Pagans were was confronted several who hearing. judge The held out the apparent attempt knives. to carrying an pre- had not discovered evidence been action, Battle and preemptive take shot years judgment, sented two final within of Pagans, one of the Bruce Hunter. wounded required by Super. R. Ct.Crim. and that fire, pistol jam- to his Battle continued in support the affidavits filed of the motion med, began he to Several of the and run. require the were insufficient event Battle, him, Pagans pursued caught and then judge hearing. court to The hold did him to death. stabbed appellants’ address the claim constitu- trial, tional at their error was committed murder, A short time after the the three perhaps appellants’ the convictions codefendant, appellants and their Steven appeal, had been affirmed on direct and be- Jones, by police apprehended were the when that, cause the have believed as a judge car, driving, Eastridge’s which Sousa was Court, judge Superior he lacked the through light. went a red Jones had severe second-guess ruling authority hand, cuts on his and blood was found on his court. clothing newspaper on a and the vehicle. Small amounts of blood found on the were motion, appeal from the On denial of pants Diamen’s and on inside of Sousa’s appellants claims made in the reiterate the shirt.4 were Several knives recovered court, they the trial and contend that occupants, and the automobile its and there judge denying motions erred in the appel- Diamen, testimony, vigorously denied evidentiary hearing. lants an We affirm. that Diamen had discarded another knife being Ac-

while the vehicle was searched. I. Willetts, Dorothy cording testimony of Pagans, appel- of several of the associate Eastridge, lants and who been Sousa had PROCEDURAL BACKGROUND bond, released on admitted Ms. Willetts The at the evidence adduced participated killing of had in this is set forth detail court’s the decedent. Sousa, opinion in confine we ourselves defense, Testifying in their all three own summary. appellants, all a brief three appellants any complicity pur- denied white, of motor of whom are were members suit of the decedent or in his murder. Jones cycle “Pagans.” On club called Novem- he also the stand. Jones admitted that took Pagans, including ber several Battle after Battle had shot Hunter. chased appellants, went to the Godfather Restaurant claimed, however, that Battle had elud- Jones Avenue a celebra- on Wisconsin to continue (Jones) him, partici- ed and that he did not birthday tion one of members killing knowledge pate in and had no group, Pagan named Richard C. Richt- restaurant, it. proprietor of the All four defendants were convicted er.3 The who appellant's found on Sousa and Diamen was not 3. Richter later became one of The blood as Battle’s. at trial. identified codefendants in- first-degree appellants were not murder while armed. The three stated that volved; appellants prison these admissions Woods were sentenced to terms life, Jennings allegedly made in the late twenty years timely and each filed a 1970s; appeal. notice of April 3. an affidavit dated appeal, On direct the convictions of Dia- Gianaris, appellants pre- whom the John Sousa, men, Eastridge were affirmed.5 previously eye- sented as a undiscovered judge The court held that the trial did not stated, stabbing, who witness to the by denying appel- abuse his discretion fact, twenty years more than after the based, motions for inter lants’ severance attacking he saw “no more than four” men Sousa, antagonistic su- defenses. alias passed by car the area Battle and that no

pra, 400 A.2d at 1042-43.6 The court also time; at the relevant “examined the multitude of other contentions upon expanding 4. several affidavits by appellants made them to be [found] credibility at trial on the of Ms. doubts cast without merit.” Id. at 1038n. 1. Willetts. years More than sixteen after this court's in their motion also claimed convictions,

affirmance of them constitu- that the trial had committed jointly filed the 23-110 motion which is the tional error as described above. The mo- subject appeals. They noted, judge, tions as we have denied the six-year investigation claimed that a conduct- appellants’ § a hear- 23-110 motion without by ed on their behalf Ministries7 Centurion ing. appeal This followed. produced exonerating has the three appellants identifying the “real” murder- II. ap-

ers. The new evidence adduced pellants following: primarily consisted of the DISCOVERED EVIDENCE NEWLY 1. an affidavit executed in December 1993 AND THE CLAIM OF ACTUAL codefendant, appellants’ former Ste- INNOCENCE Jones, ven which Jones admitted his contend that Centu participation stabbing own in the of Bat- lengthy investigation has re rion Ministries’ tle,8 claimed that the three were discovery sulted of new evidence dem innocent, and asserted that his confeder- They onstrating assert that their innocence. killing Pagans ates in the were former showing entitles them to of innocence Woods, Jennings, Charles John and a third pursuant relief to D.C.Code 23-110. We identify; man whom Jones declined to it is conclude, however, provi however, undisputed, Jennings Superior Court’s sions of Rule 33 deceased; Woods are now applica Rules of Criminal Procedure and Pagans 2. affidavits who three former law, appellants’ reliance on new ble case asserted, respectively, in 1993 and 1995 ly many years too evidence comes discovered Jennings, the two de- Woods late. Jones, implicated by ceased men had both provides pertinent part:

admitted their roles in the murder and had Rule 33 Jones, advocacy considerably non-profit younger Ministries is a who was than the 7. Centurion mission, defendants, according group to its founder whose sen other received much shorter prison tence, president, from and vindi- is "to free appeal. and he did not The fifth defen completely Richter, innocent of the dant, cate those who are assaulting was convicted of one of they wrongfully have been con- crimes for which companions. were Battle’s Richter’s convictions to life or death.” victed and sentenced grounds to the reversed on unrelated Sousa, supra, appeals. A.2d at 1041-42. noted, trial, we Jones denied his 8. At own involvement. rejected claim that he 6. The court also Diamen’s unduly prejudiced by the admission at the was joint alleged explicitly appellants’ codefendants, of confessions of his ad- trial asserted that Woods 9. Two affiants Eastridge, guilt. averred that to Ms. Wil- his A third affiant Sousa mitted Jennings implicitly did so. letts. (1993); may Kaplan, F.Supp. of a States Court motion defendant United J.). (S.D.N.Y.1951) (Weinfeld, grant a new to that if re- A trial defendant justice quired .... A precluded considering newly interest from discov- ground motion for trial based new presented expiration ered evidence after the may newly discovered evidence be made years of two even where the court is con- only years final before within after justice grave miscarriage vinced “a judgment, appeal pending, only place,” Kaplan, supra, F.Supp. has taken on remand the case the Court “it is to see and where difficult how grant the motion. presented some of the vital evidence now could have been available to defendant Super. Ct.Crim. R. 33. The mo- twenty years during two-year period.” filed after at 13. tion was Id. years after affir- convicted sixteen harsh,11 Although appear this result mance of their convictions. IV, infra, see Part can be no also there doubt local Rule 33 “is identical to the Our promulgat- that it intended who those corresponding Federal Rule of Criminal Pro P. ed Fed. R. Crim. 33. Prior to cedure.” Williams v. United prosecutions “enjoyed in federal defendants (D.C.1977). It A.2d 889 n. 6 is therefore sixty judgment for a days to move new consistently to be construed with the federal evi- on the basis discovered and, applicable local rule absence only days dence and three otherwise.” precedent,10 we look to the ease law constru Smith, (citation supra, 62 F.3d at 649 omit- R. Crim. P. 33. See Waldron v. Fed. ted). Thereafter, (D.C. 1977). [wjhen adopted Rule 33 Advisory Committee recommended that “The time limitations Rule 33 upon time limits new trial motions based jurisdictional. power The court is without newly on be eliminat- discovered evidence a untimely consider an motion for new trial.” supporters ed. The Committee and its Weight, 3 Chakles Alan Federal Practice always a new should be reasoned that trial (2d 558, § ed. at 360 1982 & & Procedure when a can available criminal defendant (footnotes omitted); Supp.1998) see also tending new evidence to demon- introduce F.3d 641, (4th Smith, States v. 62 648 United strate his actual innocence. See 3 Cir.1995) (citing Wright). Because 33 Rule Wright, and Proce- Federal PRactice newly requires that a motion based on dis 558, § at nn. 7-8. Al- 362-63 & dure years covered evidence be made within two rejected though Supreme Court judgment, final the court is after without proposal, and in- Advisory Committee’s grant expi power to a motion filed after the two-year a limit on motions imposed stead See, period. e.g., v. ration of that Guinan evidence, newly discovered States, (7th based on 468, 6 F.3d 470-71 Cir. United extending greater lati- States, basic rationale for 1993); Jacobanis v. United 256 F.2d (1st Cir.1958). newly 485, tude to motions based on discovered two-year limit is 486 Collins, evidence remains same: to enable the strictly enforced. v. 506 Herrera 409, 390, 853, 113 122 to afford relief when new L.Ed.2d 203 district court U.S. S.Ct. States, § purposes is not motion of 23- Head v. 489 A.2d 450- a 23-110 10. Neither United (D.C.1985) 110(e), & n. 1 Johnson 51 nor v. provides a trial is not which States, 742, (D.C.1978) 385 A.2d decides the required 23-110 to entertain successive mo- See, presented. e.g., issue here District Colum- nothing tions. has do with the The case time Club, (D.C.1996) bia v. Sierra 670 A.2d applicable to for a new trial limitations motions ("the properly rule of stare decisis is never in- newly based discovered evidence. on pre- put voked unless in the decision forward applied judicial cedent the has been to and mind Attorney General 11. The of the United (citations passed upon precise question”) prosecutor, eloquently urged more nation’s chief omitted). century ago than time limit half a that no (D.C. v. United 634 A.2d 411 Junior Appendix placed such motions. See the 1993), dissenting colleague, cited our holds opinion. pursuant a that a motion for new trial to Rule 33 applicable a information bolsters a claim of actual inno- constraints to motion based newly evidence cannot be so cence. discovered readily States v. Ma circumvented.” United Herrera, added); (emphasis Id. see also su- (S.D.N.Y.) (cita donna, F.Supp. 853; pra, Kaplan, at S.Ct. (2d omitted), aff'd, 697 F.2d 293 Cir. tion F.Supp. history supra, 101 at 13-14. This denied, 1982), cert. beyond peradventure the demonstrates Su- (1983); Guinan, supra, 6 74 L.Ed.2d 957 preme trial Court’s determination that new DeCarlo, 470-71; F.3d at United States granted newly not be on the basis of (E.D.N.Y.1994) F.Supp. years after discovered evidence two (Rule 33’s time limits not be avoided elapsed, regardless any showing of actual styling motion as one for a writ of error Indeed, innocence.12 it was for cases involv- nobis). coram claims actual innocence that Rule 33’s two-year period purposely limitations de- Moreover, Court made signed.13 that, cases, capital it clear Herrera even in case, present appellants predi-

In the time limitations on motions for a new trial 23-110, newly cated their motion on not D.C.Code based on discovered evidence do provision permits cognizable defendant to file a constitutional issue time,” corpus. pointed his motion “at not on Rule 33. habeas The Court out They law, granted contend that the limitations of Rule 33 at trial common new could be applicable, only during and that “the court below the term of court in which the concluding appellants’ judgment erred failure to at final was entered. 506 U.S. timely file a motion for a new under 113 S.Ct. 853. The Court also noted that a precluded entertaining majority Rule placed it from time substantial states newly filing motion for a new trial based on discov- limits on the of new trial motions based evidence; indeed, newly many ered evidence.” But nature of a mo- on “[t]he discovered sought, substantially is determined the relief not of those limitations are shorter tion caption.” two-year period. its label or Frain v. District than Id. the District’s Columbia, (D.C.1990) (cita- 410-11, pre 853.15 The Court was omitted). assume, presentation pared tion Insofar argument, as the for the sake of concerned, truly persuasive discovered evidence capital that “in a case16 a purpose motion is identical demonstration of ‘actual innocence’ made af by “By to that merely served Rule 33. des- ter trial would render the execution of a motion,14 unconstitutional, § ignating a this 2255 the time defendant and warrant fed- 33, adoption Supreme provides, 12.The Court’s of Rule 13. Local Rule 33 as does its federal rejection proposal counterpart, and its that time limita- that motion for a new trial based newly grounds newly tions be abolished other evi- for motions based on than discovered evidence, days adju- discovered dence must be filed within seven after guilt. dication of only show[] not a deliberate to limit intention years to two within time which new counterpart § 14. 28 U.S.C. 2255 is the federal of ground newly be asked on the of discover- D.C.Code 23-110. evidence, negative[] any ed but also intention equate procedure having to this rela- with Texas, convicted, 15. one where Herrera was is of deprivation tion to relief for the of constitu- required seventeen states that such motions to be rights, tional which if it amounted to a denial sixty days judgment. filed 506 U.S. at within process subject might due be made the 410, 113 S.Ct. 853. application motion in the nature of writ of any at error coram nobis time. recognized 16. The Court has 213, (4th Howell v. United 172 F.2d 216 punishment from "death is a different kind of Cir.) denied, (citation omitted), cert. 337 U.S. imposed other which be in this coun- 906, 1048, (1949); Florida, 69 S.Ct. 93 L.Ed. 1718 see try.” 97 Gardner v. 1197, 430 U.S. Kaplan, supra, Judge (1977) F.Supp. (plurality also 101 at 14. S.Ct. L.Ed.2d 393 51 (citations omitted). explained Kaplan Obviously, opinion) Weinfeld also that 28 U.S.C. not all analogue protections capital 2255 — the federal of 23-110 — is a afforded to defendants in automatically persons "codification of the common law writ available to of coram cases F.Supp. facing penalty. 101 at nobis." 11. the death 508 eral were no ave- to the defendant’s discovered habeas relief there state consider grant clemency18 open and to him makes process

nue to such a claim.” Id. at added). 417, constitutionally deny permissible it to (emphasis 113 S.Ct. 853 judicial a further forum without unnecessary defendant Court found it to decide wheth- considering his claim the merits of of actual remedy er the lack of such state would be innocence.19 fatal, however, Texas, jur- like most isdictions, permitted to the defendant seek a

pardon Governor, 411, from the id. at 113 III. 853, because, according S.Ct. to the THE ALLEGED CONSTITUTIONAL Court, “[hjistory shows that traditional VIOLATION

remedy for claims of innocence based on new evidence, day too discovered late to file The five defendants who were indict motion, 1, a new trial has executive clem- been ed a result of the events of November ency.” Diamen, Sousa, Jones, at 113 Eastridge, Id. S.Ct. 853.17 Herrera 1974— requesting if the together. appar thus holds that time for tried Richter —were availability elapsed, attempt perceived new trial has actual of dis- ent to avoid a trials,20 cretionary authority multiple need the Executive Branch for severance and 17. The 19. 18. The several other individuals to whom Raul Herrera, his seen his father commit the man Sr. had pus which he had been convicted were yet based, deceased), and that the tion, mitted that the cence, denied, right n. ed 506 .U.S. at on the trial. No given we States v. 464, Petitioner’s abuse dence, Likewise, era, ... States Other his motion to The affidavits filed in this habeas defendant's (1969). review on greater on the believe the likelihood of presented because, enforcement the Court apply motion, Jr.’s 90 Court observed that proper disposition standing given allegedly as to new trial motions seek executive the defendant defendant parts we are mindful that defendants often his brother. Raul Herrera. Sr. F.2d Johnson, L.Ed. 562 Harrison, —here. U.S. ground in affidavit, for a satisfactory explanation over why affidavits with the and that unconstitutional. reviewing petitioner’s new evi- nephew, went 113 affidavits confessed the crimes. alone, pardon, eight years ground 327 U.S. S.Ct. this case Herrera on to state: (1946). sought 90 S.Ct. they clemency. just innocence or otherwise.” affiants not entitled execution new exception n. is not U.S.App. who claimed 853. "as a method claim of actual inno- of these or even a the defendant that the murders of sentences.” United particularly suspect consist trial motion federal habeas cor- abuse is as (per decision Raul 106, murders, likewise Although after waited constitutionally of an innocent See, He of Raul Herr- D.C. curiam), actually 112, Herrera, Jr., to a appeals. of petitioner's proceeding commuta- supported has been e.g., also bear until have Herrera, hearsay. 66 S.Ct. Holding L.Ed.2d hearing great— we are per ”ha[d] delay- (since com- Unit cert. se, 20.Prejudice that the nings Jones in the murder of the decedent. arise “where these two erate, would be long cussion, available to only ernment delay cations.” omitted). we have It trigger ments received testimony which would have to be made in order been presume perpetrator showing of are without deliberating upon its verdict. Since the state- L.Ed.2d 798 decide coming after the a defense witness who is not identified until dence offered llth hour— This irreconcilable make diminishes as that in in noteworthy, weighed filing to contest the new defense is not to jury the sort difficult, important dead men and an unidentified confed- assumed, arguendo, to With Id. at Woods, now ascribe llth not the that there at 417-19, been offered at ^[400] from the motion was more than twice as two of of the murders himself was and, indeed, trial, years probative value. Had innocence falls will (1988)] affidavits Herrera. statements. Cf. hour has Jennings by defendants 403, defenses and there is a say if appellants, are also at 414 joinder unjustifiably reliability the State after not issues constitutional claim which their side of the ("[I]l 113 S.Ct. 853 jury, jury something suspect guilt in this impossible, passed”). contradict the evidence "[T]he persons and Woods no petitioner's until after the petitioner’s [108 of defendants is dead, would have had to trial, along present conflicting of criminal far participated ... credibility. Taylor passage exist. infer that foregoing short reasonable petitioner, and that with the evi- for the theory this could have whom case, v. trial, (citations affidavits story, Illinois, of time of that danger adjudi- alleged dead— sort of longer about with gov- that Jen- this dis- But

509 ruled, noted, judge binding authority as we have that defen- A. The the Sousa deci- no permitted any dant would be to elicit from sion. which to in- witness information would tend an “It is well-settled that where judge other criminate defendant.21 The appellate disposed of an issue on court has arguments of also restricted counsel accord- appeal, will not be [that issue] considered ingly. appellants The that rul- contend this ing unconstitutionally impaired right, in a court of their afresh on collateral attack Amendment, protected by pres- the Fifth judicial system, special cir the same absent ent a defense.22 States, Doepel cumstances.” v. United 510 (D.C.1986) (footnote 1044, A.2d 1045-46 appellants acknowledge that the con- omitted); they Minick stitutional claim that now seek to raise citations see also v. United rejected by (D.C.) presented States, 1115, to and this court (per A.2d 506 Sousa, appeal. supra, on direct 400 A.2d denied, curiam), 836, cert. 479 U.S. 107 S.Ct. appellants sought rehearing n. 1. The at 1038 (1986). 133, 93 We are also L.Ed.2d or, alternative, the division bound the related rule that one division of court, petition full but their denied. The of a the court cannot overrule the decision subsequently Court declined to re- prior Ryan, M.A.P. v. 285 A.2d division. See 981, 484, view the case. U.S. 100 S.Ct. (D.C.1971); Minick, supra, appellants 62 L.Ed.2d 408. The never- at 1116-17. that, light theless assert evidence, discovered this court is free to definitively This court has not con them claim reconsider of constitutional error. “special strued the term circumstances” judge also fault the motions Roach, Doepel. Peoples v. used failing to address that claim in his written (D.C.1995), suggested A.2d 702 n. 5 we denying They order 23-110 motion. special might circumstances con “[s]uch assert, effect, that the erred motions intervening change in sist of an the relevant by declining holding to overrule this court’s Palumbo, law.”23 United States v. in Sousa that there was no violation at the (3d Cir.1979), rights. trial of the F.2d 529 the court held that guilty veiling change applicable conflict alone demonstrates that both are law which rendered States, unconstitutional, U.S.App. ...." v. Rhone Untied D.C. defendant’s sentence 47, 48, (1966) curiam) (per 365 F.2d already rejected by held that "a claim court omitted). (citations appellate be reconsidered on collat- light eral attack in new law which would have judge’s ruling right 21. The did not affect the exonerated the had it been in force defendant pursue blame-shifting defendants defense appeal." (empha- Id. at the time the direct non-defendants, directed at such as Woods added) (citing sis Davis v. United Jennings. (1974)). 94 S.Ct. 41 L.Ed.2d 109 case, hand, has been no In this on the other there parties disagree 22. The as to how inflexible the change relating to the in the substantive law judge’s any, degree, rule was and as to the Schlup scope right to cross-examination. prevented present- which it from Delo, L.Ed.2d ing conclude, exculpatory material we evidence. Because (1995), dissenting colleague, Sousa, our relied on of the decision in post at 516 n. does not deal with that issue or authority we lack to decide the merits of these contentions, expand right. specific appli- we do not address judge’s appel- cations of the rule of which the important. Context is “It is well to remember Ruiz, complain. opinion Judge lants Cf. general significance given to broad and post, at 528-29. only by comparing the. statements of the law facts arise with those facts to which Claiming analysis regard that our in this they supposedly apply.” Khiem v. United point 23- "misses of habeas review under denied, 160, (D.C.1992), 110,” rt. 507 612 A.2d 164 dissenting colleague our cites Kirk v. Unit ce 1293, (1993) 924, States, 499, (D.C. 1986) U.S. 113 S.Ct. 122 L.Ed.2d 684 (per ed 510 A.2d 504 910, (D.C. Kraft, curiam) (quoting v. 155 A.2d proposition judicata for the that res does Kraft 1959)). "[Wjords opinions to be read apply proceedings of our to not and that light of the case under discussion facts courts of the District of Columbia must be "eter transposed nally vigilant ensuring prisoners expressions to other are not .... General Kirk, subject misleading.” v. facts are often Armour & Co. to unlawful incarceration.” 165, however, Wantock, 126, 133, relying super- the defendant was on a 323 U.S. 65 S.Ct. in the absence of ^[1] newly discovered evi- the constitutional issue. other words, that, reasonably “special could not have been must be such dence that circumstances” presented at the original trial, ^[2] a change original panel had been apprised of them, representation by applicable law, counsel, ^[3] incompetent prior or ^[4] other cir- Minick, its decision would have been supra, 506 A.2d at 1117 different. See (on collater- indicating that an accused did cumstances attack, that the must show al the defendant consideration of not receive full and fair clearly ruling initial “is erroneous statutory and his federal constitutional newly change in sub- presented facts or a claims, petitioner a not reliti- law”). Any reading of the other stantive adjudicated gate at his issues that were phrase “special would under- circumstances” appeal. original trial and on direct Ryan, v. the doctrine mine the rule of M.A.P. (footnotes omitted; case, nu- bracketed Id. at 533 the need for of the law of the added). merals In- consistency represent. rules which these deed, adopt the appellants’ if we were to “spe An examination of the four Superior judge of the argument, then a “exceptions” cial circumstances” or identified to rule in 1996 that Court would be free per that none of them Palumbo reveals Appeals erred in 1979 when Court of judge disregard ruling a mits a trial to record, decided, on the same appellate court court, division to appellate or a successor before the very question which is now second-guess predecessor division’s deci a judge. of no au- Superior Court We know sion, judge simply the trial or the startling proposition.25 thority for such disagrees earlier division with the successor legal analysis perceives a con division’s exceptions, Palumbo Of the four violation where the earlier division stitutional only evidence— discovered contrary, each Palum found none.24 On the first — ap any possible application here. The has exception bo involves a circumstance change appli of a division, pellants make no claim through no prevented the earlier own, allegation that their correctly deciding There is no cable law.26 legal error itsof (1944). quot whatever language that is effective in The from Kirk cross-examination L.Ed. extent, bearing way, the defense dissenting colleague and to whatever ed our has no Fensterer, dispositive v. 474 U.S. wish.” Delaware cases in which there has not been (1985) (per cu- 88 L.Ed.2d 15 change in the law. (citation omitted). riam) original) (emphasis in judge suggest 24. We do not that the trial lacked judges as the retain wide latitude insofar "[T]rial jurisdiction appellants' to constitu- consider impose is concerned to Confrontation Clause Rather, judge required was tional claims. on such cross-examination reasonable limits Sousa, reject authority under the these claims Arsdall, v. Van ...." Delaware bringing alleged not facts for the (1986); S.Ct. 89 L.Ed.2d Doepel Palumbo. the case within (D.C. v. Gardner United 1997). division, judge, the motions 25. Even if this rule, judge's appellant each Under the trial authority second-guess the decision in had the against argue that the evidence remained free to authority lack- we hold that such Sousa—and weak, precluded from and he was not him surely incumbent on a trial attempting to non-defendants. —it to shift blame division, when asked or a successor have, view, in our failed dem- division, disregard by predecessor a decision evidence available to onstrate that there was restraint, and to reverse exercise considerable at the time trial which could have had them only holding plain- holding if that the earlier ly impact significant on the outcome if rule had tire necessary obviously wrong. If it been relaxed. question, reluctant we would be most decide that appellants have satisfied to conclude that the (D.C. 676 A.2d 1 26.In v. United Winfield exacting standard. such an 1996) (en banc), expanded in some this court under which a crimi right measure the circumstances is "an essential of cross-examination may present that another defendant requirement for the kind of fair nal and fundamental person of which the defen country's goal." committed the offense trial which is this ruling judge's now Mississippi, dant is accused. The issue, however, Chambers (citation (1973) applied only to evidence incrimi L.Ed.2d 297 omitted). nating codefendant, it was not based on the Con- quotation "[T]he internal marks however,] Clause[, "clearly requirement abol op- guarantees an link” frontation Winfield Moreover, cross-examination, appellants do not claim portunity ished. for effective

5H incompetent.27 Finally, trial counsel were ered evidence of actual innocence is relevant appellants hearing the to a claim that his received a full and fair defendant’s violated, rights that evidence claim, have been they on their constitutional have presented be and considered more than two persuasive showing made no to the cont years judgment. after final rary.28 previous- But if the court is to reconsider a Newly B. discovered evidence and the con- ly rejected constitutional claim on the basis stitutional issue. evidence, newly discovered then elementa- ry logic surely requires, implic- and Palumbo appellants’ We also conclude that the itly contemplates, that the evidence must be newly provide discovered evidence does not sought relevant to the constitutional issue any previously support unavailable for their relitigated, just question be and not to the judge contention that the committed consti useful, guilt or innocence. It this con- tutional error at Although their trial. nection, compare appellants’ claim appellants presented new rele hypo- here with that of the defendant innocence, vant to their claim of actual paradigmatic. thetical case that we consider logical legal bearing evidence has no Suppose that a defendant is convicted of they the constitutional issue that now seek to judge murder the trial after admits the de- relitigate. evidence, rejecting fendant’s confession into Under the standard articulated in the defendant’s claim that the confession was Palumbo, prop a division of this court could appellate coerced. The court sustains the erly reconsider the decision in if Sousa finding of no coercion and affirms the defen- appellants produced newly discovered evi later, years dant’s conviction. Ten a con- reasonably dence “that could not have been police provides science-stricken officer presented original at the trial ....” 608 F.2d attorney videotape defense with a de- at 533. The appel affidavits secured interrogation. tape clearly fendant’s The lants, true, exculpatory establish that the colleagues beating shows the officer’s they evidence that now was not avail confession out of the defendant. Armed with time, able and that appel at that evidence, his new the defendant now mounts opportunity lants had no reasonable to obtain a collateral attack on conviction. He his assume, it.29 We will purposes also contends that his confession was unconstitu- appeal, this that at tionally least where discov- obtained and that it should have been applies ap- the law as stated in retroac- often raise a "multitude" of contentions Winfield Sousa, tively prior peal. supra, to cases concluded the issuance of 400 A.2d at 1038 n. 1. An appellate congested that decision. court’s calendar often re- summary quires treatment of least some of unnecessary prolixity these If issues. that, appellants by restricting 27. The do assert avoided, finality of a decision of this court degree attorneys to which their would be permitted depend expansive- cannot be on the permitted to examine and cross-examine wit- particular with which a issue was ad- ness nesses, attorneys the trial rendered the dressed. type ineffective. This somewhat unusual assistance, however, claim of ineffective is sec- appellants The also claim that the "actual to, that, ondary depends upon, showing [ajppellants” innocence of the and "the consti- judge improperly attorneys. restricted the importance tutional of the issue” constitute prevail per- cannot unless can "special many circumstances.” But or most suade a division of this court to hold that the collaterally defendants who attack their convic- judge’s rulings, substantive affirmed innocent, every tions claim to be constitu- Sousa, earlier division of court in were un- important. tional contention be viewed as constitutional. reading adopt appellants’ To broad “special ac- circumstances" undermine finality, assert that the cepted reopen failure notions of and would expressly propriety court in Sousa address of criminal convictions to collateral multitude judge’s judgment. restrictions on cross-examination years attack after "special warranting constitutes a circumstance” 29.E.g., important reconsideration of the issue this division. We most new ex- witness, Jones, agree. telling culpatory cannot Parties who have been unsuccess- Steven court, story appellants, completely ful in the trial such as these different at the time of trial. judge

excluded from evidence. The motions We do not that the believe relief, appellate deferring Schlup, supra denies to the decision in note Court’s ruling contrary analysis.31 Schlup, was to our In court’s earlier that the confession the properly appeals extraordinary admitted. The defendant Court held in “an ease” again. standard, presenting miscarriage the the Under Palumbo “fundamental appellate justice,” is now the free to revisit 513 U.S. at 115 S.Ct. ap- on decision issued the defendant’s direct defendant who sentenced to had been death (and, peal. newly This is so the discover- was entitled to a successive have barred) that, case, contrary ordinary procedurally ed the evidence reveals federal merits, appellate corpus petition first court’s belief at the time of the habeas heard on the rejected appeal, rights grounds previously the defendant’s constitutional and could assert courts, hypothetical, by been violated. In the and if he our the state federal was able demonstrate, newly newly discovered evidence demonstrates that on the basis of discov him, erroneously was and previously the confession admitted ered evidence not available to impartial jury that the defendant was of murder him guilty convicted that no could find 321-32, beyond the basis evidence that was secured Id. at reasonable doubt. basically unconstitutional means. 851. Schlup is thus about federalism, capital gist and is that a de its ease, hand, present the the on the other presents newly who fendant discovered and newly provides previ- discovered no evidence compelling actual innocence evidence of ously regarding unavailable the information obtain federal review of an otherwise habeas question ruling the im- judge’s whether claim. defaulted constitutional There is paired appellants’ rights the Fifth the under that, nothing Schlup suggest on re trial, and Sixth At the the Amendments. mand, Judge the District United States could judge precluded appellants present- the rule, simply evidence relevant to without new they sought certain evidence that to elicit issues, prior the constitutional that the deci from various witnesses. That restriction was Appeals sions of the Court of United States constitutional, either this court held as obliged were erroneous and that he was not Sousa, or it was not. new affidavits event, to follow them. we conclude and others which basis for Jones form the discovered evidence with illu- appellants’ not 23-110 motion do appellants which the in this case seek shift question judge’s minate the re- whether Pagans (largely blame to two now-deceased constitutionally permissible. strictions were on the basis an affidavit confessed most, that, At if these to show affidavits tend who now that he committed murderer admits violation, there was a constitutional then hearsay perjury at his trial statements of consequences violation would have admissibility implicating Jennings uncertain more severe if had been even Woods, see v. United Williamson possessed attempted the new- to adduce 594, 598-602, evidence, ly judge if the had discovered (1994)) not meet the L.Ed.2d does sub prevented doing them from The new so.30 Schlup standard articulated stantive information, however, help appel- is of no Schlup in the authorities relies. on which attempt lants in their to establish that that, division, judge’s rule was and that therefore conclude unconstitutional We significant exculpatory disposition in was exclud- we are bound Sousa of ed trial. contentions. from the trial, centerpiece perhaps judge's Although Schlup 30.At account forms rule, interrogate Judge opinion, counsel did not Ruiz' case is mentioned at with Jones’ brief, Jones. If counsel had been armed only appellants' tangen- all in the main affidavit, they have at- would doubtless tially reply in their brief. tempted to elicit from him evidence that he when Battle and that murdered analysis Schlup 32. We note that has also appellants played no death. We role in Battle's involving applied to been cases not death only speculate can whether or how See, Nix, penalty. e.g., 119 F.3d Cornell applied his under these circum- would have stances, rule (8th Cir.1997). question but the never arose. what, any, prison even if DNA evidence shows that he We have no occasion to decide crime.” Dow did not commit the Merrell action the full court could or should take with Oxendine, Pharm. Inc. v. 649 A.2d respect these in the event of a contentions (D.C.1994) (concurring opinion). One who rehearing petition for en banc. conjunction Super. R. 33 in reads Ct.Crim. in decision Herr- Court’s IV. that an era is led to the uncomfortable sense may executed or left CONCLUSION innocent defendant be jail exculpatory in conclusive to rot because Although presump a defendant is own, evidence, through no fault of his came tively hearing entitled to a on a motion to his attention too late. Such defendant 23-110, § brought pursuant no D.C.Code is, course, apply free to for executive required allegations hearing is where his discretionary, clemency, pardons See, e.g., would merit no relief even if trae. politically unpopular often as well. More- States, Pettaway v. United 390 A.2d over, fairly cannot a defendant blamed (D.C.1978).33 Having determined regards clemency he executive as an insuffi- appellants’ discovered evidence has remedy cient when he did not in fact commit late, presented appel been too and that the being pardoned. crime for he is rejected previously lants’ constitutional claim justice, An innocent man asks for not for viable, not is now we conclude their mercy. powerful dissenting opinion In a § properly motion was without denied Wood, Tippitt U.S.App. D.C. hearing.34 (1944), expressed his F.2d 689 Justice Arnold foregoing ordinarily would end this firm courts rather than the belief “the opinion. But have guardians liberty against executive are the presented they a non-frivolous claim that arbitrary judicial U.S.App. action.” 78 D.C. spent many years behind bars for 696; Appen- at 140 F.2d at see also they commit, crime that did not and because dix, infra. we are constrained to affirm the denial with- is, be, It and should difficult for a criminal hearing out a of a motion in which defendant to secure a new trial several dec- innocence, vigorously assert we think See, e.g., ades after the fact. Dobson v. paragraphs that a few additional are in or- (D.C.1998) 711 A.2d der. “In the unusual circumstances (“lapse quantum of time affects the of re- case, the that it [e]ourt feels would be shirk- quired proof, good as as the faith and well responsibility its if the denial of the (citation credibility moving party”) motion were made without further com- omitted). quotation Putting internal marks supra, ment.” Kaplan, F.Supp. at 14.35 people the blame on who are dead and who argue longer particu-

“[F]ew would that a criminal defen- can no defend themselves Herrera, rape larly suspect. supra, has been or dant who convicted of mur- go stay der Rule as must the electric chair or 853.36 Under Eastridge Kaplan, Judge joined previously 33. Diamen and had 35. Weinfeld the defen- filed 23-110, pursuant § urging unsuccessful prosecutor motions executive dant and the judge required the trial was not to entertain clemency. Id. 23-110(e); D.C.Code successive motions. see v. United Dantzler investiga- According an 36. to an affidavit filed (D.C. 1997). Because first collat this is Sousa’s Ministries, president tor for Centurion conviction, however, and eral attack on his be (PMC) Pagan told her that the club Motor Club presented cause his claims are identical to those cooperate investigation long her “so as appellants, the other two we have treated the having living as it did not involve PMC members though they pre substantive issues as served, had been [mjurder.” Explaining his involved in the been 23-110(e), by purposes for all three exonerating long delay coming forward and appellants. Stephen appellants, Jones likewise referred Code,” Pagan "Pagan "no decision, to the under which of our we also conclude that Pagan police in to the was ever to turn another denying the the motions did not err in reason, Pagan discovery even if another had been request for related and ac- grand jury falsely It for the same crime.” cess to information. arrested written, however, relatively passage of an years time —two absolute short —-acts error, wrong confessing if it either

bar, compelling showing no matter how so, by securing a late to do not too of innocence be. clemency pardon. Executive in such written, is, however, unsat- Wright inadequate As Professor has “[this] instance always very isfactory. judicial remedy can lead to unattractive results.” S A should fact, supra, remedy, WRIGHT, at 363. These results be available. Such century newly half open can be avoided. More than now if the evidence discovered proposed by ago, exculpating the version Rule 33 the the defendant avail- becomes Advisory on federal Committee Criminal able a certain time limit. Unfortu- within permitted nately, apt to come to Rules have motions based such is “ reason, newly to be ‘at discovered evidence filed later date. There is no at a justice, expediency, final for any judgment.’” logic, time before or after in in or in may proposal eloquently during limiting Id. at 362. “This the time which a court one, I, Attorney grant Ho- trial in such supported former General a new cases. Cummings, prosecu- nation’s chief the inun- [the mer am not afraid that courts will be reason, tor,] logic, of this could see ‘no dated a flood of frivolous motions who justice, expediency’ why rely there good should be kind. well on the sense We any judges grant time limit of this not to motions on motions kind.”37 of federal such except upon Id. sufficient cause. Cummings, The Third Adven Homer Great But for the time limitation contained (1943). ture, P.R.D. appellants’ § hearing Rule on the 23- might appropriate 110 motion well be in this RUIZ, Judge, dissenting:1 Associate event, any Superior the case.38 Court’s present funda- appeals These an issue of Judges might to Board of wish consider in safe- importance mental court’s role an Rule in con- whether amendment of rights through guarding habe- constitutional formity Attorney with the former General’s authority as this court review: justice. would be in the interest of views viola- a claim that a constitutional reconsider The decision of the motions injustice. Notwith- tion has led to a serious standing express language of our habeas Affirmed. claiming the prisoner statute “a ... right upon ground that ... released Appendix imposed the sentence was in violation Newly Discovered Evidence ... Constitution United States ... move to vacate set aside proposed [or] The Committee has the court abolition time,” ... at D.C.Code of time limitations on motions for a new sentence (1996) 23-110(a) (b) added), (emphasis ground trial on the & discovered limitation courageous majority imposes two-year is a and com- evidence. This Superior Rules of step. The inno- of Rule 33 of the Court mendable conviction an judicially-creat- rarity. person in a federal court is a Criminal Procedure cent Yet, fallible, Ryan, A.2d 310 v. as all human institutions are ed rule M.A.P. (D.C.1971), authority to justice strip this court of miscarriages of have such occurred. appel- During my Attorney even whether should hear term of office as Gen- consider majority, I have it in a few lants’ claim. eral known of instances obliged steps recognizing and was to take to retrieve while not, however, question. 38. We do decide that be a coincidence that Jones other former they Pagans now the two men assert that whom Jennings accuse of the crime—Woods noting join majority sadly —are I Mr. 1. with the longer alive. no passing appeals were while these Mathew's recognize his firm’s pending. also his and I appellants, as that Attorney Cummings’ these as well We General commitment to have made Appendix opinion. an of Centurion Ministries. views to this they majority heavily v. spent “non frivolous claims that relies on Herrera many years Collins, behind bars for a crime did S.Ct. commit,” uncom- ante nonetheless (1993), preclude L.Ed.2d 203 the court’s fortably concludes that Rule 33 “acts as appellants’ new evidence. consideration of bar, compelling no matter absolute how however, misplaced, as the That reliance innocence,” showing of ante at 514. That expressly distinguished a has Court unsatisfactory result is a self-inflicted and free-standing innocence claim actual based unsupported limitation on the court’s authori- evidence, pre newly-discovered such as ty. Herrera, sented in from constitutional claims First, two-year limitation of Rule 33 is supported by assertions of actual innocence. only directed to new trial motions “based on Delo, 298, 115 Schlup ground newly-discovered evidence.” (1995). 130 L.Ed.2d 808 the latter apply Rule 33’s time limitation does not case, “may not be entitled to conviction us, post-conviction before filed motions one, degree respect the same such as 23-110, § under D.C.Code which are cen- Herrera’s, product of that is the an error- tered on a constitutional claim that is en- Here, trial.” free Id. 115 S.Ct. 851. hanced an assertion of factual innocence claim that their trial was newly-discovered based on evidence.2 The flawed, constitutionally the Hemra standard majority repeatedly appel- mischaracterizes See, inapplicable. e.g., v. United States post-trial lants’ motions as if based Dale, U.S.App. 329 D.C. 140 F.3d evidence, exclusively ignoring new on Stewart, (1998); Carriger 1056 v. 132 constitutional claims at the core of their ar- (9th Cir.1997); v. Du F.3d 478 Burks such, guments. ap- As these motions were (1st bois, Cir.1995); F.3d 717 Miller 55 propriately 23-110, § filed under D.C.Code Correction, v. Comm’n Conn. provides which for a “im- review of sentence of 1108, 1129 Elizondo, (1997); A.2d n. 28 In re posed in of violation the Constitution.” Un- 23-110, (Tex.Crim.App. 206 n. 1 may § der S.W.2d D.C.Code a motion be 1996).3 any filed “at time.” respect interpretation With to ineffective assistance of counsel of the Unit- claims nor of the laws claims, States, be filed under both Rule 33 emphasized by ed was the court’s exten- 23-110, § sepa- we have maintained a strict quote sive from Guinan v. United F.3d requirements applicable ration between the to (7th Cir.1993): each, holding procedural that the limitation on a ] v. Collins the Court held that a post-conviction \Herrera § successive motion under 23- grant a new on the basis of refusal to newly is not a satisfied motion filed under Rule discovered evidence is not actionable in 33. See v. Junior United (D.C.1993) ("Our corpus. habeas Section 2255 is a substitute caselaw marks the distinc- § corpus tion between Rule 33 motions mo- for habeas and like it is confined to tions sentencing on the basis of whether the defendant has sentenced.”). correcting errors that vitiate the been Just as we have refused to jurisdiction court’s or are otherwise of consti- satisfy allow a motion filed under Rule 33 to magnitude.... tutional A defendant who seeks limitations, procedural § 23-110's we should so ground set aside on the to have his conviction import refuse to Rule 33’s time limitation to claiming newly of discovered evidence is that § 23-110. the conviction was "erroneous” in the la}'- wrong man’s sense—it reached the result—but majority's ap- 3. The mistaken characterization of judge reversible not that the trial committed pellants’ motions carries over to its citation of hardly faulted for hav- error. A can be DeCarlo, inapposite cases. In United States v. give weight failed to due to evidence (E.D.N.Y.1994), F.Supp. upon by relied known to exist at the time the had not been majority, the recognized see ante at the district court defendant was convicted and sentenced. appli- that there is time no limitation purpose granting of of a new trial on the basis brought § cable to motions (the under 28 U.S.C. 2255 not to correct a discovered evidence is 23-110). counterpart § federal to D.C.Code error, rectify injustice, legal and the but to However, See id. at 356. as the motion for new former, of section 2255 is the office solely trial in that case was based on new evi- latter_The per- dence, conviction of an innocent and did not constitutional or raise only claim, injustice, such a son is an but it is when legal properly it was considered Rule 33 legal from a error that the subject two-year conviction results to the id. motion limitation. See justice” speak "miscarriage solely factually-based, courts of a That the motion then, jurisdictional a new trial.... Even unless raised neither nor constitutional warrants

Second, subject majority acknowledges by the Court when the to review United States claims, Appeals.” Ryan, supra, applies constitutional it M.A.P. Ryan preclude The rule one division’s the rule in MAP. v. re- A.2d at 312. division, § ruling subsequent this view under 23-110 because court binds banc, previously presented implicitly only by de- the court en reviewed uniformity among cided the same claims purpose preserving constitutional on direct (albeit appeal without the benefit the new This is various divisions the court. supporting the claim factual inno- appellate that decide common rule courts cence). outright That refusal to consider full court. cases in divisions of less than the point constitutional claims misses the of ha- rule, however, trump Such an internal cannot As beas review under 23-110. we have statute, right judicial review created observed, already application of the rule Moreover, any in under 23-110. as with MAP. context recognized policy, ternal we have occasion, way might give where comprehend fails to the true of a nature rule] follow [a “we are bound to different primary purpose collateral attack. One grounds.” federal constitutional Id. prisoners 23-110 is to convicted enable escape judicata the shackles of res when question before us is not whether rights have been violated authority this habeas has consider definition, By very .... its a collateral petition, what it is but under circumstances attack on a tainted sentence involves so, appropriate for the court consistent to do challenge to the decision of the court that competing with the values of institutional previously adjudicated has the issue. De- finality rights the and the constitutional fact, requires spite § this 23-110 limited, relief individual. Habeas of the courts District Columbia to be further, judicial ear exists to lend a attentive eternally vigilant ensuring prison- in that resulting to trial court error correct serious subject ers are not to unlawful incarcera- injustice. majority’s reasoning impos- in necessarily tion. For this reason we have straitjaeket procedural court that es a on the principles judicata held that of res strict petitioners, no turns a deaf ear to habeas proceedings. apply ... do not in these matter how serious the constitutional error Kirk v. 503-04 United jury’s compelling or how claim that the (D.C.1986).4 thereby peti- verdict misled about innocence, long tioners’ as final expressed The view we in Kirk echoes the factual so Court, consistently judgment years than earlier or Supreme “has re- was more two by equitable corpus previously if the considered lied on the nature of habeas matter view, appeals my narrow preclude application res court. this of strict rules of recourse judicata.” interpretation renders our habeas Schlup, supra, U.S. at “inadequate” § in and “ineffec- 851. The rule MAP. is not under 23-110 rather, availability of jurisdictional; poli- compared an tive” when with the it is “internal by cy” adopted good for the habeas review federal courts. the court sake Cf. (1998) (permitting § highest at the U.S.C. second order time it became “the Columbia, petitions con- longer successive habeas from federal court for District of no magnitude, must be met before court re consider error is of constitutional court does not a federal power it in a have correct procedurally See 513 otherwise barred claim. corpus proceeding brought the we under habeas 327-28, Schlup, decided at 2254) or, (section today, add its statute M.A.P., only in came not but after after (section 2255). prisoner federal substitute appeals direct were decided this court DeCarlo, supra, F.Supp. United States v. at between the time that this court affirmed Guinan, 470-71). (quoting supra, 6 F.3d § Eastridge 23-110 denial and Diamen’s first my majority quotation of the 4. The criticizes use of motions in the mid 1980s and the denial superven- appeal. from Kirk because that case involved ing presently § before us on 23-110 motions change in this con- the law between court’s Therefore, exception comes this case within the appeals. That sideration first and second respect already recognized we in Kirk with is true here as Court’s well changes supervening in the law. opinion Schlup that in established standard § raising where to vacate their convictions of first- vietions constitutional claims 23-110 armed, degree over proven there is evidence that “if and viewed murder while entered whole, twenty years ago, racially-motivated kill- of the evidence as a would be club, convincing ing involving motorcycle known as sufficient to establish clear and they belonged. Pagans,” evidence that no reasonable fact finder would “the to which As attack, guilty part have found the movant of the of- of their collateral also fense”); 327-28, grand jury testimony Schlup, supra, sought 513 U.S. at disclosure of reject (defining discovery government. I 115 S.Ct. 851 standard for “funda- from the justice miscarriage exception” government’s mental contention that procedural necessarily presenting avoid their bar reconsideration barred from anew, federal court of the same claim constitutional claims after this court previously rejected by appeal considered and on direct affirmed convictions appellate courts state and federal concerns. I would hold raised similar systems). significant view of the new evidence proffered appellants, importance and its majority’s I venture that the narrow inter to their claims of constitutional trial error statute, pretation of our habeas allowed to innocence, appears and actual this case prevail, subject unprecedented could us to warranting special circumstances re- § federal court habeas review under 23- I, therefore, view. would vacate the trial 110(g).5 Triestman v. Cf. motion, court’s denial of the re- (2d Cir.1997) (holding F.3d evidentiary hearing mand for an consistent by newly where defendant is barred amend principles opinion set out presenting ed 2255 from claim of actual permit discovery, instruct the trial court to presented innocence he could not have earli jury purposes hearing, grand of that er, § inadequate 2255 relief is and ineffective testimony exculpatory other material corpus petition and habeas can therefore be possession govern- 2241(c)(3)). brought under 28 I U.S.C. am ment. hopeful that ap this court will rehear these peals en banc to fashion a rule that will

permit, confines, within strict but II. reasonable the reconsideration of meritorious claims The 1976Murder THal a constitutional violation has led the con jury appellants guilty found of person. viction Although of innocent I first-degree stabbing time, murder while armed for following write dissent at this in the pages standard, I Johnnie Battle November 1974. set" out the derived from following produced version of the evidence at opinion Schlup, Court’s the trial is taken from this court’s affirmance propose adopted by I the full court.6

of convictions: I. evening On the of November Diamen, Diamen, A. Joseph appellants [including Michael Nick Sousa Sousa and (the Joseph Wayne Eastridge and appeal Eastridge] companions from and them denial, hearing, group”, the trial court’s without “Richter as were referred to trial) joint pursuant repeatedly motion to D.C.Code arrived at the Godfa- 23-110(g) provides: majority suggests 5. Section I note that the that the en authority banc court to reconsider the application corpus An a writ habeas purported- constitutional claim that this division prisoner apply behalf of a who is authorized to ly Ryan. under M.A.P. v. See ante at 510. lacks by pursuant for relief motion [§ 23-110] however, argument, That is in conflict with the Superior shall not be Court entertained majority’s interpretation precluding of Rule 33 as by any appears or Federal or State court if it presenting new evidence is be- claim applicant that the has failed to make a motion If, yond two-year Rule 33’s window. as Superi- for relief under this section or that the controls, holds, relief, majority Rule 33 even the en or Court has denied him unless also precluded considering appears remedy inadequate court would be banc that the motion is two-year legality to test the a claim filed after the window has his detention. ineffective added.) (Emphasis closed. into a Avenue Battle across Wisconsin in the 4900 block located ther Restaurant N.W., Avenue, Washington, and owner park. The doorman small of Wisconsin group from Vir- this chase. Richter arrived also observed D.C. The Godfather saw parked on Fessenden at the Godfather ginia in two cars and Another customer Street, chase, Brady the restau- was distance from who short as did David They the restaurant but Avenue. getting rant. entered into his car on Wisconsin acting Street, Emery the doorman were asked to leave he Battle reached When who was jumped from the owner him from tripped, pursuers on instructions and his They group. beating with the Richter began familiar directions and two different Jones, one of Richter’s started to leave. owner kicking him. The Godfather’s and bag pop- picked up large companions, and saw two outside the restaurant was it from the restaurant. corn and carried police Virginia tags. pass. The cars with they encoun- they left the restaurant As point- who spoke and to the owner arrived Battle, Armón tered the decedent Johnnie The ear then drove out one of the cars. ed (the Allen, Joseph “Battle and Brown pur- through a red and the officer accused two members of group”). Richter stopped the car it the officer sued. When him, insulting group Battle but both Jones, Sousa, Diamen, occupied by groups allegation. Both men denied the Eastridge. The owner identified and group restaurant with the Richter left the having been Godfather four as group Fessen- following the Battle towards harassing part group that was walk, During the Richter den Street. Brown, Allen, Battle. The men group. taunt the Battle group continued to car, and sat out of the Diamen ordered Allen, separated from the who became A knife was grassy area. down on a small frightened, took a of group, Battle car, under the front seat of found pocket, from his and was metal comb [sic] under the bloody newspapers were found by a mem- pushed into Fessenden Street found, on were also back seat. Knives push group. The ber of the Richter Eastridge and Blood was Jones. found facing him so that he was turned around boots, pants, Diamen’s clothing and Jones’ Two a knife at his side. Richter who had meantime, In the shirt. and Sousa’s ap- group Richter members of the other body Battle was discovered of Johnnie Allpn, Richter told them not proached Sousa, Eas- four civilians. The anything ended the confronta- to do and he tridge, Diamen were arrested Allen remained without further ado. tion Richter was arrest- charged with murder. Wisconsin, corner of Fessenden at the hospital, Virginia blocks from the ed a few companions appellants and their while knife was seized from his belt. and a Meanwhile, west on Fessenden. walked murder, a discovered day after the witness car Battle went to Battle’s Brown and grassy near the pile knife in a of leaves pistol, with a Battle armed himself where the car Diamen waited while spot where walking towards Wisconsin started back being searched. Avenue, group. Richter and there met the five weeks with Appellants’ trial lasted carrying popcorn hé was took the Jones presenting 36 witnesses government insulting him. it at Battle while and threw All defendants over 75 exhibits. in the Richt- persons that Brown observed while first-degree murder charged with Battle group were armed with knives. er the God- presence their armed admitted began firing. One shot pistol and drew his vicinity night in on the father and its Hunter, the Richter a member of hit Bruce murder, participation in the denied but immediately left the scene group. Richter assault defense to the murder. Richter’s Arlington Hospital. Hunter to take . charges was self-defense. running began towards Wisconsin Brown that Sousa and Dorothy testified Be- Willett he saw Allen. Fessenden where bond, met her on Eastridge, while free on they to the Godfather both returned fore testimony revealed Her occasions. several several refuge, observed to seek Eastridge admitted Sousa and group chasing that both Richter members murder., participation in the She tes- contentions made and find tified, part: them to be without merit.” Id. at 1038 n. 1.

Well, Nick said [Sousa] that was a Post-appeal Motions nigger got Kenny got and we one. us Subsequent to the affirmance of their con- time, And he said —I asked him at I appeal, appellants victions on direct Eas- him, “Nick, you asked really any- didn’t do tridge and Diamen filed various motions col- that, thing you.” like did laterally attacking their convictions. said, me, He “Not he did it.” And he conviction, years Eastridge five after his filed Wayne [Eastridge]. looked at alleging a motion for a new trial that ineffec- Nick, Wayne said, And said to “You’re newly- tive assistance of trial counsel and the one that cut his nose off.” discovered evidence warranted a new trial. said, “well, yeah, that, And Nick I did The new evidence consisted of an affidavit you sliced his ear.” investigator from a defense who indicated that, She further testified in the same that codefendant Jones had admitted his conversation, stated, Sousa “If it had not presence at the murder and claimed that street, one-way been for the I would have Eastridge present. was not gotten away.” summarily finding denied the motion Sousa v. United 1038- vague eonclusory allegations such did not (D.C.1979) (footnote omitted) (emphasis hearing. merit a This court affirmed the added).7 denial, quoting the trial court that “[n]o- jury After the appellants guilty found is there firm where indication —outside murder, first-degree Judge Chief Moultrie the mere assertion in the affidavit—-that imposed upon appellant each a sentence of 20 testimony Jones would fact recant the he years imprisonment.8 to life gave asserting at the murder trial his inno- Appeal The Direct possible prosecution cence and risk perju- ry by doing Eastridge so.” v. United convictions, This court affirmed the ad- (D.C. 1983). 82-387, No. June dressing “only those pertaining [contentions] joinder improbable court found it severance, that Jones’ testi- sufficiency and the mony at produce a new trial would appellant evidence as to differ- Richter.” Sousa, result, supra, ent 400 A.2d at because at the trial Appellants’ 1038.9 “Jones testi- arguments other appeal rejected murder; fied to his non-involvement in the without him, discussion in a noting convicting jury footnote declared that it “[w]e have examined the testimony multitude of other Appellant found his incredible. 7.During argument ap- the second oral physical eyewitness in this than what the peal, government acknowledged that appear to sustain. blood and knives mentioned in this court’s affir- mance, highlighted quotation in the briefing appeal, At the time of for this text, did not link to the murder of years prison Diamen and Sousa had served 19 Specifically, Johnnie Battle. drops minuscule parole, Eastridge and were on while remained 'blood on Sousa’s shirt could not be identified. incarcerated. Codefendant Jones served less Similarly, a leg small amount of blood inside the years prison participation than four for his pants of Diamen’s was not traced to the murder the murder. Eastridge victim. The knife found on had no though traces of blood even it was recovered Jones, guilty 9. a codefendant who also found was purportedly savagely soon after he attacked armed, first-degree ap- murder while did not any eyewit- Johnnie Battle. Nor were there Richter, peal his conviction. another codefend- any nesses who identified as a ant, guilty was found of two counts assault sum, principal in the attack on In Battle. al- dangerous weapon carrying danger- with a and a though supported appel- the evidence at trial weapon. abettors, appeal, ous On direct this court re- lants’ convictions as aiders and as the jury concluding versed Richter’s permitted by convictions after judge’s was to find the instruc- tions, failing presented by that the trial court abused its discretion in government the case the to Diamen, jury the in to sever Richter’s trial and that the evidence that Sousa and was Eas- tridge principals were insufficient to sustain one of the Sousa, attack and murder assault counts. Battle, dramatically supra, of Johnnie different 400 A.2d at 1038. summarily

[Eastridge] presents convincing motions denied in a no indication Both credibility improve.” that will Id. written order. Jones’ importance" filed a motion to vacate Because of its to Diamen arguments presented judgment pursuant appeal, and sentence evidence 23-110, § raising, among support § other is- the trial court 23-110 D.C.Code sues, counsel and is set forth detail. The new evi- ineffective assistance of motion six-year newly-discovered The trial came to as a of a evidence. dence result hearing investigation begun by denied motion without a and Centurion denial, concluding his court affirmed the that a result of the Ministries’ Ministries.11 As or, in the case investigation, presented claims were meritless affidavits evidence, proffered pre- new previously because was exculpatory information not 1) two-year period provided by sented after presented an to the trial court: affidavit Super. Jones, Ct.Crim. R. 33 for new trial motions signed Stephen a in 1994 codefend- 2) trial; based on new evidence. Diamen ant in the murder affidavits (D.C. 1985). 84-1358, July No. 2-3 Grayson, Raymond Lurz Michael Thomas Richter, Richard three other members of and Until the current collateral attack that is motorcycle Pagans involved club subject appeal, of this had not Sousa 3) victim; confrontation with the murder collaterally attacked his conviction. Gianaris, a un- affidavit John heretofore Current Motion murder, eyewitness known who was subject joint appeal a of this motion 4) Pagans; elev- not associated with April by Eastridge, filed in Diamen and who attacked en affidavits from individuals pursuant vacate Sousa to their convictions testimony reputation for truthfulness 23-110, request a D.C.Code included Willetts, key Dorothy and character of evidentiary hearing. in their for an As direct government at the murder trial. witness appeals, they argued that the trial court’s affidavit, that appel- In his Jones states prohibiting eliciting any rule from from them any play in the murder of lants “did role testimony witness or eodefendant that the portion Jones recants Johnnie Battle.” codefendant, might inculpate exculpate a testimony he testified that his where codefendants, permission without all he but did not catch him and chased Battle appellants’ Fifth violated and Sixth Amend- killing that he was neither involved the nor addition, rights. they argued ment that killed now did he see who Battle. Jones newly-discovered presented in present during contends he only their motion not the uncon- underscores Pagan murder as were fellow members stitutionality prejudice resulting from Woods, Jennings, and one oth- Charles John examination, the trial court’s limitations he name er individual will not at the whom warranting vacation of their conviction under present time. Jones states that none 23-110, relief also was warranted present. appellants was § 23-110 on the “actual inno- under based Herrera, in his that he supra.10 out Jones claims affidavit chased cence” standard set park through across Appellants also for Battle a small filed motion disclosure up Emery grand jury testimony discovery. Street and other Godfather Restaurant assumed, According president deciding, a 1995 its without that "in a 11. affidavit Heirera founder, McCloskey, Centu- Reverend James capital truly persuasive case demonstration of nonprofit advocacy center rion Ministries is trial would render ‘actual innocence' made after works, charge, without to assist individuals the execution of a defendant unconstitutional wrongfully claim have been convicted who 113 S.Ct. 853. Out of ....” facing penal- sentences or the life death finality and the concern burden affidavit, According ty. to the since 1983 Centu- retry placed on states to cases based on stale have used their resources in an rion Ministries evidence, showing of the threshold for a actual thirty-four attempt persons to convicted vindicate by a defendant innocence convicted sufficient cases; thirty different as of 1995 fifteen con- in more, constitute, depri- without persons been freed as a result of their victed had "extraordinarily high.” Id. vation efforts, having portions after served considerable of their sentences. alley. addition, They alley into Pagans. the and were all claims exited Jones Jennings, crossed Ellicott Street where Jones that he was friends tackled better with parking punch- person Battle in a lot. started than with Jones Woods and the unnamed ing Diamen, joined by Jennings, Eastridge, Battle and was soon whom he Sousa and knife, Furthermore, began hardly who to stab Battle a buck afraid with knew. he was Woods, down; thought facing perjury charges and who held un- that he Battle the and individual, recharged identified stabbed Battle with a could new trial for and face a bowie knife. Jones that he the claims backed murder. away stabbing began, the quick- once but not Gianaris, John who he was hid- states that ly enough right to avoid a cut on his hand. murder, during alley in the the corrobo- stabbing, After the the four ran down the respect rates Jones’ affidavit with the alley Emery between Ellicott and Streets. in number assailants. Gianaris states his .of up Emery away Jones ran from Wisconsin night that the murder he affidavit12 appellants’ coming Avenue saw car up was behind a chain link bordered fence that Emery This Street. was the first time he had alley the and Ellicott Street. From behind seen appellants began chasing since he Bat- being the fence he a black saw man chased got appellants tle. He into the told car and by “[no] more than four” men. After white here,” “get the hell out of but did not the in white men attacked the man the black mention the murder. that Jones stated Eas- lot, parking away. attackers ran Addi- tridge gave him a newspaper bloody for his tionally, during point at no the attack did Sousa, driver, hand. up continued Em- pull along car up Gianaris see a Ellicott ery Street, turned left onto 41st Street and Street. Gianaris not connected to the Street, another left turn onto Fessenden Pagans appellants. or to the They led back to Wisconsin Avenue. Grayson, Pagans Michael member of right turned onto Wisconsin Avenue where 1970s, in in states his that 1992 affidavit they pulled by police. were soon over trial, years three after Jones contends his that affidavit he did (one Pagans implicated Woods in the not with come forward this information earli- affidavit) him murder Jones’ told that er perjury and instead committed at trial appellants nothing had to do the murder with he, Woods, like Jennings, because un- that Battle instead killed Woods identified individual appellants were Pagan and three other Charles members: and, Pagan motorcycle members club Chesley Jennings, Barber Jones. and Steven such, Pagan abide Code. Part of explained Woods that Jones had chased and and, with police according code dealt Battle, story tackled had told a different Jones, . provided member, Pagan at trial. former Another Pagan Pagan no was ever to turn another Lurz, Raymond states in his 1993 Thomas reason, police to the even if trial, year affidavit that in one after Pagan had falsely another been arrested Eastridge, him that Sousa and Woods told for the crime. same The reason for this wrongfully Diamen convicted. One were Pagans persecuted rule was that the felt year later, again Woods indicated that, police if believed one Lurz the mur- did not commit arrested, Pagan falsely were and another (Woods) along Jennings, der and that he Pagan perpetra- was turned true as the person and mur- Jones and one other chased tor, police government Pagan third former member dered A Battle. simply try prosecute both of them. trial, Richard codefendant Jones, therefore, Richter,

According to under the Pa- were reversed on whose convictions gan Code, Jennings, appeal, he could direct in his implicate states 1996 affidavit individual, the trial Woods and the unnamed even it before and after he learned implicating appellants, meant not involved in the murder original replaced 1992 affidavit was affidavit. Gianaris’ copy of the same 1995 with notarized Jones, assuming time- motion was not Jennings, Woods and a Even the that barred, appel- the trial court concluded that participated in He fourth man the murder. § should be denied. 23-110 motion- lants’ also had conversations with Woods and Jen- Specifically, the trial court found that Jones’ nings they expressed in which remorse for a of his was not recent recantation affidavit According appellants’ wrongful convictions. testimony previ- this court had and that he, Richter, Jennings him in 1974 told that recantation, ously albeit not “considered this Jennings, had knife a thrown his buck down form, rejected signif- legal in its affidavit sewer and fled the scene. The court relied on the trial court’s icance.” Eastridge’s Appellants also offered ten affidavits it denied findings other in when motion, § recantation taken first that Jones’ Centurion Ministries individu- incredible, court’s was and on this affirmance testimony Dorothy als who refute the of Wil- Furthermore, finding. the trial court of that letts, key government who a witness testified membership Pagans noted that Jones’ incriminating Eastridge that and Sousa made potential his bias and further dis- evidenced her.13 The affidavits also at- statements to only Pagan his affidavit because credited reputation tack Willetts’ for truthfulness and implicates in the expressly members Jones her character.14 murder, Jennings, are deceased. Woods and The trial court denied motion credibility questioned the of The trial court (1) grounds: trial on that for new two Grayson, Lurz Richter of affidavits two-year Superior Rule 33’s Court Criminal part they Pagans. all are former because time limitation on motions for new trial based credibility meet the Even if could newly-discovered precluded re- threshold, indicated, the trial court the infor- (2) lief,15 that could not prevail was inadmissible mation in the affidavits The under 23-110.16 trial court D.C.Code hearsay. The trial court found Gianaris’s evidentiary ruled that it need not hold an Gianaris did not affidavit incredible because hearing appellants had failed to state his sooner and statements come forward hearing vague. trial court considered requiring claim under The factual were too impeach Wil- the affidavits offered 23-110. (1) upon ground testimony supra. the sentence page 13. See Willetts’ leased testimony, imposed of the to her trial Willetts' state- in violation Constitution addition police specified ment to the in 1975 various States the laws of District of the United or Columbia, (4) Eastridge Sousa al- occasions when ... the sentence is otherwise leged incriminating attack, may to have made statements. subject to collateral move aside, vacate, Willetts claimed were affiants individuals or correct the sen- set court incriminating when the various state- tence. ments were made and áll contend that did (b) may for relief be made at A motion such any incriminating not hear statements. any time. (c) Unless the and files and records motion allege poor Willetts had a 14. Two affidavits conclusively prisoner is case show that the reputation for truthfulness and known relief, grant court shall ... to no entitled being attack 1975 for a liar. Four affidavits issues, thereon, hearing prompt determine character. Willetts’ .findings of fact and conclusions and make respect finds thereto. If court law provides: Super. R. 33 Ct.Crim. (2) imposed was not ... the sentence open or is otherwise authorized law of a defendant The Court on motion attack, (3) there has such been collateral grant required a new trial to that defendant infringement or justice.... denial A for a motion the interest prisoner judg- rights as to render the ground on the discov- new trial based attack, only the court before or vulnerable to collateral ered evidence be made ment judgment years judgment after final .... vacate and set the aside within shall him, April Appellants’ discharge was filed prisoner, 23-110 motion resentence shall sentence, years judgment trial, after final nineteen correct the grant a new or the trial court. may appear appropriate. part: provides 16. Section 23-110 (e) required to entertain shall not relief (a)A motion similar custody a second successive prisoner under sentence prisoner. right Superior claiming re- on behalf same Court to be

523 and, States, 233, testimony Ready weak See v. 620 A.2d letts’s trial were noted, (D.C.1993). trial were court the affiants available 234 prior to trial.

Furthermore, the trial court ruled that III. appellants’ new not sufficient to evidence was Diamen, Eastridge appeal, On Sousa and § warrant under relief 23-110 because it did denying trial in contend that the court erred appellants’ not the trial convince court motion, they § arguing their that are 23-110 Appellants alleged actual innocence. that 23-110(a)(l) pursuant § entitled to relief presented the blood evidence at trial did not imposed because their were vio- sentences link them to the murder because none of Constitution, pursuant lation of the any them on had Battle’s blood them. The 23-110(a)(4) § their are because sentences government presented that evidence Sousa In open otherwise collateral attack. addi- and Diamen had a small amount of unidenti- tion, appellants contend that the court clothing fied blood on their and that there § hearing should have held on their 23-110 bloody newspapers were in the car. The granted request motion and their for discov- trial court reasoned that the absence of blood ery. persons on their to the traceable murder “Special Warranting Review Circumstances” victim not conclusive actual did innocence and not warrant new trial. appellants’ Before we can address conten evaluating appellants’ claims of actual in- merits, tions on the we must determine first nocence, the trial court did take into previous whether this court’s decision because, according account the new affidavits appeal precludes direct further reconsidera court, to the trial the evidence did not meet Sousa, supra, already tion. this court rigorous standard of actual innocence set rejected appellants’ core constitutional forth Court Herrera. attack, claim in collateral their chal The trial court entertained Sousa’s claim of lenge to the restriction cross-ex court’s on ineffective assistance of trial counsel ac- amination, footnote, stating a one-sentence knowledging § that it was first his 23-110 that “[w]e have examined the multitude of motion. The court appel- concluded that by appellants other made contentions prongs lants’ claims failed both of Strick- find them to without 400 A.2d be merit.” Washington, land v. 466 U.S. 104 S.Ct. government argues 1038 n. 1. The that we (1984), L.Ed.2d they that precluded considering are the current respective failed to show that their counsel appeal appellate “where an court has were deficient and any failed to show how disposed appeal, issue on will not be performance prejudiced deficient their cases. on considered a collateral attack in a afresh judicial system, trial court of same request

The absent trial court refused for an special Doepel v. United evidentiary hearing § circumstances.” appellants’ on 23-110 (D.C.1986). States, grounds prof- motion on the that “incredible,” government argues “vague” fered that affirmance of affidavits “conclusory appeal .” Even if the direct in 1979 further the affidavits were forecloses believed, concluded, the trial court review this and that further M.A.P., derogation would not entitle review to new trial or would be questions raise requiring hearing. supra.18 factual 23-110(1996). D.C.Code successive motion similar relief behalf Roach, prisoner.” Peoples of the same v. Eastridge’s

17. The trial court (D.C.1995); entertained May A.2d v. United field Diamen's ineffective assistance of counsel claims (D.C.1995), cert. A.2d Sousa’s, along noting obligated it was denied, that Sousa’s entertain claims. (1996). acknowledging L.Ed.2d 1083 After bar, potential recog trial court nonetheless government argues Eastridge's Eastridge’s nized also and Diamen’s claims were procedurally previ claims Diamen’s barred identical to those of Sousa—who had not 23-110(e) ously provides under ”[t]he filed a 23-110 motion. Because it had to claims, required applied court shall not a second address entertain Sousa's trial court Appellants change in Id. at n. 5. the unconstitu- the relevant law.” concede tionality of the trial court’s restriction (citing Davis United ap- on (1974)). cross-examination was raised direct 342, 2298, 41 94 S.Ct. L.Ed.2d 109 peal, argue may but that this court consider proposition Doepel Peoples in presents their claim this case the in certain limited a collateral attack lie un- “special kind of circumstances” reserved respect circumstances even with to a claim According Doepel, supra. appellants, der already appeal sup- on decided direct finds special warranting the recon- circumstances construing in port case federal law 28 U.S.C. (1) include; sideration in this case the consti- denying § prisoner’s 2255.20 In a federal (2) issue, importance sig- tutional 2255, petition § under in habeas court new nificance to constitutional issue of Palumbo, 529, v. 608 533 United States F.2d by the or evidence not considered trial court (3d Cir.1979), held (3) appeal, on claimed court direct in the evi- absence discovered (4) appellants, actual innocence reasonably not been dence that could expressly was the issue not addressed trial, presented original change in at opinion in in the this court issued law, prior applicable incompetent repre- appeal. direct counsel, or other sentation circum- § Analysis begin 23-110 must with the indicating not stances that an accused did statutory language, expressly provides full his receive and fair consideration of “may that motion be made at time.” claims, statutory federal constitutional and 23-110(b). recog § also must D.C.Code We § petitioner may relitigate not 2255 is- equitable nize nature of habeas cor adjudicated original at sues that were his “preclude[s] pus application of strict rules of appeal. direct and on 319, judicata.” supra res at 115 Schlup, Thus, Doepel, con S.Ct. 851.19 where we (internal Davis, omitted); see footnotes also denying appeal sidered an from order (inter- 342, supra, at 417 U.S. 94 S.Ct. 2298 that al 23-110 motion which raised issues law); English vening change in the v. United ready presented and had been decided (8th Cir.1993) (in- 609, F.2d 613 998 we the issue appeal, direct declined revisit tervening change newly-discov- or the law “special Doepel, absent su circumstances.” evidence); Morgan v. ered denying pra, A.2d at 1045-46. 510 (5th Cir.1971) 291, (newly- 438 F.2d 292-93 appeal, stated that no further review we evidence). discovered necessary, expressing when confidence that interpreting Also is case law instructive prior appellate opinion that the concluded availability of federal habeas relief support the first- evidence was sufficient to state As the Court convictions. conviction, degree murder we had of necessi Sawyer Whitley, summarized v. 505 U.S. rejected precise ty fully considered and (1992): 333, 2514, 112 120 L.Ed.2d 269 S.Ct. subsequent trial mo issue raised new petitioner a habeas shows cause Unless tion, there sufficient evidence of whether prejudice, Wainwright Sykes, see v. required elements deliberation 72, 2497, 53 594 433 U.S. S.Ct. L.Ed.2d light Doepel’s premeditation intoxication (1977), reach the merits of: not at 1047- and of forcible intercourse. id. (a) grounds claims that raise successive Doepel “spe Although 48. did not define the grounds heard and decided on identical permit re cial circumstances” that previous petition, in a Kuhl review, the merits supra appellate Peoples, newed 436, Wilson, mann v. 477 U.S. 106 S.Ct. 18, “special note indicated that circum we (b) 2616, (1986); intervening L.Ed.2d new might of an stances consist 1224, analysis Eastridge’s U.S. 97 S.Ct. L.Ed.2d the same to Diamen’s and (1977). did address the mer- motions. As the trial court motions, Eastridge’s § 23- Diamen’s its of 110(e) inapplicable. "nearly §As identical and 2255 is functional- 23-110, rely ly equivalent" wé to D.C.Code guidance. See Butler v. United scope of federal cases for States, 19. The “commensurate (D.C.1978). Pressley, 430 A.2d 886 n. 5 corpus Swain v. habeas relief." claims, previously raised, 2616; which consti- Murray, supra, S.Ct. writ, tute an McCleskey abuse of the 2639; Murray, 106 S.Ct. Smith v. 477 U.S. Zant, 111 S.Ct. 91 L.Ed.2d 434 (c) (1991); L.Ed.2d 517 procedurally (1986).21 petitioner claims in which the defaulted Sawyer, the Court established the evi- applicable failed to procedural follow state dentiary required standard ex- meet this claims, raising Murray rules v. Car- ception requiring petitioner to show rier, [106 U.S. 478 “by that, convincing clear (1986). L.Ed.2d 397] These cases are error, juror” for constitutional no reasonable premised on our finality concerns for the defendant, or, would have convicted the as in judgments of state of conviction and the case, petitioner sentenced the to death. “significant costs of federal re- habeas 336, See 505 at 112 490-491, U.S. S.Ct. 2514. More McCleskey, supra, view.” 111 at see, 1454; Isaac, recently, e.g., Engle Schlup, S.Ct. in supra, recognizing 107, 126-128, 1558, U.S. corpus equitable S.Ct. habeas is an inquiry that (1982). L.Ed.2d 783 provides remedy required by a when justice,” 319, “ends of see 338, 513 U.S. at Id. at 112 S.Ct. 2514. The limitation on (quoting S.Ct. 851 successive, Sanders v. United abusive or defaulted claims is 1, 15-17, 1068, however, 373 U.S. subject, 83 S.Ct. 10 L.Ed.2d to a narrow “fundamental (1963)), justice” miscarriage Sawyer of Court relaxed the exception that allows avoiding procedural consideration of test for a previ- otherwise barred bar to a constitu ously tional claims if coupled considered a claim constitutional claim when it 339, 112 of actual augmented innocence. See id. at by S.Ct. a claim of actual inno- 2514; Kuhlmann, 452, 106 supra, 477 U.S. at Balancing cence.22 in state’s interest Kuhlmann, Sawyer, courts, 21. Unlike Murray, Schlup appeals Supreme Schlup’s Missouri Supreme defining and other Court cases the fun- subjected murder conviction was to state collat- miscarriage justice exception damental cessive, of attacks, to suc- exhausted, fully eral which were includ- claims, procedurally abusive or barred in ing by Supreme affirmance the Missouri Court. Herrera there was no claim of constitutional er- 15, Schlup, supra, See 513 U.S. at 306 & nn. 13 by 398, ror the state courts. See 506 U.S. at pro petition 115 S.Ct. 851. In his first se habeas hear, S.Ct. 853. The Herrera Court refused to court, Schlup again filed in federal raised a con- insufficient, because it peti- considered it to be stitutional claim of ineffective assistance of coun- imposition tioner’s claim that conviction and sel, namely investigate that counsel had failed to the death sentence in the face of his actual inno- Schlup’s and call witnesses who could establish cence, more, without constituted a constitutional innocence. at See id. 306 n. 115 S.Ct. 851. possi- violation. The court did not foreclose the petition After the District Court denied the as bility compelling free-standing that a more claim barred, being procedurally Appeals the Court of arising of actual innocence from an error-free affirmed, Eighth procedur- for the Circuit not on petitioner would suffice to a entitle state grounds, expressly deciding al the merits 404-05, federal habeas relief. See 506 U.S. at record, reviewing after and concluded that Schlup, 113 S.Ct. 853. In the Court made clear performance trial counsel’s had been ineffec- petition claiming that in a habeas a constitution- tive because counsel had reviewed statements violation, "may al the conviction not be entitled potential prejudicial witnesses and not be- one, degree respect to the same such as testimony cause their would have been cumula- Herrera’s, product that is the of an error-free tive in event. See id. at 115 S.Ct. 851. Thus, trial." 513 U.S. at 115 S.Ct. 851. Eighth rehearing Circuit denied and rehear- carry "evidence of innocence need a less of bur- banc, ing Supreme en and the petition claiming den” a Court denied a constitutional viola- tion than in See id. Herrera. Id. certiorari. counsel, Represented by Schlup filed a second procedural history Schlup’s 22. The constitu- court, petition again habeas federal assert- appellants, tional claim is similar to that of ex- failing trial counsel’s ineffectiveness cept Schlup’s that in case twice before the federal interview and defense This witnesses. appellate already court had considered his con- time, however, the constitutional ac- claim was stitutional claim of ineffective assistance of coun- innocence, companied by sup- a claim of actual sel—and denied it—before the Court ported by several affidavits reconsidering from inmates who established the standard for Schlup a stated that had not been involved in claim in second round of federal habeas review killing aug- when the same of which he was convicted. The District constitutional claim was petition, stating Specifi- mented a claim of actual Court denied the innocence. that it was too and, cally, being standard, appeal by applying Sawyer after affirmed on direct late failed to required economy originally had finality judicial the indi dard that been against Sawyer, supra. Schlup, supra, relitigating Court vidual’s interest 327, 115 meritless, 513 U.S. at S.Ct. The standard previously the Court claims held enough high “ensure[] is intended be procedur established that order avoid truly petitioner’s claim is ‘extraordi by coming “fundamental al bar within the petitioner nary,’ providing still a mean while justice” petitioner miscarriage exception, ingful to avoid manifest avenue required show that “a constitutional injustice.” (quoting McCleskey, supra, Id. probably in the conviction violation resulted 1454).23 at 499 U.S. actually one Id. at who is innocent.” Carrier, (quoting supra, 477 115 S.Ct. 851 have the interest as the federal We same 2639). “requisite at judgments finality and the courts probability” showing that “it is is met judicial resources. See Doe conservation juror likely that no more than not reasonable 1045; supra, at Head v. pel, A.2d him in the would have convicted (D.C.1985) (requir Schlup, supra, new evidence.” showing prejudice ing a of cause and before stronger This is a show S.Ct. 851. attack where collateral will considered prejudice ing required than to meet the has to raise chal defendant failed available however, prong Washington, not, 466 lenge appeal). under Strickland do on direct We 668, 694, 104 2052, system, L.Ed.2d 674 unitary S.Ct. 80 court have the fed within (1984) (requiring probability), scope the the a reasonable eralism concerns that cabin of of convincing” courts’ consideration state claims. less “clear and stan- federal than the prisoners showing to from state-convicted based on make a that "a refusal titions sufficient requiring ap- and previously a miscar- claims entertain those claims would result in considered 309, riage justice.” peals of Id. at S.Ct. 851. On before a court 115 court certification district Schlup’s appeal petitions the denial of habeas based on second consider second Circuit, Eighth petition, petitions. discuss- habeas after or the case new claims successive In evidence, motions, again length proffered new of second or successive the standard for appellate petition appellate denied the on merits. both federal court certification under (state convictions) (federal new was insuffi- court decided that the ciently evidence §§ 2244 2255 retrial; persuasive permit convictions) 1) Sawyer one is standard whether dissented, concluding "Present- that the affidavits proven "if viewed in there is evidence that [Schlup] truly is ac- persuasive whole, ed evidence that as a would be suffi- of evidence innocent,' tually there- and that the District court by convincing clear and evi- cient to establish of fore have addressed the merits should dence that no reasonable fact finder would have 312, Schlup's 115 Id. at offense,” 2) constitutional claims.” guilty of the or found the movant Eighth again af- S.Ct. 851. After Circuit there "a new rule of constitutional whether banc, rehearing the en firmed after case law, made to cases on collateral re- retroactive Supreme granted to determine Court certiorari Court, previously by Supreme view the Sawyer applicable whether standard was (1998). § unavailable.” 28 U.S.C. petitions claim habeas in which constitutional 651, Turpin, Felker v. by accompanied a claim innocence. of actual 2333, (1996), the 135 L.Ed.2d 827 Court inter- text, the concluded that As Court discussed preted applying the restrictive amendments as likely than standard a lesser "more not” without, rulings only to of lower federal courts present- applicable claims of actual innocence however, precluding petitions filed at all habeas context, the case to ed in this remanded Supreme original with the Court un- matters Schlup's new district court to determine whether (state convictions) §§ U.S.C. der 28 so, and, gateway if evidence die standard met (federal convictions). 660-61, Id. at counsel of reconsider his ineffective assistance Therefore, though 2333. even the amend- S.Ct. claim. appeals Supreme cut off Court review of ments 1996, required Schlup, denials for second opinion in certifications the Court’s court after petitions, do Congress or successive habeas restrictions Title I of Antiterrorism enacted 1996, infringe appellate Penalty Court’s Act Pub.L. 104- not on the Effective Death III, 662, 2, 132, jurisdiction granted by §§ Article id. at 2244 and 110 Stat. U.S.C. suspend substantially changed S.Ct. the writ of habeas the federal nor I, § 9 corpus in Article of the Consti- authority grant from state violation of courts' habeas relief tution, enig- id. at S.Ct. 2333. Rather re- and federal convictions. The amendments “[wjhether matically, authority consider stated that courts’ Court strict the federal restrictions, they certainly by by imposing one-year we are bound these habeas limitation relief original peti- petitions, precluding our habeas filing inform consideration on the of first habeas pe- tions ."Id. of second or successive habeas consideration not, courts, if We also do unlike the federal attack under our law even collateral legislative authority premised pre- on our restrictions collateral attack is on an issue petitions. Compare to hear or rehear habeas viously raised decided before —and —this 2244(b) (1998) (impos- §§ 28 U.S.C. supports, court.25 The record before us as a initial, ing limitations on consideration of sec- matter, pres- threshold case petitions, ond and successive habeas see su- prima “special ents a case of circum- facie 23), 23-110(e) defined; pra note with D.C.Code stances” as thus a claim of serious (“The required not be to entertain shall error, supplemented a com- a second or successive motion for similar pelling claim of actual innocence. Both relief prisoner.”). on behalf of the same Al- supported presentation claims are though “quin- we are not confronted with the which, believed, exculpatory if new miscarriage justice,” tessential execution likely it is at shows least “more than not that innocent, of one who is Schlup, supra, see juror no reasonable would have convicted” 513 U.S. at Diamen, Eastridge first-degree Sousa and come before us convicted of the most serious Schlup, murder. supra, 513 U.S. at jurisdiction, first-degree offense our mur- Thus, 115 S.Ct. 851.26 meet der, particularly and in a heinous racial con- burden, would come within the Burks, supra, text. (ap- 55 F.3d at Cf. “special narrow circumstances” window rec- plying Schlup non-eapital case); standard to ognized in Doepel so that the constitutional Nix, (8th Cornell v. 119 F.3d claims their current 23-110 motion Cir.1997) (applying Herrera standard to non- though they should be addressed even al- case). capital Finally, in light of the limita- ready were considered and decided on direct tion on federal judgments review of of convic- appeal. The issue is not to be decided us prisoners tion by Superior sentenced juncture; at this it is a matter to be ad- § Court unless 23-110 relief is deemed to be dressed the trial court in the first instance ineffective,” “inadequate or see D.C.Code evidentiary which, hearing after an for the (1996),24 § 23-110(g) we should construe the section, following reasons described in the is scope of collateral relief in our courts to be necessary proper pro- for a evaluation of the “adequate effective,” is, that at a mini- evidence, newly proffered bative value of the mum right coextensive with the to habeas government’s in the context of the overall relief in the federal courts. See Swain v. case at trial. 372, 384, Pressley, 1224, 430 U.S. 97 S.Ct. 51 § Availability Relief (1977); L.Ed.2d 411 Lindsay, Garris v. 254 13, U.S.App. 18, 722, 794 D.C. F.2d 727 Schlup adopted standard herein (1986); Perkins, 24, supra F.Supp. note 881 definition subsumes the standard that must at 59. § be met under 23-110 where the collateral attack, here, premised is on a “violation of Recognizing the concerns that underlie re- 23-110(a)(1); § the Constitution.” D.C.Code attacks, yet strictions on collateral cognizant 18, 24, Chapman California, see 386 U.S. also of the need maintain 23-110 relief (1967) 824, (holding 17 L.Ed.2d 705 procedural available very as a vehicle for the subject that constitutional purpose “enabl[ing] violation is to test prisoners convicted ie., harmlessness, escape judicata the shackles of constitutional whether res when violated,” beyond violation is rights constitutional have harmless reasonable been Kirk, doubt); States, supra, 510 A.2d Artis v. at I would hold United 505 A.2d (D.C.1986) (“Curtailment that the standard enunciated of constitutional Court Schlup “special ly-protected constitutes circum- cross-examination constitutes Doepel permit stances” under sufficient to a harmless where it constitutional error See, apply petitions Doepel. e.g., Peoples, supra, 24. Similar limitations to habeas under stances” law). challenging (intervening change §16- confinement. See D.C.Code at 702 n. 5 669 A.2d 1901; Henderson, F.Supp. Perkins v. (D.C.Cir.1985) point 26.There is no need to decide at this wheth- credible, proffers, er if would meet the Saw- test, imply only yer adopted §§ 25. I do not intend that this is now in 28 U.S.C. 2244 and “special convincing standard that will constitute circum- of clear and evidence. (1) Arsdall, beyond clear doubt that the v. Van reasonable Delaware (1986); defendant would have been convicted without S.Ct. L.Ed.2d 674 Stack (2) testimony States, (D.C. the witness’ re- v. United 519 A.2d inquiry stricted line of States, weakened 1986); Lawrence v. A.2d impact testimony.”) (quot- of the witness’ (D.C.1984). In Jenkins v. United ing Springer v. United (D.C.1992), 617 A.2d 529 we conclud (D.C.1978)). Therefore, partly foreclosing inquiry ed that even into higher come within standard for the of a rose nature witness’ bias to a consti justice” “miscarriage exception, they are a Here, 533. tutional violation. See id. at to a entitled new trial under 23- fortiori complete prohibition during trial on un- 110(a)(1). might questioning consented incriminate of appellants’ substance hampered a codefendant cross-examination claims is that the trial court’s restriction on appellants’ ability into and undermined bias cross-examination their Fifth violated degree clearly a defense to a process right Amendment due to introduce implicates the Fifth and Sixth Amendments. by implicating their innocence Against background, newly-dis- codefendants, parties, namely third in their for purposes covered evidence—which fringed right their Sixth Amendment to con this discussion is assumed to be credible— witnesses, front and cross-examine significance takes added re- right assistance of breached effective appel- lates to and aids the evaluation of transcript counsel. full The trial of exam First, lants’ constitutional claim. it confirms ples demonstrating impact the severe the trial court’s restriction on cross- Indeed, ruling27 denying ap court’s was of a examination constitutional dimen- pellant Eastridge’s first 23-110 motion al Jones, sion. codefendant the murder leging counsel, ineffective assistance of trial, part recants of his now trial testi- trial court concluded that counsel not mony he where stated he chased Battle but part due in “the court’s ineffective severe affidavit, did catch him. In a sworn regarding restriction cross-examination at Strickland, catching chasing, admits to supra, the trial.” Jones and beat- 686, 104 being Battle at the scene when Jen- nings, and another individual Woods started A defendant in a criminal trial has a consti- stabbing ap- Battle. Jones now states that right present tutional relevant evidence pellants present were not at the scene person perpetrator that another was the any they knowledge did not the have States, the offense. Gethers v. United See ruling stabbing. Under the trial court’s re- (D.C.1996); 684 A.2d v. Winfield cross-examination, however, stricting Jones’ (D.C.1996) (en United 676 A.2d new could not have been elicited statements banc); Johnson they on cross-examination because would (D.C.1989). respect the With inculpated opportuni- have Jones. Given right claimed violation of to confronta- ty, appellants’ trial could cross- counsel have tion, court’s the trial limitation cross- fronts; number examined Jones examination, the a Court has held where chase, in the his and others’ involvement questioning relating line of to a bias witness’ why person reason he had his from foreclosed, blood on completely has been constitu- (while not) appellants the murder victim did right tional to confront witnesses is violated appellants’ came car. “meaningful” has not a how he to be because there been addition, opportunity absent the restriction on cross- to cross-examine witness. See attempted ruling 27. Sousa to cross-examine ed the trial because it would Counsel for court's witness, Heim, key government regard implicated Sousa’s also was Pamela Jones. counsel prohibited cross-examining regarding of the individuals she from Heim number names examination, chasing alleged had or be saw Battle. On direct conversations she overheard chase; inculpate Heim that she see the the information would a code- testified did not she cause however, (Jones), grand jury, though the had stated to the fendant even1 information that she Jones, others, among excluding appellants. appellants, See also saw also would have exonerated chasing inquiry Battle. This was foreclos note line of infra. examination, IV. key government witnesses fully could have been more cross-examined Hearing on Remand knowledge stabbing.28

about of the The restriction on cross-examination inhib- remand, hearing proffered On at a on the developing ited a defense evidence the trial court is to be focused on presenting evidence that someone else com- the actual innocence of the or- murder, theory mitted the that Jones’ affi- proffer der to made determine whether supports.29 Winfield, supra, davit brings in the form of affidavits them within A.2d at 4-5. justice” gateway “miscarriage excep- Richter, Gray- The affidavits of Lurz and assessing adequacy peti- tion. “In of the son contain information that arose after the therefore, showing, [trial] tioner’s which, believed, if trial corroborates Jones’ admissibility is not bound the rules of similarly exculpates appellants. affidavit and govern Schlup, supra, at trial.” The affidavit of Gianaris corroborates Richt evi- S.Ct. 851.31 Relevant support er’s and Jones’ affidavits and adds dence that was excluded or unavailable at appellants’ theory not in appel- should be considered.32 Id. The group chasing of individuals Battle. The af lants’ persuade burden on remand is not to attacking credibility fidavits key of a evidence, the trial court that the available government strength witness undermine the credited, could raise a Thus, reasonable doubt government’s case at trial. juror, appellants’ claim, mind of a reasonable but that a substantial constitutional evidence, supported by juror, appropri newly-avail- new reasonable faced with the 23-110(a)(1).30 evidence, ate for relief under probably able would not have found trial, have, expressed 28. At my Sousa's counsel concern client I is that client could not that he was unable to Sousa's defense possibly somebody have done it because else properly indepth without a more cross-examina- did it. Willetts, Dorothy key government tion wit- point finger The Court: Does it at who did it? ness: Yes, Honor, Counsel: Your it does. I can’t I Counsel: am unable to cross examine these bring that out at this time because of the clarify exculpatory witnesses to and show in- ruling. Court’s my formation as it relates to client.... amI confounded reason fact that I cannot 110(a)(1) of the conclusion that 23— lay out the full fabric situation to the appropriate is an vehicle to address exist, jury; not because it does not not because claims, necessary it is not to ad- exist, there is not evidence to show that it does 23-110(a)(4), provides dress whether which re- simply completely because another subject lief if "the sentence is otherwise to collat- way my laying defendant stands in the client attack,” eral is available for a attack collateral utterly out these facts. And that confuses me solely param- based on new evidence outside the defense, presentation in the of his Your Honor. Super. requires eters of Ct.Crim. R. trial, point At a later Sousa’s counsel newly- that motions for new trial on the basis of wanted government to cross-examine another discovered evidence must be filed within two witness, Heim, regarding any Pamela blood she years judgment. question of final is unset- saw on the codefendants: States, 468, tled. See v. United 6 Guinan F.3d Counsel: Did I understand Your Honor's rul- Herrera, (7th Cir.1993); supra, 470-71 but see ing that I cannot in the course of cross-exami- 417, 853; 506 U.S. at 113 S.Ct. States v. United subject nation deal with the of blood as it was 319, 322, Kearney, U.S.App. 212 D.C. 659 F.2d person my shown on another other than 1203, (1981) (MacKinnon, J., dissenting). 1206 client? right. The Court: That’s hearsay parts 31. The nature of of the affidavits of following exchange 29. The between Sousa’s is, therefore, Grayson, Lurz and not a Richter discussing counsel and the trial court whether bar trial to their consideration court for Sousa’s counsel could elicit certain information purpose determining gateway whether government from a witness which would incul- standard has been met. pate certain codefendants illustrates counsel’s regarding inability concern his a co- theory: herent defense 32. On remand the trial court also should reevalu- instances, ate its decision not to consider affidavits that transcript, Counsel: This in several testimony points finger my contradict Willetts’ trial in the context elsewhere other than at being presented appel- good client. And I of the other believe that a defense in evidence Sousa, client, my the case for Mr. lants’ innocence. a ne- beyond a See not state factual basis which would guilty reasonable doubt. them hearing. evidentiary an making that cessitate id. 115 S.Ct. at determination, may need to the trial court context, appellants’ this preliminary credibility determi make some “wholly be claims cannot said without nations, see id. contrary, claims of To con- merit.” newly- probative “assess the force deprivation appear would to be stitutional presented with the connection unless decided to be harmless meritorious Id. at guilt at trial.” evidence of addressed impossible beyond a reasonable doubt —an 851; 332, 115 see note 7. supra S.Ct. is new evidence cred- conclusion ible. therefore, turn, the trial

I to address deny § motion decision to 23-110 court’s determining trial court erred also holding evidentiary hearing. Section without incredible, vague that the affidavits were 10(c) hearing “[u]nless 23 a mandates —1 holding conclusory without first an evidentia- case and files records of the the motion presided hearing. Judge Moultrie ry Chief conclusively prisoner that is enti show entertained the trial 1976 and Eas- over previously We stated tled to no relief.” have collateral at- tridge’s and Diamen’s earlier that a trial presumption is a “[t]here ruling judge trial on the current tacks. The § presented with 23-110 motion a motion, however, § did 23-110 a 23- hearing. should conduct ‘Because testimony hearing at trial and benefit resort, any virtually remedy 110 is of last credibility the various weighing the wit- question hearing appropriate whether Gaston, nesses, particularly su- Jones. ” resolved in Ga should be the affirmative.’ (holding A.2d at lack of pra, 535 States, A.2d 900-01 ston v. United hearing “especially signifi- §a was (D.C.1988) States, (quoting Miller v. United reviewing petition cant” when (D.C.1984)). pre This 479 A.2d presiding judge at the sentenc- not the was only when the sumption can be overcome hearing, denying ing). In its order “ ‘under no circum trial court concludes that large relied extent Chief trial court to a petitioner facts could the establish stances rulings on previous Eas- Judge Moultrie’s ” warranting Ramsey relief.’ United tridge’s 23-110 motions and and Diamen’s (D.C.1990) States, (quoting A.2d rulings. But court’s affirmance of those Fontaine v. United Pettaway, supra, (noting at 986 390 A.2d see (1973)). There L.Ed.2d judicata principles of res do not that strict categories allegations do not are three 23-110(e)). proceedings under apply in “(1) conclusory hearing: vague warrant determination example, the trial court’s For (2) claims, allegations, palpably incredible in his affi- contained that Jones’ recantation (3) not merit relief assertions part was was based davit incredible Ramsey, supra, even if true.” Judge determination Moultrie’s earlier Chief 147; A.2d Pettaway v. see Eastridge’s attack and this first collateral (D.C.1978). 981, 984 Although subsequent court’s affirmance. substan- substance Jones’ recantation hearing The trial court’s denial of same, tially of the recantation is the form appellants’ motion based on its belief that way. Judge significant different Chief in a pre- information had discounted the Moultrie affida- exclusively the incredible attack because based in the earlier collateral sented Jones, hearsay vague observations statements vit of in the form of it was Gianaris, conclusory affidavits of defense inves- in the of a recounted affidavit testimony, even if information now persons whose tigator. other contrasts only in the form of presented the Govern- court is accepted, impeach being witness, Additionally, signed by an affidavit Jones ment’s Willetts. himself. veracity Defendants court’s concerns about claims trial hearsay in the earlier wholly do sub- merit and statements present are without Jones’ mitigated Battle, apparent sup- mission33 are Jones’ tacked Gianaris’ affidavit does willingness prosecution port at attempt this time to risk failed at trial perjury for they among committed at trial. Presented show were not the chasers circumstances, with these different or attackers.34 his affidavit Gianaris also expressly court’s reliance on former determinations of states that he did not see a car credibility unfounded, especially during when it or after the murder. arrive Gianaris’ opportunity vague has never had an to hear Jones’ affidavit is neither so nor so concluso- testimony. ry The trial evidentiary court also discredited on its face as to an make unnecessary. Jones’ affidavit hearing Pettaway, supra, because his affiliation with Cf. (statements Pagans vague evidence of bias and because A.2d too implicated conclusory Jones hearing). individuals who are now to warrant The trial questioned deceased. credibility While these factors to be court also Gianaris’ be- evaluating credibility, years considered Jones’ twenty cause he waited almost before cf. Schlup, supra, disclosing 513 U.S. at 308 n. night he saw on the what 851, they do not establish that Jones’ murder. of an Determinations affiant’s cred- palpably ibility, recantation is so it only incredible that motive or bias can be resolved hearing does not presumptively testimony. warrant after the benefit of live See Rice required by States, Wright statute. See v. United v. United n. 580 A.2d 123 & 7 (D.C.1992) (remand- (D.C.1990) (finding grounds 608 A.2d rejecting no for hearing credibility for a because claim solely was not of witnesses based incredible). statements). palpably their written There is no rea- son evident on the record before for us Gia- The trial court dismissed affi- the Gianaris provides naris to fabricate the information he vague. davit Commenting as too on the sub- hand, easy in his affidavit. On the other it is affidavit, stance of the the trial court stated why eyewitness to conceive of reasons statement, that Gianaris’ “I do not I believe bystander would be reluctant to come for- saw than more four white men [attack Bat- racially-tainted involving ward murder “vague tle]” was convincing.” motorcycle gang. of a members Gianaris’ trial court concluded that Gianaris’ statement waiting twenty years for reasons to disclose was too indefinite to jury overcome the ver- what he about knew the murder of Johnnie dict, “extraordinary high and to meet the evidentiary Battle are aired at an best hear- innocence,” standard of actual under Herr- ing. First, earlier, era. as supra discussed see note the Herrera standard for a free- specifically The trial court did not address standing claim higher of actual signed by innocence is substance the affidavits where, here, required Richter, than is Grayson a claim of Lurz and when denied supplements actual innocence appellants’ request evidentiary a claimed con- for an hear- Rather, stitutional violation. Schlup, supra, ing. rejected the trial court Second, U.S. at 115 S.Ct. 851. while affidavits as biased because of the affiants’ identify pin- membership Gianaris’ statement does not Pagans and because the point the exact in- number individuals information contained in the affidavits was murder, discussed, volved hearsay. already when viewed As whether the stating context of the other affidavits affidavits would be admissible at trial is not only Woods, Jones, dispositive purposes gateway inqui- four Jen- individuals — nings person ry and another unidentified into actual innocence.35 While affiants’ —at- page supra. likely 33. See tion to show that it is "more than not" that convicted, they would not have been are over- by a that the come determination evidence would undisputed It is could have Schlup, sufficient to been convict. See su- guilty been found as aiders and abettors even if 851; pra, 513 U.S. at Flores v. principals supra were not in the attack. See (D.C.1997). However, note 7. where there has been a consti- violation, government’s tutional neither the bur- rejected den under 23-110 to show harmlessness be- 35.Because the trial court the affidavits doubt, yond appellants’ hearing, appellants given a reasonable nor the without were not miscarriage justice excep- opportunity argue party burden under the of to that the third state- membership Pagans concern needed Id. Whether to order the raises materials.” bias, itself, regarding by their this is not is the trial discre- disclosure within court’s reject hearing, without a sufficient to reason id. tion. See “palpably the incredible” affidavits policies underly- Appellants argue that the credibility their face. their state- of grand jury testimony secrecy the of including they exculpate the fact that ments — longer applicable in this These no case. expense for- appellants at the of two other policies have as follows: been articulated Pagans now mer who áre deceased —must be evidentiary hearing. tested at an [tjo (1) prevent escape the of those whose (2) contemplated; indictment be to

y. grand the freedom the insure utmost to jury Appellants requested grand to access deliberation, jury prevent in its and to testimony discovery in an effort to and other persons subject to or their indictments out events find more information about the jurors; importuning grand from friends surrounding trial court the murder.36 The (3) prevent perjury or to subornation of appellants’ request the re- denied tampering with witnesses who narrowly appel- quest was not tailored testify jury appear grand before and later testimony grand jury lants’ need did for (4) it; trial to at the of those indicted outweigh Ap- secrecy. for not the need its encourage and untrammeled disclo- free contend, pellants new informa- based persons sures who have information Ministries, brought tion Centurion crimes; respect commission of government has that that information (5) protect innocent is ex- accused who help prove their at a will them innocence onerated fact that from disclosure hearing. government denies 23-110 investigation, he has been under any exculpatory it has information and expense standing trial where there argues appellants’ request not suffi- is probability guilt. was no ciently narrowly tailored. States, Davis v. United A.2d 6(e)(2) Generally, pro- Super. Ct.Crim. R. (D.C.1994) (quoting United States v. Procter occurring “matters before hibits disclosure of Co., n. & Gamble 356 U.S. 681-82 however, 6(e)(3)(C)(i), grand jury.” Rule (in (1958) 983, 2 turn L.Ed.2d S.Ct. exception general creates an rule Rose, v. quoting United States 215 F.2d allowing the court to disclosure of order (3d Cir.1954))). Against poli- these jury testimony grand when there has been cies, secrecy compelling in the need for is not “strong showing particularized need.” case, twenty years more than where 914, 916 Law lapsed since the deliberations (D.C.1985) (quoting United v. Sells States jury, grand individuals have consent- certain Inc., Eng’g, 463 U.S. grand jury ed to the release of testimo- (1983)). addition, L.Ed.2d Further, ny, and other have died. witnesses party moving for disclosure must show requested jury grand the extent “(1) is to avoid the material he seeks needed sufficiently testimony establishing assists injustice judicial pro- possible another case, reopen (2) it is innocence ceeding; great- for the need disclosure injus- necessary in a possible to avoid secrecy; and order than the for continued er need (3) request only to cover tice. structured Richter, against penal (noting Lurz that whether statement is ments contained in the affidavits of hearsay, Grayson inquiry, and rather, inadmissible "can a fact-intensive interest statements would be admissible as require the cir- examination of all careful against penal Wil- the declarants’ See interests. activity surrounding in- cumstances volved.”) the criminal liamson v. United (1994) (addressing scope L.Ed.2d interest). exception against declarations Appellants’ specific request part is not hearing can revisit this

At the the trial court record. issue, arguments necessary, with the benefit parties. id. at S.Ct. 2431 from the deny post-trial discov- While decisions discretion,

ery the trial court’s we are within previously stated that “the trial court willfully ‘arbitrarily but with

must not act

regard right equitable under to what is law, and directed

the circumstances and the reason and conscience ” just Gibson v. United result.’ (D.C.1989) (quoting

A.2d Johnson (D.C.1979)). 398 A.2d court, reviewing a court’s

This when denying post-trial access to discov-

decision that a

ery, not be reticent to declare “need constitutes an er-

trial court’s determination at 479

roneous exercise of discretion.”37 Id. Johnson, n.

(quoting supra, 398 A.2d at 366

9). Considering the new evidence appellants’ claims of actual

context of claims, it

innocence and their constitutional justice appellants’ rea-

in the interest of discovery requests

sonable be allowed so of all trial court have the benefit considering appel-

relevant evidence when If,

lants’ 23-110 motion on remand. after account,

taking all the available evidence into

the trial court determines that brings “special cir-

motion them within the here, exception,

cumstances” as established

their convictions must be vacated because entitled trial. to new Barry STILLER, Respondent,

In re C. Bar

A Member of the of the District Appeals.

of Columbia Court of

No. 95-BG-909. Appeals.

District Columbia Court

Argued May 1997.

Decided Feb. 1999. there was sufficient information 37. held that the trial court abused its and because Gibson part warranting investigation. did not discretion consider further officer, police provid- affidavit a veteran Gibson, compelling exonerating ed information

Case Details

Case Name: Diamen v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Feb 25, 1999

Citation: 725 A.2d 501

Docket Number: 96-CO-295, 96-CO-299, 96-CO-301

Court Abbreviation: D.C.