Streater v. United States

(D.C.1979); Finch, Finch v. (D.C.1977); Grasty Grasty,

A.2d records,

After consideration of

briefs, and oral had on these appeals, appearing

consolidated and it

appellant, in the proceed- course of divorce 1)

ings in the trial timely

motion for an extension of time within opposition

which to file an appellee’s

motion attorneys’ for an award of fees

2) orally writing indicated both and in his hearing upon question

desire for a fees;

such we hold that the trial court in entering awarding

erred an order sub- attorneys’ appellee

stantial fees to

affording appellant hearing benefit of making findings and conclu- respect

sions with thereto.

Accordingly, the trial court’s order of awarding

December attorneys’

fees, February its denying 1983 order

appellant’s motion to vacate the December order,

16th money its March upon based the December award,

1982 fee are vacated. The case is

remanded appropriate hearing. Ritz, (D.C.

Ritz v.

1964).

Vacated and remanded. STREATER,

Willis F. Willie F. a/k/a Streater, Appellant, STATES, Appellee.

UNITED

No. 11650.

District of Appeals. Columbia Court of

Argued 7, 1984. March July

Decided Rockville, Md., Carroccio, Jr.,

Charles S. court, appointed by the for Facciola, Atty., U.S. with John M. Asst. diGenova, Atty., and Joseph E. whom Farrell, W. Theodore A. Shmanda Michael Mack, Attys., and R. Asst. Catherine brief, D.C., on the for Washington, were appellee. PRYOR, Associ- NEBEKER and

Before YEAGLEY, Judges, and Associate ate Judge, Retired.

PRYOR, Judge: Associate July jury appellant found On robbery, D.C.Code guilty of charges of acquitted He was §§ 22-2901, -3202, robbery, and armed id. dangerous weapon, id. assault with Appellant received sentence 22-502. imprisonment, ap- and thereafter filed peal. appointed

Appellant’s trial counsel present On November filed an Anders1 ease, as he to withdraw from motion grounds identify no could nonfrivolous court, panel A appeal.2 motions this “having reviewed the motion and being this case record ... and view issue,” presents no nonfrivolous appeal." California, issues involved this non-frivolous Anders concluded: He record, diligent thought, this Perusal of stated, summarizing the evi- 2. Counsel have all failed to call to extensive research appended to his dence in the Statement of Fact single issue of merit in counsel’s attention a motion, find withdrawal that "counsel cannot case. proceedings. direct, trial careful- error in the Counsel brief counsel will Should government’s ly opening state- considered posture, such as this an advocate issues ment, closing argument proceedings, the trial might explore and will be avail- wish to hearing instructions in should a be able for oral arriving there at his conclusion that are no on this motion. ordered the motion and affirmed local courts. convic- futile return to the tion. Streater v. United No. 11650 U.S.App.D.C. (D.C. 15, 1978) Aug. (unpublished). (1982) (per cu- riam). The Circuit Court ordered Superior returned to petition abeyance,” “in held later, several months pro se petition and allowed that the could even- motion, pursuant to D.C.Code tually Court, be dismissed the District (1973), seeking to vacate his sentence on appellant sought unless from this court an ground the that his counsel had rendered opportunity “reopen appeal the direct of during ineffective assistance appeal. the his conviction.” Id. at 395 & n. April 20, On sup memorandum of therefore, at 1028 Appellant, & n. 5. porting points and authorities was filed reopen appeal moved this court to his direct appellant’s court-appointed new counsel. panel It was on November 1982. A appellant’s asserted that motions of initial requirements request, counsel had not met this court Anders’ and vacated sought when he permission August judgment. to withdraw the from the case. hearing, After a (D.C. trial United No. 11650 March motion, appellant’s finding denied 1983) (order). appellate New counsel was that Anders had been satisfied and that appointed, transcripts ordered, were briefs counsel had rendered effective assistance filed, arguments were and were heard. during appeal. affirmed, We but not proceed We now to discuss the merits of merits, on the holding that 23-110 did not this appeal.”3 “renewed direct permit the relief sought by appellant. Streater v. United I (D.C.1980) (per curiam), appeal dis pertinent may The facts be stated denied, brief- missed and cert. ly. John Johnson testified that Jacob approached Brooks him in a bar and de- appellant June money manded at the point gun. Ap- of a corpus petition in United States Dis pellant, Johnson, who stood behind took Court, alleging trict ineffective assistance money from Johnson’s wallet. Johnson no- appellate his counsel. The District police. tified Court declined to petition consider the the merits appellant appellant’s because A warrant for had not ex arrest was ob- hausted his local Metropolitan remedies. The tained. Police United Officer John States Court of Appeals partner vacated this rul Griffith testified that he and a ar- ing, it accepted appel because rived at house to execute the that Streater door; v. United warrant. A woman answered the States, supra, 429 A.2d at rendered the police they looking told her that were government argues judicata 3. The prin- finality.” that res to achieve Greater Boston Television ciples finality litigation FCC, and the need for Corp. U.S.App.D.C. preclude reopening appellant’s (1971) (footnote omitted). from F.2d As appeal. position such, direct While this has ‘judicial consider- it is "a doctrine of administration’ force, able we hold that the time to have assert- power appellate that does not limit the opposition appellant's ed it was in (footnote motion to F.2d court.” Id. at omitted). at 279 reopen The did not do so, thereby point. and has waived the Finally, opinion present we add our that con- judgment upon Separate apart sideration of and the merits of from the doctrine of res claim, judicata, passing moot power we note renders most that "[t]he Court, recently court to recall its mandate advanced in Circuit that his emanates ... power original appellate provided from an inherent to recall a mandate ineffective cause, not, therefore, upon showing good Dilley ...." assistance. We do address this Alexander, U.S.App.D.C. ll-705(b) (1981); issue. United D.C.Code! (D.C. Cummings, ‘mandate’ rule is related “[T]he States v. case,’ 1973) curiam). to the doctrine (per of ‘law of the as a doctrine States, Duddles v. press.” The asked the offi- woman cers outside. After several min- A.2d to wait

utes, apart- admitted them into the she searched, apartment

ment. The was III hiding appellant was discovered in a sofa. that Appellant also contends sofa, gun, A found in the was seized also adduced at trial was insufficient evidence into at introduced evidence trial. dis support robbery his conviction. We Johnson,

agree. victim, testified appellant money took from his while wallet II gunpoint. him Brooks held codefendant handgun dis contends that arriving Johnson, appellant, who knew told by police in covered the sofa the fruit appellant police was one officers of an unlawful search and should have perpetrators. This was suffi evidence suppressed. argues that the wom been He jury a reason cient to allow reasonable to police to an who allowed officers search the appellant had committed ably conclude that apartment consent their either did not to States, robbery.4 Curley v. United 81 U.S. authority” search no “common or had over 232-33, 389, 392-93, App.D.C. 160 apartment make necessary the to her con denied, 331 cert. 67 91 S.Ct. sent effective. See States v. Mat United Boyd see v. United (1947); L.Ed. 1850 lock, 164, 171, 988, 993, 39 States, (vic (D.C.1984) 473 A.2d 832 (1974). 242 L.Ed.2d testimony support sufficient to armed tim’s conviction). rape move Appellant did not before tri handgun, required by al as suppress to the IV § 23- statute and court rules. D.C.Code 104(a)(2) (1973); 12(b)(3), Super.Ct.Crim.R. complains that the 47-I(c). alleges prosecutor implying jury good by He for his erred to the no cause and, therefore, sofa, appellant’s hiding failure in the while to do so has waived that v. police Brown United apartment, pointed the on searched his to issue States, Concealment, (D.C.1972). his guilt. 289 A.2d consciousness of observe, however, police flight, may the is a We that offi like circumstance which complete give cers to that the authority had search the rise to reasonable inference guilt appellant, anyone’s house con aware of his at the time. for accused was States, v. sent, by Williamson United they of 445 A.2d virtue the arrest warrant York, Payton v. New Christian v. United (D.C.1982); carried. 981 States, 602-03, (D.C.1978), cert. A.2d S.Ct. denied, (1980). L.Ed.2d 639 The admission of the handgun per prosecutor, The proper. was therefore “[W]e course, permitted argue all ceive no basis on which the trial court could is to reasonable sup- have ... motion to inferences from the evidence adduced Streater,” view, Contrary pointed "gray to we do think a "Mr. who or not to wore Bynum’s testimony necessarily light Contrary appel- gray” con- Minnie blue—a shirt. did, however, special argument, import tradicted Johnson’s. if it it it Even is of no in is clear that this would not have undercut the record failed to reflect that case that legal sufficiency government’s person case. Con- are identified was We so indulge flicts evidence are for reserved resolu- inferences in favor bound to reasonable States, tion. Anderson United A.2d considering sufficien- when transcript cy; that Johnson did indicates Moreover, identify appellant in court. an in- Appellant also contends that there was insuffi- necessarily required court identification is not transcript cient evidence to convict because the acquittal. We think it clearly to survive motion does not reflect whether he was identi- clearly helpful have when fied When the record reflect in court victim. asked to him, made, identify successfully man robbed one is however. who Johnson States, trial. 364 A.2d VI Tuckson v. United (D.C.1976); ABA Standards Re sum, conclude, reviewing we 5.8(a) lating to Prosecution Function merits, appellant’s conviction should 1971). (Approved Draft There no er be ror here. Affirmed. NEBEKER, Judge, Associate concur- V ring: Finally, appellant spectre raises the generation appeal This second has been ineffective of trial assistance counsel. We born of a concern United States only consider the claim that counsel erred Appeals Court of for the District of Colum

by failing request severance system has, bia Circuit that lant’s case from that of codefendant words, given Streater’s him “the run Brooks.5 around” in a claim of dimen constitutional U.S.App. sions. proponent of an ineffective D.C. “ ‘heavy assistance of claim bears a The claim is that he received “ineffective ” of proving prejudice.’ burden Williams assistance of counsel” when his (D.C. v. United by this conviction was affirmed court in an 1980) (quoting Thornton procedure. Anders1 The federal court of (D.C.), denied, cert. 429 appeals assumed, citation of au 1024, 644, U.S. 97 50 L.Ed.2d S.Ct. 626 thority, right to assistance of effective (1976)); see also v. Strickland Wash found appeal “excep counsel on — ington, U.S. -, 2052, 104 S.Ct. 2067- peculiar urgency tional circumstances of (1984). 80 L.Ed.2d 674 In order to exist,”2 permitting ... their intervention in here, establish prejudice appellant must this case. It what those ex did not state demonstrate that the failure to sever creat ceptional were.3 The fact is circumstances danger ed the would infer followed, that this court in as it had guilt solely because his Brooks’ defens since, procedure before and has out es were irreconcilable. Johnson v. United affirming lined Anders in Streater’s con States, (D.C.1979)(quot viction. find no nonfrivolous Counsel could ing U.S.App. Rhone v. United present. issue to He so informed this court (1966) (per D.C. performed and Streater. The court a re curiam)). Appellant asserts that Brooks’ record, requires, view of the as Anders alibi defense “seemed detrimental” to his independently reached same conclusion. defense, conclusory own but this statement Procedures, DCCA, Operating Internal See prejudice. does Appel not alone establish (providing disposi Part IV-D for Anders simply lant has not met his burden of only tions motions “but divisions proof; arewe convinced that severance in appeal, including review of the record on this case would have been not warranted. reporter’s transcript”). assumptions right See Hack v. that Streater had a Sixth Amendment appeal to assistance counsel on effective alleged 3.Interestingly, 5. Trial errors of the District counsel’s other related to examination being contentions dismissed above as and the clerk’s file in the circuit record probable merit. court does not reveal a certificate of origi- District Court’s cause for from the petition. § nal dismissal of the 28 U.S.C. 2253 California, 1. Anders v. 386 U.S. 87 S.Ct. (1982) (1967). requires such a certificate to vest the 18 L.Ed.2d 493 jurisdiction. McCarthy circuit court with Harper, U.S. 101 S.Ct. 66 L.Ed.2d Hawk, parte S.Ct. 2. Ex (1981). 88 L.Ed. 572 his de- of Counsel for deprived right, are most the Assistance of that and was contemplates proce doubtful. Anders fence. procedure followed—a dure we added). (emphasis VI Const. amend. Surely Su counsel as an advocate. Strazzella, Assistance But see Ineffective case, recent in that and most preme Court n. Counsel, 19 Ariz.L.Rev. — -, Barnes, ly Jones v. 117, 118 (1983), has not 77 L.Ed.2d 987 S.Ct. yet another rea- This case is curious for faulty constitutionally proce fashioned a Pressley, In son. Swain v. warranting extraordina alone one dure let (1977), 51 L.Ed.2d cor federal habeas ry through intervention 23- held that D.C.Code Supreme Court as if this case were one of pus proceedings (1981), precludes resort to federal 110(g) peculiar ur exceptional circumstances of proceedings just as the Con- corpus habeas gency. § through gress had done U.S.C. The Court said: When this court affirms procedure, the Anders conviction under as 2255 intended to substitute Just was to that the is no basis assume proce- there different forum and a different appropri- to process not conform late does of federal con- dure for collateral review Barnes, supra, victions, 23-110(g) plainly ate standards. Jones intended was Cf. (no right parallel respect constitutional to 103 S.Ct. achieve a result with every advance nonfrivolous convictions in the District of Columbia. have counsel appellant). itself urged by Anders issue Congress at 1228. How Id. at may be allowed contemplates that counsel permitted have federal can be taken to Simply put, our affirmance to withdraw. interposed corpus proceedings to be record, including review of the the trial process of this question appellate any transcript, eclipses contention that process seems court but not trial court inadequate. procedure or our event, any since impossible to reconcile. opinion per curiam circuit court’s brief procedure as from the re Aside Anders issue, I it did assume that not address Barnes, year last su inforced Jones court, it. That did not reach and decide is noted that United States pra, it corpus pro- the habeas ordered Supreme Court has certiorari to “intelligently” ceedings open a more Sixth Amendment decide the reach “in- ruling this court could be based on right to assistance of counsel and rule Streater’s vited” consider Lucey Kavanaugh, 724 F.2d supra, claim. Streater v. — U.S. -, Cir.), (6th granted, cert. at 1028. U.S.App.D.C. at (1984). I note in 80 L.Ed.2d 535 accepted that invita- Our motions division however, that Amend passing, Sixth vacating by reopening tion wholly ment in trial context and takes no is of affirmance. District process. account review appropriately has now dismissed the ac- prosecutions, all criminal petition as moot. right enjoy speedy to a cused shall trial, impartial public and district wherein the crime the State committed, district

shall have been which previously ascertained

shall have been

law, nature and to be informed of the accusation; to be con-

and cause of him; against with the witnesses

fronted process for obtain- compulsory

to have favor,

ing in his and to have witnesses

Case Details

Case Name: Streater v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Jul 6, 1984

Citation: 478 A.2d 1055

Docket Number: 11650

Court Abbreviation: D.C.