*1 STATES, Appellant, UNITED HAMID,
Abdul Hilvan Jude a/k/a
Finch, Appellee.
No. 85-1639. Appeals.
District of Columbia Court of
Argued Sept. Sept. 15,
Decided *2 “ jus- amounting ‘miscarriage to a Higdon,
tice,’”
(quoting Moon United
v.
Argument May 16, 1984, on II was heard 18, 1985, en January sitting this court Higdon, supra, In United v. this States banc evenly, ruling 4 to split on the of primary function court held that the government’s petition. nobis at common law coram writ of error “ part on the was to ‘correct errors of fact A conducted before court, of the trial not attributable 22, 1985, February court on which defendant, the er- negligence of when granted appellee’s re- court motion for alleged most fundamen- rors “of the en split duction sentence [were] of based character; is, such as rendered tal banc decision court Williams. this ’ ” invalid,” 27, 1985, proceeding irregular and February government On itself States, v. Id. Moon United (citing 619 urging filed a at motion reconsideration 303, 272 F.2d February U.S.App.D.C. 106 at court to vacate decision of error coram nobis 532). granted The appellee’s motion writ Williams, days elapsed since 35 ant’s motion 120 5. In the defendant filed Rule because reversed, day imposition sentence on 119th motion to reduce This the sentence. imposed. mo- sentence had been The holding after his tion from not barred court was filed six months before the decision ruling motion. on the merits of the defendant’s in Williams did not rule The trial court Nunzio. motion until months the defendant’s two findings of fact court set The forth extensive The trial court defendant's after denied Nunzio. Opinion and thirty-nine page in a Memorandum motion, citing proposition for the Nunzio supporting Order its conclusion. jurisdiction to lacked rule on defend- cotut 632
provides petitioner effect, it opportunity denude one its essential apparent “correct errors fact not on the power characteristics —the to hurdle a face of record and unknown to the trial Haywood time v. United factor.” Columbia, court.” Watwood v. District States, D.C.S.D.N.Y., F.Supp. 485, 127 (D.C.1960).7 162 A.2d 487 [emphasis added]. reject government’s
We
argu
States, supra,
See also Moon v. United
legally
ment that
is not
claim
one
pates adverse inferences actually attempt- Ironically, appellee had credibility viability. or judge of the duress to inform the ed operating long he under which deference It is therefore not hearing. In De- September findings which of the trial court factual Judge Nunzio 1979 letter to that Hamid's fail- cember supports our conclusion his for a reduction of does not under- which he had asked to assert duress earlier ure sentence, Hamid concluded letter There is the record itself mine his claim. “At following comment: substantiating judge with the facts shows that present living implied an threat (which prohibited appellee I am with duress modified, get my I try if sentence mitigating presenting sen- I come forward tencing)8 not revealed to the court were you, it wouldn’t be conducive counsel, Stow, confided until Hamid’s trial Charles I’ve my best interests. None of what relat- 19,1985 hearing. testified at the general to be a matter of ed would want hearing, judge At this learned knowledge.” Further references duress actually from counsel 10, 1980 hear- made at the December before, during fearful for his life after and where, in Rule on Hamid’s 35 motion trial. testified that believed Stow question response to a from the trial court Muslims, Hanafi under the direction of concerning why had not Hamid informed Khaalis, for not would have killed information, attorney obeying regarding orders his conduct at Hamid stated: sentencing. defense and He testified that Honor, I Your if I had told Mr. Stow —if appellee was he under such fear that everything Mr. of what had told Stow alert counsel trial whenever be- my- happened asked him to defend exceeding the limits lieved Stow set self, living you here to tell would not be Appellee's Khaalis. testified *6 I know that. I was under about it. hearing at September further the did great fear because I did want —I unwilling provide that was to request that I had a severance. want to any mitigating him information that would you There a statement made was allocuting sentencing be useful at the everyone asking for the Court when hearing safety due to fear for his own as that, you try you said safety lawyer well as the of his and his “If myself, And I said case one time. lawyer’s family. Stow also testified that judge Mr. ask the to sever have Stow he perceived the fear that as well it, trial, caput.” my and he denies that’s family grave danger as his own would be real,” “substantially stating as he present References duress were also bring any throughout September not of this information the the trial court’s hearing trial court’s attention because he was on Hamid’s 23-110 motion.9 cer- played 8. no It should be noted that the court of Duress trial con- writ error nobis. case, mitigation part both the evidence in which of either and in sidered in the facts cases, sentencing (e.g., appellate appellee’s per- before it at to the discre- not the court deferred court, takeover) history affirming sonal and limited of trial trial court’s role tion the concluding appellee’s sentence be of nobis. should denial of writ error coram distinguished State, reduced. This to be from the Specifically, Dearing v. S.W.2d grant of the of basis writ error coram (Mo.1982) (en banc) petitioner ar- nobis, (and lawyer) given gued that the trial court should have operating during trial under duress day so that a continuance on the trial sentencing such that lawyer his misdemeanor trial could obtain presented. could not be hearing driving charges. court on drunk petitioner’s hire an attor- found failure to Compare ney the two state cases the dis- his first cited between the date when trial, support argument granted sent to date that the trial court to withdraw and leave counsel, granting petitioner’s appoint request abused its discretion in or to the trial court Despite the fact that indications of du- counsel failed to file until days post- mandate, ress leaked out these earlier receipt logi- next however, proceedings, conviction the issue step pursue cal towas an ineffective assist- squarely was never addressed at time ance of counsel claim. Rule 35 and ineffec- prior hearing petition on the for the tive assistance of promising counsel were writ of error coram nobis avenues of relief which would not have The hearing on the earlier Rule exposed appellee danger to the which he primarily 35 motion was concerned with (and now claims he felt which claim the appellee’s background information about credible; has court found to be it is and limited role in the Hanafi Muslim take- exceptional therefore not that the more ob- over; question why as to some of the scure writ theory hearing information at the Rule 35 pursued. was not earlier It is available brought judge before the at now in the interest justice. explored. post-convic- was not The second proceeding after this occurred Ill interpreted 120-day period identified in The writ of error coram nobis re jurisdictional period during Rule 35 (1) quires that the trial court be unaware of which the trial court had act to reduce giving (2) petition; facts rise to the sentence, filing instead of a deadline. The omitted information be such that it would subject was whether prevented judgment; the sentence or Stow, appellee’s attorney, Charles (3) petitioner justify be able to the failure rendered ineffective assistance counsel provide information; (4) the error filing the Rule 35 motion when he did. record; (5) extrinsic to error be It was until this court found that there “of the most fundamental character.” right is no to effective assistance of coun- Morgan, supra, United post-conviction sel States stage, and Hamid 253; 74 S.Ct. at Moon v. filed for writ error coram States, nobis, U.S.App.D.C. brought issue of duress was 532; Flippins F.2d at see also fore. v. United (“A supra, 747 F.2d at fair unique procedural history Given the granting statement basis for a writ (coupled of this case with the reluctance of of error coram nobis is demonstration of knowledgeable parties speak out), (1) fact; (2) an error of unknown at the appellee’s lawyers the fact that first assert trial; (3) fundamentally time unjust grounds ed alternative for relief should not probably character which would have al against appellee. noted, be held As challeged proceed tered the outcome of the Nunzio, supra, this court *7 known.”). if been it had time, for first 120-day period the held thе filing in to Rule 35 be not a properly appel- deadline but a The trial court found jurisdictional one, foreclosing appellee requirement to lee each of satisfied the writ. First, the relief which the in trial court its discre the trial court determined it was thought giving warranted. Since unaware the facts rise Hamid’s of se, agreeing proceed pro and his to annulled because out of state his defense witnesses were and and, subpoenaed, denying claim that trial court error in his could be that without the witnesses, request attorney presence for continuance to obtain an of those there was almost acquittal rose to the level of appellate petitioner fundamental no error. The chance for and would hearing bargain court plea found the court’s receive if denial the maximum the offer application of the for writ of refused. court first found evidence, supported by beyond nobis was substantial that some of the indeed witnesses were jurisdiction, and to deferred the lower court’s exercise of its court’s but also found that in State, petitioner petitioner invoking discretion. The Fuller v. of absence the aid (Ala.Crim.App.1977) process procure So.2d 217-18 had been court to other witnesses for forgery leaving jurisdiction convicted of requesting a motel with- within the court’s tinuances, con- paying applied out his bill. He for a writ of he was not the writ. The entitled to nobis, claiming appellate error coram he had been ad- court deferred to the lower court’s by plead guilty his vised defense to of its exercise discretion. separated applied from those of the he was who it not informed because was his prevented appellee and the duress. duress which mitigating
lawyer presenting myriad from government argues that the facts circumstances, involving appellee’s both supposedly withheld because of that were background limited role as his well in fact the trial duress were before court. Second, the the Hanafi Muslim takeover. mitigating presented But the determined in- that the omitted trial court original hearing during fashioning to was critical formation time of ten minutes consisted the allotted appellee; the sentence a sentence than bones” references of little more “bare greatly reduced if the have been record, his lack a criminal sentencing had it infor- court at service, military that he not a fact was Third, question. the court found mation user, attempt help one narcotics his presented justifi- reasonable contrast, By a victim the takeover. his cation for failure inform court emerging details from mitigating at his sentenc- all circumstances along hearing, correspondence with ing. The court found that both judge by appellee provided and others lawyer deliberately infor- and his withheld picture appellee, as to make it such genuine fear mation from court due to original court’s sentence was clear for the lives of and others. thеmselves “assumptions based on ... which were ma- Fourth, ap- here—that error asserted Tucker, terially untrue.” States v. pellee estopped presenting miti- 589, 592, 404 U.S. 92 S.Ct. gating information due to ex- duress —was (1972) (citing L.Ed.2d 592 Townsend Lastly, the court trinsic to the record. Burke, S.Ct. sentencing procedure found (1948)). 92 L.Ed. significant mitigating information de- Order, Opinion In its Memorandum presented liberately not the trial court identified the facts it had not the trial court reprisal consideration due fear appellee’s inability to inform known due to was a “fundamental” error. mitigating information. counsel certain A. The Trial Court Was of Facts Unaware court personal background, As to Giving Rise to the Petition chil- one three found parents gave up dren of who unwed sentencing (September At time of two He was months old. when 1977), ignorant court was raised her until given to an aunt under which duress both eight. age eight, appellee At the he was functioning failing counsel were his father and remained with moved with present the wealth of circum- age The trial him until the of fifteen. they stances and facts which would other- year during that court found that seven brought wise have to the court’s atten- repeatedly period, beaten tion.10 The trial court remained un- finally, appellee his father until abused history, as to personal informed police. The trial reported his father to the peculiarly which made him vulnerable appellee appeared be- found that the duress, perceived appellee's as well as neglect hearing parental judge in a fore essentially pas- character his limited— many body as a lacerations on sive—role the takeover. The informa- *8 beatings The fa- by his father. upon appellee result by support tion relied in parent, an abusive his for ther was declared writ error coram nobis result, and, his sister presented appellee as a and recited below was to the court appellee’s sentencing placed and after in a foster home.11 were HI-C., 21, by February was corroborated 10. Part "Justification for Failure to Pro- and Finch, sister, regarding vide facts appellee’s Information” sets forth the testified at Marlene who ignorant. duress of which the court was hearing. the December brought This information first appellee's dated court's attention letter Taylor Khaalis, Reverend Carl B. informed Hamaas Abdul appellee’s asked August by trial court letter dated appellee aunt if Washington, could move to appellee that he had known since 1963 and D.C. to promised live him. Khaalis appellee child in that had been a foster his if appellee that were allowed to move to period. brief The home a trial court Washington, D.C. he would see to it that cousin, by appellee’s Shirley was informed appellee continued his education. his Krauser, April 15,1979, A. in a letter dated court, appellee letter to the trial stated that appellee could not with a clear con- Washington, he moved to July D.C. on [appellee] science love his father “because knowledge 1971 to his broaden of Islam. rape father his nine-year-old witnessed his letter, In her Margaret December Cunningham, psy- Dr. James F. a sister.” Cunningham appellee being B. described as employed by chiatrist the Police Court “very young impressionable” and when York, Schenectady, perform psychi- New became involved with Khaalis. She stated offenders, atric evaluations informed the appellee “seeking positive role by trial court letter dated December models —someone to believe in—someone appellee lived with him and pattern opinion, his life after.” In her Cunning- his wife in foster their home. Dr. appellee’s attraction to the Hanafi Muslims appellee’s stated ham father could not strong “based moral values help appellee busy, because he was too too stressed, they well as as his own depressed tragically by and overwhelmed family need for some ties.” In her March complicated responsibilities as father a letter, she appellee’s stated that appellee. and mother to He stated caring family, “needs for a as well as his appellee did not have the benefit early experiences childhood strongly a nurturing family which a female member regimented environment” and his search might during provided periods critical figure” a among “father the rea- personality development. in his sons was attracted to the Hanafi Margaret Cunningham, Cunning- B. Dr. Muslims. wife, hаm’s three wrote informative letters Appellee’s testimony on December court, stating the trial that she had consistent with the statement sub- sixteen, known since he was by Cunningham. Appellee mitted Mrs. boy had lived and with her her husband stated told him on occa- Khaalis several nearly a foster year, as child for a letter, By sions that he was like his son. very intelligent, having described him as accepted he stated that he Khaalis as a “very ideals, high and fine moral values.” Opantiri, appellee’s father. Kofi Williams stated She “never touched “big former letter that brother” stated alcohol, drugs, or other stimulants and was appellee’s involvement with the Hanafi living a firm believer clean She a life.” Muslims opinion, the result of having described as been “loved personal quest “his understanding for an respected by many people com- [the] meaningful place of himself in life.” munity, and appellee’s described father as significance The trial court understood being extremely rigid disciplinarian.” “an hardships, accepted of these detailed testimony, Based this evidence and opinions these various as relevant to under- accepted appellee’s trial court statement standing appellee’s susceptibility to duress experienced unhap- that he an unstable and involvement with the Hanafi Muslims py product childhood as the of a broken place. first of this information None home. presented court time at the trial court further found that 6,1977 sentencing. very stage imprеssionable unstable and life, age found that com- he met religious pleted grade members of the sect known twelfth earned Appellee’s cousin, Hanafi Muslims. scholarship University Shir- attend ley Krauser, April stated letter Appellee’s dated Iowa. stated neither *9 cousin that 15,1979 sect, that the leader appellee’s Khalifa she nor had sufficient mother Appellee that trip fined to stated to Iowa. a wheelchair. funds to finance attempted had she to obtain knew all of the murderers not been She stated that he day for from his caught “day in out for financial assistance and that and She also parish tragedy but unsuccessful. days every day, was I relived sought aid financial that stated in home. How could happened that that was likewise unsuc- his father but from testimony at the hear- forget?” Appellee’s as “de- Appellee was described cessful. motion to reduce sentence was ing on his dejected” being in not able moralized and statements; consistent with these college. financial assistance for to obtain representations accepted appellee’s in credible, and found them to useful appellee, The trial court found that understanding relationship Khaalis, sought his with Khaalis ad- urging of thereafter Military to Acad- his at the 16th Street house mission the United States as well as role emy Point. advised at West the takeover. Army to in United States first enlist letter, that he took In his stated Army Prepar- into the and obtain admission question. He without orders from Khaalis Belvоir, Virginia, atory School at Port ask had been conditioned not to stated he he trial court found did. think, period questions or and this prepar- performing well at the appellee was for himself. inability to think he an January on atory school when he learned explained, “I did not have the mental He men, women babies my on capacity think and discriminate brutally mur- in Khaalis home were ‘teacher,’ my power. I felt that own will Appellee stated his letter dered.12 my knew was best.” ‘father’ what he of the murders on radio when heard Pinch) (Marlene who Appellee’s sister immediately “raced he “was shock” and always appellee were go that she and Washington” knowing stated that he terms, very testified that close to Khaalis. He stated that his “mind was shock,” stopped,” free to the Hanafi “life had her he was not leave told opinion mili- he he “had no more interest” 16th In her Street. residence 5, 1973, appellee tary career. On March Once when voluntarily.” there “was not resigned preparatory from the school and leave, received appellee’s sister he did protect in with Khaalis Hanafis, demanding moved back phone calls family in survivors and the rest of the case telling know whereabouts of another attack. he to “tell that if she where was her knew must come Additional- him that he back.” Appellee stated in his letter that for the testified that ly, Ms. Finch following days he after moved back by phone, her allowed to communicate extremely with Khaalis rare for “[i]t secret- Khaalis found Hamid had and when During peri- me leave house.” up phone the basement ly hooked movies, concerts, od, he did not attend house, Ms. he it out. 16th tore Street there other social affairs fear appellee’s involvement Finch testified he be another attack. The few times result the Hanafi Muslims was bring with premises, so to did leave of Khaalis. “misguided loyalty” and “fear” “family appoint- doctor members way was no necessary stated that “there in or- She This routine was ments.” without safety, leave 16th Street help maneuver home] der to ensure [the being injured.” con- paralyzed and “the sister” who was headquarters family twenty-five-year home served as the son and ten- 12. Khaalis’ old head, year four infants in the old son were shot Hanafi Muslims Orthodox Khaalis) (children drowned, grandchildren of a rival States. The murderers were followers family shot and a friend of religious “Black Muslims.” sect known as the daughter Khaalis’ was shot several and killed. (D.C. 394 A.2d v. United See Christian survived, head and Khaalis’ times but 1978). Bibi, wife, survived, although paralyzed she mentally impaired, severely and rendered both physically. *10 information, light this new the given Based the ap- statements by though court found that even the record pellee letters, his the testimony elicited conclusively ap- establish that the during the conducted the pellee physically restrained from leav- 12,1980 (which trial court on December the house, ing the 16th there was suffi- Street credible), court found and the letters sub- suggest appellee, cient evidence to that a by Shirley mitted A. Krauser and Rev. which the vulnerable state trial court found Taylor, the trial court found that appellee part product a his unfortunate possessed knowledge, all, little if any upbringing, powerful obeyed orders —char- plans to the take the B’rith over B’nai religious given ismatic and him Headquarters. nature — Khaalis, by and combined with threats of Appellee further testified that main bodily serious harm and fear was resultant during function the takeover had to been prisoner made a virtual at the 16th Street guard a door and an elevator. He testified home. although that he gun, was armed with a he letter, appellee In his he stated that point gun anyone, did not nor did he plan conspir- unaware of any advanced anyone gun. Appellee hit with the testified acy prior knowledge and that he had no delegated duty given he that to him transpired day the events that on the of the one of other Muslims “tying Hanafi Appellee takeover. testified on December people” hostages. to one of When morning that on of the take- hostage one of the Hanafi Muslims saw the guard over he duty was on Khaalis when people’s tying loosely, too appellee hands asked him come inside the house. told to tighter.” “make him tie them gave gun, appellee Khaalis a him and told hostage He followed but instructions he was to Khaalis escort and his son-in-law people loosely. continued to tie When this York; “[s]tay New he was instructed to Muslim, angered appelleе, order by my Appellee side- and come with me.” (the avert a threat the Muslim to make further testified that he heard talk- Khaalis hostage) “suffer,” himself “hit this man concerning with some men a movie people tighter.” him and asked to tie “Mohammed, Messenger entitled God” Appellee testified Khaalis that instructed thought they going and that he were do everyone to what to and how to do it. protest playing of the movie at down- Appellee also testified that he assisted downtown, town they theatre. As drove hostages prob- one of the had a who heart neither he nor the driver they knew where lem. He testified when it was decided going they going do; were or what were man was to be treated like all gave Khaalis the directions. He stated hostages up the other and be tied spoke Khaalis of the “Mo- movie down, placed on face a stone floor he tried hammed, Messenger again of God” once by placing him assist man on a rolled point, they pulled and at up in front of carpet up so that he would be more com- Headquarters. B’nai The trial B’rith Slawson, a fortable. James A. detective court found that statement in his Washington of the Homicide Branch testimony. letter was consistent with his Metropolitan Department Police corrobo- Moreover, April in a letter dated appellee’s testimony in rated the December Shirley A. stated Krauser told hearing. testified her, He that he jail, while he inwas that he had no arrested prior takeover and knowledge of the takeover and that hostages. interviewed the Some of they going protest believed hostages told playing morning Slawson the course the movie on the investigation assisted the Taylor, takeover. Rev. B. in his letter Carl August 28,1979, problem. man who had dated stated he had a heart Detective discussion before trial and Slawson testified further that some of totally hostages was convinced B’rith that defendant was B’nai told plan help unaware of Khaalis’ over the he tried take “was kindest and that B’nai B’rith. some them when he could.” *11 in his his neck” and “one around “one that he assisted women to testified he had missed. groin,” both of which that, not spite in of orders to lavatory and lavatory permit of the to be the door testimony adduced light of the In closed, shut the door. he allowed women to in the December Slawson Detective Furthermore, testified that he reminded he in the Attorney and Stow hostages hands after to shake their hearing, the trial court they having drank remorse in washing appellee them and to make sure that felt found takeover, letter, and after his he that he tried been involved water. In stated Muslims, cooperated of the Hanafi empa- arrest hostages much with as treat investigation.13 police their with the al- dignity would thy and as the situation low. Af- Would Have Omitted Information B. in his Appellee further stated letter Outcome fected the 21, 1979, that he as much a was December court must consid- The second factor the hostage as those for whom he was convict- determining error whether a writ of er Krauser, holding. Shirley her ed A. should issue is whether April stated she letter dated that (the showing du- omitted information appellee’s felt “hands were tied” and that ress) the outcome. would have affected hostage” just as much as the was “[he] here well within The trial court was Appellee Abdul Raz- others. testified that determining that the omitted discretion in zaaq, Muslims, one of the other Hanafi appellee’s have affected information would appellee aware that was not full alle- sentence. giance and with Khaalis the others and imposing appellee’s In sentence Razzaaq that that he himself knew presentence report, a upon court relied go along if he be killed did not with them. by the United memorandum submitted Appellee “blindly Razzaaq claims that Attorney’s entitled States Office “Govern- Razzaaq upset and obedient” that Sentencing,” ment Memorandum in Aid him and would have killed him had he appellee’s attorney, allocution Charles an order to do received so. relat- Stow, by the Assistant United allocution ed he did not learn of the takeover of appellee. Attorney States Building the District until he heard it about report appel- presentence The stated that light In the news B’nai B’rith. of this York, Jonesville, New lee was born information, appellee’s the court found that guardian. No infor- that Khaalis was limited, role in the takeover and that par- provided mation was as to appellee hostages assisted the whenеver rather, background; re- family or ents appellee, could. court found that as a give port appellee refused to indicated that ignorance fear, result of was coerced parents he felt the name of his because participating into in the takeover. The re- was irrelevant. such information Detective James A. Slawson described port appellee moved Wash- stated that having cooperative" “very been It ington, taught by Khaalis. D.C. to be after he had been He arrested. testified suggested involvement sorry him “he told that it in- the takeover was based Khaalis’ siege] happened had and that innocent Quran” terpretation “Holy [the people gotten involved.” The faith, detective inter- Muslims must defend their an which, pretation according stated search appellee, knives, yielded questioned. two three whis- not could error or more; pered he was report there were two indicáted that felt (NCIA) degree presented 13. Contrast the nature informa- tions and Alternatives but not involuntarily here to sentencing judge tion withheld presented contained alleged negli- because of counsel’s presentence re- almost identical to that in the gence Higdon, supra, in United States original port, judge which was Higdon, proposed sentencing A.2d sentencing hearing. plan prepared by the National Center on Institu- “programmed people or brainwashed as trial court for its consideration in fashion- would like to beliеve” and that he appropriate was not appellee. sentence for impressionable age “at joined an when he Appellee, allocuting behalf, in his own the Hanafi Muslims.” It also stated that requested the place trial court to him on appellee related to the crimes in which he probation, stating he was not a criminal been convicted an “oblivious man- sincere, patriotic, that he was a ner” and that he felt the takeover was good citizen of the United States. The *12 justified because of a need to defend his government, allocution, in its reminded the religious reporting faith. In the officer’s trial court that it had testimony heard dur- view, appellee being was committed to ing trial from Mr. Fenyvesi Charles dedicated member of the Hanafi Muslims. effect that defendant had “smashed him in report The appellee further stated that gun, the mouth with a and then smashed claimed that he while was stationed at Fort him in the nose govern- fist.” The Belvoir, Virginia, prep he attended school ment, characterizing defendant’s actions as appellee West Point. It stated that being “part plan of deliberate sense- graduated Coolidge High Calvin violence,” requested less the court to im- School and that he served pose the sentence recommended its sen- Army United States from 1972 to March of tencing memorandum. honorably 1973 and discharged
hardship dependency. report indicated C. Justification for Failure to Provide In- appellee any denied use of narcotics or formation prior alcohol and that he had no criminal Appellee required provide reason- Additionally, arrests or convictions. justification able for his failure to inform report appellee indicated that told the inter- mitigating the court of all circumstances at viewing officer that he did not believe in sentencing. The trial court found that taking advantage of people and that it appellee both lawyer deliberately and his would have been “nefarious” to hurt the withheld information from the court be- hostages during unarmed the takeover. cause of overwhelming genuine their government’s memorandum in aid of fear for the lives of themselves and others. sentencing stated, “Hamid, physically who Higdon In Fenyvesi assaulted Mr. Charles at B’nai appellee A.2d at also maintained B’rith, similarly should receive three con- sentencing hearing fatally that his years secutive fifteen to life sentences for flawed because his counsel failed to set kidnapping armed and a consecutive three mitigating forth factors for the trial court’s year to ten term Wesley for the assault on consideration, and failed to have witnesses Hymes.” testify hearing. behalf at the allocution,
In his in Higdon, requested Charles Stow nothing prevent- But there was place the trial court to appellee proba- ing presenting defense counsel from such tion. appellee He stated that mitigating had served in information. There was no alle- Army gation United States and was not a fear or threat or duress of narcotics user. He informed the trial court appel- kind. The court therefore held that appellee was neither a really making common thief lee was a claim of ineffective nor a criminal. He reminded the negli- assistance of counsel for counsel’s hostage during gence seeking assisted a mitigating such infor- siege problem it, who had a heart presenting that mation or and that the claim there had testimony been no adduced dur- pursued should be 23- under D.C.Code § suggesting appellee case, en- the instant the information gaged activity. in violent could not be communicated to defense Mr. allo- Stow’s cution covered that which was contained counsel. testified on December presentence within report, or was dis- if 1980 that he had told his during closed trial. everything happened Mr. about presented Stow no new information to sought takeover and himself: “I to defend attempted he to obtain you about whether living here to tell not be would during sentencing great for use I was under know that. it. allocution, court that September he informed the trial Appellee testified on fear....” said, you “Do want no defense and that presented he he did 1981 that family you your want fami- my had ordered killed? Do because Khaalis car- ly you order me killed over disobeying Khaalis’ killed? Do want to and that what penalty of When asked testified that at ried a death. here?” Mr. Stow further happen nudged he were to hearing appellee if he believed order, responded: disobey he points Khaalis’ felt him at when “I killed.”14 exceeding would be Khaalis had im- the boundaries Mr, posed. stated that Stow trial, during the Appellee’s attorney point point, so scared to “scared Stow, testified Charles saying any- risked that he wouldn’t have life for his appellee was fearful thing allowing say me to in his behalf trial. He stated that before and anything in his behalf.” appellee to persuade attempted *13 unsuccessful present a defense but was he testified that knew Mr. Stow further orchestrating the de- Khaalis because was attempted present mitigating that if he to courtroom. cellblock behind the fense the something happened evidence would have perceived appellee’s he He testified that family his only appellee to to own not but particular- throughout proceeding, fear that he did not as well. Mr. Stow stated appellee Stow ly because would alert when- properly, he did not allocute not because exceeding appellee thought he was ever allocution, present but to a want better imposed. limits Khaalis had had, rather, appellee if be he “wouldn’t today.” Mr. testified that he here Stow appellee Mr. that told him Stow testified something properly if he felt had allocuted trial, a present not to defense at not be his and might happened have to his wife appellee cause not a defense want son. appellеe presented, but rather because might if Mr. happen
fearful of what Stow per- he was asked how When Mr. Stow appellee “scared to did. Mr. Stow said as his appellee that as well the fear ceived going happen he death of what was to if killed, re- family Mr. Stow own would thinking [appellee] his own started on two “substantially real.” sponded that it was feet.”15 bring any of this he did not He stated that court’s attention Appellee’s trial to trial testified further something he certain would September hearing that because at appellee. immediately happened to appellee unwilling provide to have he did that the reason mitigating information that would be Mr. Stow testified presence sentencing hearing out of the allocuting request useful in hear- a not inform the court ing. appellee in order to He stated that told him “not of the others felt something he that rock of the threats because the boat” would because Muslims only the other Hanafi happen family, Khaalis and not questions why ap- but, addition, have asked to Mr. Stow and his wife would up brought pellee one and child. When Mr. Stow was asked was the California, sister, Finch, Lompoc, had a conversation Appellee’s she 14. Marlene testified that she had a discussion said to her December stated that with him. She jail awaiting why with while he was in discuss you couldn’t now “do understand inquired feelings and had as what my happened, life was you had what gave happened. Ms. Finch what danger?" ap- following court as to statement " ‘Sis, pellee’s response: please believe me. This 12, 1980, that on December testified And, you.’ my I know brother. I cannot tell My directed all of defendants Khaalis had And, very I knew brother I are close. Khaalis during He stated that the trial. fast things going had been there was if —that being appeal after convicted not to directed him something he reason could tell me.” —some of sentence. not to seek reduction addition, appel- In Ms. Finch testified that after lee had been convicted and incarcerated hearing. He stated court not make the the cellblock details of his letter a likely general knowledge.17 become matter of that Khaalis would aware addi- tion, appellee disobeyed his orders testified December orders, sought dictating kill him. Mr. Khaalis was would Stow by telephone to informed the trial court the Hanafi the Hanafi Muslims within system. strong prison their faith Muslims are and are [pris- close knit in the Federal “very both that, Mr. Sep- Stow admitted system and the District of Columbia on] hearing, tember he felt systems.” [prison] state Later and other as if he justice done to the case hearing, government readily con- presenting insofar as useful in- exist within ceded “networks” formation trial court allocu- system.16 prison appel- tion. His references to the fact that record, prior trial court noted that in his lee had no also criminal had served Army, and had letter dated December assisted man dur- information, siege the trial court that while incarcer- offered no informed new California, being repeated Lompoc, simply he was but already ated at what the court feeling not to seek re- knew. He threatened was told testified that his of con- presentation Because of straint duction sentence. these this was attributable threats, thought requested that to what he happen appel- following colloquy anybody Specifically, If occurred violates this unwritten code of hearing: coming testifying up against people Stow, it, recog- getting they put they THE COURT: Mr. this Court out line as suffer nized at the time the courthouse was an *14 consequences. camp. armed We are aware of that. But why? Why you attempt bring any didn’t to following how 17. The discussion of to ensure to this this Court’s attention? safety locally while incarcerated recognize certainly I there was a lot pending appellee’s the court’s decision of Rule pressure you on all of and indeed the Court recogni- 35 illustrates court’s motion further days the case in 60 from the date of tried takeover, problem: tion of the 9th, and the 10th 11th. THE COURT: ... Is he safe down at the why you try get But this informa- view of the that this is D.C. Jail in fact way, by way per- to the tion Court in some community? other home of the presentation, haps of an in camera sealed MR. STOW: No. material? anyplace THE Is there where we COURT: thing type THE WITNESS: Because where he could safe? He’s en- could feel always try keep comes out end. We trusted to Executive Branch Govern- everything people you it but secret about see ment, Knight. go thеy into chambers and then see a lot of Mr. people going Eventually, steps, it other around. MR. KNIGHT: We’ll have take up gets why brought Hamid was Abdul I’ll have to some calls to Your Honor. make out— to court alone rest of the without the Hanafi today. be done later see what can Why you just Muslims? sky and Mr. Lind- tragedy THE Because the ultimate COURT: Touhey Judge and Mr. somebody in with Nunzio? him to be would be for here on reduction them, they If else had seen considering seriously I’m and sentence that asking go start back and ask their them— except today, ruled for the fact would have going what was with client on Hamid. He is information, only this that I further want up you you people alone there and aren’t victimized in institution. have him our local up gets people and there then it out. Then me, sorrowfully may It reflect somewhat erroneously begin correctly to think or dramatically more on the but somewhat you thing you whatever the next and brought him here. Government I have a does know client that not exist. MR. KNIGHT: I understand Court’s logic THE COURT: I this is take it the same concern, steps to— and we will take you applied possible application Well, you’re going THE COURT: to have to motion to sever from his case the others? than take more that. question THE WITNESS: No about that. I will investi- MR. KNIGHT: understand. see, you minute I did that — gate right now it and— Hanafi Muslims but the Muslim faith itself is very anyplace? THE COURT: Know of strong. very It is close-knit in both the No, sir; really. MR. STOW: I don’t system Federal and the District of Columbia they’re very systems. They keep other THE COURT: No. That’s because and state closely together. throughout system. the entire
643
defendant, perhaps the most
to a criminal
family as well. He stated
lee and his own
Pinkney,
States v.
See United
important.
totally
he was
unaware
U.S.App.D.C.
543 F.2d
background
fact
Green,
and (1976),
prisoner at the 16th Street
a virtual
(1982),
cert.
testimony
record.
the absence of
first
element of effec-
essential
“[T]he
hearing to determine wheth-
necessitated a
counsel is counsel able
tive assistance of
occurred.
It was not until the
er
had
fearlessly
willing
to advocate
effectively.”
lawyer
learned from
155-56,
Id. U.S.App.D.C. at
680 F.2d at
genuine
prevented
fear
him from
Hurt, States v.
quoting
191-92
fully allocuting and
presenting facts mit-
15, 20-21, 543
167-
U.S.App.D.C.
F.2d
igation
appellee’s culpability.18
(1976).
See also
American Bar Associa
Criminal Jus
Projеct
Standards for
E. The Error Is “Fundamental”
tice,
Relating
Sentencing Al
Standards
last factor that the trial court
Procedures,
5.3(e) (1968)
ternatives
*15
granting appellee’s petition
consider in
recognize
(“[t]he
should
defense
writ of error nobis
the
whether
sentencing stage
time at
is the
“
error
‘of the
fundamental
most
char-
impor
many
the most
which for
defendants
”
States, supra,
v.
acter.’ Moon United
proceeding
entire
can be
tant service
303,
U.S.App.D.C.
106
at
272
at 532
F.2d
performed”).
Mayer, 235
States v.
(quoting
United
U.S.
process
requirements
due
16,
(1914)).
35 S.Ct.
due
Bass,
Quoting
App.D.C. 282, 290,
(1976)(cita-
645
from restraint and entire lib-
it
lute freedom
rate, complete information before
passing
forded
sentence
cause
misinformation
about
F.2d
fluencing
no
we
inal
tencing judge should know all the materi-
gation.
tailed
ty
did to
but will
can be
fore have been received and considered.
norance of facts
surmise,
Fair administration of
understanding.
al facts.
The result of
is that the sentence rests on a founda-
heavy
prejudice
cannot assume that
found that
[*]
appellant’s criminal
sentencing judge
of omitted
record
the discretion
sentence,
his distorted
no
it
confusion,
impose
sentencing judge
If
weight
The informatiоn
imposed.20
sentence. We
misinformation and
question
[*]
States
precluded
justice
from the confusion. There
even
would
sentence
it should
information.
to the true
[*]
the dominant factor
vitally
v.
misinformation and
that the
is to be
to find that
judge
procedural
Malcolm, supra, 432
though
version.
here should there-
have
great,
[*]
Malcolm suffered
record
justice
material to
with
cannot
certainly be af-
which was
will not act on
garbled crim-
history as he
affected the
done,
[*]
insight
There, the
irregulari-
partly
the miss-
extent of
suspicion
confused
demands
say
a sen-
given
[*]
miti-
cur-
be-
ig-
in-
judicial
Hardwick v.
fears mob
trict
People v.
is almost a
and excited
States, reluctant
tained in the
criminal
from such a sentence or
erty from fear
nature of a writ of error or
the character
ted:
This court public is not unmindful of the surrounding PRYOR,
emotion Judge, dissenting: the trial of the Ha- Chief government’s nafi Muslims and of the agree prop cannot that the trial court arguing interest the sentence erly granting exercised its discretion in court, originally imposed by this remain. writ of error this case. As But it is in a case such as the one now recently, this court has stated the writ is an court, lofty princi- before this extraordinary remedy only which should ples, Judge memorialized Cranch’s granted “under compelling circumstances words, erudite prin- be heeded lest those such justice.” action to achieve ciples erode into dust. Higdon, States v. (D.C. 496 A.2d may 1985) This court Morgan, (quoting set aside the trial court’s findings if findings the trial court’s S.Ct.
647
States,
In this did not file his coram
petition for nobis writ of until years
more than three after his unsuccess- motion, and
ful Rule 35 more than two
years his first 23-110 motion. it is true passage
While time claim for coram
is absolute bar to a not an relief, see Morgan,
nobis 250; 74 S.Ct. at v.
Farnsworth U.S.App. 98 (1956), 232
D.C. F.2d 59 A.L.R.2d
(1958), delay it is also true undue diligence prosecuting
lack the claim considered, places
a factor proof. under a
claimant heavier burden of Farnsworth, supra,
See U.S.App.D.C. 63; F.2d at A.L.R.2d at 438.
Indeed, the function the writ does not petitioner ap of his
relieve burden
prising the court of facts within his knowl Dearing fashion. See v.
edge timely in a
State, (Mo.1982) (en S.W.2d State, Fuller
banc); v. So.2d 217- (Ala.Crim.App.1977). Thus, delay is particularly damaging
this kind when knowledge
claimant has of facts which he bring attention,
desires to the court’s
but fails to do so.
Looking at the total circumstances this
case, respectfully petitioner conclude that
has not satisfied the burden which would grant extraordinary warrant D.C., Cohen, Washington, Sheldon I. nobis. writ of error appellant. Schwab, Counsel, Corp. E.
Edward Asst. Murphy, Acting Corp. with whom James R. filed, Counsel at the time brief was Counsel, Reischel, Deputy Corp. L. Charles Washington, D.C., brief, were on the SIMS, Appellant, Nathaniel appellees. FERREN, Before TERRY and COLUMBIA,
DISTRICT OF et STEADMAN, Judges. Associate al., Appellees. No. 86-368. STEADMAN, Judge: Associate Appeals. District Columbia Court of dispute in this case turns on who Argued June authority personnel ultimate holds over Sept. Decided relating matters Institu- Educational (EILC). Appel-
tion Licensure Commission authority position lees’ is that such rests Mayor, appellant as- while Sims