Lewis WATERS, Petitioner, v. Charles LOCKETT, Respondent.
Civ. Action No. 13-0049 (ESH)
United States District Court, District of Columbia.
July 25, 2013.
968 F. Supp. 2d 109
ELLEN SEGAL HUVELLE, District Judge.
IV. Conclusion
For the foregoing reasons, the Court GRANTS defendants’ motion to transfer venue. An appropriate order accompanies this Memorandum Opinion.
SO ORDERED.
Lewis WATERS, Petitioner, v. Charles LOCKETT, Respondent.
Civ. Action No. 13-0049 (ESH).
United States District Court, District of Columbia.
July 25, 2013.
Carolyn K. Kolben, U.S. Attorney‘s Office, Washington, DC, for Respondent.
MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, District Judge.
Petitioner Lewis Waters is serving a lengthy sentence for multiple сonvictions entered by the Superior Court of the District of Columbia. He seeks a writ of habeas corpus on the grounds that (1) the District of Columbia Court of Appeals (“DCCA“) deprived him of due process in failing to address certain issues on direct appeal and (2) his appellate counsel deprived him of his Sixth Amendment right to thе effective assistance of counsel. (Pet. for a Writ of Habeas Corpus Under
The United States contends in its opposition that the petition should be summarily denied because the claims are “meritless” (United States’ Opp‘n to Pet‘r‘s Pet. for a Writ of Habeas Corpus [Dkt. # 11] at 1-2), and petitioner has replied (Pet‘r‘s Traverse of Resp‘t‘s Habeas Reply Brief [Dkt. # 13]. Upon consideration of the partiеs’ submissions and the entire record, the Court finds no basis for issuing the writ and, thus, will deny the petition and dismiss the case.
BACKGROUND
Petitioner, co-defendant Devonne J. Randolph, and an unnamed individual, were indicted on March 28, 2006, on twenty-six criminal charges, including assault with intent to kill while armed (“AWIK“), aggravated assault while armed, mayhem while armed, malicious disfigurement while armed, armed robbery, first-degree burglary while armed, and kidnapping while armed. (Resp‘t‘s Ex. A.) The charges arose from “events that occurred on May 25, 2005, at the home of Aaron Hargrove [who] was held at gunpoint[,] shot and stabbed multiple times,” and robbed of cash. (Ex. C, Randolph v. U.S., Nos. 07-CF-601 and 09-CO-955, slip. op. at 1 (D.C. Jan. 5, 2011).) (hereafter “Slip op.“) In аddition, “Hargrove‘s niece, Shana Hargrove ..., was held captive and robbed of her cell phone and gloves.” (Id.) Following a ten-day jury trial in September 2006, petitioner and Randolph were convicted of most counts of the indictment, and petitioner was sentenced on December 20, 2006, to a prison sentence of 81 years. (Ex. B, Order.)
Petitioner noticed his appeal of the convictions on January 16, 2007, and filed a postconviction motion pursuant to
DISCUSSION
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is defined by
I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Unlike prisoners convicted in state courts or those convicted in a United States District Court, “a District of Columbia prisoner has no recourse to a federal judicial forum [under either
Petitioner‘s disagreement with the trial court‘s advеrse ruling does not establish “cause” for reviewing the claim he describes as “defaulted” but yet “presented” in his post-conviction motion (Am. Pet. at 1), nor can it support a finding that his local remedy was inadequate or ineffective.
II. REVIEW OF THE DCCA‘S DECISION
Petitioner‘s grounds for relief based on the DCCA‘s alleged failure to address certain issues on direct appeal and to allow him to represent himself are, too, beyond this Court‘s jurisdiction because “the United States District Court is without authority to review final determinations of the District of Columbia Court of Appeals in judicial proceedings.” District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Such is the exclusive рrovince of the Supreme Court, id. (citing
III. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Since a claim of ineffective assistance of appellate counsel is not reviewable under
“[T]he constitutional predicatе for [a] claim of ineffective assistance” based on a conflict theory requires a showing that counsel “actively represented conflicting interests” during, for example, the “multiple concurrent representation of individuals.” Mickens v. Taylor, 535 U.S. 162, 175, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (limiting Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Petitioner‘s claim stems from his appellate counsel‘s аlleged comments speaking approvingly of trial counsel‘s performance (see Pet‘r‘s Traverse at 3-4) and, therefore, is analyzed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellate counsel‘s performance is measured against the same constitutional standard as that applied to trial cоunsel‘s performance. See Smith v. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). A court begins with the strong presumption that “counsel‘s conduct falls within the range of reasonable professional assistance.” Strickland, 466 U.S. at 689. A criminal appellant does not have a constitutional right to have his appellate counsel raise every non-frivolous issue that he requests. Jones v. Barnes, 463 U.S. 745, 754 n. 7, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
To prevail on a claim of ineffective assistance of appellate counsel, petitioner must show that appellate counsel‘s performance (1) was deficient and (2) prejudiced his appeal such that there was “a reasonable probability that but for counsel‘s unрrofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” means “a probability sufficient to undermine confidence in the outcome.” Id. at 669. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal procеeding if the error had no effect on the judgment.” Id. at 692.
Petitioner claims that appellate counsel‘s performance was deficient in the following ways:
- Counsel failed to argue in the appeal of the denial of his
§ 23-110 motion that trial counsel was ineffective for (1) “not objecting to the uncharged plan to rob Mr. Hargrove because the court believed Petitioner was actually charged with the robbery of Mr. Hargrove,” and (2) failing “to object to the court‘s conspiracy instruction that allowed the jury to base the specific intent to kill with a knife upon finding Petitioner entered a conspiracy to rob.” (Pet‘r‘s Traverse at 4; see Pet at 6-8.) - Counsel “refused to appeal Petitioner‘s conviction of AWIK on the grounds of insufficiency of evidence.” (Pet‘r‘s Traverse at 4.)
The DCCA considered and rejected the first point under Strickland, reasoning:
Waters contends that his defense counsel should have objected to the Pinkerton conspiracy instruction because the jury was “asked to find a conspiracy, the object of which, robbery, is based on no specific robbery” and because conspiracy was not a charge in the indictment. However, any such objection by counsel would have been unavailing since the testimony about Waters‘s announced plan to rob Hargrove and the circumstantial evidence that Randolph and the third man agreed to that plan provided an ample evidentiary basis for a conspiracy instruction. Moreover, the evidence adduced at trial made clear that the object of the alleged conspiracy was the taking of property from Hargrove by robbery or theft. It is of no moment thаt the evidence showed no completed robbery of Hargrove and that appellants were not charged with actually robbing him.1
Slip op. at 18. The Court finds this to be a reasonable application of Strickland, particularly with regard to the prejudice requirement.
As for the second point, petitioner hаs not suggested an argument counsel could have made in challenging the sufficiency of the evidence supporting the AWIK conviction, nor, as the post-conviction court determined with regard to trial counsel‘s performance, has he shown how he was prejudiced by appellate counsel‘s omission.2 In affirming the convictions
Waters asked Hargrove “where‘s your money“? Hargrove said it was in his car and told Waters to take whatever he wantеd. Waters then proceeded upstairs. The other man remained in the basement with Hargrove. After five to fifteen minutes, Waters returned and said, repeatedly, “I should just kill this nigger. I should just go on and just kill this nigger.” Hargrove believed he was going to die but, preferring to die “on his feet like a man” charged for the gun. At that point the third man passed the gun tо Waters, who began shooting and continued until he emptied the gun. Hargrove was shot in the hand, arm, face, and back of the head....
Slip op. at 2. In addition, Hargrove testified that during the robbery, petitioner ordered the unidentified man who was pointing a pistol at Hargrove to “kill him” if he “tries anything.” Id. at 11. The DCCA observed from petitioner‘s own testimony that “Waters was carrying a pistol when he entered the house and Randolph knew Waters generally did so, permitting the jury to find both that Waters personally met the ‘while armed’ element of armed kidnaping and that Randolph would not have been surprised at Waters‘s use of a weapon to effectuate the assailants’ scheme.” Id. The DCCA noted that “[t]he government made clear throughout its theory that Randolph was the principal in the knife-related crimes and Waters (and/or the third man) was the principal in the gun-related crimes and ... jurors were told that they must give ‘separate consideration and return separate verdicts with rеspect to each defendant as to each count.” Id. at 15. The DCCA was “satisfied that, as a whole, the court‘s instructions were adequate to inform jurors that to convict either appellant as an aider and abettor, they had to find that he had the mens rea [necessary state of mind] required for the offense.” Id.
Thus, еven if counsel performed deficiently, no basis exists for finding that but for counsel‘s failure to challenge the sufficiency of the evidence supporting the AWIK conviction, the outcome of petitioner‘s appeal would have been any different. It is reasonably safe to conclude from the DCCA‘s consideratiоn of the trial evidence and the applicable law that it would have affirmed petitioner‘s AWIK conviction on “a Pinkerton, or co-conspirator, theory of liability,” as it did in affirming Randolph‘s pistol-related kidnapping conviction though “the government adduced no evidence that he personally handled a gun.” Sliр op. at 9-10 (discussing Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)); see id. at 10 (“We are satisfied that the government‘s evidence was sufficient to establish that there existed between Randolph, Waters, and the third assailant an agreement to steal from Hargrove, and that each man knowingly participated in carrying out the agreement.“) and n. 7 (citing Thomas v. United States, 748 A.2d 931, 934, 936 (D.C.2000) (explaining [] that every federal court that at the time had decided whether a Pinkerton instruction may be given when there is no conspiracy charge in the indictment had held that such an instruction to be proper)).
CONCLUSION
For the foregoing reasons, the application for a writ of habeas corpus is denied. A separate Order accompanies this Memorandum Opinion.