RICHARDSON v. UNITED STATES OF AMERICA

Filing 11

MEMORANDUM OPINION re: Defendant's 7 MOTION to Dismiss Petitioner's Petition for Writ of Habeas Corpus. Signed by Judge Robert L. Wilkins on 11/14/2013. (tcb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
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ROOSEVELT RICHARDSON,
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Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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___________________________________ )

Civil Action No. 13-0492 (RLW)

MEMORANDUM OPINION

This matter is before the Court on Roosevelt Richardson’s petition for a Writ of Habeas
Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 [ECF No. 1] and the
Government’s Motion to Dismiss Petitioner’s Petition for Writ of Habeas Corpus [ECF No. 7].
For the reasons discussed below, the petition will be dismissed.
I. BACKGROUND
In the Superior Court of the District of Columbia, “[f]ollowing a jury trial, [petitioner]
was convicted on October 2, 1996, of five felonies relating to a gun injury suffered by Lanita
Spears.” Richardson v. United States, 8 A.3d 1245, 1246 (D.C. 2010); see Gov’t’s Mot. to
Dismiss Pet’r’s Pet. for Writ of Habeas Corpus (“Gov’t Mot.”) at 1 (listing charges set forth in
indictment). The court imposed a sentence of 16 years to life imprisonment. Pet. at 1. Petitioner

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filed an appeal to the District of Columbia Court of Appeals on March 6, 1997. Gov’t Mot. at 2;
see Pet. at 2.
Petitioner also filed a motion under D.C. Code § 23-110 for a new trial, which the
Superior Court denied on August 30, 1999, after having conducted an evidentiary hearing. Gov’t
Mot. at 2. Petitioner appealed this ruling, and the Court of Appeals consolidated it with his
direct appeal.1 Id. Before the Court of Appeals were the following four arguments:
1) that the trial court erred in failing to suppress the identification
testimony of the government’s main eyewitness; 2) that the trial
court erred in declining to give a missing witness instruction; 3)
that there was insufficient evidence to sustain [petitioner’s]
conviction; and 4) [that] the trial court erred in allowing the
government to elicit certain repetitious information from a witness.
Id., Ex. A (Memorandum Opinion and Judgment at 1, Richardson v. United States, Nos. 97-CF463 & 99-CO-1237 (D.C. Ct. App. Nov. 26, 2002)). The Court of Appeals affirmed both the
judgment of conviction and the denial of the § 23-110 motion for new trial. Id., Ex. A.
Petitioner neither moved to recall the mandate nor filed a petition for a writ of certiorari in the
United States Supreme Court. See Pet. at 2-3.
Pursuant to the Innocence Protection Act (“IPA”), see D.C. Code § 22-4135, on October
24, 2006, petitioner filed in the Superior Court another collateral attack on his conviction, this
time “on the basis of an affidavit from a witness who was not called at [his] 1996 trial.”
Richardson, 8 A.3d at 1246. Petitioner “claimed that the affidavit contained ‘new evidence’ that
proved his actual innocence.” Id. He also brought a second claim of ineffective assistance of
trial counsel pursuant to D.C. Code § 23-110. Id. The Superior Court appointed counsel to
represent petitioner, held a hearing at which the witness testified, and ultimately denied the
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The Court of Appeals stayed petitioner’s direct appeal pending resolution by the Superior
Court of the § 23-110 motion for a new trial.
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motion. Id. at 1248. The Court of Appeals affirmed, noting its “agree[ment] with the trial court
that the affidavit and testimony do not entitle [petitioner] to relief under the IPA.” Id. at 1246.
Nor did the Superior Court “err in denying consideration of [petitioner’s] successive § 23-110
motion, which is barred by procedural default.” Id. at 1247.
On April 11, 2013, petitioner filed the instant petition for a writ of habeas corpus, setting
forth ten instances underlying his claim of ineffective assistance of trial counsel. See generally
Pet. at 3-12.2 In addition, petitioner alleges “that his appellate counsel was ineffective and
should have raised” these instances of trial counsel error “during the Petitioner’s first 23-110
motion.” Pet. at 13. Had appellate counsel raised these “non-frivolous claims,” petitioner
contends, petitioner “would have prevailed.” Id.
II. DISCUSSION
Under District of Columbia law, a prisoner convicted and sentenced in the Superior Court
may file a motion in that court to vacate, set aside, or correct his sentence “upon the ground that
(1) the sentence was imposed in violation of the Constitution of the United States or the laws of
the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the
sentence was in excess of the maximum authorized by law, [or] (4) the sentence is otherwise
subject to collateral attack[.]” D.C. Code § 23-110(a). Although habeas relief in federal court
may be available to a District of Columbia Code offender who “is in custody in violation of the
Constitution . . . of the United States,” 28 U.S.C. § 2241(c)(3), his habeas petition “shall not be
entertained by . . . any Federal . . . court if it appears that the [prisoner] has failed to make a
motion for relief under [D.C. Code § 23-110] or that the Superior Court has denied him relief,
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Petitioner signed the petition on February 5, 2013, see Pet. at 14, yet the Clerk of Court did
not receive the petition until April 11, 2013.
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unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of
his detention.”31 D.C. Code § 23-110(g); see Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir.
2009) (“Section 23-110(g)’s plain language makes clear that it only divests federal courts of
jurisdiction to hear habeas petitions by prisoners who could have raised viable claims pursuant to
section 23-110(a).”) , cert. denied, 559 U.S. 1042 (2010); Byrd v. Henderson, 119 F.3d 34, 36-37
(D.C. Cir. 1997) (finding that “a District of Columbia prisoner has no recourse to a federal
judicial forum unless the local remedy is inadequate or ineffective to test the legality of his
detention”).
To the extent that petitioner seeks review of claims arising from errors that may have
occurred during criminal proceedings in the Superior Court and from trial counsel’s allegedly
deficient performance, this Court cannot entertain them because petitioner does not show that his
remedy under D.C. Code § 23-110 is inadequate or ineffective. See Williams, 586 F.3d at 998;
Plummer v. Fenty, 321 F. App’x 7, 8 (D.C. Cir. 2009) (per curiam). Nor does “petitioner’s lack
of success in the District of Columbia courts . . . render his local remedy inadequate or
ineffective.” Blount v. Wilson, No. 11-0743, 2011 WL 1526945, at *1 (D.D.C. Apr. 19, 2011)
(citations omitted); see Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986) (“It is the
inefficacy of the remedy, not a personal inability to utilize it, that is determinative, and
appellant's difficulty here is simply that his circumstances preclude him from invoking it.”). The
only matter that this Court may address is petitioner’s ineffective assistance of appellate counsel
claim under “the standard set forth in 28 U.S.C. § 2254.” Williams, 586 F.3d at 1002.

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The phrase “‘[r]emedy by motion’ plainly refers to motions filed pursuant to section 23110(a).” Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir. 2009), cert. denied, 559 U.S. 1042
(2010).
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“Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) .
. . impose[d] a 1-year period of limitation on motions brought under [28 U.S.C. § 2255],” United
States v. Saro, 252 F.3d 449, 251 (D.C. Cir. 2001) (citation omitted), which runs from the latest
of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1). “The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.” Id. § 2241(d)(2).
“Courts have generally applied the same analysis to the time limitations in § 2254 and § 2255,”
United States v. Cicero, 214 F.3d 199, 203 n.* (D.C. Cir. 2000), and, therefore, a one-year period
of limitation applies to an application for a writ of habeas corpus by a person in custody pursuant
to the judgment of the District of Columbia Superior Court. 28 U.S.C. § 2244(d)(1); see Wright
v. Wilson, 930 F. Supp. 2d 7, 10-11 (D.D.C. 2013).
Applying 28 U.S.C. § 2244(d)(1)(A), because petitioner did not seek a writ of certiorari
within 90 days after the Court of Appeals affirmed his convictions on November 26, 2002, see
Sup. Ct. R. 13(1), his convictions became final on or about February 25, 2003. The one-year
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limitation period would have ended on or about February 26, 2004. Thus, respondent argues, the
habeas “petition is time-barred and should be dismissed.” 4 Gov’t Mot. at 10.
Petitioner raises two arguments in an attempt to establish the timely filing of his habeas
petition. First, see Pet. at 13, he relies on Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309 (2012),
which recognizes a single, narrow circumstance where a petitioner might overcome a procedural
default so that his claim for ineffective assistance of counsel may proceed. See id. at 1320.
Presumably petitioner is arguing that the filing of the instant petition within one year after the
Martinez decision renders the petition timely.
Martinez provides that, if a state collateral review scheme prevents a petitioner from
raising an ineffective assistance of trial counsel claim on direct review, and instead allows him to
raise such a claim for the first time in a collateral proceeding, “[i]nadequate assistance of counsel
at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of
a claim of ineffective assistance of counsel.” Id. at 1315. In the District of Columbia, petitioner
is not so constrained. Petitioner could raise – and actually did raise – ineffective assistance of
trial counsel claims on direct appeal. See Pet. at 2; Gov’t Mot., Ex. A. Furthermore, the instant
petition is not petitioner’s first post-conviction filing, and here he is challenging the effectiveness
of appellate counsel in addition to the effectiveness of trial counsel. “By its terms . . . , Martinez
does not apply . . . because [petitioner] raises a claim of ineffective assistance of appellate

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Petitioner cannot count on his second § 23-110 motion to toll the limitation period under 28
U.S.C. § 2244(d)(2) because that motion was filed on October 24, 2006, more than two years
after the limitation period expired. And even if the one-year limitation period were tolled
between October 24, 2006 and March 21, 2011 (from the date petitioner filed his second § 23110 motion to the date on which the 90-day period for filing a petition for a writ of certiorari
with respect to his successive § 23-110 motion considered in conjunction with his IPA motion
expired), the instant petition still is untimely. The one-year limitation period would have
commenced on or about March 12, 2011, and expired on or about March 12, 2012.
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counsel.” Baisey v. Stansberry, No. 10-0352, 2013 WL 360024, at *2 (D.D.C. Jan. 30, 2013)
(citing Martinez, 132 S. Ct. at 1319) (emphasis in original); see Trevino v. Thaler, __ U.S. __,
__, 133 S. Ct. 1911, 1918 (2013) (finding procedural default excusable under Martinez where
“state collateral review proceeding was the ‘initial’ review proceeding in respect to the
‘ineffective-assistance-of-trial-counsel claim’”) (quoting Martinez, 132 S. Ct. at 1318-21)).
Martinez simply does not apply to petitioner’s case.
Petitioner next invokes the doctrine of equitable tolling. See, e.g., Pet’r’s Resp. to the
Gov’t’s Mot. to Dismiss Pet’r’s Pet. for Writ of Habeas Corpus [ECF No. 9] (“Pet’r’s Opp’n”) at
3-6. Equitable tolling applies “only if [petitioner] shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, ___, 130 S. Ct. 2549, 2562 (2010) (citation and
internal quotation marks omitted). Even if the Court were to consider the “filings of motions for
a new trial based on ineffective assistance of trail [sic] counsel in the D.C. Superior Court and
the D.C. Court of Appeals . . . as diligence in pursuing his rights,” Pet’r’s Opp’n at 5, petitioner
does not demonstrate, and the Court on its review of the petition cannot identify, any
extraordinary circumstance that would have prevented him from pursuing habeas relief in federal
court within the applicable time limit.
The record reflects that petitioner did not pursue an ineffective assistance of appellate
counsel claim by moving to recall the mandate of the District of Columbia Court of Appeals.
See Watson v. United States, 536 A.2d 1056, 1060 (D.C. 1987) (en banc) (holding that “motion
in this court to recall the mandate is the appropriate avenue to take in presenting” ineffective
assistance of appellate counsel claim). Only a petitioner who has moved to recall the mandate
may proceed with an ineffective assistance of appellate counsel claim in this Court. See
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Williams, 586 F.3d at 999; Page v. Holland, No. 13-37, 2013 WL 3830166, at *3 (E.D. Ky. July
23, 2013) (dismissing “contention that his appellate counsel was ineffective for failing to argue
on direct appeal that petitioner’s trial counsel was ineffective” because “[n]owhere in the habeas
petition does petitioner indicate that he filed a motion to recall the mandate (i.e., a motion
alleging ineffective assistance of appellate counsel) in the D.C. Court of Appeals”); Chase v.
Rathman, 765 F. Supp. 2d 1, 3 (D.D.C. 2011) (finding that petitioner’s “apparent failure to seek
recall of the mandate does not allow this court to entertain his petition, and it does not render his
remedy in the District of Columbia Court of Appeals inadequate or ineffective”); see also
Gonzalez v. Stone, __ F. Supp. 2d __, __, 2013 WL 5811775, at *1 (D.D.C. Oct. 25, 2013)
(dismissing without prejudice as premature a habeas petition raising ineffective assistance of
appellate counsel claim where petitioner’s motion to recall mandate had been filed but not yet
decided).
III. CONCLUSION
None of petitioner’s ineffective assistance of counsel claims is properly before this Court.
His challenges to the effectiveness of trial counsel are matters properly addressed in the District
of Columbia courts, and his challenge to the effectiveness of appellate counsel not only is timebarred but also is precluded by petitioner’s failure to move to recall the mandate of the District of
Columbia Court of Appeals. Accordingly, the government’s motion to dismiss will be granted.
An Order accompanies this Memorandum Opinion.
Digitally signed by Judge Robert L.
Wilkins
DN: cn=Judge Robert L. Wilkins, o=U.S.
District Court, ou=Chambers of
Honorable Robert L. Wilkins,
email=[e-mail], c=US
Date: 2013.11.14 14:16:01 -05'00'

DATE: November 14, 2013

ROBERT L. WILKINS
United States District Judge

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