Jones v. Holt ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DAVID EARL JONES, )
)
Petitioner, )
v. ) Civil Action No. 10-1086 (PLF)
)
RONNIE HOLT, )
)
Respondent. )
____________________________________)
OPINION
David Earl Jones, a prisoner who was convicted of first degree murder and other
crimes in the Superior Court of the District of Columbia, has filed a pro se petition for a writ of
habeas corpus challenging his imprisonment under 28 U.S.C. § 2254. Mr. Jones also moved for
an evidentiary hearing, a request that the Court denied upon concluding that he was barred from
obtaining a such a hearing by 28 U.S.C. § 2254(e)(2). See Memorandum Opinion, Jones v. Holt
(Sept. 30, 2011) [Dkt. No. 9]. Presently before the Court is a motion by Mr. Jones to reconsider
the denial of his request for an evidentiary hearing, as well as a motion by the respondent to
dismiss Mr. Jones’ habeas petition. For the reasons stated below, the Court will deny Mr. Jones’
motion to reconsider and grant the respondent’s motion to dismiss.1
1
The papers filed in connection with this matter include: petitioner’s petition for a
writ of habeas corpus (“Pet.”) [Dkt. No. 1]; respondent’s motion to dismiss the petition (“Mot.”)
[Dkt. No. 4]; respondent’s memorandum in support of his motion to dismiss and in opposition to
the petition (“Mem.”) [Dkt. No. 4-2]; petitioner’s response (“Resp.”) [Dkt. No. 5]; petitioner’s
motion for an evidentiary hearing (“Mot. Ev.”) [Dkt. No. 6]; petitioner’s motion for
reconsideration (“Mot. Recons.”) [Dkt. No. 11]; and petitioner’s supplement to his motion for
reconsideration (“Supp.”) [Dkt. No. 12].
I. BACKGROUND
Mr. Jones was convicted in the Superior Court of the District of Columbia in 2001
of first degree murder while armed (D.C. Code §§ 22-2101, 22-4502), second degree murder
while armed (D.C. Code § 22-2103), two counts of possession of a firearm during a crime of
violence (D.C. Code § 22-4504(b)), and related weapons offenses. See Mem. Att. F at 1; Mem.
Att. G at 1. His conviction and sentence were upheld on direct appeal by the District of
Columbia Court of Appeals in June 2007. See Mem. Att. F. While his direct appeal was
pending, Mr. Jones initiated collateral proceedings under D.C. Code § 23-110 to vacate and set
aside the judgment due to ineffective assistance of trial counsel. Mem. Att. A at 3.2 The
Superior Court denied Mr. Jones’ Section 23-110 motion in September 2008, see Mem. Att. C,
and this denial was affirmed by the D.C. Court of Appeals in November 2009. See Mem. Att. G.
In April 2010, Mr. Jones filed a motion in the D.C. Court of Appeals to recall the
mandate in his direct appeal, alleging ineffective assistance of appellate counsel. See Mem.
Att. H. The court of appeals denied the motion in a one-sentence per curiam order without
requesting a response from the government. See Mem. Att. I at 8; Order, Jones v. United States,
No. 01-CF-1186 (D.C. May 26, 2010).
Shortly after the denial of his motion to recall the mandate, Mr. Jones filed a
petition for a writ of habeas corpus in this Court, advancing the same claims of ineffective
assistance of appellate counsel that he pursued in his motion to recall the mandate. See Pet.
According to Mr. Jones, his counsel on direct appeal rendered ineffective assistance by not
2
D.C. Code § 23-110 establishes a remedy analogous to 28 U.S.C. § 2255 through
which prisoners sentenced in D.C. Superior Court may challenge their convictions or sentences.
See Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir. 1998).
2
developing and presenting claims that Mr. Jones’ trial counsel was ineffective for failing to argue
(1) for an intoxication defense, and (2) that only one charge of possession of a firearm during a
crime of violence could arise from the two murders of which Mr. Jones was convicted. Id. at
5A-5B.
II. DISCUSSION
A. Evidentiary Hearing
Mr. Jones has moved the Court to reconsider its decision denying his motion for
an evidentiary hearing. See Mot. Recons. Mr. Jones previously argued that an evidentiary
hearing was necessary to investigate one of his two claims: that his appellate counsel was
ineffective for failing to raise on direct appeal the purported ineffectiveness of his trial counsel’s
failure to pursue an intoxication defense. See Mot. Evid. at 2.
1. The Court’s Earlier Decision
The Court denied Mr. Jones’ motion upon concluding that 28 U.S.C. § 2254(e)(2)
barred the Court from conducting such a hearing. That section provides that if a habeas
petitioner “has failed to develop the factual basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim,” unless one of two criteria is met. 28 U.S.C.
§ 2254(e)(2)(A).3 The Court concluded that Mr. Jones had failed to develop the factual basis of
3
The claim must rely on “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable,” or on “a
factual predicate that could not have been previously discovered through the exercise of due
diligence.” 28 U.S.C. §§ 2254(e)(2)(A). The statute further requires that, even where one of
these two criteria are met, “the facts underlying the claim [must] be sufficient to establish by
clear and convincing evidence that but for constitutional error, no reasonable factfinder would
3
his claim in the District of Columbia courts and that this Court therefore was prohibited by
Section 2254(e)(2) from conducting an evidentiary hearing on the matter.
The Court reasoned as follows: Mr. Jones had the opportunity to pursue his
ineffectiveness of appellate counsel claim by filing a motion to recall the court of appeals’
mandate. See Reyes v. Rios, 432 F. Supp. 2d 1, 3 (D.D.C. 2006) (“In the District of Columbia,
challenges to the effectiveness of appellate counsel are properly raised through a motion to recall
the Court of Appeals’ mandate.”) (citing Watson v. United States, 536 A.2d 1056, 1060 (D.C.
1987)); Hardy v. United States, 988 A.2d 950, 961 (D.C. 2010) (stating that claims of ineffective
assistance of appellate counsel “must be litigated as an independent claim, which requires a recall
of the mandate of the direct appeal”). “Any motion to recall the mandate,” however, “must be
filed within 180 days from the issuance of the mandate.” D.C. APP . R. 41(f). Although Mr.
Jones attempted to develop the factual basis of his claim in the District of Columbia courts by
filing a motion to recall the mandate advancing that claim, he did not do so until nearly three
years after the mandate issued. See Mem. Att. H at 2; Mem. Att. I at 8. The court of appeals
summarily denied his motion five weeks after it was filed in a one-sentence per curiam order.
See Mem. Att. I at 8.4
In view of these facts, this Court wrote, “Mr. Jones’ motion was apparently denied
because it was procedurally time-barred.” Memorandum Opinion, Jones v. Holt (Sept. 30, 2011),
at 3. Through this apparent procedural default, Mr. Jones forfeited his opportunity to develop a
have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B).
4
The order states in full: “On consideration of appellant’s motion to recall the
mandate, it is ORDERED that the motion is denied.” Order, Jones v. United States, No. 01-CF-
1186 (D.C. May 26, 2010).
4
factual record in the District of Columbia courts on his claim. “Had he timely raised the issue
before the District of Columbia Court of Appeals and had that court found it unable to resolve
the issue without a factual record, it presumably would have remanded the case to the Superior
Court to develop one.” Id. at 5; see Watson v. United States, 536 A.2d at 1061 (“[I]n some
cases, the record may be remanded to the trial court under appropriate instructions and time
constraints for a hearing and factual findings, with this court retaining jurisdiction pending the
trial court’s findings and a return of the record.”). A habeas petitioner has “failed” to develop the
factual basis of a claim in state court proceedings when a “lack of diligence . . . attributable to the
prisoner or the prisoner’s counsel” was responsible for the claim not having been developed in
the state courts. Williams v. Taylor, 529 U.S. 420, 432 (2000). “Diligence will require in the
usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the
manner prescribed by state law.” Id. at 437. Because Mr. Jones, through his extreme
untimeliness, did not “seek an evidentiary hearing in state court in the manner prescribed by state
law,” and thus did not exhibit the “minimum” level of diligence required to develop a factual
record on his claim, id., this Court found itself precluded from holding an evidentiary hearing on
that claim, because neither exception to this rule provided in Section 2254(e)(2)(A) applied.
Memorandum Opinion, Jones v. Holt (Sept. 30, 2011), at 5.
2. Procedural Default or Merits Determination?
Seeking reconsideration of this Court’s decision, Mr. Jones contends that he did
not procedurally default on his claim before the D.C. Court of Appeals, and that the order of that
court denying his motion to recall the mandate was a decision on the merits. Mot. Recons. at
5
1-2. Mr. Jones points out that when he filed his motion to recall the mandate he included with it
a “Motion for Enlargement of Time to File Motion to Recall Mandate.” Id.; see Mem. Att. H at
6-10. He also notes that the rules of the court of appeals provide: “For good cause, the court may
extend the time prescribed by these rules to perform any act, or may permit an act to be done
after that time expires.” D.C. APP . R. 26. Mr. Jones asserts that the court of appeals “did not
deny the petitioner’s motion for an enlargement of time to file his motion to recall the mandate.
In fact, the Court of Appeals went directly to the merits of the motion and simply denied it,
without expressing an opinion.” Mot. Recons. at 2.
It is true that the court of appeals did not deny Mr. Jones’ motion for an
enlargement of time to file, but neither did the court grant the motion, docket it, or acknowledge
it in any way. See Mem. Att. I at 8. Furthermore, the court of appeals has specifically rejected
the claim that “any denial of a motion to recall the mandate is on the merits,” and has made clear
that it employs one-sentence, unexplained orders — like that with which it denied Mr. Jones’
motion — for both procedure-based and merits-based denials. Hardy v. United States, 988 A.2d
950, 961 (D.C. 2010). The record does not definitively reveal, therefore, whether the court of
appeals denied Mr. Jones’ motion based on a procedural bar or on the merits, a question with
implications not only for the present inquiry but also for whether this Court may even entertain
Mr. Jones’ claims on habeas review.
When a state court declines to address a prisoner’s federal claims because the
prisoner had failed to meet a state procedural requirement, that judgment rests on independent
and adequate state grounds, and federal habeas review of the prisoner’s claim ordinarily is
precluded. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); see also Cone v. Bell, 556 U.S.
6449, 465 (2009). On the other hand, a federal court presented with a habeas petition from a state
prisoner whose claim has been denied in the state courts should “presume that there is no
independent and adequate state ground for a state court decision when the decision ‘fairly
appears to rest primarily on federal law, or to be interwoven with the federal law, and when the
adequacy and independence of any possible state law ground is not clear from the face of the
opinion.’” Coleman v. Thompson, 501 U.S. at 734-35 (quoting Michigan v. Long, 463 U.S.
1032, 1040-41 (1983)). A state court judgment “fairly appears” to rest primarily on federal law
or is interwoven with federal law “in those cases where a federal court has good reason to
question whether there is an independent and adequate state ground for the decision.” Id. at 739.
A federal court considering a habeas petition should presume that the decision constituted a
merits determination unless the state is “explicit in its reliance on a procedural default.” Harris v.
Reed, 489 U.S. 255, 264 (1989); see id. at 263 (procedural default bars federal review only if
state court “clearly and expressly” states that its judgment rests on state procedural bar); see also
Jimenez v. Walker, 458 F.3d 130, 137 (2d Cir. 2006) (explaining that for the presumption of a
merits determination based on federal law to apply, “a federal habeas court must have ‘good
reason’ to doubt that the decision rests on an independent and adequate state ground”) (citing
Coleman v. Thompson, 501 U.S. at 739).
Here, notwithstanding the 180-day deadline for motions to recall the mandate set
forth in D.C. Court of Appeals Rule 41(f), this Court has “good reason” to question whether Mr.
Jones’ motion was denied on the basis of that procedural rule. First, the 180-day deadline is not
jurisdictional but, like other rules of the court, may be excused for good cause, D.C. APP . R.
26(b), which Mr. Jones attempted to demonstrate. See Mem. Att. H at 6-10. Second, the court
7
of appeals has suggested that it grants leniency to pro se movants with respect to this deadline.
See Head v. United States, 626 A.2d 1382, 1384 n.3 (D.C. 1993) (citing Pettaway v. United
States, 390 A.2d 981, 984 (D.C. 1978)). Third, the court of appeals’ method for addressing
motions to recall the mandate includes an initial step in which motions deemed lacking in merit
are denied without further review, which suggests that the prompt and summary denial of Mr.
Jones’ motion does not necessarily indicate procedural default.5 Together, these considerations
suggest that the court of appeals, as likely as not, overlooked the untimeliness of Mr. Jones’
motion and simply determined that his claims lacked merit. At a minimum, this Court has “good
reason” to question whether the alternative was the case. Cf. Coleman v. Thompson, 501 U.S. at
740 (holding that where state procedural rule was “mandatory” and “unwaivable,” and where
government filed motion to dismiss habeas petition based solely on noncompliance with this
procedural rule, which state court granted without explanation, decision appeared to rest
primarily on state law); Jimenez v. Walker, 458 F.3d at138-39 (describing examination of the
“state court’s practice when faced with such a [procedural] bar” as part of the inquiry into
whether a particular decision was procedural or merits-based).
The court of appeals provided no indication that it denied Mr. Jones’ motion
based on Rule 41(f); only the mere existence of that rule creates such an inference. The Harris
5
Upon submission of a motion to recall the mandate, “a motions division must
decide whether or not to grant the motion on the basis that the claim initially has been found by
the court to have sufficient merit.” Hardy v. United States, 988 A.2d at 961 (quoting Head v.
United States, 626 A.2d at 1382). Only if the movant satisfies this “heavy initial burden,” which
requires “set[ting] forth in detail a persuasive case for recall of the mandate,” Watson v. United
States, 536 A.2d at 1060, will the court recall the mandate and proceed to determine whether the
appellant was denied the effective assistance of appellate counsel. Hardy v. United States, 988
A.2d at 961.
8
and Coleman presumption is not overcome, therefore, and this Court concludes that the court of
appeals likely denied Mr. Jones’ motion to recall the mandate — and its federal claims — on the
merits.
Since this Court determines that Mr. Jones’ motion to recall the mandate was not
dismissed on procedural grounds, it cannot conclude that Mr. Jones “failed to develop the factual
basis” of his claims within the meaning of 28 U.S.C. § 2254(e)(2), because the absence of a state
court record is not due to a lack of diligence on Mr. Jones’ part. See Williams v. Taylor, 529
U.S. at 430-34, 437. Section 2254(e)(2) therefore does not bar Mr. Jones from obtaining an
evidentiary hearing.
3. Evidentiary Hearing
Unfortunately for Mr. Jones, however, his request for an evidentiary hearing
nevertheless is barred by a different provision of the habeas statute, 28 U.S.C. § 2254(d). That
section imposes sharp limits on a federal court’s power to grant habeas relief “with respect to any
claim that was adjudicated on the merits in State court proceedings.” Because Mr. Jones’ motion
to recall the mandate — which advanced the same ineffective assistance claims upon which his
habeas petition is based — was denied by the court of appeals “on the merits,” see supra at 7-9,
federal review of the court of appeals’ decision “is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011). As the Supreme Court has explained, the “backward-looking” language of Section
2254(d) “requires an examination of the state-court decision at the time it was made. It follows
that the record under review is limited to the record in existence at that same time i.e., the record
9
before the state court.” Id. This Court’s habeas review therefore is limited to the materials
available to the court of appeals at the time it denied Mr. Jones’ motion to recall the mandate,
and, the Supreme Court has determined, this Court may not conduct an evidentiary hearing to
expand the record. Id. at 1401.6
It may seem unfair to Mr. Jones that he is denied an evidentiary hearing both if the
court of appeals dismissed his motion on procedural grounds and if the court denied it on the
merits. That result, however, is a function of Congress’ efforts to curtail federal habeas review of
state court decisions, in part through a statutory scheme “designed to strongly discourage” the
presentation of new evidence in federal court. Cullen v. Pinholster, 131 S. Ct. at 1401. This
statutory scheme does permit evidentiary hearings in some limited circumstances — just not
those in Mr. Jones’ case. For example, if the court of appeals had dismissed Mr. Jones’ motion
to recall the mandate on procedural grounds for failure to comply with the 180-day deadline, but
if he later became aware of “a factual predicate that could not have been previously discovered
through the exercise of due diligence” or “a new rule of constitutional law, made retroactive to
cases on collateral review,” 28 U.S.C. §§ 2254(e)(2)(A)(i), (ii), then neither Section 2254(d) nor
Section 2254(e)(2) would prevent this Court from conducting an evidentiary hearing. See Cullen
v. Pinholster, 131 S. Ct. at 1401. Or if, based on the existing record, this Court concluded that
the denial of Mr. Jones’ motion to recall the mandate was “contrary to, or involved an
unreasonable application of, clearly established federal law,” 28 U.S.C. § 2254(d)(1), then this
Court could conduct an evidentiary hearing to expand the record before granting relief. See id. at
6
This limiting rule applies even where, as here, the state court summarily denied
the prisoner’s claims. Cullen v. Pinholster, 131 S. Ct. at 1402 (citing Harrington v. Richter, 131
S. Ct. 770, 786 (2011)).
10
1412 (Breyer, J., concurring in part and dissenting in part). The combined effect of Sections
2254(d) and (e)(2) is that prisoners must diligently present their claims in the state courts and,
when seeking federal court review of an adverse determination by those courts, they may rely
only on the record that was presented to the state.
For the foregoing reasons, the Court will deny Mr. Jones’ motion to reconsider the denial
of his request for an evidentiary hearing.
B. Motion to Dismiss
1. Legal Standard
The respondent has filed a motion to dismiss Mr. Jones’ petition “for failure to
state a claim[.]” Mot. at 1. Although the motion and its accompanying memorandum fail to cite
any applicable rules or legal standards governing motions to dismiss, the motion clearly rests on
Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the stated basis for the motion — that
Mr. Jones’ claims are “vague and conclusory,” Mem. at 13 — invokes the familiar standards
established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556
U.S. 662 (2009), for evaluating the factual adequacy of a complaint.
Rule 12(b)(6) allows dismissal of a complaint if a plaintiff fails “to state a claim
upon which relief can be granted.” FED . R. CIV . P. 12(b)(6). “Federal Rule of Civil Procedure
8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled
to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests[.]’” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary to withstand a
11
Rule 12(b)(6) motion to dismiss, id., the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. at 678 (quotations omitted). The Court “must accept as true all of the factual allegations
contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Bell Atlantic
Corp. v. Twombly, 550 U.S. at 555. The complaint “is construed liberally in the [plaintiff’s]
favor, and [the Court should] grant [the plaintiff] the benefit of all inferences that can be derived
from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are
unsupported by facts alleged in the complaint, nor must the Court accept the plaintiff’s legal
conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Although the
Court will “read a pro se plaintiff’s complaint liberally,” the pro se complaint nevertheless must
present a claim on which the Court can grant relief. Chandler v. Roche, 215 F. Supp. 2d 166,
168 (D.D.C. 2002) (citing Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)).
In deciding a motion to dismiss under Rule 12(b)(6), the Court “may consider the
facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by
reference, and matters about which the [C]ourt may take judicial notice.” Cole v. Boeing Co.,
845 F. Supp. 2d 277, 283 (D.D.C. 2012) (citing Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052,
1059 (D.C. Cir. 2007)). A court may take judicial notice of public records from other
proceedings. Covad Comms. Co. v. Bell Atlantic Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005).7
7
Respondent’s memorandum freely cites transcripts from Mr. Jones’ trial, e.g.,
Mem. at 5-7, 15, 17, sometimes to support key factual predicates about the crime, but furnishes
the Court with none of these transcripts, stating only that they “will be provided to the Court
upon request.” Mem. at 2. The Court will not rely on any of these transcript citations or
unsupported factual assertions made by the respondent, but only on the publicly available record
12
2. Federal Habeas Corpus Review of Ineffective Assistance Claims
Where a state court has rejected a prisoner’s claim “on the merits,” federal habeas
corpus review of that claim is extremely limited. 28 U.S.C. § 2254(d). The inquiry into whether
a state court has denied a claim “on the merits” for purposes of Section 2254(d) is the same as
the inquiry into whether a state court has denied a claim on substantive or procedural grounds
under the “independent and adequate” doctrine of Harris v. Reed and Coleman v. Thompson.
See Jimenez v. Walker, 458 F.3d at 145. This Court has determined that the District of
Columbia Court of Appeals denied Mr. Jones’ motion to recall the mandate — and the federal
claims advanced in that motion — on the merits rather than on state law procedural grounds. See
supra at 7-9. That determination means that Mr. Jones may obtain federal review of his claims,
see Cone v. Bell, 556 U.S. at 465, 467-69, but only within the restrictive confines of Section
2254(d).
Under Section 2254(d), habeas corpus relief may be granted only if the state
court’s adjudication of the prisoner’s claim resulted in a decision that was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or was “based on an unreasonable determination of the
facts[.]” 28 U.S.C. §§ 2254(d)(1), (2); see Knowles v. Mirzayance, 556 U.S. 111, 121 (2009).
“This is a ‘difficult to meet,’ and ‘highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of the doubt.’” Cullen v.
Pinholster, 131 S. Ct. at 1391 (quoting Harrington v. Richter, 131 S. Ct. at 786, and Woodford v.
of Mr. Jones’ case as set forth in the decisions, orders, and docket sheets of the District of
Columbia courts.
13
Visciotti, 537 U.S. 19, 24 (2002)). The petitioner carries the burden of proof. Id. “The
‘unreasonable application’ clause requires the state court decision to be more than incorrect or
erroneous. The state court’s application of clearly established law must be objectively
unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citation omitted).
The same is true even where the state court does not provide its reasons for
denying the prisoner’s claims, because “determining whether a state court’s decision resulted
from an unreasonable legal or factual conclusion does not require that there be an opinion from
the state court explaining the state court’s reasoning.” Harrington v. Richter, 131 S. Ct. at 784.
“Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reasonable basis for the state court to deny
relief.” Id. The federal court “must determine what arguments or theories . . . could have
supporte[d] the state court’s decision; and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the holding in a prior
decision of th[e Supreme] Court.” Id. at 786. To succeed in his habeas petition, therefore, Mr.
Jones’ daunting task is to show that there was “no reasonable basis” for the court of appeals to
reject his claims by denying his motion to recall the mandate, and that “fairminded jurists” could
not possibly agree that the court of appeals’ decision is consistent with Supreme Court precedent.
Mr. Jones’ task is made even more daunting by the fact that his claims are for
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).
In order to prevail on such claims, “a defendant must show two things: (1) ‘that counsel’s
performance was deficient,’ and (2) ‘that the deficient performance prejudiced the defense.’”
United States v. Shabban, 612 F.3d 693, 697 (D.C. Cir. 2010) (quoting Strickland v. Washington,
14
466 U.S. at 687). “Deficient” means that “counsel’s representation fell below an objective
standard of reasonableness,” and “prejudice” means that “there is a reasonable probability that,
but for counsel’s . . . errors, the result of the proceeding would have been different.” United
States v. Rodriguez, 676 F.3d 183, 189 (D.C. Cir. 2012) (internal quotations omitted). Success
requires showing that counsel “made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” United States v. Moore, 394 F.3d
925, 931 (D.C. Cir. 2005) (quoting Strickland v. Washington, 466 U.S. at 687). “‘Judicial
scrutiny of counsel’s performance must be highly deferential,’ and ‘a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” Knowles v. Mirzayance, 556 U.S. at 124 (quoting Strickland v. Washington, 466
U.S. at 689). “It is up to the defendant to overcome this presumption and show that the
challenged action was not the result of sound strategy.” United States v. Agramonte, 366 F.
Supp. 2d 83, 86 (D.D.C. 2005) (citing Strickland v. Washington, 466 U.S. at 689-90).
A “doubly deferential” standard of judicial review applies “to a Strickland claim
evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. at 123; see Cullen
v. Pinholster, 131 S. Ct. at 1410 (emphasizing this “important ‘doubly deferential’ standard”).
The pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an incorrect application of
federal law.” A state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland standard itself.
Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410
(2000)).
15
Mr. Jones’ task is more difficult still — with this Court’s standard of review
approaching triple deference — because he brings claims of ineffective assistance of appellate
counsel, premised on that counsel’s failure to pursue claims of ineffective assistance of trial
counsel. “The analysis by which courts determine whether appellate counsel provided ineffective
assistance is the same as that for trial counsel.” United States v. Agramonte, 366 F. Supp. 2d at86 (citing Smith v. Robbins, 528 U.S. 259, 289 (2000)). Appellate counsel “need not (and
should not) raise every nonfrivolous claim,” but rather “may select from among them in order to
maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000)
(citing Jones v. Barnes, 463 U.S. 745 (1983)). To prevail, Mr. Jones must show that enough
information was available to appellate counsel suggesting trial counsel’s prejudicial deficiency
(under Strickland’s highly deferential standards) that appellate counsel’s failure to pursue an
ineffectiveness claim was itself prejudicially deficient (again under Strickland’s deferential
standards), and that the D.C. Court of Appeals’ determination to the contrary was not merely
wrong but “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. at 75. Rare indeed will be
the claim that can surmount such hurdles. Mr. Jones’ claims, by contrast, do not survive a
motion to dismiss even without reference to the extra layer of deference required on federal
habeas review.
3. Jones’ Ineffective Assistance of Counsel Claims
a. Factual Background
The District of Columbia Court of Appeals has summarized the events
surrounding Mr. Jones’ conviction as follows:
16
The trial evidence leading to appellant’s conviction arose out of
events occurring in the early morning hours of November 14, 1999 in
an apartment building at 329 Rhode Island Avenue, N.E., in the
District of Columbia. A number of people, including Andrew
Everette, George Jones, Kevin Jeffcoat, and Julian Ogburn, were in
the lobby of the building when appellant and Kelly Winstead entered.
Carrie Carter, who was standing outside of the building, noticed that
appellant was carrying what appeared to be a black gun. When he
entered the lobby, appellant brandished a gun, repeatedly cocking it.
Appellant asked Vernon Dammons, who entered the building after
appellant, whether his gun was “pretty.” Although Dammons agreed
that it was, appellant placed the gun against Dammons’ head, at
which point Winstead stepped between Dammons and appellant,
urging appellant to “cool it.” George Jones then told appellant to
“chill,” and appellant shot him. Appellant then shot Kevin Jeffcoat.
Both victims died as a result of their gunshot wounds. Immediately
after the shootings, Carter saw appellant and Winstead exit the
building and observed appellant stuff a gun into his waistband. Angel
Adams also saw appellant and another man exit the building after the
shootings. The two men entered a car and drove away.
Mem. Att. G at 2.
b. Intoxication Defense
Mr. Jones contends that his appellate counsel rendered ineffective assistance by
failing to pursue a claim that his trial counsel was ineffective for not advancing an intoxication
defense. He has not alleged any facts, however, that suggest ineffectiveness on the part of his
trial counsel, much less that appellate counsel’s failure to pursue such a claim was itself
ineffective. The only supporting fact alleged in Mr. Jones’ petition to support trial counsel’s
alleged ineffectiveness is that “there was evidence in the record that the petitioner and the victims
had been smoking PCP prior to the shooting.” Pet. at 5A. Mr. Jones provides no details of any
kind about this purported evidence — the source and content of which are a complete mystery.
Mr. Jones therefore does not allege facts supporting an inference that trial counsel was
17
ineffective for not pursuing an intoxication defense; still less does he allege facts that, if true,
would mean that his appellate counsel was ineffective for not pursuing this line of attack on
appeal. A pleading that “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’”
does not survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. at 557).
After the respondent highlighted this deficiency in its motion to dismiss, putting
Mr. Jones on notice that the vagueness of his allegations might lead to the dismissal of his
petition, see Mem. at 8, 13-15, Mr. Jones’ response still failed to allege even a shred of concrete
factual support for his bare allegation that evidence of some still-unspecified kind in the record
indicated his PCP use before the shooting. While Mr. Jones offers citations to the transcripts of
his trial, purportedly supporting “the fact that the parties present at the crime scene had been
smoking PCP,” Resp. at 4, he merely reproduces verbatim transcript citations from the
respondent’s motion to dismiss, which were cited as instances where defense counsel at trial
“attempted to impeach the credibility of government witnesses by using prior inconsistent
statements and showing contemporaneous drug use.” Mem. at 7 n.6. Reproducing these
citations without elaboration fails to add the necessary factual specificity.
Mr. Jones also attached an affidavit to his response in an attempt to bolster the
factual underpinnings of his claim. The information in this affidavit was not before the District
of Columbia Court of Appeals when it denied Mr. Jones’ claim, see Mem. Att. H, and such
information should not be considered by this Court on habeas review of that denial. See supra at
9-11. Given Mr. Jones’ pro se status, however, and the fact that the standard form Section 2254
habeas corpus petition that he completed directed him to “[s]ummarize briefly” the facts
18
supporting each ground for relief, Pet. at 4 (emphasis in original), the Court will regard the
content of this affidavit as encompassed within his original petition. The affidavit still offers him
no relief, however. In it, Mr. Jones attests that he “used the drug PCP during the early morning
hours” on the date of the shooting, that he “ha[s] no recollection of shooting” either victim, that
“[n]either [his] trial or appellate counsel asked [him] about [his] PCP use” on that date, and that
he “was never interviewed by [his] appellate counsel regarding the potential areas of ineffective
assistance of [trial] counsel that could have been explored during the pendency of the direct
appeal.” Resp. at 5. Even taking these allegations into consideration, Mr. Jones has alleged no
facts suggesting that trial counsel was on notice of the potential viability of an intoxication
defense. Other than the utterly conclusory assertion that evidence of some sort indicated that Mr.
Jones was smoking PCP, he has stated no facts supporting an inference that trial counsel had
good reason, or any reason, to consider an intoxication defense. Mr. Jones does not claim that he
or anyone else ever told trial counsel about his alleged PCP use, nor does he explain any concrete
reason that trial counsel otherwise should have been aware of it.
Even if there were some indications available to trial counsel that Mr. Jones had
used PCP before the shootings — and again, Mr. Jones has alleged no facts to support such a
conclusion — Mr. Jones has not alleged facts that could support a finding that trial counsel’s
failure to pursue an intoxication defense constituted ineffective assistance, as opposed to “sound
trial strategy.” Strickland v. Washington, 466 U.S. at 689. In the District of Columbia, evidence
of use of alcohol or drugs by itself is not enough to support an intoxication defense. The
evidence required to obtain an intoxication defense instruction “must reveal such a degree of
complete drunkenness that a person is incapable of forming the necessary intent essential to the
19
commission of the crime charged.” Bell v. United States, 950 A.2d 56, 65 (D.C. 2008). “There
must be evidence that the defendant ‘has reached a point of incapacitating intoxication.’” Id.(quoting Smith v. United States, 309 A.2d 58, 59 (D.C. 1973)). “Conclusory statements” about
the use of a controlled substance are insufficient: “Rather, there must be evidence of the type and
quantity of [the substance] consumed, the length of time during which it was consumed, and the
specific manner in which the consumption made the defendant incapable of acting with specific
intent.” Washington v. United States, 689 A.2d 568, 574 (D.C. 1997).
Presenting evidence about the type and quantity of PCP that Mr. Jones smoked,
the length of time during which it was consumed, and the effect it had upon him, likely would
have required testimony from Mr. Jones and/or Kelly Winstead, with whom Mr. Jones arrived at
the scene of the crime. See id.; Mem. Att. C at 3-6; Mem. Att. G at 2. The perils of putting a
criminal defendant on the stand are well known. As for Mr. Winstead, the Superior Court has
explained that he would have been “an unreliable witness who could have damaged defendant’s
case,” Mem. Att. C at 9, due to his multiple and self-contradictory accounts about his knowledge
of the shootings, his whereabouts at the time, and Mr. Jones’ guilt, id. at 7-9, not to mention his
admission to a detective and later to a grand jury that even if Mr. Jones committed a crime in his
presence Mr. Winstead would not reveal it. Id. at 9.
In light of these considerations, it would hardly be unreasonable as a matter of
strategy for counsel to forego pursuing an intoxication defense if it required potentially crippling
Mr. Jones’ case by putting him or Mr. Winstead on the stand to recount their recollections of the
night of the shootings — especially given that such a defense, at most, could have reduced Mr.
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Jones’ conviction for first degree murder to second degree murder.8 And regardless of what
evidence may have supported an intoxication defense, the pursuit of such a defense would have
been inherently risky, because adopting such a strategy would implicitly concede that Mr. Jones
shot the two victims.
Courts “must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.” Strickland v. Washington, 466 U.S. at 689 (internal quotation omitted). Even if all of
Mr. Jones’ allegations are true, they would not overcome this presumption. Mr. Jones cannot
possibly hope, therefore, to rebut the presumption that appellate counsel’s decision not to pursue
an ineffectiveness claim was the result of sound strategy. His pleading therefore fails to state a
claim on which relief can be granted. This result obtains whether or not the Court takes into
account the heightened showing that Mr. Jones ultimately must make to prevail in his petition
under the federal habeas statutes.9
8
See Wheeler v. United States, 832 A.2d 1271, 1273 (D.C. 2003) (“[V]oluntary
intoxication ‘may negative the ability of the defendant to form the specific intent to kill, or the
deliberation and premeditation necessary to constitute first degree murder, in which event there is
a reduction to second degree murder,’” but “it ‘may not reduce murder to voluntary
manslaughter, nor permit an acquittal of murder.’”) (quoting Bishop v. United States, 107 F.2d
297, 302 (1939)); accord Washington v. United States, 689 A.2d at 573.
9
In support of his habeas petition, Mr. Jones also has submitted an affidavit from
Mr. Winstead. See Docket No. 10. The Court cannot consider this affidavit on habeas review, as
it was not before the District of Columbia Court of Appeals, see supra at 9-11, but the facts
alleged therein would not help Mr. Jones in any event. Mr. Winstead attests that he smoked PCP
with Mr. Jones into the morning hours on the day of the shootings, that he later was interviewed
by Mr. Jones’ counsel, that counsel never asked him “about PCP use,” and that “[a]ll [he] was
asked is what did [he] know about the case Mr. Jones was locked up for.” Id. at 1. Mr. Winstead
continues: “I say again as I did before I never saw Mr. Jones do anything that had anything to do
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c. Merger of Firearm Charges
Along with first and second degree murder, Mr. Jones was convicted of two
counts of possession of a firearm during a crime of violence (“PFCV”). The second ground for
relief in his habeas corpus petition is that his appellate counsel should have brought claims that
his trial counsel was ineffective “for failing to argue that only one possession of a firearm during
a crime of violence charge may result from shooting multiple victims during a single criminal
episode[.]” Pet. at 5A; see id. at 5B. In support, Mr. Jones cites Nixon v. United States, 730
A.2d 145 (D.C. 1999), in which the District of Columbia Court of Appeals held that the rule of
lenity, “under the circumstances presented in [that] case,” required that multiple PFCV charges
be merged where the defendant “fir[ed] simultaneously at several victims” by shooting into a car
containing four people. Id. at 153.
In Stevenson v. United States, 760 A.2d 1034 (D.C. 2000), however, the court of
appeals expounded on the meaning of Nixon and emphasized its limited reach. The court first
reiterated the “general rule” that “where two predicate armed offenses do not merge, a defendant
may be convicted of separate counts of PFCV relating to each offense.” Id. at 1035. It then
described the “limited exception to this approach” fashioned in Nixon, but explained why that
with guns.” Id. These attestations do not offer facts that suggest trial counsel’s ineffectiveness;
therefore they provide no factual basis for such a finding with respect to appellate counsel. Mr.
Winstead states that trial counsel asked him what he knew about the shooting, and — like Mr.
Jones — he pointedly does not claim that he told trial counsel anything about Mr. Jones smoking
PCP or being intoxicated. Instead, he merely states that counsel never asked him about PCP.
But neither his affidavit nor any of Mr. Jones’ own allegations supply any reason for trial counsel
to have made such an inquiry. Nor can Mr. Winstead’s affidavit help Mr. Jones overcome the
presumption that both trial and appellate counsel’s choices were the result of sound trial strategy.
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“narrow holding,” involving “a ‘single violent act’ with ‘simultaneous’ action . . . does not
encompass the merger of PFCV charges arising out of . . . distinct acts, even when they involve
the same firearm.” Id. at 1036 (quoting Nixon v. United States, 730 A.2d at 153). The court
accordingly sustained two separate PFCV convictions predicated on burglary and robbery
offenses committed by the defendant where some time passed between the two crimes. Id. at
1037-38. This holding represented an application of the “fresh impulse” or “fork in the road”
test, “where a defendant has an opportunity to reconsider his action before proceeding onward.”
Id. at 1037. Such scenarios, the court explained, are “quite distinct from the kind of
simultaneous violent act involved in the Nixon holding.” Id. at 1038.
Here, all the evidence indicates that Mr. Jones’ shooting of George Jones and
Kevin Jeffcoat were distinct rather than simultaneous acts, and Mr. Jones alleges no facts to the
contrary. In other words, the undisputed evidence shows that Mr. Jones did not fire at both men
simultaneously, as in Nixon, but rather that he aimed and fired at each man separately and
sequentially. The evidence presented at trial was that Mr. Jones shot George Jones after he told
Mr. Jones to “chill,” and that Mr. Jones “then” shot Mr. Jeffcoat. Mem. Att. F at 2; Mem. Att. G
at 2. That these two shootings represented entirely distinct acts is confirmed by the fact that Mr.
Jones was convicted of first degree murder for one of the shootings but only second degree
murder for the other. Mem. Att. F at 1. Mr. Jones, therefore, was not “firing simultaneously at
several victims,” Nixon v. United States, 730 A.2d at 153, and Nixon’s “narrow holding” does
not apply to his case. In the wake of Stevenson, which was decided well before Mr. Jones’ trial,
see Mem. Att. A at 7, it was reasonable for Mr. Jones’ trial counsel to conclude that any merger
argument would be fruitless and that efforts were better devoted to other tactics. Mr. Jones’
23
allegations provide nothing to overcome the “strong presumption” that counsel’s action
constituted “sound trial strategy.” Strickland v. Washington, 466 U.S. at 689.
Because there is absolutely no basis upon which to believe that Mr. Jones’ trial
counsel was ineffective by not pursuing a merger argument, the facts alleged by Mr. Jones do not
support a finding that his appellate counsel was deficient for failing to pursue an ineffectiveness
claim arising from that omission. Furthermore, in view of the discussion in Stevenson and the
facts presented at Mr. Jones’ trial — which show that a merger argument would almost certainly
have failed — Mr. Jones cannot possibly demonstrate a “reasonable probability that, but for
counsel’s [alleged] errors, the result of the proceeding would have been different” on appeal.
Strickland v. Washington, 466 U.S. at 694. He therefore fails both prongs of Strickland’s test for
ineffective assistance. Once again, this determination can be made even without considering the
deference owed to the District of Columbia Court of Appeals on federal habeas review.
III. CONCLUSION
For the foregoing reasons, the Court will deny Mr. Jones’ motion to reconsider
and will grant the respondent’s motion to dismiss. An Order consistent with this Opinion will be
issued this same day.
SO ORDERED.
/s/____________________________
PAUL L. FRIEDMAN
DATE: September 28, 2012 United States District Judge
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