Myles v. Polin ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Kevin Myles,
Plaintiff,
v. Civil Action No. 08-0117 (JDB)
Steven Polin,
Defendant.
MEMORANDUM OPINION
In this legal malpractice action filed pro se, plaintiff sues his former defense counsel
based on the latter’s representation during criminal proceedings in the Superior Court of the
District of Columbia in 2004-05. Defendant moves for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure [Dkt. No. 41]. Also pending is plaintiff’s subsequently filed
“motion for dispositive relief” based on his mistaken belief that defendant had not filed a
summary judgment motion [Dkt. No. 44]. Because defendant had already filed his dispositive
motion, the Court will deny plaintiff’s motion as moot. Upon consideration of the parties’
submissions and the developed record,1 the Court finds as a matter of law that plaintiff is
collaterally estopped from litigating the legal malpractice claim and, thus, grants defendant’s
motion for summary judgment.
1
See Order of July 29, 2008 [Dkt. No. 20], denying defendant’s motion to dismiss or for
judgment on the pleadings.
I. BACKGROUND
The following facts taken mostly from defendant’s statement of material facts are not
disputed.2 In May 2004, defendant was appointed under the Criminal Justice Act to represent
plaintiff on charges of possession with intent to distribute heroin and possession of cocaine
(Superior Court case number 2004-CF2-3386). Def.’s Facts ¶ 4. Plaintiff was released on his
own recognizance and scheduled to return for a preliminary hearing on June 15, 2004. Id. After
plaintiff failed to appear for the preliminary hearing, the Superior Court issued an arrest warrant;
however, prior to its execution, plaintiff was arrested for distribution of cocaine and held without
bond. Id. ¶¶ 2-3. Plaintiff was indicted on the distribution count as well as for possession with
intent to distribute cocaine and possession of cocaine (case number 2005-CF2-1381). Id. ¶ 3. In
addition, plaintiff was indicted for violating the Bail Reform Act based on his failure to appear at
the earlier preliminary hearing (case number 2005-CF2-1383). Id. Defendant was appointed to
represent plaintiff in the additional two cases in March 2005. Id. ¶ 4.
In May 2005, plaintiff, appearing before Judge Robert R. Rigsby, pled guilty in case
number 3386 to attempted possession with intent to distribute heroin and in case number 1381 to
attempted distribution of cocaine and attempted possession with intent to distribute cocaine; the
United States dismissed case number 1383. Id. ¶ 5. Plaintiff was sentenced on August 18, 2005,
to consecutive terms of 25 months’ imprisonment on each offense, for a total of 75 months.
2
Defendant’s facts are properly supported by the following exhibits: Ex. 1 (Affidavit of
Steven G. Polin, Esq. [Dkt. No. 41-3]); Ex. 2 (Sentencing Transcript [Dkt. No. 41-4]); Ex. 3
(Plaintiff’s Memorandum of Law in Support of Motion to Vacate, Set Aside or Correct Sentence
and Judgment Pursuant to D.C. Code § 23-110 [Dkt. No. 41-5]); Ex. 4 (Order denying § 23-110
relief [Dkt. No. 41-6]); Ex. 5 (Brief of the Defendant-Appellant [Dkt. No. 41-7]); Ex. 6
(Judgment of the D.C. Court of Appeals [Dkt. No. 41-8]).
2
Compl. Ex. A. In response to defendant’s and plaintiff’s claim that the cocaine sentences were
required to run concurrently, Judge Rigsby stated that he would entertain a timely motion to
reconsider. Def.’s Facts Id. ¶¶ 11-13. “At [a] post-sentencing cellblock meeting” with plaintiff,
defendant “advised [plaintiff] that he would file a Rule 35(a) motion only if his legal research
supported the filing of such a motion based on the illegality of the consecutive sentences.” Id. ¶
15. Because defendant’s subsequent research did not support a claim of an illegal sentence, he
did not file a motion to reconsider, and the parties had not discussed a motion “seeking a
discretionary reduction of modification of [the] sentence.” Id. ¶¶ 16-17.
On October 9, 2007, plaintiff, proceeding pro se, filed a motion in Superior Court to
vacate, set aside or correct the sentence under D.C. Code § 23-110, claiming error in the
imposition of consecutive sentences on the cocaine counts and ineffective assistance of counsel
based on defendant’s failure to file a motion to reconsider the sentence. Def.’s Ex. 3. Judge
Rigsby denied plaintiff’s motion on November 4, 2008, Def.’s Ex. 4, and the District of
Columbia Court of Appeals affirmed that decision on March 12, 2009, Def.’s Ex. 6. Meanwhile,
plaintiff commenced this civil action on January 22, 2008, seeking $5 million in monetary
damages.
II. DISCUSSION
Collateral estoppel “means simply that when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again be litigated between the same
parties [or their privies] in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443-44 (1970).
In order to prevail in a legal malpractice action, plaintiff must show that “the attorney neglected a
reasonable duty” of care, Chase v. Gilbert, 499 A.2d 1203, 1211 (D.C. 1985) (citing Niosi v.
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Aiello, 69 A.2d 57, 60 (D.C. 1949)), and that the “attorney’s negligence caused a legally
cognizable injury” beyond the speculative level. Id. at 1212 (citing McCord v. Bailey, 636 F.2d
606, 611 (D.C. Cir. 1980)). In the District of Columbia, “a lawyer must exercise that degree of
reasonable care and skill expected of lawyers acting under similar circumstances.” Morrison v.
MacNamara, 407 A.2d 555, 561 (D.C. 1979) (citing Niosi, supra). The District of Columbia
Circuit has determined under similar circumstances that “[t]he legal standards for ineffective
assistance of counsel in [the] criminal proceedings and for legal malpractice in this action are
equivalent.” McCord, 636 F.2d at 609; accord Hinton v. Rudasill, 624 F.Supp.2d 48, 52 (D.D.C.
2009); Bigelow v. Knight, 737 F.Supp. 669, 671 (D.D.C. 1990). Plaintiff therefore cannot
relitigate “issues concerning the quality of his criminal trial counsel that he raised [and had
adjudicated] in the course of the criminal proceedings,” McCord, 636 F.2d at 611, or proceedings
collateral thereto, id. at 610 (“[e]stoppel is not inappropriate because a contested issue is first
raised after trial,” i.e. in a motion for a writ of error coram nobis). See also Smith v. Public
Defender Service for the District of Columbia, 686 A.2d 210, 211 (D.C. 1996) (“Smith is barred
from relitigating his claims because all of the issues of fact were litigated and determined before
Judge Kessler in the § 23-110 hearing.”).
In denying plaintiff’s § 23-110 motion based on facts identical to those underlying this
action, Judge Rigsby concluded that “[t]he Defendant’s convictions and sentences for Attempted
Distribution and Attempted Possession with the Intent to Distribute were permissible as the
counts arose from separate acts or transactions” and “the Defendant’s constitutional right to
effective assistance of counsel was not denied either at sentencing or by his counsel’s failure to
file a Rule 35 motion.” Def.’s Ex. 4 (Order at 6). In its one-page summary affirmance, the
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District of Columbia Court of Appeals cited cases for the propositions that “the failure to file a
meritless motion does not constitute ineffective assistance of counsel” and that “one who sells a
drug and retains a quantity of the drug for future sales has committed two crimes: distribution of
the former quantity and possession with intent to distribute the latter quantity.” Def.’s Ex. 7.
Because the District of Columbia courts have previously decided the facts forming the
basis of plaintiff’s action here, plaintiff is collaterally estopped from litigating the already
adjudicated claim anew as legal malpractice. See McCord, 636 F.2d at 609 (finding “allegations
. . . encompass[ing] . . . the same claims [] presented in [] coram nobis petition and [criminal
appeal]” not materially different although “couche[d] . . . primarily in tort”); Bigelow, 737
F.Supp. at 671 (giving preclusive effect to “allegations . . . encompass[ing] in all material aspects
the same claims [that were] presented in [] § 23-110 motion.”). Hence, the Court concludes that
the present action is barred by collateral estoppel (or issue preclusion) and defendant is entitled to
judgment as a matter of law. A separate Order accompanies this Memorandum Opinion.
s/
JOHN D. BATES
Dated: November 9, 2009 United States District Judge
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