Jones v. Holt , 814 F. Supp. 2d 4 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DAVID EARL JONES, )
)
Petitioner, )
v. ) Civil Action No. 10-1086 (PLF)
)
RONNIE HOLT, )
)
Respondent. )
____________________________________)
MEMORANDUM OPINION
David Earl Jones, who has filed a pro se petition for habeas corpus in this Court
under 28 U.S.C. § 2254, moves the Court for an evidentiary hearing. See Petition for Writ of
Habeas Corpus, Docket No. 1 (“Pet.”); Motion for an Evidentiary Hearing, Docket No. 6 (“Mot.
Ev.”). The Court will deny Mr. Jones’s motion for an evidentiary hearing.
Mr. Jones was convicted of first-degree murder while armed, second-degree
murder while armed, two counts of possession of a firearm during a crime of violence, and
related weapons offenses in the Superior Court of the District of Columbia on April 18, 2001.
See Respondent’s Motion to Dismiss, Docket No 4 (“MTD”), Ex. 9, at 2. His conviction was
upheld by the District of Columbia Court of Appeals on June 29, 2007. See id., Ex. 8, at 2. On
April 20, 2010, Mr. Jones filed an untimely pro se motion with the court of appeals to recall that
court’s mandate based on ineffective assistance of appellate counsel. See id., Ex. 10, at 2.1 The
1
A motion to recall the mandate, filed in the District of Columbia Court of
Appeals, is the exclusive means by which a District of Columbia defendant may raise a claim of
ineffective assistance of appellate counsel. Williams v. Martinez, 586 F.3d 995, 997 (D.C. Cir.
2009) (citing Watson v. United States, 536 A.2d 1056, 1060 (D.C. 1987)); Reyes v. Rios, 432 F.
Supp. 2d 1, 3 (D.D.C. 2006) (“In the District of Columbia, challenges to the effectiveness of
court of appeals denied the motion to recall the mandate on May 26, 2010. See id., Ex. 11, at 8.
While his direct appeal was pending, Mr. Jones also pursued collateral relief in
the Superior Court, pursuant to D.C. Code § 23-110, alleging ineffective assistance of trial
counsel. See MTD, Ex. 5. This effort was unavailing: the Superior Court denied his Section
23-110 motion on September 8, 2008, and the court of appeals affirmed that denial on November
18, 2009. See id., Ex. 5; id., Ex. 9.
On June 28, 2010, Mr. Jones filed a habeas corpus petition under 28 U.S.C.
§ 2254 with this Court, alleging ineffective assistance of appellate counsel in his direct appeal.
See Pet. at 5A-5B.
In support of his motion for an evidentiary hearing, Mr. Jones relies on Townsend
v. Swain, 372 U.S. 293 (1963), which held that an evidentiary hearing is required in a federal
habeas proceeding “unless the state-court trier of fact has after a full hearing reliably found the
relevant facts.” Id. at 312-13. Mr. Jones contends that “the fact finding procedure employed by
the Court of Appeals did not adequately provide a full and fair hearing of the petitioner’s claim.”
Mot. Ev. at 1. The court’s procedure was inadequate, according to Mr. Jones, because it “denied
[his] motion to recall the mandate without requiring the government to file a response and
without conducting an evidentiary hearing[.]” Affidavit in Support of Mot. Ev. ¶ 2. Mr. Jones
argues that this failure to hold an evidentiary hearing deprived him of a full and fair adjudication
of his ineffective assistance claims. A hearing was necessary, he avers, to investigate one of the
two claims that he raised in his motion to recall the mandate — that his appellate counsel was
appellate counsel are properly raised through a motion to recall the Court of Appeals’
mandate.”).
2
ineffective “for failing to argue during the pendency of my direct appeal that my trial counsel was
ineffective for failing to investigate/present an intoxication defense, where there was evidence
that I and the victims were under the influence of PCP at the time the crimes occurred.” Id.Among the exhibits included with the respondent’s motion to dismiss are Mr.
Jones’s motion to recall the mandate and a District of Columbia Court of Appeals docket sheet
from Mr. Jones’s case. See MTD, Ex. 10; id., Ex. 11. These documents reveal that Mr. Jones’s
motion to recall the mandate was untimely, in violation of the Rules of the District of Columbia
Court of Appeals, having been filed nearly 29 months after the mandate was issued. See id., Ex.
10, at 2; id., Ex. 11, at 8; see also D.C. APP . R. 41(f) (“Any motion to recall the mandate must be
filed within 180 days from the issuance of the mandate.”). Mr. Jones’s motion was apparently
denied because it was procedurally time-barred.
The issue of Mr. Jones’s procedural default is significant because the landscape
has shifted significantly in this area of the law since Townsend v. Swain. In Keeney v.
Tamayo-Reyes, 504 U.S. 1 (1992), the Supreme Court partly overruled Townsend. The Court in
Keeney held that a habeas petitioner is not entitled to an evidentiary hearing in federal court if the
petitioner was responsible for failing to develop the facts before the state court unless the
petitioner can show “cause for his failure to develop the facts in state-court proceedings and
actual prejudice resulting from that failure.” Id. at 11.2
2
The Court also acknowledged a “narrow exception” to this standard: “A habeas
petitioner’s failure to develop a claim in state-court proceedings will be excused and a hearing
mandated if he can show that a fundamental miscarriage of justice would result from failure to
hold a federal evidentiary hearing.” Keeney v. Tamayo-Reyes, 504 U.S. at 12.
3
Congress subsequently enacted the Antiterrorism and Effective Death Penalty Act
of 1996, 110 Stat. 1214 (1996), which changed the applicable standards further by modifying 28
U.S.C. § 2254. Subsection (e) of that section now states that “[i]f the applicant 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 the applicant shows that one of two criteria are met.
Only one of the exceptions is pertinent here but, for the reasons described below, it provides no
relief for petitioner. As a result of his own procedural default, Mr. Jones has not developed any
factual basis for his ineffective assistance of counsel claims, and he therefore is precluded from
obtaining an evidentiary hearing in this Court.
Under Section 2254(e), an applicant is entitled to an evidentiary hearing if the
petitioner’s claim relies on “a factual predicate that could not have been previously discovered
through the exercise of due diligence.” Id. § 2254(e)(2)(A)(ii). Interpreting this provision, the
Supreme Court has clarified that any “lack of diligence” must be “attributable to the prisoner or
the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 433 (2000). The Court further
explained that “[d]iligence 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.
For state courts to have their rightful opportunity to adjudicate federal
rights, the prisoner must be diligent in developing the record and
presenting, if possible, all claims of constitutional error. If the
prisoner fails to do so, himself or herself contributing to the absence
of a full and fair adjudication in state court, § 2254(e)(2) prohibits an
evidentiary hearing to develop the relevant claims in federal court.
Id.
4
Under these principles, Mr. Jones’s bid for an evidentiary hearing in this Court
must be denied, because he has not “[sought] an evidentiary hearing in state court in the manner
prescribed by state law,” and thus has not exhibited the “minimum” level of diligence required.
See Williams v. Taylor, 529 U.S. at 437. Mr. Jones’s inability to develop the record regarding
his ineffective assistance of counsel claims was a direct result of his failure to file a motion to
recall the mandate with the District of Columbia Court of Appeals within the prescribed time
period. As noted above, Mr. Jones did not miss this deadline by a matter of days, but rather by
nearly two years, and he offers no reason why his procedural default in the court of appeals
should not be attributed to a lack of diligence. 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.
CONCLUSION
For the foregoing reasons, Mr. Jones’s motion for an evidentiary hearing is
denied. An Order consistent with this Memorandum Opinion shall issue this same day.
SO ORDERED.
/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: September 30, 2011
5