Shepherd v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 20-CO-0509
DAVID A. SHEPHERD, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2012-CF1-009602)
(Hon. William W. Nooter, Motions Judge)
(Submitted November 16, 2021 Decided June 22, 2023)
Richard S. Stolker for appellant.
Channing D. Phillips, Acting United States Attorney at the time, and
Elizabeth Trosman, Chrisellen R. Kolb, Grace Richards, and Katherine M. Kelley,
Assistant United States Attorneys, for appellee.
Before BECKWITH and EASTERLY, Associate Judges, and GLICKMAN, * Senior
Judge.
EASTERLY, Associate Judge: In this opinion we address once again whether
and when an individual seeking post-conviction relief under D.C. Code § 23-110 is
*
Judge Glickman was an Associate Judge at the time of submission. His
status changed to Senior Judge on December 21, 2022.
2
entitled to a hearing. David Shepherd was convicted of first-degree murder while
armed and related charges in connection with the shooting death of Henry Charles
Miller (“Chuck”), which Mr. Shepherd claimed was in self-defense. After this court
affirmed his convictions on direct appeal, Shepherd v. United States, 144 A.3d 554,
564 (D.C. 2016), Mr. Shepherd, who until then had been represented by attorneys
from the Public Defender Service for the District of Columbia (“PDS”), was
appointed new counsel and filed a motion under D.C. Code § 23-110 alleging that
he had been provided with ineffective assistance of counsel (“IAC”) and requesting
a hearing. The motions court summarily denied him relief. Mr. Shepherd timely
appealed. We incorporate the facts as set forth in our opinion resolving Mr.
Shepherd’s direct appeal. See Shepherd, 144 A.3d at 557-58. Reviewing the
motions court’s ruling for abuse of discretion, Bellinger v. United States, 127 A.3d
505, 514 (D.C. 2015), which includes an assessment of whether it relied on correct
legal principles, McFerguson v. United States, 870 A.2d 1199, 1203 (D.C. 2005),
we discern a number of analytic errors and conclude that remand is required.
I. Analysis
When an incarcerated person files a motion challenging their conviction under
D.C. Code § 23-110, the motions court must hold a hearing “[u]nless the motion and
3
files and records of the case conclusively show that the prisoner is entitled to no
relief.” D.C. Code § 23-110(c) (emphasis added). Interpreting this text, this court
has long held that the statute creates a default rule 1 in favor of a hearing (assuming
no predicate procedural bar) with only three exceptions for: “(1) vague and
conclusory allegations, (2) palpably incredible claims, and (3) assertions that would
not merit relief even if true.” Rice v. United States, 580 A.2d 119, 122 (D.C. 1990)
(quoting the exceptions set forth in Ramsey v. United States, 569 A.2d 142, 147
(D.C. 1990), and explaining that those exceptions “set forth the principles which
control the application of this [statutory] provision”); see also Ramsey, 569 A.2d at
147 (acknowledging these “three categories of claims that do not merit hearings”
and citing Pettaway v. United States, 390 A.2d 981, 984 (D.C. 1978)); Pettaway,
390 A.2d at 984 (explaining that, to “giv[e] practical effect to [the text of]
§ 23-110[(c),] . . . courts have developed [these] three categories of claims which do
not merit hearings” and citing inter alia Gibson v. United States, 388 A.2d 1214,
1
Although we have often referred to this as a “presumption,” see, e.g., Bethea
v. United States, 170 A.3d 192, 194 (D.C. 2017), it is more accurately termed a
“default rule” subject to enumerated exceptions, cf. In re Chaganti, 144 A.3d 20, 23
n.3 (D.C. 2016) (explaining that an attorney discipline rule we previously described
as setting forth a “rebuttable presumption” was more accurately categorized as a
“rule subject to exceptions”). Compare Presumption, Black’s Law Dictionary (11th
ed. 2019) (defining a presumption as a “legal inference or assumption that a fact
exists”), with Rule, Black’s Law Dictionary (11th ed. 2019) (defining a rule as a
“general norm mandating . . . action in a given type of situation”).
4
1215-16 (D.C. 1978)); 2 Gibson, 388 A.2d at 1215-16 (explaining that § 23-110
“requires an evidentiary hearing unless the allegations of the motion itself are vague
and conclusory, are wholly incredible, or even if true, would merit no relief.”). 3
Thus, “[w]hile the decision whether to hold an evidentiary hearing on a § 23-110
[motion] . . . is committed to the trial court’s discretion, the extent of that discretion
is quite narrow,” Bellinger, 127 A.3d at 514-15 (internal quotation marks omitted),
and “any non-frivolous question whether a hearing is appropriate should be resolved
in the affirmative,” Joseph v. United States, 878 A.2d 1204, 1209 (D.C. 2005)
(brackets and internal quotation marks omitted).
2
By also citing to several earlier cases in which the denial of a hearing was
upheld without express reference to these three exceptions, Pettaway indicated that
it was aggregating the rationales of these decisions in the three exceptions it
recognized. See Pettaway, 390 A.2d at 984. Gibson (cited by Pettaway) similarly
synthesized the rationales of these earlier cases in setting out the three exceptions.
See Gibson, 388 A.2d at 1215-16 (explaining that the exceptions are drawn from
precedent).
3
Although Pettaway and Gibson standardized the language of these three
exceptions, some of the older non-standard descriptions lingered. See, e.g., Sykes v.
United States, 585 A.2d 1335, 1339 (D.C. 1991) (explaining that no hearing is
required if a claim “fail[s] to withstand initial checking for verity, or at the least, the
probability of verity” (internal quotation marks omitted)). But see Pettaway, 390
A.2d at 984 & n.2 (explaining such claims are “a subcategory” of claims that are
“palpably incredible,” one of the three recognized exceptions).
5
A. The Motions Court’s Flawed Bases for Denying a § 23-110 Hearing
Although the motions court acknowledged that a § 23-110 movant is generally
entitled to a hearing, for multiple reasons it determined that a hearing was not
warranted in this case. We conclude that the court’s reasoning was flawed in several
respects.
The court first concluded that a hearing was not warranted by relying on the
following train of logic: (1) Mr. Shepherd’s § 23-110 motion was procedurally
barred under Shepard v. United States, 533 A.2d 1278, 1280 (D.C. 1987) (generally
requiring a § 23-110 motion to be brought during the pendency of a defendant’s
direct appeal); (2) although Mr. Shepherd had shown the necessary cause to
overcome the procedural bar (the continued representation by PDS attorneys on
appeal), he had failed to show the requisite prejudice, id. at 1281-82; and (3) having
failed to overcome the procedural bar, Mr. Shepherd was not entitled to a hearing.
The trial court’s analysis was faulty at the first step: although a procedural bar may
obviate a hearing, 4 Mr. Shepherd’s § 23-110 motion was not procedurally barred
4
See Bradley v. United States, 881 A.2d 640, 645 (D.C. 2005) (“We have
often and consistently upheld the denial of a second or successive § 23-110 motion
without a hearing, at least in the absence of a showing of cause and prejudice, which
appellant has not made.”); cf. Sullivan v. United States, 721 A.2d 936, 937 (D.C.
6
under Shepard. When a defendant has been “represented on direct appeal by the
same counsel that represented him at trial, he is not procedurally barred from making
a collateral attack based upon claims of ineffective assistance of counsel although
the issue was not raised during the pendency of his direct appeal.” Little v. United
States, 748 A.2d 920, 923 (D.C. 2000); accord Hardy v. United States, 988 A.2d
950, 960 (D.C. 2010) (“Failure to raise the issue of ineffectiveness of trial counsel
during the pendency of the direct appeal does not constitute procedural default . . .
where the appellant was represented on direct appeal by the same counsel that
represented him at trial . . . .” (internal quotation marks omitted)); see also Terry v.
United States, 114 A.3d 608, 630 n.10 (D.C. 2015) (“[B]ecause [the defendant] was
represented by the same counsel during the trial and on appeal, any § 23-110
challenge he raises [based on IAC] will not be burdened by a showing of cause and
prejudice . . . .”). The motions court should not have relied on a perceived
procedural bar to deny Mr. Shepherd a hearing.
1998) (affirming trial court’s denial of a § 23-110 motion without a hearing based
on Shepard where pro se movant had not informed the motions court that court-
appointed counsel had represented movant at trial and on direct appeal, but
authorizing movant to file a new motion to be considered on the merits). But see
Arrington v. United States, 238 A.3d 218, 221 n.2 (D.C. 2020) (acknowledging that
under § 23-110, trial courts have the discretion “to decline to invoke a procedural
bar”).
7
The motions court alternatively ruled that, in addition to the three exceptions
to the default hearing rule established in our § 23-110 case law, it could deny a
hearing on a fourth basis, explaining that “a hearing is not automatically required if
the defendant’s claims . . . (4) can otherwise be disposed of on the existing record.”
But where there is a § 23-110 motion before the court, there are, as explained above,
only three legitimate reasons for denying a § 23-110 hearing: if the claims are (1)
vague and conclusory, (2) palpably incredible, or (3) would merit no relief even if
they were true. See Gaston v. United States, 535 A.2d 893, 899 (D.C. 1988)
(explaining that “[o]nly three categories of claims do not merit hearings” (emphasis
added)); Bellinger, 127 A.3d at 515 (reaffirming that “[w]e will affirm the trial
court’s denial of a § 23-110 motion without a hearing only if the claims” fall within
one of the three established exceptions (emphasis added) (internal quotation marks
omitted)). Separately assessing that a claim can be resolved on the existing record
is not a valid fourth basis for denying a § 23-110 movant a hearing. See Dorsey v.
United States, 225 A.3d 724, 728 (D.C. 2020) (acknowledging that “[e]choing the
language of the statute, we have said that a hearing is not required when the motion
is ‘capable of resolution on the existing record,’” but explaining that the “particular”
circumstances in which a hearing could be denied were limited to the three
8
established exceptions to the default rule (citation omitted)). 5 Indeed, endorsing an
additional exception that no hearing is required when a movant’s claims can be
resolved “on the existing record” would swallow the other three exceptions, do little
to reinforce the default rule that a hearing should be held, and would instead
encourage courts to resolve gaps in the record against § 23-110 movants rather than
recognizing that those gaps necessitate a hearing. See, e.g., Johnson v. United States,
385 A.2d 742, 744 (D.C. 1978) (remanding for a hearing because the “motions, files
and records in [the] case do not conclusively rebut appellant’s assertions” (emphasis
added) (interpreting D.C. Code § 23-110)); McCrimmon v. United States, 853 A.2d
154, 165 (D.C. 2004) (remanding for a hearing where the “record raise[d]—but [did]
not answer” questions about the appellant’s claims); Bethea v. United States, 170
5
Granted some of our opinions—including Ready v. United States, 620 A.2d
233 (D.C. 1993), on which the motions court relied—have been less clear that the
three exceptions are exclusive, see id. at 234 (listing the three exceptions as
additional circumstances, rather than the only circumstances, under which the court
can deny a hearing), or have even indicated that the default rule is not to hold a
hearing, see, e.g., Ellerbe v. United States, 545 A.2d 1197, 1199 (D.C. 1988) (stating
that a § 23-110 “movant is entitled to a hearing on his claims regarding the
ineffective assistance of trial counsel only when the claims cannot be disposed of by
resort to the files and records of the case because the claims involve matters outside
of the record”). But to the extent that later cases have contradicted or misstated
Pettaway and Gibson and their progeny, our earlier cases interpreting § 23-110
control. See Wheeler v. United States, 977 A.2d 973, 986 n.34 (D.C. 2009) (“[W]e
have ruled on several occasions that, when decisions of this court are in conflict, the
earlier decision applies.”).
9
A.3d 192, 195-96 (D.C. 2017) (remanding for a hearing where “the trial court
conflated the procedural question of whether there is a reason to deny [the appellant]
a hearing on his motion with the distinct merits question of whether the [appellant’s]
claims warrant relief (once all evidentiary questions have been resolved, typically
through a hearing)”). The court should not have relied on a nonexistent fourth
exception to the default rule to deny Mr. Shepherd a hearing. 6
B. Whether the Motions Court Had Other Legitimate Bases for
Denying a Hearing
This leaves the question whether any of the three established exceptions to the
default rule justified the denial of a hearing in this case. We look first to the claims
of ineffectiveness regarding trial counsel’s investigation and questioning of the
government’s three eyewitnesses: Mr. White, the only eyewitness without ties to the
decedent; as well as Ms. Ingram, the decedent’s cousin, and Mr. Dickerson, who was
“like family” to Ms. Ingram. We then look to Mr. Shepherd’s claim regarding his
6
The fact that there is no fourth exception to the default hearing rule that
allows the trial court to deny a § 23-110 movant a hearing when the claims “can
otherwise be disposed of on the existing record” does not mean that courts should
disregard the existing record in evaluating the three established exceptions to the
statute’s hearing requirement. See, e.g., infra Section I.B. (relying inter alia on the
existing record to assess whether any of the three established exceptions to the
default rule justified the denial of a hearing in this case).
10
trial counsel’s self-proclaimed unreadiness for trial.
The motions court concluded that Mr. Shepherd’s allegations regarding his
attorney’s investigation and questioning of Mr. White, Ms. Ingram, and Mr.
Dickerson would not merit any relief even if they were true; in other words, “defense
counsel acted reasonably and did not prejudice [Mr. Shepherd’s] case in any way.” 7
Because “we owe no deference” to these legal conclusions, we review them de novo,
see Jones v. United States, 918 A.2d 389, 402 (D.C. 2007) (internal quotation marks
omitted), and conclude that some of Mr. Shepherd’s claims merit a hearing on
remand. As for Mr. Shepherd’s remaining claim regarding his trial counsel’s
unspecified unreadiness, we conclude the trial court did not abuse its discretion in
denying a hearing on that “vague and conclusory” claim.
7
The motions court stated that the “showing of prejudice required to
overcome procedural default on collateral review is significantly greater than that
necessary to establish plain error on direct review,” quoting a nonbinding federal
court opinion, United States v. Pettigrew. See 346 F.3d 1139, 1144 (D.C. Cir. 2003)
(emphasis added) (internal quotation marks omitted). But see St. John v. United
States, 227 A.3d 141, 144-46 (D.C. 2020) (analyzing prejudice in a procedural
default case under Strickland’s “reasonable probability” standard). We see no
indication, however, that the motions court imposed some sort of heightened
prejudice analysis based on its misunderstanding that Mr. Shepherd’s claims were
procedurally barred. And Mr. Shepherd has not challenged the motions court’s
ruling on that basis.
11
1. Trial Counsel’s Efforts to Investigate and Discredit Mr.
White’s Testimony
At trial, Mr. White testified that he saw, from his bedroom window across the
street, Mr. Shepherd walk up to and shoot the decedent, Shepherd, 144 A.3d at 558;
and he made a similar statement when he called 911, the recording of which was
admitted without objection. Mr. Shepherd asserted in his motion that Mr. White had
previously told a PDS investigator, Nic Gerschman, that he “was not looking out the
window when the gun[] went off”—Mr. Gerschman, by then a law student, so
testified at trial—but the defense team failed to “aggressively follow up” after Mr.
White failed to sign a written statement to this effect and waited over nine months
to send any other investigators. Mr. Shepherd further asserted that the two additional
investigators, Sidney Scully and Paige Whidbee, who went to re-interview Mr.
White, could have corroborated Mr. Gerschman’s trial testimony that Mr. White had
admitted that he did not see the actual shooting. Mr. Shepherd additionally asserted
that Mr. White’s wife was present with Mr. White in their bedroom and should have
been interviewed to see if she could have provided further corroboration. The
motions court adopted the government’s argument that Mr. White’s statements to
the 911 operator and statement to the first PDS investigator were not necessarily
inconsistent and could be reconciled, and observed that counsel nonetheless “was
diligent in investigating [Mr.] White’s testimony” and further that whether Mr.
12
White “want[ed] to sign a written statement was not within the defense counsel’s
control.” The motions court did not acknowledge Mr. Shepherd’s argument that his
counsel had failed to call the other two investigators as witnesses or to interview Mr.
White’s wife as a potential witness.
The most powerful aspect of this claim is whether Mr. Shepherd’s trial
counsel should have presented testimony from the two PDS investigators who re-
interviewed Mr. White. Assuming the failure to call these individuals as defense
witnesses at trial constituted deficient performance under Strickland, 8 it is at least
plausible at this point—before Mr. Shepherd has been given an opportunity to
present his evidence at a hearing—that additional evidence discrediting Mr. White’s
testimony that he saw the shooting would have had a “reasonable probability” of
8
See Cosio v. United States, 927 A.2d 1106, 1123 (D.C. 2007) (en banc)
(explaining counsel’s performance is deficient if it “fell below an objective standard
of reasonableness” (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).
The government contests this in passing, but the motions court did not make a
determination to the contrary, nor did it have a basis to do so. See Long v. United
States, 910 A.2d 298, 309 (D.C. 2006) (“It is well settled that counsel’s unexplained
failure to present . . . testimony [bolstering the defendant’s “actual defense”]
constitutes deficient performance. Perhaps there are good reasons why trial counsel
did not call [the] proffered witnesses, but on the existing record, without holding a
hearing, the motions judge was not in a position to make such a finding—nor did
[he] profess to do so.” (footnote omitted)).
13
changing the jury’s mind. 9 Mr. White was the only eyewitness without ties to the
decedent’s family, and Ms. Ingram and Mr. Dickerson had been significantly
impeached or discredited at trial in other respects. For example, Ms. Ingram
admitted that her previous statements to police contradicted her testimony about
whether the decedent was drunk and where Mr. Dickerson was during the shooting;
she also admitted she had lied in her grand jury testimony about whether her husband
was present just before the shooting. Similarly, Mr. Dickerson admitted to
misleading prosecutors when they were investigating the incident and his testimony
contradicted the testimony given by other government witnesses. See infra Section
I.B.3. We cannot discount the possibility that additional testimony from the two
investigators could have forced Mr. White to confront his inconsistent statements to
multiple defense witnesses and possibly persuaded the jury that Mr. White did not
see the shot and (like Ms. Ingram and Mr. Dickerson) could not be trusted to have
seen Mr. Shepherd shoot Mr. Miller without provocation or without the need for
self-defense. In other words, pre-hearing, these allegations do not strike us as
palpably incredible or vague and conclusory; and they are claims that, if true, might
9
The motions court quoted from our decision in Mr. Shepherd’s direct appeal
that the “the evidence of appellant’s guilt was very strong.” See Shepherd, 144 A.3d
at 563. But when reviewing an IAC claim brought via collateral attack, the court
must take into account that “the asserted strength of the government’s case may itself
be a product of trial counsel’s ineffectiveness.” Rice, 580 A.2d at 123.
14
merit relief. 10 See, e.g., Bruce v. United States, 617 A.2d 986, 995 (D.C. 1992)
(remanding for a hearing where appellant proffered evidence that would help “nail
down the uncontested but elusive fact” of who fired a gun and could “potentially
cast doubt on the accuracy of . . . witnesses’ descriptions of other aspects of this
encounter”); see also Forrester v. United States, 707 A.2d 63, 64 (D.C. 1998)
(“[C]orroborative witnesses may cause a factfinder to credit testimony by a single
witness . . . whose testimony would otherwise fail to persuade.”). 11
10
As noted above, the motions court never grappled with whether counsel’s
failure to call the two additional investigators as defense witnesses constituted
deficient performance. Although the court noted that “[t]he jury already had access
to the recording of [Mr. White’s] 911 call, his statements to [one] investigator, and
his statements under cross-examination,” it was focused on whether earlier
investigation would have secured a written statement from Mr. White, not whether
additional witnesses diminishing his credibility would have made a difference at
trial. While we would not necessarily view Mr. Shepherd’s claim that his trial
counsel failed to “aggressively” investigate Mr. White and lock him into a sworn
statement as warranting a hearing on its own, Mr. Shepherd should be allowed to
advance that related claim at the hearing on remand as well. See Dorsey v. United
States, 225 A.3d 724, 733 (D.C. 2020) (“We cannot conclude at this point that an
evidentiary hearing is warranted on this aspect of appellant’s claim, but the trial court
should reconsider the issue in conjunction with the hearing on whether the Strickland
test is satisfied as it applies to [the § 23-110 movant’s related] claim . . . .”); see also
Bellinger, 127 A.3d at 518 (“Deficient investigation cannot be excused on the
ground that a competent attorney . . . could have made an informed judgment to
pursue an alternative strategy. . . .” (cleaned up)).
11
Although we affirmed the denial of a hearing despite three proffered witness
affidavits in Forrester, we explained that it was not an “ordinar[y]” case because the
motions judge had also presided over the bench trial and was uniquely positioned
“as trier of fact” to determine that the proffered witnesses would not have changed
her verdict. 707 A.2d at 64. Here, Mr. Shepherd had a jury trial and the motions
judge was not the trial judge.
15
On this record, then, we cannot assess whether the failure to call the two
additional investigators might amount to Strickland prejudice. See Rice, 580 A.2d
at 123 (explaining that the court could not “rule at this point that, as a matter of law,
the evidence of appellant’s guilt was so strong that there can be no reasonable
probability that the exculpatory evidence proffered in appellant’s § 23-110 motion,
whatever its strength, could have raised a reasonable doubt in the minds of the
jurors”). Any assessment of prejudice will turn on the precise details and the
credibility of these individuals’ testimony about their interaction with Mr. White;
but such “credibility determinations . . . may be resolved only by recourse to a full
evidentiary hearing.” Long v. United States, 910 A.2d 298, 310 (D.C. 2006) (internal
quotation marks omitted); see also Rice, 580 A.2d at 122-23 (cautioning that
deciding credibility on the record “assume[s] the answer to the very question which
an evidentiary hearing could illuminate”).
For the first time on appeal the government argues that we should not consider
this possible contradictory evidence when assessing Mr. Shepherd’s ineffective-
assistance claim because he “provided no affidavits or other credible proffers to
establish what, if anything, the [additional PDS] investigators could recall regarding
what [Mr.] White told them in the 2013 interview.” But the proffer of potential
witness testimony pre-hearing is not a formalistic requirement; rather, an “affidavit
16
or other credible proffer” is a tool for the court to ensure the § 23-110 petitioner has
some basis for their claims. See Pettaway, 390 A.2d at 984 (“A § 23-110 motion
will be vulnerable to dismissal as ‘vague and conclusory’ when a prisoner does not
present a factual foundation in some detail.”); Lanton v. United States, 779 A.2d
895, 903-04 (D.C. 2001) (likening a § 23-110 motion to an initial pleading);
Johnson, 385 A.2d at 743-44 (explaining that “appellant’s only burden, prior to
hearing, is to adequately allege facts which, if demonstrated, would establish
[IAC]”). Accordingly, we have held that assertions from an appellant within the
§ 23-110 motion itself, Lanton, 779 A.2d at 903-04, or signed but unsworn
statements from the potential witnesses, Rice, 580 A.2d at 121 & n.3, among other
documents, may constitute credible proffers. 12
12
But see Strozier v. United States, 991 A.2d 778, 786 (D.C. 2010) (stating
that our court “require[s]” an attachment to the motion from the potential witness).
Strozier cites to a line of cases that appear to have incorrectly interpreted Sykes v.
United States, 585 A.2d 1335, 1340 (D.C. 1991), and others as a bright-line rule that
the court can deny a hearing for a failure to call witnesses claim if there is no
“credible proffer” outside the motion itself. See, e.g., Reaves v. United States, 694
A.2d 52, 57 n.6 (D.C. 1997) (citing Sykes to require “[m]ore formal proof” than
“assert[ing] in the moving papers the substance of the testimony”). Many of these
cases are distinguishable, including both Strozier—where the trial court found the
claims “vague and conclusory” since the motion contained no information about the
potential testimony, 991 A.2d at 786-87—and Sykes—where the court ultimately
denied a hearing because the witness proffered in the motion would have had to
incriminate herself to provide exculpatory testimony, 585 A.2d at 1340; see also
Lanton, 779 A.2d at 903 (explaining this distinction). More to the point, to the extent
our cases appear to construe such a formalistic requirement as an independent
ground to deny a § 23-110 movant a hearing outside of the three enumerated
17
Here, Mr. Shepherd’s motion contained sufficient information (seemingly
based on materials from trial counsel’s file) to support his request for a hearing. He
provided the full names—Sidney Scully and Paige Whidbee—of the two PDS
investigators who re-interviewed Mr. White; a specific time frame for when these
investigators spoke to Mr. White; and the corroborating information they could
provide. There is also corroborating evidence in the trial record that Mr. White
spoke with at least one additional investigator multiple times after Mr. Gerschman
interviewed him, although the exact content of these conversations is unknown. See
Gillis v. United States, 586 A.2d 726, 728-29 & n.1 (D.C. 1991) (remanding for a
hearing where appellant’s allegations of counsel’s failure to investigate could be
consistent with a brief mention of evidence in a transcript).
Indeed, the government implicitly conceded the pre-hearing sufficiency of
Mr. Shepherd’s proffer by failing to raise this argument before the motions court.
Had it felt that Mr. Shepherd needed to provide additional documentation, it could
have argued in its opposition that Mr. Shepherd’s request was inadequately
supported and the court—at the government’s request or sua sponte—would have
been well within its discretion to ask Mr. Shepherd to supplement his motion before
exceptions noted above, they contradict the language in the statute itself requiring
the record to “conclusively” show the movant is not entitled to relief.
18
holding a hearing. Cf. Jones, 918 A.2d at 407-08 (“[W]here . . . impediments in the
motion and files and records of the case present credibility problems if unresolved,
providing the appellant with an opportunity to supplement his initial motion . . .
could be a prudent course of action.” (internal quotation marks omitted)); Steward
v. United States, 927 A.2d 1081, 1090 (D.C. 2007) (“[W]e think it may be
appropriate for the trial court, before determining whether to set a hearing date, to
afford appellant an opportunity to supplement his motion.”); Metts v. United States,
877 A.2d 113, 120 (D.C. 2005) (noting that the trial court provided defendant with
time to clarify statements from witnesses submitted with his initial § 23-110
motion). Accordingly, we are unpersuaded by the government’s late-stage objection
to Mr. Shepherd’s request for a hearing on the grounds that he had “provided no
affidavits or other credible proffers” to support it.
We conclude remand is required to hold a hearing on Mr. Shepherd’s claim
that his trial counsel was ineffective for failing to call Sidney Scully and Paige
Whidbee at trial. 13 In remanding this claim to the trial court, “we do not address [its]
13
We agree with the government that Mr. Shepherd’s claim that his attorney
was deficient for failing to interview or call Mr. White’s wife to the stand is
unsupported on the current record. Mr. Shepherd has not put forth any evidence
about what Mr. White’s wife would say; he has stated only that she was present in
the bedroom with Mr. White when the events to which he testified occurred. But
given that we are remanding on other grounds, we direct that he be given the
19
[ultimate] merits.” Jones, 918 A.2d at 412 (second alteration in original) (internal
quotation marks omitted). “We decide only that . . . [appellant] makes a colorable
claim which, if true, would provide a basis for relief, [and so] the trial court should
not decide the matter summarily.” Newman v. United States, 705 A.2d 246, 262
(D.C. 1997).
2. Trial Counsel’s Use of Mr. Dickerson’s Prior Convictions
Mr. Shepherd also asserts that his trial counsel should have resolved earlier
whether trial counsel could impeach Mr. Dickerson with prior convictions 14 and
should have cross-examined Mr. Dickerson about these convictions rather than
allowing the jury to hear about them in a litany of stipulations many days after Mr.
Dickerson testified. We have acknowledged that immediate live testimony has
“significant advantages” over stipulations, Dorsey, 225 A.3d at 733 n.8 (internal
quotation marks omitted), and that “a party may not be forced to accept a stipulation
opportunity to attempt to support this claim on remand as well. See Ramsey, 569
A.2d at 148 n.15 (allowing appellant to pursue less plausible claims on remand
where already remanding more plausible claims for a hearing).
14
The record does not specify which statute was at issue in these mid-trial
discussions, but it appears to be D.C. Code § 14-305(b)(2)(B), which restricts
impeachment via criminal convictions if more than ten years have elapsed since
certain dates dictated by statute.
20
in lieu of testimonial or tangible evidence,” Rollerson v. United States, 127 A.3d
1220, 1229 (D.C. 2015) (internal quotation marks omitted). It is therefore possible
that trial counsel’s actions or lack thereof in failing to resolve the questions
surrounding Mr. Dickerson’s impeachable convictions earlier and ultimately
agreeing to a stipulation of these convictions, in lieu of directly confronting Mr.
Dickerson directly with them, “fell below an objective standard of reasonableness.”
Cosio v. United States, 927 A.2d 1106, 1123 (D.C. 2007) (en banc) (quoting
Strickland v. Washington, 466 U.S. 668, 688 (1984)). On the other hand, it is
possible that in the context of the timing of disclosures regarding Mr. Dickerson and
the restrictions on scheduling of witnesses, stipulating to Mr. Dickerson’s prior
convictions was a reasonable, strategic decision for defense counsel to make. See
id. at 1127. The record is silent on this question, however, because the government
did not proffer any explanations from counsel nor was counsel ever called to testify
at a hearing to explain their thinking. We therefore remand for the motions court to
hold a hearing on this claim as well. 15 See Bruce, 617 A.2d at 995 (remanding for a
15
We acknowledge that Mr. Shepherd may face difficulty in showing that, but
for this alleged deficiency alone, there was a “reasonable probability that the
outcome of the trial would have been different.” Cosio, 927 A.2d at 1132. But
because the prejudice inquiry for ineffectiveness claims must take into account the
“cumulative effect” of counsel’s errors, it would be premature for us to assess the
prejudice prong before Mr. Shepherd’s hearing. Matthews v. United States, 629
A.2d 1185, 1196 (D.C. 1993); see also Asbell v. United States, 436 A.2d 804, 807
(D.C. 1981) (“In determining whether trial counsel’s performance blotted out the
21
hearing where the trial judge concluded a decision was tactical “without hearing any
testimony from the attorney, and without [the movant’s] new counsel having been
accorded an opportunity to cross-examine”); cf. Smith v. United States, 608 A.2d
129, 132-33 (D.C. 1992) (remanding for a hearing where trial counsel’s decision
was “inexplicable on the record”).
3. Mr. Shepherd’s Additional Claims Regarding Impeachment
of Mr. Dickerson
Mr. Shepherd additionally claims that trial counsel (1) failed to “utilize [Ms.
Ingram’s] two prior statements [saying Mr. Dickerson was not in the truck at the
time of the shooting] to interrogate [Mr.] Dickerson regarding his involvement and
his ability to witness the events as he described them,” 16 and (2) failed to impeach
Mr. Dickerson’s testimony that he did not hear an argument preceding the shot by
using Mr. White’s testimony to the contrary. Like the motions court, we discern no
deficient performance by trial counsel on these grounds.
essence of a substantial defense we apply a totality of the circumstances test. . . .
[E]ven though any one specific error by counsel may not constitute ineffective
assistance, the totality of the omissions and errors may be sufficient.” (internal
quotation marks omitted)).
16
Mr. Shepherd categorizes this as a claim regarding impeachment of Ms.
Ingram, but then proceeds to discuss this claim regarding Mr. Dickerson.
22
Trial counsel could not impeach Mr. Dickerson with statements by Ms.
Ingram of which he had no personal knowledge. See Smith v. United States, 583
A.2d 975, 983-84 (D.C. 1990) (“[A] witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter.” (quoting Fed. R. Evid. 602)); cf. Foreman v. United
States, 114 A.3d 631, 639 (D.C. 2015) (providing that a prior identification
statement must come in through testimony of someone with personal knowledge of
it being made). Nor could trial counsel have asked Mr. Dickerson about the
truthfulness or credibility of Mr. White’s testimony. See Lloyd v. United States, 64
A.3d 405, 412 (D.C. 2013) (“What is prohibited is seeking to have one witness
comment or opine on the credibility of a prior witness, however phrased.” (emphasis
omitted) (internal quotation marks omitted)). An attorney’s performance cannot be
deficient due to a failure to take steps at trial that would not have been allowed as a
matter of law. Cf. Bell v. United States, 677 A.2d 1044, 1048-49 (D.C. 1996)
(rejecting a claim of deficient performance where the proposed objections were not
legally meritorious).
In any event, Mr. Shepherd’s counsel highlighted throughout the trial the
substance of the contradictions that Mr. Shepherd now emphasizes. Trial counsel
23
cross-examined Mr. Dickerson about his location during the incident (he said he was
sitting in a truck with Ms. Ingram, but Ms. Ingram had placed him outside the truck
in prior statements) and his assertion (inconsistent with Ms. Ingram’s and Mr.
White’s testimony) that he did not hear anyone arguing before the shooting. Trial
counsel also emphasized in closing that Mr. Dickerson’s testimony was “not
corroboration at all” of Ms. Ingram’s testimony, but rather they gave “two opposing
stories that happen to end the same way.” Mr. Shepherd admitted in his motion that
counsel “duly impeached” Ms. Ingram as well. Thus the motions court did not abuse
its discretion in denying a hearing on this claim.
4. Trial Counsel’s General Unreadiness for Trial
Lastly, we agree with the motions court’s assessing as “vague and conclusory”
Mr. Shepherd’s claim 17 that his trial counsel was unprepared for trial by virtue of
their unreadiness statements just prior to trial. Trial counsel informed the court of
17
It is not clear to us that Mr. Shepherd intended this to be a standalone claim
for relief as opposed to serving as contextual background. But since the motions
court treated it as a standalone claim, we do the same.
Mr. Shepherd also argues for the first time before this court that the trial court
erred by not granting trial counsel’s motion for a continuance in full. But we decline
to consider this non-IAC claim that was raised neither on direct appeal, Head v.
United States, 489 A.2d 450, 451 (D.C. 1985), nor in Mr. Shepherd’s § 23-110
motion, see Sharps v. United States, 246 A.3d 1141, 1159 (D.C. 2021).
24
their unreadiness after they received late disclosures from the government
concerning the DNA evidence in the case, as well as miscellaneous documents from
Mr. Shepherd’s jail cell, medical and firearms examiner reports, and hours of
recordings of jail calls. Counsel requested a one- or two-week continuance; the trial
court ultimately gave them a day. But as the motions court observed, in his § 23-110
motion Mr. Shepherd failed to tie counsel’s pretrial statements to any act or omission
by counsel at trial; meanwhile, the record reflects that trial counsel vigorously
argued that the DNA evidence was inconclusive but could be consistent with the
defense theory—a point Mr. Shepherd appears to reinforce both in his § 23-110
motion and his brief to this court. The other last-minute revelations have no obvious
bearing on the outcome of Mr. Shepherd’s trial because they comprised information
duplicative of the information the defense already had, information the government
did not intend to use, or information the trial court otherwise determined was
peripheral to Mr. Shepherd’s defense. We thus cannot say that the motions court
abused its discretion in concluding that this claim fell within an exception to the
hearing requirement.
II. Conclusion
For the foregoing reasons, we vacate the motions court’s denial of Mr.
25
Shepherd’s § 23-110 motion and remand this case for further proceedings consistent
with this opinion.
So ordered.