Gorbey v. United States

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL S. GORBEY,
Petitioner,
v. Civil Action No. 13-2019 (JEB)
UNITED STATES OF AMERICA, et al.,
Respondents.
MEMORANDUM OPINION
On the afternoon of January 18, 2008, Michael Gorbey approached a woman near the
U.S. Capitol and asked for directions to the Supreme Court. See Gorbey v. United States, 54
A.3d 668, 675 (D.C. 2012). He carried a shotgun in his hand, a sword on his back, a bulletproof
vest across his chest, and several shotgun shells and hunting knives in his backpack. See id.Gorbey explained that he was on his way to a meeting with Chief Justice John Roberts. See id.The woman reported Gorbey to the police, who arrested him. See id. They searched his
truck, parked illegally nearby, where they found hundreds of rounds of ammunition, a rifle
scope, and a homemade bomb. See id. at 676. Gorbey was subsequently charged and convicted
on multiple weapons-related counts in D.C. Superior Court. See id. He is currently serving a
twenty-year prison sentence.
Gorbey has since filed several appeals and numerous post-conviction motions
challenging those proceedings. The filing that brings him to this Court is a pro se Petition for a
Writ of Habeas Corpus, which alleges that his conviction and sentence were unlawful because he
received ineffective legal representation on his appeal to the D.C. Court of Appeals and on
remand therefrom. Gorbey lists a series of actions that, he says, his appointed lawyers failed to
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take, rendering them constitutionally inadequate. Because Gorbey’s lawyers did in fact take
many of the actions he mentions in his Petition, and because their decisions not to take the others
did not make them ineffective, the Court will deny his Petition.
I. Background
On May 16, 2008, after a trial in District of Columbia Superior Court in which Gorbey
acted as his own attorney, a jury convicted him of fourteen separate offenses in connection with
the events described above: Unlawful possession of a firearm by a convicted felon; two counts of
carrying a dangerous weapon outside the home or business; possession of an unregistered
firearm; eight counts of unlawful possession of ammunition; manufacture, transfer, use,
possession, or transportation of explosives for an unlawful purpose; and attempted manufacture
or possession of a weapon of mass destruction. See Gorbey, 54 A.3d at 676. He was sentenced
to 264 months in prison and five years of supervised release. See Resp., Exh. A (Sup. Ct.
Docket) at 12-14.
Gorbey thereafter became quite an active litigant. In addition to several appeals, he has
filed numerous post-conviction motions in Superior Court and in multiple federal district courts
around the country, mostly in a pro se capacity. For purposes of this case, however, the Court
will focus only on the procedural history that is relevant to the arguments at hand.
Shortly after he was sentenced, Gorbey filed a notice of direct appeal. See id. at 12. He
also filed two pro se motions under D.C. Code § 23-110 seeking a new trial and the vacatur of
his conviction and sentence, which his new attorney supplemented. See id. The trial court
denied those motions, leading Gorbey to appeal that decision as well. See id. at 11. The
D.C.C.A. subsequently consolidated Gorbey’s direct appeal with the appeal from the denial of
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his § 23-110 motions. See Gorbey, 54 A.3d at 677. Throughout the appeals process, Gorbey
was represented by appointed counsel, Preston Burton. See Sup. Ct. Docket at 11.
In a lengthy and detailed opinion, the D.C.C.A. rejected Gorbey’s challenges to his
convictions, but found that the trial court had erred at sentencing by failing to inquire into his
decision to waive an insanity defense under Frendak v. United States, 408 A.2d 364 (D.C. 1979).
The Court remanded the matter for that inquiry and for resentencing based on the merger of
certain convictions. See Gorbey, 54 A.3d at 697-98, 705. Gorbey then filed a motion to recall
the D.C.C.A.’s mandate, arguing, inter alia, that Burton had provided ineffective representation
by failing to raise certain issues on appeal. See Resp., Exh. D (Motion to Recall the Mandate) at
6-8. In a written order, the Court of Appeals denied that motion, explaining:
Most of the issues appellant claims appellate counsel omitted are
issues that were raised in appellant’s direct and collateral appeals.
This Division has already rejected the majority of those issues in
its opinion and the full court has denied appellant’s petition for
rehearing en banc. The remainder of appellant’s arguments are
cursory claims that do not provide the court with any basis to find
error.
Id., Exh. E (July 30, 2013, Order).
On remand, Attorney Jenifer Wicks was appointed to represent Gorbey, but she withdrew
as his lawyer after just four months. See Sup. Ct. Docket at 8-9. For the remainder of the
remand proceedings, Gorbey was represented by attorney Nathan Silver. See id. at 7. The trial
court then conducted the required Frendak inquiry and found that Gorbey had validly waived the
insanity defense. See id. It therefore resentenced him to 254 months in prison. See id. at 2-5.
Meanwhile, Gorbey filed several more pro se § 23-110 motions to vacate his convictions
and sentence, arguing, inter alia, that Burton and Wicks had been constitutionally ineffective
counsels on appeal and on remand. See id. at 6-7. The trial court denied those motions. See id.
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at 6. Gorbey noted an appeal from that decision, see id., but it does not appear that the Court of
Appeals has yet ruled on the challenge.
On December 19, 2013, Gorbey filed a Petition for a Writ of Habeas Corpus, pursuant to
28 U.S.C. § 2254, in this Court. He challenges his conviction and sentence on two grounds: first,
that his appellate counsel Burton rendered ineffective assistance on his direct appeal and on
appeal of his denied § 23-110 motions, and second, that his remand counsel Wicks rendered
ineffective assistance by failing to file a motion to recall the mandate. The Government has
conceded that Gorbey’s Petition satisfies the applicable statute of limitations and that, although it
is not his first such filing, it does not violate the restrictions on successive petitions for habeas
relief. See Response at 30 n.29 & 33-35. The Court may thus turn to the merits of the case.
II. Analysis
A. The Basics
Section 2254 gives the district courts jurisdiction to issue writs of habeas corpus on
behalf of a person detained pursuant to a state-court judgment “on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254. D.C. local courts are treated as “state” courts for purposes of federal habeas-corpus
jurisdiction. See Milhouse v. Levi, 548 F.2d 357, 360 n.6 (D.C. Cir. 1976).
For prisoners in the District of Columbia, however, habeas relief is especially hard to
come by. Section 23-110 of the D.C. Code provides:
An application for a writ of habeas corpus [o]n behalf of a prisoner
. . . shall not be entertained by the Superior Court or by any
Federal or State court if it appears that the applicant has failed to
make a motion for relief under this section or that the Superior
Court has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality of his
detention.
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D.C. Code § 23-110(g) (emphasis added). This provision “vest[s] the Superior Court with
exclusive jurisdiction over most collateral challenges by prisoners sentenced in that Court.”
Williams v. Martinez, 586 F.3d 995, 1000 (D.C. Cir. 2009); see also Swain v. Pressley, 430 U.S.
372, 377-78 (1977) (finding parallel between changes introduced to federal habeas process by 28
U.S.C. § 2255 and new postconviction procedure envisaged by Congress when it implemented §
23-110). As a result, “the District Court lacks jurisdiction to entertain a habeas corpus petition
attacking the constitutional validity of a Superior Court sentence even after the local remedy, if
adequate and effective, has been pursued unsuccessfully.” Garris v. Lindsay, 794 F.2d 722, 726
(D.C. Cir. 1986) (citing Swain, 430 U.S. at 377-78). “[A]lthough prisoners sentenced by state
courts may resort to federal habeas corpus after exhaustion of their state remedies, a District of
Columbia prisoner has no recourse to a federal judicial forum unless the local remedy is
‘inadequate or ineffective to test the legality of his detention.’” Id. (citing D.C. Code § 23-
110(g)).
Assuming a D.C. prisoner clears this unique bar, the ordinary habeas standard applies:
The petitioner must first either exhaust his state-court remedies or show that such remedies are
unavailable or ineffective. See 28 U.S.C. § 2254(b)(1)(A) & (B). Collateral review of state
proceedings, furthermore, “afford[s] considerable deference to state courts’ legal and factual
determinations.” Palmer v. Hendricks, 592 F.3d 386, 391-92 (3d Cir. 2010). The Court,
therefore, may grant Gorbey relief here only if the D.C. court’s adjudication of his 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.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (quoting 28 U.S.C. § 2254(d)(1) & (2)).
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B. Effectiveness of Gorbey’s Counsel on Appeal
Gorbey’s first claim – that his appellate counsel Burton was ineffective – falls into a
narrow exception to § 23-110(g)’s bar on habeas petitions. “[B]ecause the D.C. Court of
Appeals prohibits prisoners from bringing challenges to the effectiveness of appellate counsel
under section 23-110 – they may be raised only through a motion to recall the mandate – [the]
remedy [for such claims] under section 23-110 is ‘inadequate or ineffective.’” Williams, 586
F.3d at 998 (emphasis added). Section 23-110(g), in other words, does not bar habeas petitions
brought in federal court based on claims of ineffective assistance of appellate counsel. See id.In addition, Gorbey previously raised this ineffective-assistance claim in his Motion to Recall the
Mandate, see Motion to Recall the Mandate at 6-8, which the D.C.C.A. rejected, see July 30,
2013, Order, so he has exhausted his state remedies. The government, accordingly, concedes
that this Court has jurisdiction to hear Gorbey’s claim. See Response at 32.
As to the merits of Petitioner’s argument, he alleges that Burton’s performance was
constitutionally deficient based on his failure to take eleven specific actions:
1. Have psychologist Dr. Arium Mack, whom Burton used as an expert witness,
personally interview Gorbey regarding certain “real life events” – an alleged
decade-long government conspiracy to harass and persecute him – which caused
him “phobias” that prevented him from effectively representing himself at trial;
2. Argue the unconstitutionality – on grounds, it seems, of vagueness – of the
weapon-of-mass-destruction charge, the carrying-a-dangerous-weapon charge, the
possession-of-unregistered-ammunition charge, and the Molotov-cocktail charge;
3. Investigate and argue that Gorbey was denied a fair trial by an impartial jury;
4. Argue that the government failed to prove the first and third elements of
constructive possession with respect to the explosives found in his truck;
5. Argue that he was denied his Sixth Amendment right to compulsory process for
calling several material witnesses or that the prosecution violated Brady v.
Maryland, 373 U.S. 83 (1963), by having a key witness favorable to his case
recant;
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6. Argue that his Presentence Report was “majorly wrong”; for example, it listed
misdemeanors as felonies and included several charges that were not his;
7. Argue that the Superior Court erred by failing to impose concurrent sentences in
accordance with D.C. Voluntary Sentencing Guideline § 6.2;
8. Argue that the police were derelict in their duties by failing to conduct an
inventory search of his truck immediately upon impounding the vehicle, resulting
in prejudice to his case;
9. Argue that his prosecution violated the District of Columbia Court Reform and
Criminal Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 579, since “the
Superior Court has no jurisdiction over D.C. parks, park police, U.S. Capitol
Police, or the U.S. Capitol Service Area”;
10. Argue that the “D.C. Reit Act of 1997,” which “allow[s] D.C. Code offenders to
be sent to federal prison,” violates the Constitution’s Commerce Clause and
Interstate Extradition Clause;
11. Argue that his sentencing counsel, Donald Dworsky, was constitutionally
ineffective in failing to address the faulty Presentence Report or the Superior
Court’s denial of concurrent sentences.
Petition at 5-36.
Even without the highly deferential standard applied on federal habeas review, the Court
would have no trouble upholding the D.C.C.A.’s rejection of Gorbey’s ineffectiveness claim. To
prevail, Gorbey had to show, first, “that his counsel was objectively unreasonable . . . that is, that
counsel unreasonably failed to discover non[-]frivolous issues and to file a merits brief raising
them,” and second, that he suffered prejudice as a result, “[t]hat is, . . . a reasonable probability
that, but for his counsel’s unreasonable failure . . . he would have prevailed on his appeal.”
Smith v. Robbins, 528 U.S. 259, 285 (2000). In its Order, the Court of Appeals noted that most
of the arguments Gorbey faulted his attorney for ignoring had in fact been made in his
consolidated direct and collateral appeals, and that they had not been deemed viable. See July
30, 2013, Order. Indeed, a review of the D.C.C.A.’s earlier Opinion rejecting Gorbey’s appeal
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shows that it specifically addressed and rejected at least eight of the eleven arguments Gorbey
claims Burton should have pursued. See Gorbey, 54 A.3d at 700 (number 4); id. at 703 (number
3); id. at 706 (numbers 9, 5, and 10); id. at 707 (numbers 6, 7, and 8). To the extent Gorbey
bases his ineffective-assistance claim on Burton’s failure to make these arguments, then, he fails
the first part of the inquiry. To the extent that Gorbey argues that Burton was ineffective for
failing to take certain actions in relation to his prior § 23-110 motions – for example, arguing on
appeal that his sentencing counsel was inadequate – such claims are expressly barred by § 2254,
which does not permit habeas relief for ineffective counsel during collateral post-conviction
proceedings. See 28 U.S.C. § 2254(i); see also Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012);
Graham v. Bledsoe, 841 F. Supp. 2d 134, 137 (D.D.C. 2012).
As for the remainder of the actions Gorbey wishes his appellate counsel had taken,
Burton was not ineffective for declining to do so. For good reason, the Constitution does not
require appellate counsel to pursue every possible non-frivolous argument. “Experienced
advocates since time beyond memory have emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if possible, or at most on a few key
issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). The Supreme Court has therefore held
“that appellate counsel who files a merits brief need not (and should not) raise every non[-]
frivolous 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). Or, as Frederick the Great put
it, a bit more succinctly, “He who defends everything defends nothing.” Clearly, Burton
advanced several compelling arguments on Gorbey’s behalf – as mentioned earlier, the D.C.
Court of Appeals issued an in-depth opinion considering, and even accepting, a few of them –
and Gorbey has not shown that Burton missed any remotely promising points. The D.C. Court
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of Appeals, in sum, did not err by rejecting Gorbey’s ineffective-assistance-of-appellate-counsel
claim.
C. Effectiveness of Gorbey’s Counsel on Remand
Gorbey’s second claim – that his remand counsel Wicks was also ineffective – is a bit
more complicated procedurally, though not substantively. According to Gorbey, Wicks’s
representation was constitutionally deficient because she refused to file a motion to recall the
mandate, leaving Gorbey to file a pro se pleading on his own, which was denied. If he had had
Wicks’s help drafting the document, Petitioner suggests, he might have prevailed on that motion.
As an initial matter, while § 23-110(g) does not bar federal habeas petitions for
ineffective assistance of counsel on appeal, it is not clear whether the same exception would
apply to claims of ineffective assistance of counsel on remand. The answer turns on whether a
defendant in D.C. court would seek relief for such a claim via a § 23-110 motion or, instead,
through some other procedural vehicle. Cf. Williams, 586 F.3d at 998. The issue is complicated
even further in this case, where Gorbey’s claim relates to action that his remand counsel
supposedly failed to take in the Court of Appeals. This Court is not aware of any D.C. or federal
precedent on the matter, although the Government suggests that Gorbey should have raised this
claim in his amended Motion to Recall the Mandate – as opposed to in a § 23-110 motion –
which would mean that this Court does have jurisdiction to adjudicate the issue. See Response at
43 n.36.
In any event, even if Gorbey’s claim regarding his remand counsel does qualify for
federal habeas relief, it has not been exhausted. As mentioned earlier, in order to file a habeas
petition in federal court, the petitioner must first either exhaust his state-court remedies or show
that such remedies are unavailable or ineffective. See 28 U.S.C. § 2254(b)(1)(A) & (B). “In
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other words, the state prisoner must give the state courts an opportunity to act on his claims
before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). Here, Gorbey did not include a claim for ineffective assistance of
remand counsel in his Motion to Recall the Mandate, and though he subsequently made such a
claim via a § 23-110 motion, the D.C. Court of Appeals has not yet ruled on the matter.
Gorbey’s claim of ineffective assistance of remand counsel is therefore not exhausted and not
eligible for habeas review.
Even if the claim were exhausted, moreover, it would very likely fail. As this Court has
already explained, the D.C. Court of Appeals was correct to reject Gorbey’s claim for ineffective
assistance of appellate counsel, contained in his Motion to Recall the Mandate, on the merits of
his position. On that point, then, Wicks’s assistance in drafting the pleading could not have
saved it, and Gorbey was therefore not prejudiced by her refusal to do so. To the extent that
Gorbey’s Motion to Recall the Mandate advanced additional, unrelated arguments, they seem
more appropriately brought via a motion for reconsideration or for rehearing en banc, or,
alternatively, a § 23-110 collateral attack on his conviction and sentence. Wicks would therefore
not have been ineffective for failing to draft a Motion containing those points.
III. Conclusion
For the reasons articulated herein, the Court will issue a contemporaneous Order
dismissing this case.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 17, 2014
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