Appeal from the Superior Court of the District of Columbia (F-10821-86) (Hon. Hiram E. Puig-Logo, Motions Judge)
Before Terry and Schwelb, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Terry, Associate Judge
Submitted February 6, 2003
This is an appeal from the denial of appellant's second motion to vacate sentence pursuant to D.C. Code § 23-110 (2001). Appellant contends that the trial court erred in concluding that his motion was procedurally barred. He also challenges the denial of his separate motion for new trial based on a claim of newly discovered evidence. We affirm both rulings.
On February 18, 1988, a jury found appellant guilty of second-degree murder while armed. *fn1 On April 22, 1988, he was sentenced to a prison term of fifteen years to life. We affirmed his conviction in an unpublished Memorandum Opinion and Judgment. Washington v. United States, No. 88-CF-502 (D.C. April 12, 1990).
On October 4, 1991, appellant filed his first pro se motion to vacate sentence under D.C. Code § 23-110. In that motion, appellant argued (1) that he should not have been allowed, mainly because of his youth, to waive his Miranda rights *fn2 without the presence of an attorney, and (2) that certain hearsay evidence should not have been admitted at trial. The government responded that appellant's claims should be rejected because they could have been, but were not, raised before trial or on direct appeal. In due course the trial court entered an order directing appellant to show cause "for not having asserted [these claims] prior to trial and that the admission of his statement was a serious defect which was not correctable on direct appeal or that he was prevented by exceptional circumstances from raising it on appeal." In response, appellant m aintained in a "memorandum in support" of his motion that he was legally incompetent to make statements to the police and that his counsel should have raised the issue of his competency before trial. *fn3 Furthermore, appellant cited the following as "exceptional circumstances" which, he maintained, excused his failure to raise this ineffectiveness claim on direct appeal: "(1) his youth, (2) his naive belief that his attorney would preserve and protect his rights, and (3) his utter ig norance of the la w as it pertained to these issues."
In an order dated October 2, 1992, the trial court denied the § 23-110 motion, ruling that appellant's motion did not require a hearing because his allegations were "vague and conclusory." The court also concluded that appellant's claims of youth-related incompetency were without merit because he was twenty years old at the time of his arrest, and that appellant had not shown good cause for failing to raise any of these issues before trial or on direct appeal.
On September 20, 2001, more than thirteen years after his conviction and more than eleven years after that conviction was affirmed on appeal, appellant filed a second pro se motion to vacate his sentence under section 23-110. Attached to this motion was a separate motion for new trial based on a claim of newly discovered evidence. *fn4 In the § 23-110 motion, appellant again asserted that his trial counsel (now deceased) had rendered ineffective assistance. This time, however, he based his claim on counsel's failure (1) to call an exculpatory witness, (2) to cross-examine an adverse witness, (3) to conduct a sufficient investigation and prepare adequately for trial, and (4) to challenge allegedly false evidence presented by the government at his sentencing hearing. As for the motion for new trial, the supposed newly discovered evidence was an "affidavit" (which bore no date) signed by Paulette Lanham, who had been a witness for the government, in which she recanted her trial testimony. *fn5
In a single order dated November 29, 2001, both motions were denied. The court found appellant's latest § 23-110 motion to be an "abuse of writ" because he was raising issues that he had failed to raise in his previous § 23-110 motion, even though he knew or should have known of these matters when he filed the earlier motion. The court also held that it was without jurisdiction to hear appellant's motion for new trial beca use, under Criminal Rule 33, such motions must be filed within three years after the guilty verdict. Appellant then noted the instant appeal.
There is a presumption that a trial judge should conduct a hearing on a § 23-110 motion. See, e.g., Wright v. United States, 608 A.2d 763, 765-766 (D.C. 1992) (citing cases). This court has recognized, however, that in some circumstances a hearing is not always required. See Ramsey v. United States, 569 A.2d 142, 147 (D.C. 1990) (listing "three categories of claims that do not merit hearings"); Pettaway v. United States, 390 A.2d 981, 984 (D.C. 1978) (same).
Here we are dealing with appellant's second § 23-110 motion, in which he raises issues not raised either on direct appeal or in his first § 23-110 motion. In such circumstances the rule is more strict. "[I]f an appellant does not raise a claim of ineffective assistance of counsel during the pendency of the direct appeal, when at that time appellant demonstrably knew or should have known of the grounds for alleging counsel's ineffectiveness, that procedural default will be a barrier to this court's consideration of appellant's claim." Shepard v. United States, 533 A.2d 1278, 1280 (D.C. 1987). *fn6 "Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure." Head v. United States, 489 A.2d 450, 451 (D.C. 1985) (citing United States v. Frady, 456 U.S. 152, 167-168 (1982)); accord, e.g., Thomas v. United States, 772 A.2d 818, 824 (D.C. 2001); Vaughn v. United States, 600 A.2d 96, 97 (D.C. 1991). Moreover, when, as in this case, "the defendant has already launched several collateral attacks on his conviction, the reasons supporting the application of the ...