The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant's pro se motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Defendant raises five grounds for review. Upon consideration of defendant's motion and the entire record herein, the Court will deny the motion. Defendant's motion is time-barred under 28 U.S.C § 2255. Even if evaluated on its merits, however, the motion would fail.
In this case the defendant, Rico McLaughlin, was charged in a six-count indictment with: (1) knowingly causing bodily injury with the intent to retaliate for providing information to law enforcement, 18 U.S.C. § 1513(b); (2) using or carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c); (3) assault with intent to kill while armed, D.C. Code §§ 22-501 and 22-3202; (4) aggravated assault while armed, D.C. Code §§ 22-504.1 and 22-3202; (5) possession of a firearm during a crime of violence, D.C. Code § 22-3204(b); and (6) carrying a pistol without a license, D.C. Code § 22-3204(a). See United States v. McLaughlin, 164 F.3d 1, 3 (D.C. Cir. 1998), cert. denied, 526 U.S. 1079 (1999). The key witnesses at trial were the defendant, Rico McLaughlin, who denied that he was the shooter or that he had any involvement in or knowledge of the shooting, and the victim, Thomas White, who was shot three times by his assailant while being chased down a neighborhood street. After a seven-day trial, the jury convicted the defendant on all six counts of the indictment. See United States v. McLaughlin, 955 F.Supp. 132, 133 (D.D.C. 1997). This Court sentenced the defendant to:
eighty-seven months imprisonment on count one, including an upward departure of twenty-four months; sixty months imprisonment on count two, counts one and two to be served consecutively; five to fifteen years imprisonment on count three; five to fifteen years imprisonment on count four, counts three and four to be served concurrently but consecutively to counts one and two; five to fifteen years imprisonment on count five; and forty months to ten years imprisonment on count six, counts five and six to be served concurrently, but consecutively to counts one through four.
United States v. McLaughlin, 164 F.3d at 3-4.
Defendant appealed his conviction, raising four issues: (1) that this Court's denial of his request to confer with counsel during a brief recess violated his Sixth Amendment right to counsel; (2) that his simultaneous convictions under multiple provisions which Congress did not intend to operate concurrently violated the Double Jeopardy Clause; (3) that the prosecutor made improper statements at trial which substantially prejudiced the outcome; and (4) that it was improper for this Court to make an upward departure from the Sentencing Guidelines on the Section 1513(b) charge. See United States v. McLaughlin, 164 F.3d at 4. The court of appeals rejected all but one of these arguments, concluding that the two assault convictions under the D.C. Code -- assault with the intent to kill while armed, D.C. Code §§ 22-501 and 22-3202, and aggravated assault while armed, D.C. Code §§ 22-504.1 and 22-3202 -- should merge. See id. at 14-17. As a result, the court of appeals reversed defendant's conviction for aggravated assault while armed under D.C. Code § 22-504.1, vacated the concurrent sentence for that offense, and remanded the case for resentencing. See id. at 3, 16-17. The court of appeals issued its decision on December 18, 1998; the mandate issued on February 9, 1999; and the Supreme Court denied certiorari on April 19, 1999. See McLaughlin v. United States, 526 U.S. 1079 (1999).
On remand, this Court sentenced the defendant to 87 months on count one; 60 months on count two, to run consecutively to count one; five to fifteen years on count three, to run consecutively to counts one and two; five to fifteen years on count five, to run concurrently with count six and consecutively to counts one, two and three; and 40 months to ten years on count six, to run concurrently with count five, but consecutively to counts one, two and three. The conviction on count four was vacated. See Amended Judgment, United States v. McLaughlin, Crim. No. 96-0045 at 2 (March 30, 1999). Defendant now brings a collateral attack on his conviction pursuant to 28 U.S.C. § 2255.
Defendant raises five grounds on which he asserts his sentence should be vacated, set aside or corrected. First, defendant contends that, prior to trial, evidence of third party culpability was excluded which "interfered with [his] right to present a complete defense." Petition at 5-5A. Second, defendant alleges that he is being subjected to double jeopardy because he was charged in the Superior Court of the District of Columbia -- and the charges were dismissed there -- prior to his being indicted, tried and convicted in this Court. See id. at 6-6B. Third, defendant asserts that he was denied his right to confront a witness. See id. at 8-8A.
Fourth, he reiterates his contention that he is being subjected to double jeopardy. See id. at 9-9A. Finally, defendant asserts that his counsel was ineffective pre-trial because she did not raise the double jeopardy defense. See id. at 10A-10B. Upon careful consideration, the Court will deny the motion because (a) it is time-barred under 28 U.S.C. § 2255, and (b) even if evaluated on its merits, it has no merit.
A. Defendant's Motion is Time-Barred Under 28 U.S.C. § 2255.
Under 28 U.S.C. § 2255, there is a one-year statue of limitations that begins to run from the later of "the date on which the judgment becomes final; . . . [or] the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255. For purposes of collateral review under Section 2255, a judgment becomes final "if a prisoner petitions for certiorari, . . . when the Supreme Court either denies the writ or issues a decision on the merits." United States. v. Hicks, 283 F.3d 380, 387 (D.C. Cir. 2002), citing Washington v. United States, 243 F.3d 1299, 1300-01 (11th Cir. 2001). Certiorari in this case was denied on April 19, 1999; see McLaughlin v. United States, 526 U.S. 1079 (1999). Defendant argues however, that the date of the decision by the Supreme Court in Holmes v. South Carolina, 126 S.Ct. 1727 (2006), decided on May 1, 2006, is the date from which the statute of limitations should run.
The Supreme Court has long recognized that "state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials." Holmes v.South Carolina, 126 S.Ct. at 1731, citing United States v. Scheffer, 523 U.S. 303, 308 (1998); Crane v. Kentucky, 476 U.S. 683, 689-90 (1986); Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983); Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973); Spencer v. Texas, 385 U.S. 554, 564 (1967). In Holmes, the Court reiterated that although "the Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." Holmes v.South Carolina, 126 S.Ct. at 1732. The Court commented, however, that a ...