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Johnson v. Sullivan

October 29, 2010

DUANE JOSEPH JOHNSON, PLAINTIFF,
v.
FREDERICK J. SULLIVAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

This matter is before the Court on the defendants' motions to dismiss. For the reasons discussed below, the motions will be granted.

I. BACKGROUND

A. Proceedings in the Superior Court of the District of Columbia

To better understand the plaintiff's allegations and the defendants' arguments for dismissal, it is helpful to review the underlying conduct leading to the criminal prosecution of the plaintiff and the post-conviction proceedings in the District of Columbia courts.

1. Evidence of the Crimes For Which the Plaintiff Was Convicted

Evidence at the plaintiff's trial established that, on April 25, 1994, the plaintiff was in a car (seated behind the driver) with five other people: Victor Williams (seated behind the passenger), Keith Nash (the driver), Sharon Nash (seated in the front passenger seat), Latina Gray, and Damitra Rowell (both seated in the middle of the rear seat). Memorandum of Points and Authorities in Support of Defendant Abraham C. Blitzer's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted ("Blitzer Mem."), Exhibit ("Ex.") 1 (Order, Johnson v. United States, No. F-4696-94 (D.C. Super. Ct. Aug. 19, 2008)) at 10. The parties' theories of the case were described as follows:

The government's theory of the case was that after [the plaintiff] refused to discount his drugs and the car's occupants bought from a different dealer, [the plaintiff] entered the car with the intent of robbing the decedent, Mr. Nash, and his companions. Ms. Rowell testified for the government that she and [the plaintiff] approached Mr. Nash and asked for a ride. Once inside the car [the plaintiff] ordered Mr. Nash to drive into an alley, cut the ignition, and give him money. Mr. Nash replied that he had no money, and Ms. Nash attempted to pass a gun and a bag of bullets to Mr. Nash. [The plaintiff] shot Mr. Nash, fired again -- injuring Ms. Nash -- and struggled with Mr. Williams over the gun before fleeing with the gun down the alley. As [the plaintiff] ran away, Mr. Williams fired at him twice with the gun he had taken from Mr. Nash's hand.

The defense theory was that [the plaintiff] approached the car in response to a request from Mr. Williams, that it was Mr. Williams who directed the car into the alley, . . . and who then pointed a gun at [the plaintiff] and demanded his drugs and money. According to [the plaintiff], he and Mr. Williams struggled over the gun and shots went off during the struggle before [the plaintiff] was able to free himself from the car and run away. Mr. Williams shot [at the plaintiff] as he ran down the alley. [The plaintiff] was the only witness for the defense [and he] admitted that he had been selling drugs around the time of the shooting.

Id. at 10-11 (internal citations omitted).

2. The Plaintiff's Convictions and Post-Conviction Proceedings

On January 19, 1995, the plaintiff was found guilty of first degree felony murder while armed, second degree murder while armed, assault with intent to kill while armed, assault with a deadly weapon, attempted robbery while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. Blitzer Mem., Ex. 1 at 2. The court imposed a sentence of 30 years to life imprisonment for first degree felony murder while armed; 15 years to life imprisonment for second degree murder while armed, 15 to 45 years for assault with intent to kill while armed; one to three years for assault with a deadly weapon; 10 to 30 years for attempted robbery while armed; five to 15 years for possession of a firearm during a crime of violence; and one year for carrying a pistol without a license. Id. The sentences imposed for attempted robbery while armed and second degree murder while armed were designated to run concurrently with the sentence for first degree felony murder while armed; the sentence imposed for carrying a pistol without a license was designated to run concurrently with the sentence for possession of a firearm during a crime of violence; and all other sentences were designated to run consecutively. Id. The plaintiff timely appealed his convictions, and the District of Columbia Court of Appeals affirmed. Id. at 2-3. However, the matter was remanded to the trial court so that those convictions the appellate court found had merged (the murder convictions merged and the felony murder and the underlying felony convictions merged) could be vacated. Id. Accordingly, on remand, the convictions for attempted robbery while armed and second degree murder while armed were vacated. Id. The plaintiff then unsuccessfully sought to have his sentences reduced under Rule 35(b) of the Superior Court Rules of Criminal Procedure and the District of Columbia Court of Appeals denied his petition for rehearing or rehearing en banc. Id.

The Plaintiff's First § 23-110 Motion

In February 1998, the plaintiff filed two similar pro se motions in the Superior Court of the District of Columbia ("Superior Court") under D.C. Code § 23-110 (2001) to vacate his sentence, arguing ineffective assistance of counsel, and on March 6, 1998, the court appointed Abraham Blitzer, Esq. ("Blitzer"), to represent him. Blitzer Mem., Ex. 1 at 3. On October 1, 1998, Blitzer filed a motion for new trial under D.C. Code § 23-110, arguing ineffective assistance of trial counsel, Frederick J. Sullivan, Esq. ("Sullivan"), who allegedly failed to (1) adequately prepare the plaintiff for his testimony, (2) offer into evidence the decedent's prior criminal conviction, and (3) adequately cross-examine an eyewitness.*fn1 Id. at 3-4. The government opposed the motion, asserting that Sullivan sufficiently prepared the plaintiff to testify, that the decision not to use the decedent's conviction was tactical, and that the cross-examination was adequate. Id. at 4. The trial judge held an evidentiary hearing on June 29, 1998, at which both the plaintiff and Sullivan testified. Id. The motion was denied, and the ruling was affirmed on appeal. Id.

The Plaintiff's Second § 23-110 Motion

On April 9, 2002, the plaintiff filed a second motion under D.C. Code § 23-110 in which he alleged trial error in instructing the jury "that [a finding that the plaintiff was] the aggressor precluded a finding that he acted in self-defense." Blitzer Mem., Ex. 1 at 4. On July 23, 2002, the Superior Court received a letter from the plaintiff which it construed as a motion to withdraw this second § 23-110 motion or, alternatively, to deny it without prejudice. Id. at 5. The court granted the motion on August 20, 2002. Id.

The Plaintiff's Third § 23-110 Motion

In the plaintiff's third motion under D.C. Code § 23-110, filed on December 1, 2005, he alleged that he was precluded from raising in his first § 23-110 motion a claim that Sullivan's promise to call to witnesses to corroborate his version of events induced him to plead not guilty rather than to entering an Alford plea, and that Sullivan's failure to call these witnesses constituted ineffective assistance of counsel.*fn2 Blitzer Mem., Ex. 1 at 6. On May 8, 2007, the court denied this motion as procedurally barred. Id. at 8.

The Plaintiff's Fourth § 23-110 Motion

Papers comprising the plaintiff's fourth motion under D.C. Code § 23-110, including a motion for a new trial filed on the plaintiff's behalf by Joseph Bernard, Esq. ("Bernard") on December 10, 2007, raised three claims: (1) Blitzer provided ineffective assistance of counsel by failing to raise a claim that Sullivan's failure to introduce two defense witnesses induced the plaintiff to plead not guilty rather than enter an Alford plea; (2) Sullivan provided ineffective assistance of counsel due to a conflict of interest arising from his prior representation of Victor Williams, a government witness, and this conflict prevented Sullivan from investigating and pursuing the defense theory that Williams was the shooter, impeaching Williams with his prior convictions, introducing testimony from other victims of acts of violence committed by Williams, and advising the plaintiff of his right to note an appeal on resentencing after remand, and (3) the plaintiff is entitled to a new trial because the government failed to disclose what he characterized as favorable or exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963). Blitzer Mem., Ex. 1 at 7-9. Bernard moved to withdrew his appearance on April 29, 2008, id. at 8, and the court granted the motion nunc pro tunc on August 18, 2008, id. at 33.

Upon consideration of the plaintiff's motion and the government's opposition, the court found that the plaintiff's claim of ineffective assistance of counsel by Blitzer arising from his alleged failure to uncover information as to Sullivan's promise to call two additional witnesses was procedurally barred because the plaintiff could have raised this issue in his first § 23-110 motion, and the plaintiff did not show good cause for not having done so. Id. at 13. The court also found that the testimony of the two additional witnesses would have been duplicative of testimony presented by Rowell, Williams and Gary, and it was not unreasonable for Sullivan not to call them. Id. at 13-14. Moreover, the court concluded that the plaintiff had no constitutional right to the effective assistance of counsel on a post-conviction matter, and even if there were such a right, Blitzer's performance was not ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Id. at 14.

Similarly, the court found that the plaintiff's claim of ineffective assistance of trial counsel was procedurally barred, see D.C. Code § 23-110(e),*fn3 because he raised the identical issue (ineffective assistance of counsel) in the first ยง 23-110 motion, albeit under a different theory based on different facts (the alleged conflict of interest arising from Sullivan's prior representation of Victor Williams). Id. at 16. In the alternative, the court found that the plaintiff's "motion [was] procedurally barred as an abuse of the writ." Id. Lastly, the court discussed at length how the plaintiff neither demonstrated cause for his ...


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