The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Petitioner Ronnie Payne seeks issuance of a writ of habeas corpus under 28 U.S.C. § 2254. He claims that his custody, based on a judgment of conviction entered by the Superior Court of the District of Columbia, violates the Fifth and Sixth amendments to the United States Constitution. The Respondent, Warden Patricia Stansberry, moves to dismiss on the grounds (1) that the petition is time-barred; (2) that claims arising from alleged errors during the trial proceedings are foreclosed by local remedy D.C. Code § 23-110; and (3) that appellate counsel was not constitutionally ineffective. Upon consideration of the parties' submissions and the entire record, the Court will grant Warden Stansberry's motion to dismiss.
Following a jury trial before Associate Judge George W. Mitchell, Mr. Payne and co-defendant Ronald E. Garris were convicted of two counts of premeditated first degree murder while armed, two counts of assault with intent to kill while armed, one count of carrying a pistol without a license, and one count of possession of a firearm during a crime of violence. Mr. Payne was sentenced to consecutive sentences ranging from two years to life imprisonment.
Payne v. U.S., 697 A.2d 1229, 1230 & n.1 (D.C. 1997). The underlying facts as recounted by the District of Columbia Court of Appeals on Messrs. Payne and Garris' direct appeal are as follows:
Terence Woodfork, Hezekiah Vaughn, Kenyetta Jeter and Maurice Carey, all good friends, were seated in a Nissan Pulsar automobile, outside the Breezes Metro Club on Channing Street and Bladensburg Road, N.E., on the night and in the early morning hours of March 12 and 13, 1992. While they were sitting and drinking beer in the Nissan Pulsar, they spotted a blue or gray car carrying a white female and a black male, later identified as Christine Terry and Preston Coe, approach and park. Terry and Coe got out of the car and walked toward the Metro Club. Soon another car drove up, occupied by two black males. The two black males emerged from their car and eventually stood in front of the Nissan Pulsar and opened fire, killing Vaughn and Jeter, and injuring Carey in the back and arm. At the time the shots were fired, neither Woodfork nor Carey saw anyone else on the street. Later, the police showed Woodfork a photo array and he picked out Garris and Payne as the assailants. He also made an in-court identification of both men. When Carey was shown the photo array by the police, he initially picked out only Coe, the black male who was with the white female. He did not identify Garris and Payne until his testimony during their trial. However, Carey testified that after the shots were fired, he saw both the car carrying the two black males and the one bearing the white female and the black male leave the area. The car carrying the black male and white female departed first.
At the time of the shootings, Officer Stacey Davis was on duty in the Metro Club area. He "heard . . . gunshots, stepped to the corner and observed the gunshots." As he ran up Channing Street, he saw a vehicle containing a black man and a white woman moving on the street. He also "observed two black males firing into or onto a vehicle." One was dark in complexion and had on a blue jean outfit, and the other was light-complected and had on an orange muscle sweat shirt with blue jeans. When the men saw the officer, they got into a car and drove away. Officer Davis identified Payne in court as one of the men he had seen shooting into the Nissan Pulsar.
Christine Terry testified at trial that she had known Garris for about nine to ten months prior to March 13, 1992, and Payne for about six months prior to that time. She met both through her then boyfriend, Preston Coe. Earlier on the night of the shooting incident, she saw Garris and Payne sitting in a car. Garris had a 45 millimeter gun in his lap, but she did not see Payne with a weapon. After Terry arrived in the area of the Metro Club, she overheard Coe tell Garris and Payne to put their guns in the trunk of the car before they went into the club. Payne "said no, that the boys in the occupied car [Vaughn, Jeter, Woodfork and Carey] might see where they're putting their guns." She heard Garris say, "we'll try our shootouts on these young niggers behind us. . . We'll smoke these young niggers behind us." Coe and Terry left the area. As Coe and Terry were leaving the area, Terry said she "[saw] Ronald Garris in front of the . . . blue car . . . shooting into it." She did not see Payne with any gun. About half an hour after Coe and Terry reached their apartment, they received a telephone call, and about fifteen minutes after the call Payne and Garris arrived. Garris went into Coe's bedroom with Coe, where the two men remained for about twenty-five to thirty minutes. Garris and Payne were arrested approximately one month after they killed Vaughn and Jeter.
Id. at 1230-32 (footnotes omitted) (alterations in original). On direct appeal, Mr. Payne argued that the trial court erred in denying his motion for a new trial based on newly discovered evidence, namely a 9mm. Calico Model M-950 pistol, id. at 1233, and "when it admitted the eyewitness identification by Officer Stacey Davis and visited the [crime] scene and then affirmed its ruling on the identification testimony." Id. at 1234-35 (alterations in original). He also argued that the trial court erred in giving an aiding and abetting jury instruction and that he was convicted on insufficient evidence. See Gov't's Ex. 14B [Dkt. # 14-16] (Brief for Appellant at 29-34). In its decision issued on July 24, 1997, the D.C. Court of Appeals affirmed Mr. Payne's convictions, noting that his arguments "that the evidence was insufficient to convict [him]" and "that the trial court erred in giving an aiding and abetting instruction" were "without merit." Payne, 697 A.2d at 1235 n.12.
On October 10, 1997, Mr. Payne moved in the D.C. Court of Appeals to recall the mandate "or alternatively to set aside the panel division judgment." That court construed the motion as a petition for rehearing and, on October 13, 1997, denied it. Pet'r Ex. A (Docket Sheet of Appellate Case No. 93-CF-001643); Gov't's Ex. 1.
On October 28, 1998, the Superior Court received Mr. Payne's "Motion to Vacate Sentence and Set Aside Conviction Ineffective Assistance of Trial Counsel and Appellate Counsel" brought pursuant to D.C. Code § 16-1901 and § 23-110, which was dated August 25, 1998. Gov't's Ex. 2. By Order of March 6, 2000, Judge Mitchell summarily denied Mr. Payne's "§ 23-110 motion to set aside his conviction because of ineffective assistance of counsel and [his] motion to have counsel appointed to represent him at a hearing on this matter . . . ." Gov't's Ex. 5.
On March 25, 2005, Mr. Payne filed in Superior Court a "Motion to Amended [sic] Original § 23-110(g) Pleading Pursuant [to] Rule 15(a)(c)(1)(2)," in which he challenged the aiding and abetting jury instruction. Gov't's Ex. 7. By Order of March 16, 2006, Associate Judge Geoffrey M. Alprin denied the motion without first obtaining a response from the government "because the motion and files and records of the case conclusively show that defendant is not entitled to relief." Gov't's Ex. 8. Judge Alprin determined that the jury instructions "on the principles of aiding and abetting and on first degree murder . . . were given in accordance with the standard 'red-book' instructions . . . ." Id. at 1. He also found that Mr. Payne's consecutive sentences were proper because he was convicted of two murders and two assaults. Id. On September 11, 2006, Judge Alprin denied Mr. Payne's motion for re-entry of judgment, noting that his appeal time "had lapsed." See Gov't's Ex. 11 at 2. On December 11, 2006, Mr. Payne filed in Superior Court yet another Motion to Vacate Sentence and Set Aside Conviction for Ineffective Assistance of Counsel. Id.
On November 24, 2008, Mr. Payne filed a Motion to Vacate Judgment, in which he sought to vacate the order of September 11, 2006. Id. at 3. By Order of January 19, 2010, Judge Alprin denied Mr. Payne's motion for new trial "as successive," id. at 2, and denied Mr. Payne's motion to vacate judgment upon finding that the Superior Court's rules did not support Mr. Payne's claim. Id.
Meanwhile, on August 14, 2008, Mr. Payne moved in the D.C. Court of Appeals to recall the mandate. On August 22, 2008, the Court of Appeals, noting that the mandate had issued on August 15, 1997, denied Mr. Payne's motion as "untimely filed but without prejudice to the filing of an appropriate motion in the trial court." Gov't's Ex. 1 at 7. On September 17, 2008, Mr. Payne filed a motion for reconsideration, Gov't's Ex. 10, which Warden Stansberry represents was "rejected." Resp't's Mot. to Dismiss the Pet. for Writ of Habeas ...