The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
This matter is before the Court on the motion to dismiss filed on behalf of the United States and an opposition filed by petitioner Tracy Pinkney ("Pinkney"). For the reasons discussed below, the motion will be granted and the petition will be denied.
Criminal Charges, Conviction, and Sentence On April 2, 1996, in the 4600 block of A Street, S.E., Pinkney and Darryl Curry approached three men, pulled handguns, and during this encounter, Pinkney shot and killed Phillip Baldwin ("Baldwin"). See Resp't's Mot. to Dismiss Pet. for a Writ of Habeas Corpus ("Gov't Mot.") [Dkt. # 28] at 6--7. In an indictment filed on August 6, 1996, id. at 2, Pinkney "was charged with first-degree premeditated murder while armed, first-degree felony murder while armed, conspiracy to commit robbery, attempted robbery, two counts of assault with a dangerous weapon (ADW), and two firearms offenses." Pinkney v. United States, 851 A.2d 479, 482 (D.C. 2004). The conspiracy charge was dismissed before the trial, id., which took place between September 10, 1997, and October 2, 1997, in the Superior Court of the District of Columbia. Gov't Mot., Ex. B (Order, United States v. Pinkney, Case No. F-2830-96 (D.C. Super. Ct. June 6, 2001)) at 2. Pinkney's motion for judgment of acquittal on the armed robbery and felony murder charges was granted at the close of the Government's case. Pinkney, 851 A.2d at 482. "The jury found [Pinkney] guilty of ADW and second-degree murder while armed, as a lesser included offense of the remaining first-degree murder charge, but acquitted him on all the remaining counts of the indictment." Id.; see Pet. for a Writ of Habeas Corpus ("Pet.") [Dkt. # 1] at 3. The Superior Court imposed a prison sentence of 40 to 120 months for ADW, and a consecutive sentence of 20 years to life for second-degree murder while armed. Gov't Mot., Ex. A (Judgment and Commitment Order, United States v. Pinkney, Case No. F-2830-96 (D.C. Super. Ct. Dec. 2, 1997)). Pre-Trial Disqualification of Trial Counsel "Ten days after he was indicted, [Pinkney] retained an attorney, Douglas Wood, to represent him." Pinkney, 851 A.2d at 484. On October 2, 1996, the Government moved to disqualify counsel, Gov't Mot. at 2, based on Douglas Wood's ("Wood") representation of David Henderson ("Henderson"), a potential rebuttal witness for the Government, id. at 11. Wood "had previously represented . . . Henderson in an unrelated criminal matter, and at the time the government filed its motion, . . . Wood was representing him in a case in the United States District Court that was scheduled for sentencing, as well as an upcoming trial in the Superior Court." Pinkney, 851 A.2d at 484. "[T]he government's concern was that information . . . Wood had gleaned from his representation of Henderson would be relevant to . . . Wood's cross-examination of Henderson." Gov't Mot. at 11.
At a hearing on October 9, 1996, the Government proffered that Henderson met a person who allegedly had paid Pinkney to kill Baldwin. Gov't Mot. at 11. Further, the Government proffered that Henderson later had contact with Pinkney, and that Pinkney "indicated that indeed he had killed [Baldwin]" although Pinkney's version of events differed from the Government's case. Id. In addition, the Government proffered:
[Pinkney] . . . was afraid that the co-defendant, Mr. Curry, was going to cut a deal with the Government and that at the suggestion of Mr. Wood, . . . get Mr. Curry his own attorney. Mr. Pinkney indicated that he, in fact, paid Mr. Wood and had paid [another attorney] to represent Mr. Curry in an effort to keep Mr. Curry quiet, so he would not cooperate with the Government. [T]he Government [was] in possession of a letter written by Mr. Pinkney to Mr. Henderson where [Mr. Pinkney] indicates . . . how [Mr. Curry's attorney, Mr. Curry, Mr. Wood and himself] met to try to strategize the best way to handle this case, . . . in an effort again to keep Mr. Curry quiet and to try to beat the charge[.]
Id. The Government proposed to use Pinkney's "admitted involvement in the homicide [as] evidence . . . at trial." Id.
Wood notified the court that he was withdrawing from his representation of Henderson and that Henderson should be appointed new counsel. Id. at 12. He suggested that the court "conduct a hearing to see if any attorney-client privilege would be violated by . . . Wood's continued representation of . . . [Pinkney]." Id. Wood argued "that perhaps Henderson was not really a witness, that the court had no information about how he became a witness, and that Pinkney claimed Henderson did not know anything about the case." Id. Wood proposed that the court could determine the nature of Henderson's testimony at a hearing, assess Henderson's credibility, determine whether Wood could effectively cross-examine Henderson about his testimony without addressing matters regarding his prior representation of Henderson, and inquire as to whether Henderson would waive any objection to Wood's disclosure of prior confidences. Id. If Henderson were not called to testify, Wood's disqualification would mean that Pinkney would be denied his chosen counsel. See id.
The court determined that Pinkney had "a Sixth Amendment right to counsel of his choice, . . . a right to conflict-free representation and . . . vigorous representation by someone without . . . restraints on [his] ability to do a thorough and effective cross-examination of a witness called against him." Id. Further, the court acknowledged Henderson's "right not to have any of his confidences exposed." Id. at 13. Although Pinkney expressed his willingness to waive any conflict of interest, the court found that Pinkney could not possibly effect a knowing and intelligent waiver of confidentiality without knowing exactly what Henderson's testimony would be:
[Henderson] . . . could agree to have Mr. Wood free to take advantage of his knowledge of him in cross-examination . . . if Mr. Wood not only knew what the testimony was going to be about and therefore was able to decide in advance what kinds of things would be used in cross-examination and that very disclosure would . . . require the Government to disclose something that [it doesn't] have to disclose but it would . . . emasculate any cross-examination if you told the witness in advance what you'll be using and that would be clearly unfair to Mr. Pinkney.
Id. According to Pinkney, Henderson's testimony would be a "total fabrication [which] would indeed require vigorous and aggressive cross-examination." Id. And "it would not be fair to . . . Pinkney to have his cross-examination cut short and it would not be fair to [Henderson] to have that cross-examination done by someone" with whom he had shared confidences. Id. In short, the court did not believe the case could proceed with Wood's continued participation. Id. Justice required Wood's withdrawal and an opportunity for Pinkney to choose new counsel. Id. "A new attorney later entered an appearance for [Pinkney]," and after this attorney "and two successors were allowed to withdraw for various reasons, a sixth attorney (Wood had been the second) entered the case and represented [Pinkney] through the trial and sentencing." Pinkney, 851 A.2d at 485.
During voir dire on the first day of trial on September 11, 1997, defense counsel learned that Henderson did not appear on the Government's witness list. See Pinkney, 851 A.2d at 490; see Pet. at 7. Defense counsel promptly "moved to stay the proceeding, strike his own appearance as counsel, and reinstate . . .Wood as defense counsel." Pinkney, 851 A.2d at 490. If the motion had been granted, it "would have necessitated a delay in the trial," principally because "Wood had had no contact with the case for several months." Id.*fn1 The court denied the motion, id., "mainly because the litigants were sort of in the middle of trial and because . . . Wood's successor counsel was finally prepared and ready for trial." Id. at 491 (internal quotation marks omitted). As stated previously, the trial resulted in Pinkney's conviction for ADW and second degree murder while armed.
Post-Conviction Proceedings in the District of Columbia Courts On October 14, 1997 and on January 12, 1998, Pinkney filed motions under D.C. Code § 23-110 to vacate his sentence. Gov't Mot. at 3. These and his various supplemental filings were considered and denied on June 6, 2001. See id., Ex. B. The court rejected Pinkney's claim of ineffective assistance of trial counsel based on counsel's alleged failure to cross-examine witnesses effectively, see id. at 4--10, failure to call other witnesses, see id. at 10--13, and "a major tactical disagreement," id. at 13, with regard to counsel's chosen argument in his closing, see id. at 13--14. Pinkney filed a timely notice of appeal, Gov't Mot. at 3, and on June 17, 2004, the District of Columbia Court of Appeals affirmed the denial of his § 23-110 motion and rejected the remaining motions except one raising the question of whether the trial court should have permitted Wood to resume his representation of Pinkney when it appeared that the conflict of interest which had disqualified him had been resolved. See Pinkney, 851 A.2d at 491. While "leav[ing] the details of the remand proceedings to the discretion of the trial court," id. at 492, the Court of Appeals set forth the trial court's task on remand:
[I]f the court concludes that . . . Wood would not have re-entered the case when [Pinkney] moved to reinstate him as counsel, then the judgment of conviction shall stand affirmed. But if the court finds that . . . Wood was willing and able to represent [Pinkney] after learning that Henderson would not be a witness, and if the court can be assured that there would be no risk that Henderson's rights would be infringed by Wood's renewed representation of [Pinkney], it shall vacate the judgment and order a new trial.
Id. (internal quotation marks and footnote omitted).
On remand, the Superior Court held an evidentiary hearing, see Gov't Mot., Ex. C (Transcript, United States v. Pinkney, Case No. F-2380-96 (D.C. Super. Ct. Nov. 1, 2004)), during which the prosecutor, Henderson, Henderson's attorney, and Wood testified, see Gov't Mot. at 14. The court concluded that "Henderson still was a potential rebuttal witness," id., Ex. C at 158:18, and, therefore, "the premise of [Wood's] disqualification continued and remained in effect as of the time of trial." Id. at 162:8--10.
Even if Wood had been reinstated as Pinkney's counsel, the judge found that Wood had been unable to re-enter the case on the eve of trial. The court did not believe that Wood "was ready to try [the case] right away," Gov't Mot., Ex. C at 162:24--15, but rather "would have asked for a continuance," id. at 162:25 to 163:1, as would "any criminal defense lawyer in his situation," id. at 163:12--13. The charge was first degree murder, and the case was "fairly complex," id. at 163:18, such that "it would have been completely appropriate for a . . . lawyer who had not had any contact with the case for 11 months if [he were] brought in to say [he] needed some additional time," id. at 163:18--21. Addressing the factors set forth in Leak v. United States, 757 A.2d 739, 744--45 (D.C. 2000), the court made additional findings which militated against Wood's reinstatement and the supported need, had Wood been reinstated, for a continuance. There had already been significant continuances granted at points where all parties were prepared for trial (at least one of which was attributed to Pinkney's dissatisfaction with previous appointed counsel), so that another continuance would result in inconvenience to the litigants, witnesses and the court, prejudice flowing from yet another continuance, and that the complexity of the case would have necessitated another continuance. See Gov't Mot., Ex. C at 164:4 to 170:3. The court thus found that "the reason for Mr. Wood's disqualification continued as of September of ," id. at 170:6--7, providing no basis to disturb the conviction.
Pinkney filed a timely notice of appeal, and Jonathan Willmott ("Willmott") was appointed to represent him before the District of Columbia Court of Appeals. See Gov't Mot., Ex. I (Brief for Appellant, Pinkney v. United States, No. 04-CO-1501 (D.C. Ct. of App. filed Aug. 23, 2005)) at 3. Willmott framed the question on appeal as follows:
Whether [Pinkney's] original attorney [Wood] should have been reinstated since the lawyer unequivocally said he would have reentered the case, the so-called rebuttal witness [Henderson] was not really a potential rebuttal witness, and the other factors suggested ...