The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Petitioner George Leon Adams was convicted of attempted armed robbery, first degree murder while armed, assault with a deadly weapon, possession of a firearm during a crime of violence, carrying a pistol without a license, robbery, and second degree murder while armed. Adams has filed a petition for a writ of habeas corpus, arguing that his trial and appellate counsel were ineffective, that his Fifth and Sixth Amendment rights were violated, that evidence of "other crimes" was improperly admitted in his trial, and that he is actually innocent. Respondent has moved to dismiss the petition on the grounds that it is untimely. For the reasons discussed below, the motion will be granted.
On July 22, 1995, in an attempt to rob Ronald Wright, Brian Mountjoy and Robert Hamilton at gunpoint, Adams shot and killed Hamilton. (See Pet. at 5-11*fn1 ; United States' Motion to Dismiss Petitioner's Petition for Writ of Habeas Corpus ("Def.'s Mot.") at 1.) Two days later, Adams robbed Sterling Johnson at gunpoint. (Pet. at 2; Def.'s Mot. at 2-3.) On November 30, 1995, a grand jury indictment charged Adams with attempted armed robbery (Count C), first degree murder while armed (felony murder) (Count D), first degree premeditated murder while armed (Count E), two counts of assault with a dangerous weapon (Counts F and G), two counts of possession of a firearm during a crime of violence (Counts H and K), two counts of carrying a pistol without a license (Counts I and L), and armed robbery (Count J). (Def.'s Mot. at 2-3.) The Superior Court granted Adams's motion to sever Counts J, K and L, which arose from the Johnson robbery. (Id. at 3.)
A jury convicted Adams of Counts C, D, F, G, H, and I. (Def.'s Mot., Ex. A-1 (Mem. Op. & J., Adams v. United States, Nos. 97-CF-633 & 99-CO-583 (D.C. May 18, 2000) ("Adams I)) at 1.) The jury acquitted Adams of Count E, but found him guilty of second degree murder while armed (Count M), a lesser included offense. Def.'s Mot. at 3. On January 29, 1997, Adams pled guilty to Count J "in exchange for dismissal of" Counts K and L. Adams I at 1-2 (footnotes omitted). The court imposed a term of ten to thirty years' imprisonment for Count C, thirty years to life imprisonment for Count D, one to three years' imprisonment for Counts F and G, five to fifteen years' imprisonment for Count H, one to three years' imprisonment for Count I, twenty years to life imprisonment for Count M, and five to fifteen years' imprisonment for Count N. (Def.'s Mot. at 3-4.) The sentences imposed on Counts C, H and M run concurrently with the other sentences, which run consecutively. (Id. at 4.) Adams appealed to the District of Columbia Court of Appeals. (Id.; Pet. at 2.)
On February 21, 1997, petitioner filed a pro se motion under D.C. Code § 23-110 alleging ineffective assistance of trial counsel. (Pet. at 2-3.) The Court of Appeals held the direct appeal in abeyance pending resolution of the § 23-110 motion. (Id. at 3; Def.'s Mot. at 4.) Richard Stolker, who was appointed as counsel for Adams, filed a supplement to the § 23-110 petition that alleged ineffective assistance of counsel and requested a new trial. (Pet. at 3; Def.'s Mot. at 4.) The Superior Court summarily denied the § 23-110 motion on April 26, 1999. (Def.'s Mot. at 4-5.) On May 4, 1999, the appeal of the denial of the § 23-110 motion was consolidated with Adams's direct appeal. (Id. at 5.) On May 19, 2000, the Court of Appeals affirmed both the summary denial of the § 23-110 motion and Adams's convictions. (Pet. at 3.) See Adams I.
Adams subsequently filed several pro se motions in Superior Court that asked the court to vacate his convictions. (Pet. at 3-4; Def.'s Mot. at 5-6.) The last of these motions, which was filed under § 23-110, was denied on January 30, 2007. (Pet. at 4.) The Court of Appeals affirmed the denial of this last motion on December 12, 2007. (Id.) Adams's motion for recall of the mandate was filed on October 13, 2009, and was denied on October 29, 2009. (Id.)Adams submitted his petition to this Court on October 29, 2010.
Adams seeks relief based on: (1) ineffective assistance of trial counsel arising from his failure to present an alibi defense; (2) violations of his Fifth Amendment right to due process and Sixth Amendment right to confront witnesses, arising from allegedly false testimony offered by Sterling Johnson and Tommy Faced and his counsel's failure to conduct proper cross-examination of Johnson; (3) the improper introduction of "other crimes" evidence relating to Johnson's armed robbery; (4) ineffective assistance of appellate counsel; and (5) actual innocence. (See generally Pet. at 18-40.) He asks the Court to "[r]ecall the mandate and reopen [his] appeal" before the D.C. Court of Appeals, reverse his conviction, and order a new trial.
I. THE COURT CONSIDERS ADAMS TO BE A STATE PRISONER
Adams's civil cover sheet states that his habeas corpus petition is filed under 28 U.S.C. § 2241. (Civil Cover Sheet (Dkt. No. 1) at 2.) However, the government argues that Adams's petition was filed under 28 U.S.C. § 2254, which applies to challenges to state court criminal judgments, and must therefore be dismissed because it is untimely. Def.'s Mot. at 7-11. Petitions for writs of habeas corpus filed under 28 U.S.C. § 2254 are subject to a one-year statute of limitations. See United States v. Hicks, 283 F.3d 380, 383 (D.C. Cir. 2002); Williams v. Apker, 774 F. Supp. 2d 124, 130 (D.D.C. 2011); 28 U.S.C. §§ 2244, 2254. Adams's choice of statute is not dispositive, as a petitioner may not "escape the requirements of § 2254 simply by filing a petition under § 2241." Peoples v. Schultz, No. 10-592, 2011 WL 3799546, at *3 (D.D.C. Aug. 29, 2011) (construing § 2241 petition filed by petitioner convicted in Superior Court as § 2254 petition); Williams, 774 F. Supp. 2d at 127 n.1 (same).
The Court will construe Adams's petition as though it were filed under § 2254, given the clear weight of authority that finds that a prisoner "in custody pursuant to a judgment of the D.C. Superior Court" must seek habeas review under 28 U.S.C. § 2254. See Williams, 774 F. Supp. 2d at 127 n.1; see also Peoples, 2011 WL 3799546, at *2-*4; Bonilla v. Wainwright, No. 10-0224, 2011 WL 2938125, at *2 (D.D.C. July 22, 2011) (construing petition from prisoner held "pursuant to a judgment of the D.C. Superior Court" as brought under 28 U.S.C. § 2254); Davis v. Cross, 774 F. Supp. 2d 62, 64 (D.D.C. 2011) (prisoner filing petition for habeas corpus following a judgment in Superior Court brought petition under 28 U.S.C. § 2254); Banks v. Smith, 377 F. Supp. 2d 92, 94-95 (D.D.C. 2005) ("D.C. Circuit has consistently held that when considering a writ of habeas corpus a prisoner of the District of Columbia is considered a state prisoner, when the prisoner is held under a conviction of the D.C. Superior Court"); cf. also Bailey v. Fulwood, No. 10-463, 2011 WL 677999, at *3 & n.1 (D.D.C. Feb. 15, 2011) (prisoner serving sentenced imposed by the Superior Court was "therefore a state prisoner"). Furthermore, the Circuit recently directed that a Superior Court prisoner's request for a certificate of appeal be examined in light of the standards set forth in § 2254. Williams v. Martinez, 586 F.3d 995, 1002 (D.C. Cir. 2009) (citing Madley v. U.S. Parole Comm'n, 278 F.3d 1306, 1308-09 (D.C. Cir. 2002) for the proposition that D.C. courts "are deemed to be state courts for purposes of 28 U.S.C. § 2253"). Based on this authority, the Court concludes that Adams should be viewed as a state prisoner and will therefore treat his petition as a habeas petition filed under § 2254.
The government argues that Adams's habeas petition is barred by the one-year limitations period of 28 U.S.C. § 2244(d)(1), which begins to run from (a) the date a judgment becomes final; (b) "the date on which the impediment to filing an application created by State action . . . is removed . . ."; (c) the date on which the Supreme Court recognized a new constitutional right and made it retroactive to cases on collateral review; or (d) the date "on which the factual predicate of the claim . . . presented could have been discovered through the exercise of due diligence." (Def.'s Mot. at 7-11.) The limitations period is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Id. § 2244(d)(2). According to the government, Adams's conviction became final on August 20, 2000, approximately ninety days after the Court of Appeals affirmed it on direct appeal. (Def.'s Mot. at 9.) See Clay v. United States, 537 U.S. 522, 527 (2003) (conviction becomes final either when the Supreme Court affirms it on the merits, denies a petition for certiorari, or when the ninety-day period for filing a petition for certiorari expires). The deadline for filing the instant petition, absent a basis for tolling the limitations period, would have thus fallen on or about August 21, 2001. (Def.'s Mot. at 10.) However, Adams filed a second collateral attack on June 26, 2001, which further tolled the ...