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Jerry T. Graham v. B.A. Bledsoe et al

January 26, 2012


The opinion of the court was delivered by: Gladys Kessler United States District Judge


The United States Court of Appeals for the District of Columbia Circuit has remanded in part this action for a writ of habeas corpus for this Court to address "in the first instance": (1) "appellant's second petition for habeas relief, docketed on March 25, 2011, as a 'supplemental memorandum' to his first petition" and (2) "the claim made in the addendum and memorandum in support of appellant's first habeas petition that counsel in Graham's direct appeal of his drug conviction was ineffective for, inter alia, failing to raise the ineffectiveness of Graham's trial counsel." No. 11-5104, Order (Dec. 9, 2011) at 1.


Petitioner was charged in a multi-count indictment with possession of cocaine with intent to distribute ("PWID") while armed, first-degree murder while armed, and two related firearms violations. "The murder counts related to the shooting of an individual in a carry-out restaurant . . . on February 27, 1994. The drug counts related to items found on [Petitioner] when he was arrested following a police pursuit . . . after the shooting." Addendum to Title 28 U.S.C. 2241(c)(3) ("Addendum") [Doc. # 1-1], Attachment (Graham v. United States, No. 95-CO-287 (Feb. 14, 1996), Memorandum Opinion and Judgment at 1). The drug counts were severed from the murder and firearms counts, and separate trials ensued in the Superior Court of the District of Columbia. See Graham v. United States, 895 A.2d 305, 306 (D.C. 2006). On the drug charge, a jury convicted Petitioner of the lesser-included offense of unarmed PWID. Id. Following a separate jury trial, Petitioner was convicted of the murder and firearms charges. Id. The District of Columbia Court of Appeals affirmed each conviction in separate appeals. See id. (citing Graham v. United States, No. 95-CF-786, 792 A.2d 1072 (Table) (D.C. Jan. 31, 2001) (PWID conviction) (unpublished); Graham v. United States, No. 97-CF-240 (D.C. Jan. 8, 2002) (murder and firearms convictions) (unpublished)). On January 30, 2006, the D.C. Court of Appeals affirmed the denial of Petitioner's motion for relief from the PWID conviction under D.C. Code § 23-110. See Graham, 895 A.2d at 307-8.


An application for a writ of habeas corpus under § 2254 shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Furthermore, in these proceedings, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. § 2254(e)(1).


In his second habeas petition, Petitioner challenges his convictions of first-degree murder, carrying a pistol without a license, and possession of a firearm during a crime of violence following a jury trial in Superior Court. Second Pet. [Doc. # 9] at 2. He was sentenced on January 31, 1997, to a prison term of 30 years to life. Id. Petitioner acknowledges that the foregoing convictions are based on "the same evidence and facts" supporting the PWID conviction. Mot. to Consolidate [Doc. # 6] at 1.

Petitioner claims that "trial counsel was ineffective from beginning to end of my case." Second Pet. at 5. Specifically, Petitioner claims that his trial counsel "failed to introduce any evidence pointing to my actual innocent [sic]" and that trial counsel "mishandled" identification evidence. Petitioner also claims that the prosecutor "fail[ed] to prove beyond a reasonable doubt all essential elements of the murder." Id.

As this Court explained in its initial ruling ("Graham 1") [Doc. # 12], it is well established that challenges to a Superior Court judgment of conviction must be pursued in that court under D.C. Code § 23-110, see Blair-Bey v. Quick, 151 F.3d 1036, 1042-43 (D.C. Cir. 1998); Byrd v. Henderson, 119 F.3d 34, 36-37 (D.C. Cir. 1997). Absent a showing of an inadequate or ineffective local remedy, "a District of Columbia prisoner has no recourse to a federal judicial forum," Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir.), cert. denied, 479 U.S. 993 (1986) (internal footnote omitted). The statute provides that [an] application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section shall not be entertained by . . . any Federal . . . court if it appears . . . that the Superior Court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

D.C. Code § 23-110(g). Petitioner has not demonstrated the inadequacy of the available local remedy to address trial counsel's alleged ineffectiveness. See D.C. Code § 23-110(a) (authorizing D.C. prisoners to move to vacate, set aside, or correct a sentence "imposed in violation of the [U.S.] Constitution or the laws of the District of Columbia"); Reyes v. Rios, 432 F. Supp. 2d 1, 3 (D.D.C. 2006) ("Section 23-110 provided the petitioner with a vehicle for challenging his conviction based on the alleged ineffectiveness of his trial counsel."). Therefore, the second petition provides no basis for issuing a writ of habeas corpus.


In Ground Two of his initial habeas petition challenging the PWID conviction, Petitioner claimed that his appellate counsel was ineffective in failing "to file a post-conviction 23-110 motion arguing" the ineffectiveness of trial counsel "at the suppression hearing and at trial." Pet. at 5. Based on that stated ground and the supporting facts set forth in the petition, this Court found no basis for relief because the applicable habeas statute expressly precludes a claim of ineffective assistance of appellate counsel predicated on counsel's representation during collateral proceedings. See Graham 1 at 4 (quoting 28 U.S.C. § 2254(i)).

A strained reading of Petitioner's Addendum [Doc. 1-1] and Memorandum of Points and Authorities in Support of Petition for a Writ of Habeas Corpus Pursuant to Title 28 U.S.C. 2241(c)(3) ("Mem") [Doc. # 2] reveals that Petitioner also faults appellate counsel for failing to raise on direct appeal the ineffective assistance of trial counsel based on: (1) alleged trial errors arising from a suppression hearing at which Petitioner alleges government witnesses committed perjury, see Addendum at 7-11,*fn2 (2) trial counsel's "not showing prosecutorial misconduct" stemming from the alleged perjured testimony at the suppression hearing, id. at 11-12, and (3) trial counsel's alleged failure to "explor[e] the fact that the government violated Petitioner's [constitutional] rights by placing [him] on [a] median strip" during a "show-up identification procedure" allegedly to make him appear taller. Id. at 16. In sum, Petitioner seems to assert that ...

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