The opinion of the court was delivered by: Paul L. Friedman United States District Judge
David Earl Jones, a prisoner who was convicted of first degree murder and other crimes in the Superior Court of the District of Columbia, has filed a pro se petition for a writ of habeas corpus challenging his imprisonment under 28 U.S.C. § 2254. Mr. Jones also moved for an evidentiary hearing, a request that the Court denied upon concluding that he was barred from obtaining a such a hearing by 28 U.S.C. § 2254(e)(2). See Memorandum Opinion, Jones v. Holt (Sept. 30, 2011) [Dkt. No. 9]. Presently before the Court is a motion by Mr. Jones to reconsider the denial of his request for an evidentiary hearing, as well as a motion by the respondent to dismiss Mr. Jones' habeas petition. For the reasons stated below, the Court will deny Mr. Jones' motion to reconsider and grant the respondent's motion to dismiss.*fn1
Mr. Jones was convicted in the Superior Court of the District of Columbia in 2001 of first degree murder while armed (D.C. Code §§ 22-2101, 22-4502), second degree murder while armed (D.C. Code § 22-2103), two counts of possession of a firearm during a crime of violence (D.C. Code § 22-4504(b)), and related weapons offenses. See Mem. Att. F at 1; Mem. Att. G at 1. His conviction and sentence were upheld on direct appeal by the District of Columbia Court of Appeals in June 2007. See Mem. Att. F. While his direct appeal was pending, Mr. Jones initiated collateral proceedings under D.C. Code § 23-110 to vacate and set aside the judgment due to ineffective assistance of trial counsel. Mem. Att. A at 3.*fn2 The Superior Court denied Mr. Jones' Section 23-110 motion in September 2008, see Mem. Att. C, and this denial was affirmed by the D.C. Court of Appeals in November 2009. See Mem. Att. G.
In April 2010, Mr. Jones filed a motion in the D.C. Court of Appeals to recall the mandate in his direct appeal, alleging ineffective assistance of appellate counsel. See Mem.
Att. H. The court of appeals denied the motion in a one-sentence per curiam order without requesting a response from the government. See Mem. Att. I at 8; Order, Jones v. United States, No. 01-CF-1186 (D.C. May 26, 2010).
Shortly after the denial of his motion to recall the mandate, Mr. Jones filed a petition for a writ of habeas corpus in this Court, advancing the same claims of ineffective assistance of appellate counsel that he pursued in his motion to recall the mandate. See Pet. According to Mr. Jones, his counsel on direct appeal rendered ineffective assistance by not developing and presenting claims that Mr. Jones' trial counsel was ineffective for failing to argue (1) for an intoxication defense, and (2) that only one charge of possession of a firearm during a crime of violence could arise from the two murders of which Mr. Jones was convicted. Id. at 5A-5B.
Mr. Jones has moved the Court to reconsider its decision denying his motion for an evidentiary hearing. See Mot. Recons. Mr. Jones previously argued that an evidentiary hearing was necessary to investigate one of his two claims: that his appellate counsel was ineffective for failing to raise on direct appeal the purported ineffectiveness of his trial counsel's failure to pursue an intoxication defense. See Mot. Evid. at 2.
1. The Court's Earlier Decision
The Court denied Mr. Jones' motion upon concluding that 28 U.S.C. § 2254(e)(2) barred the Court from conducting such a hearing. That section provides that if a habeas petitioner "has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim," unless one of two criteria is met. 28 U.S.C. § 2254(e)(2)(A).*fn3 The Court concluded that Mr. Jones had failed to develop the factual basis of his claim in the District of Columbia courts and that this Court therefore was prohibited by Section 2254(e)(2) from conducting an evidentiary hearing on the matter.
The Court reasoned as follows: Mr. Jones had the opportunity to pursue his ineffectiveness of appellate counsel claim by filing a motion to recall the court of appeals' mandate. See Reyes v. Rios, 432 F. Supp. 2d 1, 3 (D.D.C. 2006) ("In the District of Columbia, challenges to the effectiveness of appellate counsel are properly raised through a motion to recall the Court of Appeals' mandate.") (citing Watson v. United States, 536 A.2d 1056, 1060 (D.C. 1987)); Hardy v. United States, 988 A.2d 950, 961 (D.C. 2010) (stating that claims of ineffective assistance of appellate counsel "must be litigated as an independent claim, which requires a recall of the mandate of the direct appeal"). "Any motion to recall the mandate," however, "must be filed within 180 days from the issuance of the mandate." D.C. APP. R. 41(f). Although Mr. Jones attempted to develop the factual basis of his claim in the District of Columbia courts by filing a motion to recall the mandate advancing that claim, he did not do so until nearly three years after the mandate issued. See Mem. Att. H at 2; Mem. Att. I at 8. The court of appeals summarily denied his motion five weeks after it was filed in a one-sentence per curiam order. See Mem. Att. I at 8.*fn4
In view of these facts, this Court wrote, "Mr. Jones' motion was apparently denied because it was procedurally time-barred." Memorandum Opinion, Jones v. Holt (Sept. 30, 2011), at 3. Through this apparent procedural default, Mr. Jones forfeited his opportunity to develop a factual record in the District of Columbia courts on his claim. "Had he timely raised the issue before the District of Columbia Court of Appeals and had that court found it unable to resolve the issue without a factual record, it presumably would have remanded the case to the Superior Court to develop one." Id. at 5; see Watson v. United States, 536 A.2d at 1061 ("[I]n some cases, the record may be remanded to the trial court under appropriate instructions and time constraints for a hearing and factual findings, with this court retaining jurisdiction pending the trial court's findings and a return of the record."). A habeas petitioner has "failed" to develop the factual basis of a claim in state court proceedings when a "lack of diligence . . . attributable to the prisoner or the prisoner's counsel" was responsible for the claim not having been developed in the state courts. Williams v. Taylor, 529 U.S. 420, 432 (2000). "Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437. Because Mr. Jones, through his extreme untimeliness, did not "seek an evidentiary hearing in state court in the manner prescribed by state law," and thus did not exhibit the "minimum" level of diligence required to develop a factual record on his claim, id., this Court found itself precluded from holding an evidentiary hearing on that claim, because neither exception to this rule provided in Section 2254(e)(2)(A) applied. Memorandum Opinion, Jones v. Holt (Sept. 30, 2011), at 5.
2. Procedural Default or Merits Determination?
Seeking reconsideration of this Court's decision, Mr. Jones contends that he did not procedurally default on his claim before the D.C. Court of Appeals, and that the order of that court denying his motion to recall the mandate was a decision on the merits. Mot. Recons. at 1-2. Mr. Jones points out that when he filed his motion to recall the mandate he included with it a "Motion for Enlargement of Time to File Motion to Recall Mandate." Id.; see Mem. Att. H at 6-10. He also notes that the rules of the court of appeals provide: "For good cause, the court may extend the time prescribed by these rules to perform any act, or may permit an act to be done after that time expires." D.C. APP. R. 26. Mr. Jones asserts that the court of appeals "did not deny the petitioner's motion for an enlargement of time to file his motion to recall the mandate. In fact, the Court of Appeals went directly to the merits of the motion and simply denied it, without expressing an opinion." Mot. Recons. at 2.
It is true that the court of appeals did not deny Mr. Jones' motion for an enlargement of time to file, but neither did the court grant the motion, docket it, or acknowledge it in any way. See Mem. Att. I at 8. Furthermore, the court of appeals has specifically rejected the claim that "any denial of a motion to recall the mandate is on the merits," and has made clear that it employs one-sentence, unexplained orders - like that with which it denied Mr. Jones' motion - for both procedure-based and merits-based denials. Hardy v. United States, 988 A.2d 950, 961 (D.C. 2010). The record does not definitively reveal, therefore, whether the court of appeals denied Mr. Jones' motion based on a ...