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Chew v. Holland

United States District Court, D. Columbia.

November 22, 2013

LESTER CHEW, Petitioner,
v.
J.C. HOLLAND, Warden, Respondent

LESTER D. CHEW, Petitioner, Pro se, Pine Knot, KY.

For J. C. HOLLAND, Warden, Respondent: Thomas Anthony Quinn, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Special Proceedings Division, Washington, DC.

OPINION

REGGIE B. WALTON, United States District Judge.

Page 216

MEMORANDUM OPINION

On April 10, 2013, Lester Chew (" the petitioner" ) filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, and on May 20, 2013, the respondent filed a motion to dismiss.[1] For the reasons discussed below, the respondent's motion will be granted.

I. BACKGROUND

In the Superior Court of the District of Columbia (" Superior Court" ), a jury found the petitioner guilty of second degree murder while armed, among other offenses, and on May 2, 2003, the court imposed an aggregate maximum sentence of 51 years' incarceration. See Petition for a Writ of Habeas Corpus by a Person in Custody (" Pet." ) at 2 [2]; Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus (" Resp't's Mot." ), Ex. 2. The petitioner filed a direct appeal to the District of Columbia Court of Appeals on May 12, 2003. Resp't's Mot. at 3; see id., Ex. 3-4. While the appeal was pending, on February 13, 2004, appointed counsel filed in the Superior Court a motion under D.C. Code § 23-110 for a new trial, id., Ex. 5, as well as a supplement to that motion on January 23, 2006, id., Ex. 10. The Superior Court denied the § 23-110 motion on October 19, 2006, id., Ex. 12, and on July 23, 2007, the Court of Appeals affirmed not only the petitioner's convictions on direct appeal but also the Superior Court's ruling on the § 23-110 motion. Id., Ex. 13; see Chew v. United States, 928 A.2d 730 (D.C. 2007) (Table). The Court of Appeals denied the

Page 217

petitioner's motion to recall the mandate on February 6, 2008. Resp't's Mot., Ex. 15. Undaunted, on August 20, 2008, the petitioner filed pro se a second § 23-110 motion, id., Ex. 16, which the Superior Court denied on March 23, 2010, id., Ex. 18. The petitioner did not appeal this ruling.

The petitioner is now raising an ineffective assistance of appellate counsel claim.[3] According to the petitioner, his appellate counsel " failed to recognize and file . . . obvious examples of ineffective assistance of counsel, by counsel appointed during [his] trial, along with clearly meritorious issues and points that should have been raised . . . ." Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus (" Pet'r's Mem." ) at 4. For example, he represents that his appellate counsel did not raise trial counsel's

fail[ure] to adequately attack and contest the admittance of the alleged 'dying declaration,' and [that] he failed to fully investigate the circumstances which caused the demise of the declarant, along with the feasibility of supporting a claim that [he] should have been sentenced under a form of Manslaughter rather than 2nd degree murder.

Id. at 5; see id. at 9-10. The petitioner therefore claims to have been " deprived of adequate counsel through the proceedings in this prosecution," such that he has been deprived " of ...


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