Wallace G. MITCHELL, Appellant,
UNITED STATES, Appellee.
Argued Nov. 1, 2012.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Steven R. Kiersh, Washington, DC, for appellant.
Angela G. Schmidt, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, Mary B. McCord, and Kacie M. Weston, Assistant United States Attorneys, were on the briefs, for appellee.
Before OBERLY, BECKWITH, and EASTERLY, Associate Judges.
BECKWITH, Associate Judge:
Appellant Wallace Mitchell, serving a life sentence for murder and other crimes, appeals the Superior Court's denial of his second post-conviction motion. Among other claims, Mr. Mitchell requested that " blood evidence" left at the scene be tested for DNA, which then-Superior Court Judge James E. Boasberg construed as an application under the Innocence Protection Act (IPA), D.C.Code §§ 22-4131 to -4135 (2012 Repl.) — specifically, § 22-4133, which governs post-conviction DNA testing. Mr. Mitchell claimed that DNA testing would implicate his codefendant Floyd Calloway or someone else as the assailant and thus help establish his innocence, and he appeals the court's rejection of his application for testing. The government— quoting police testimony from the trial and attaching the police evidence report, both purporting to show that no testable material exists— asserts that Mr. Mitchell's application " fails at its inception ... because the record does not indicate that any DNA evidence was collected from the crime scene." We ordered supplemental briefing on this issue, and now hold that if the government responds to an application for post-conviction DNA testing by claiming not to possess biological material, it bears the burden of substantiating that claim, and the unsworn claim it has offered in this case does not satisfy that burden.
As to whether the trial court erred in ultimately rejecting Mr. Mitchell's request for DNA testing, we conclude that the court properly construed the request as an application under the IPA, but required too much of Mr. Mitchell under the threshold requirements of § 22-4133(b) and also erred in not applying the " reasonable probability" evidentiary standard of § 22-4133(d). We therefore reverse the court's ruling denying Mr. Mitchell's application for DNA testing and remand that issue for consideration under the proper standard. We affirm the court's determination that all of Mr. Mitchell's remaining claims lack merit.
In 1991, a jury convicted Mr. Mitchell of armed premeditated murder, armed felony murder, armed first-degree burglary, armed assault with intent to kill, and possession of a firearm during a crime of violence. Mitchell v. United States, 629 A.2d 10, 11 (D.C.1993). In the direct appeal from those convictions, we described the facts as follows:
The government's evidence at trial revealed that on January 16, 1990, appellant, in the company of Mr. Floyd Calloway and Ms. [Rebecca] Halicki, drove from his residence in Youngstown, Ohio to the District of Columbia to " get [appellant's] wife [Ms. Denise Mitchell] in Washington, D.C." Suspecting that his wife had taken up residence with Messrs. Nelson and Arrington who
" won't let her go," appellant was overheard stating: " I don't mind shooting somebody if I have to." ... At approximately 3:00 a.m., after some initial difficulty in finding the apartment building— which provoked appellant to " want to hurt someone that much more" — Ms. Halicki located the building where Nelson and Arrington resided.... Upon entering the building, the trio proceeded to Nelson's door, whereupon appellant and Mr. Calloway positioned themselves on either side while Ms. Halicki proceeded to knock on the door. Mr. Arlington responded to the knock and, with the door closed, explained to Ms. Halicki that he did not know where to find Ms. Mitchell. After a brief conversation, Mr. Arlington opened the door and peeped out. At that moment, Halicki jumped to the side and Arlington, sensing trouble, slammed the door shut. Appellant fired two shotgun blasts through the door, striking Mr. Arlington in the arm and back. Mr. Arrington ran toward Mr. Nelson's room and informed Mr. Nelson that he had been shot and that the shooter was coming through the front door. While Nelson leapt from his bed and closed the bedroom door, Arlington hid in the closet. Appellant then fired a shotgun blast through the bedroom door hitting Nelson, entered the room, and began interrogating Nelson about Denise Mitchell's whereabouts. Although Nelson insisted that he did not know and pleaded for his life, appellant reloaded one of the guns and fired three more times. Mr. Nelson died from his wounds.
Id. at 11-12.
This second post-conviction motion under § 23-110 follows three habeas petitions in federal court— all pro se, none successful. Among other claims, Mr. Mitchell requested that " blood evidence" be tested for DNA. Acting pro se and " ignorant of the actual requirements of the IPA," as he later explained, Mr. Mitchell framed his request for DNA testing as a § 23-110 motion for post-conviction relief, instead of as a § 22-4133 motion for post-conviction DNA testing, and did not deliberately set out to meet the initial requirements of the IPA or the four specific requirements of § 22-4133(b). That is, under § 22-4133(a), the biological material must " be identified as evidence in the case," be in the government's possession or have been carefully maintained, and not have been " previously subject to DNA testing" for any of four enumerated reasons. And under § 22-4133(b):
(b) The application shall:
(1) Include an affidavit by the applicant, under penalty of perjury, stating that the applicant is actually innocent of the crime that is the subject of the application; ...
(2) Identify the specific evidence for which DNA testing is requested;
(3) Set forth the reason that the requested DNA testing was not previously obtained; and
(4) Explain how the DNA evidence would help establish that the applicant is actually innocent despite having been convicted at trial or having pled guilty.
The court ordered the government to respond to Mr. Mitchell's motion.  Among other arguments, the government pointed out alleged deficiencies in Mr. Mitchell's application for DNA testing and urged the court to deny it as improperly pled. Mr. Mitchell then undertook to respond to the
government, again asking for counsel in order to " eliminate any deficiencies in these pleadings due to ignorance of the law." Now aware of the § 22-4133 pleading requirements, he argued that he had fortuitously pled them " by chance," except for the affidavit claiming innocence, which he then included.
The court determined that Mr. Mitchell had " failed to meet the requirements of § 22-4133," explaining that Mr. Mitchell had " not submitted the proper affidavit stating that he is actually innocent of this crime" or " identified the specific evidence he seeks to have tested." The court's " particular concern," however, was Mr. Mitchell's " failure, in his detailed explanation of the need for DNA testing, to adequately explain how such testing would help establish his actual innocence." In the court's view, the IPA— specifically § 22-4135(c)(2)— " requires specific, non-conclusory facts that demonstrate that the movant is actually innocent despite having been convicted at trial," and there was " no explanation as to how the absence of Defendant's DNA at the scene or the presence of another party's DNA could provide specific evidence of actual innocence."
Mr. Mitchell asked for reconsideration and again explained how DNA testing would establish his innocence. The court again denied his request for DNA testing, stating that " Defendant reasserts arguments the Court has ...