United States District Court, D. Columbia.
GILBERT A. MACKALL, Petitioner,
ERIC D. WILSON, Respondent
GILBERT A. MACKALL, Petitioner, Pro se, PETERSBURG, VA.
For ERIC D. WILSON, Respondent: Sherri Lee Berthrong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
ELLEN S. HUVELLE, United States District Judge.
In this action for a writ of habeas corpus brought pro se, petitioner claims that he was denied the effective assistance of counsel at trial and on direct appeal from his conviction in the Superior Court of the District of Columbia. See Pet. for a Writ of Habeas Corpus (" Pet." ) at 5-6 [Dkt.# 1]. The United States moves to dismiss the petition (1) as time-barred, (2) for failure to exhaust the appellate counsel ineffectiveness claim, and (3) for lack of jurisdiction over the trial counsel ineffectiveness claim. United States' Mot. to Dismiss Pet'r's Pet. for a Writ of Habeas Corpus (" Resp't's Mot." ) at 2 [Dkt. # 9]. Upon consideration of the motion and petitioner's opposition responding only to the trial counsel issue, see generally Pet'r's Opp'n [Dkt. #11], the Court will grant respondent's motion on all three grounds and will dismiss this case.
Respondent has documented the following relevant facts. Following a jury trial in July 1995 in Superior Court, petitioner
was convicted of first-degree felony murder while armed, conspiracy to commit robbery while armed, armed robbery, assault with a dangerous weapon, and carrying dangerous weapon. On September 7, 1995, petitioner was sentenced to aggregate prison terms of thirty years to life, running concurrently. On November 27, 1995, petitioner filed a post-conviction motion under D.C. Code § 23-110, claiming that his trial counsel was ineffective for numerous failings. ( See Resp't's Mot. at 3-4.) The sentencing court denied petitioner's motion on October 10, 1998, following evidentiary hearings. ( Id. at 4.) On appeal from that order, which was consolidated with petitioner's direct appeal, the D.C. Court of Appeals (" DCCA" ) affirmed the denial of petitioner's § 23-110 motion. In addition, the DCCA affirmed petitioner's convictions save the armed robbery conviction that the parties agreed merged with the first-degree felony murder conviction. (Resp't's Ex. B, Mem. Op. and Judgment.) The DCCA's mandate issued on May 17, 2000; on June 14, 2000, the sentencing court vacated the armed robbery conviction and resentenced petitioner. ( See Ex. D, Judgment and Commitment Order.)
Thereafter, petitioner initiated post-conviction proceedings under § 23-110 in July 2000, and under the Innocence Protection Act in July 2004. Following a hearing on both motions on July 14, 2004, and a re-sentencing hearing on July 29, 2004 to correct petitioner's sentence for the conspiracy conviction, the court denied both motions; it resentenced petitioner on the conspiracy count. ( See Resp't's Mot. at 4-5; Ex. F.) The DCCA affirmed the denial of the foregoing motions on September 13, 2006, and issued the mandate on January 25, 2007. (Exs. G, H.) Petitioner also sought post-conviction relief on November 9, 2004, which was denied on March 14, 2005 (Ex. I), and again on March 7, 2005, June 4, 2007, and April 22, 2008. All of those motions were denied in an order issued on August 14, 2008. (Ex. J, Omnibus Order.) The DCCA affirmed the trial court's decision on September 22, 2009, and issued the mandate on November 20, 2009. (Exs. K, L.)
Petitioner filed a motion to recall the mandate on February 16, 2011, claiming that he was denied the effective assistance of appellate counsel when counsel failed to argue (1) that his Sixth Amendment right to confront witnesses was violated when an autopsy report was admitted at trial without the medical examiner's testimony and (2) trial counsel's ineffectiveness for failing to object to the autopsy report's admission. (Ex. M.) The DCCA denied petitioner's recall motion on May 31, 2011, on the merits, and denied petitioner's motion to reconsider on July 8, 2011 (Exs. N, O, P.) The DCCA determined that the Sixth Amendment's confrontation clause " is not retroactively applied to collateral challenges" and that it had " stated that admission of an autopsy report pre- Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), without objection, does not rise to the level of a [ Strickland ] violation." (Ex. N, Order, citing Mungo v. United States, 987 A.2d 1145, 1155 (D.C. 2010) (applying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).)
Undeterred, petitioner filed yet another post-conviction motion on October 27, 2011, alleging trial counsel's ineffectiveness during plea negotiations. That motion was denied as a successive § 23-110 motion. (Ex. Q.) The DCCA affirmed the denial on March 20, 2013, and issued the mandate on April 11, 2013. (Exs. R, S.)
Petitioner filed this habeas action in May 2013. He alleges, inter alia, that he was denied ...