United States District Court, District of Columbia
AMY BERMAN JACKSON, District Judge.
This matter is before the Court on Carlton Blount's Pro Se Petition for Writ of Habeas Corpus and Attached Appendix Pursuant to 28 U.S.C. § 2254 [ECF No. 1] and the government's Motion to Dismiss Petitioner's Petition for a Writ of Habeas Corpus [ECF No. 10]. Because petitioner had an effective means to pursue his claim of ineffective assistance of trial counsel, and his claim concerning appellate counsel is time barred, the government's motion will be granted.
In the Superior Court of the District of Columbia, petitioner was convicted of first degree murder of Natasha Marsh while armed, second degree murder of Andre Wallace while armed, possession of a firearm during a crime of violence, conspiracy to assault with a dangerous weapon, obstruction of justice, and carrying a pistol without a license. Pro Se Petition for Writ of Habeas Corpus and Attached Appendix Pursuant to 28 U.S.C. § 2254 ("Pet.") at 2 (page numbers designated by petitioner). The Superior Court imposed an aggregate sentence of 64 years to life imprisonment. Id . On June 29, 2004, petitioner's convictions were affirmed on direct appeal. See Pet., App. J (Memorandum Opinion and Judgment, Blount v. United States , No. 01-CF-974 (D.C. Ct. of App. June 29, 2004)); United States' Motion to Dismiss Petitioner's Petition for a Writ of Habeas Corpus ("Resp't's Mot."), Ex. C (docket sheet, United States v. Blount , No. 01-CF-0974 (D.C. Ct. of App. filed July 12, 2001)) at 2. Petitioner did not file a motion to recall the mandate until November 21, 2011. See Resp't's Mot., Ex. C at 1; Pet. at 5. The Court of Appeals denied the motion on October 11, 2012. See Resp't's Mot., Ex. F (Order, Blount v. United States , No. 01-CF-974 (D.C. Ct. of App. filed Oct. 11, 2012) (per curiam)).
On June 6, 2005, petitioner, who was then proceeding pro se , filed a motion for a new trial in the Superior Court under D.C. Code § 23-110. Pet. at 3. The government filed its opposition on November 9, 2005, and petitioner filed a reply on November 28, 2006 and a supplement on January 30, 2007. Id . The Superior Court appointed counsel to represent petitioner, and on January 29, 2008, counsel filed a reply to the government's opposition on petitioner's behalf. Id . at 4. The government filed its response on March 12, 2008. Id . The Superior Court denied petitioner's motion on July 23, 2008. Id . The Court of Appeals affirmed the decision and issued its mandate on December 2, 2009, and on October 4, 2010, the Supreme Court of the United States denied petitioner's petition for a writ of certiorari. See Blount v. United States , 983 A.2d 1064 (D.C. 2009) (table), cert. denied , 131 S.Ct. 214 (2010).
Petitioner, again proceeding pro se , filed a second § 23-110 motion in the Superior Court on December 13, 2011; the motion was denied on March 6, 2012. See Pet. at 5; Resp't's Mot. at 5. The Court of Appeals affirmed the decision on May 2, 2013. Resp't's Mot., Ex. G (Memorandum Opinion and Judgment, Blount v. United States , No. 12-CO-380 (D.C. Ct. of App. May 2, 2013)). Petitioner's last effort in the Superior Court was his Notice of Preservation to Reconsider First and Second § 23-110 Motions Due to the Intervening Decision in Martinez v. Ryan , 132 S.Ct. 1309 (2012) Handed Down by the United States Supreme Court on March 20, 2012. Pet. at 5. On consideration of the "notice" and the government's opposition, the Superior Court denied petitioner's request on June 21, 2013. Id . at 5-6.
A. Ineffective Assistance of Trial Counsel
Petitioner alleges here that he was denied a fair trial in the Superior Court, see generally Pet. at 32-44, particularly because of a jury instruction on aiding and abetting that he contends "allowed the jury to convict [him] of first and second degree murder without finding that [he] had the same mens rea as the principal, " id . at 38. This Court is authorized to entertain a claim of trial court error or ineffective assistance of trial counsel only in limited circumstances. See Williams v. Martinez , 586 F.3d 995, 999 (D.C. Cir. 2009). D.C. Code § 23-110 "entirely divest[s] the federal courts of jurisdiction to hear habeas corpus petitions by prisoners who had a [§] 23-110 remedy available to them, unless the petitioner could show that the [§] 23-110 remedy was inadequate or ineffective.'" Blair-Bey v. Quick , 151 F.3d 1036, 1042 (D.C. Cir. 1998) (citing D.C. Code § 23-110(g)); see Reyes v. Rios , 432 F.Supp.2d 1, 3 (D.D.C. 2006) (stating that D.C. Code § 23-110 "provided the petitioner with a vehicle for challenging his conviction based on the alleged ineffectiveness of his trial counsel"); Garmon v. United States , 684 A.2d 327, 329 n.3 (D.C. 1996) ("A motion to vacate sentence under [§] 23-110 is the standard means of raising a claim of ineffective assistance of trial counsel.").
Here, petitioner fails to demonstrate that the remedy available to him under § 23-110 was inadequate or ineffective; he raised his concerns under § 23-110 twice, and he had the assistance of counsel when he presented them to the Superior Court the first time. So this Court does not have jurisdiction to hear petitioner's claim for ineffective assistance at the trial level.
B. Ineffective Assistance of Appellate Counsel
A claim of ineffective assistance of appellate counsel falls outside the scope of D.C. Code § 23-110. See Williams , 586 F.3d at 998. "[B]ecause the Superior Court lacks authority to entertain a [§] 23-110 motion challenging the effectiveness of appellate counsel, that section is, by definition, inadequate to test the legality of [petitioner's] detention." Id . But ordinarily, an ineffective assistance of counsel claim is litigated in the District of Columbia Court of Appeals on a motion to recall the mandate. See Watson v. United States , 536 A.2d 1056, 1060-61 (D.C. 1987) (en banc). This Court may review a "federal habeas petition asserting ineffective assistance of appellate counsel, " but only after a petitioner has "moved to recall the mandate in the [District of Columbia] Court of Appeals." Williams , 586 F.3d at 999. This case comes before this Court after such a motion was denied by the District of Columbia Court of Appeals.
Petitioner contends that appellate counsel "failed to raise... preserved issues" on appeal, including arguments regarding "the erroneous [aiding and abetting] instruction." Pet. at 45. A claim of ineffective assistance of appellate counsel is evaluated under "the ...