United States District Court, District of Columbia
AMY BERMAN JACKSON, UNITED STATES DISTRICT JUDGE
Petitioner Guillermo Somarriba Gonzalez seeks a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. He claims that his appellate counsel was ineffective for failing to raise “specified claims through a D.C. Code § 23-110 [motion] during the course of the direct appeal, ” and that as a result, he lost his opportunity to pursue a claim of ineffective assistance of trial counsel. Pet. at 3. The record establishes, though, that petitioner raised the claim that his lawyer was ineffective on multiple occasions, and that his claim was reviewed. In any event, for the reasons explained below, the Court finds the petition untimely under the applicable statute of limitations, and it finds no grounds for equitable tolling. Accordingly, the petition will be dismissed as time-barred.
Following a jury trial in the Superior Court of the District of Columbia, petitioner was convicted of three counts of assault with a dangerous weapon, three counts of possession of a firearm during a crime of violence, and one count of carrying a pistol without a license. See Resp’t’s Ex. 1, Somarriba-Gonzalez v. United States, No. 05-CF-1011, Mem. Op. and J. (D.C. Mar. 14, 2007) [Dkt. # 15-1]. Petitioner was sentenced on July 20, 2005, to an aggregate prison term of fifteen years, followed by three years of supervised release. The convictions arose from gun shots petitioner fired in the area of 13th and Clifton Streets, N.W., in the District of Columbia. Id. at 2. On direct appeal to the District of Columbia Court of Appeals (“DCCA”), petitioner, through counsel, argued that plain error occurred when the prosecutor was allowed “to refer to animosity and events between two ‘groups’ in the neighborhood, to explain the motive for the . . . shooting.” Id. Petitioner also raised errors with regard to (1) the identification testimony of a government witness; (2) the government’s impeachment of another of its witnesses (a target of the shooting); (3) a “concurrent intent” instruction; and (4) the trial judge’s response to a jury note during deliberations. Mem. Op. and J. at 2-4. The DCCA, “discerning no error, ” affirmed petitioner’s convictions on March 14, 2007. Id. at 1.
Petitioner subsequently filed two separate collateral motions in Superior Court to attack his convictions and two separate motions in the DCCA to recall the mandate affirming the convictions.
A. Collateral Motions
Petitioner filed his first collateral motion on March 14, 2008. The Superior Court construed the filing captioned “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody” as brought under D.C. Code § 23-110, and it denied relief on October 5, 2009. Pet., Ex. 2, U.S. v. Somarriba-Gonzalez, No. F-770-04, Order (Super. Ct. Oct. 5, 2009) [Dkt. # 1-1] at 11-14. Petitioner raised “two claims of prosecutorial misconduct and four claims of ineffective assistance of trial counsel, ” which the court found were procedurally barred since petitioner had not demonstrated “cause for, and prejudice from, his failure to raise [those then-available claims] on direct appeal.” Order at 1-2. Nevertheless, the court proceeded to address petitioner’s claims and found them “substantively insufficient to warrant relief on their merits.” Id. at 2. The court determined that the “presumption” under DCCA precedent to hold a hearing on the ineffective assistance claim did not apply because petitioner’s “arguments [were] vague and conclusory, and . . . belied by the evidentiary record.” It added: “[m]ost importantly, [petitioner] [has made] no specific showing as to how he was prejudiced by his counsel’s alleged deficiencies.” Id. at 3, applying standard of Strickland v. Washington, 466 U.S. 668, 687 (1984). The court found petitioner’s prosecutorial misconduct claims based on alleged Brady violations “equally unavailing.” Id. at 3-4.
The DCCA affirmed the Superior Court’s denial of petitioner’s first section 23-110 motion, on both procedural and substantive grounds, in an unpublished decision issued on December 20, 2011. Pet., Ex. 2, Somarriba-Gonzalez v. United States, No. 09-CO-1443, Judgment (D.C. Dec. 20, 2011) [Dkt. # 1-1] at 16.
Petitioner filed a second motion under D.C. Code § 23-110 in Superior Court on February 28, 2012, in which he again claimed that his trial counsel was ineffective. He also claimed that a new trial was warranted because the government “failed to timely disclose potentially exculpatory evidence, as is required by Brady v. Maryland, 373 U.S. 83 (1963).” Pet., Ex. 2, United States v. Somarriba-Gonzalez, No. 2004-FEL-770, Order at 2 (D.C. Super. Ct. Apr. 9, 2012 [Dkt. # 1-1] at 17-22. Despite finding the motion “procedurally barred as successive” and variations of the previously raised claims “barred as an abuse of procedure, ” the court explained that it would deny the motion in any event because the “allegations are vague, conclusory, and wholly incredible.” Id. at 6. The court noted that petitioner’s counsel was “an experienced and highly skilled trial attorney, ” and other than his “own conclusory assertions, ” petitioner had “presented no evidence that trial counsel failed to request Brady material, failed to investigate, or was unprepared for trial.” Id.
The DCCA affirmed the Superior Court’s denial of petitioner’s second section 23-110 motion in an unpublished decision issued on December 21, 2012, and it denied petitioner’s motion for reconsideration on March 28, 2013. See Resp’t’s Ex. 5. In its affirmance, the DCCA determined that petitioner’s motion was “properly denied . . . as procedurally barred as a successive motion.” Pet., Ex. 2, Somarriba-Gonzalez v. United States, No. 12-CO-684, Judgment (D.C. Dec. 21, 2012) [Dkt. # 1-1] at 23. It also observed that the Superior Court had “properly rejected” petitioner’s claims since “he failed to demonstrate cause or prejudice in failing to raise these claims in his direct appeal or prior collateral attack, ” and that “the trial court correctly concluded that petitioner’s claims were vague and conclusory. Therefore a hearing on the motion was not required.” Id.
B. Recall Motions
On July 23, 2009, petitioner filed his first motion to recall the mandate issued on April 5, 2007, which the DCCA denied as untimely on August 13, 2009. Resp’t’s Opp. at 8, quoting Somarriba-Gonzalez v. United States, No. 05-CF-1011, Order (D.C. Aug. 13, 2009). See Watson v. United States, 536 A.2d 1056, 1059 (D.C. 1987), quoting D.C. App. R. 41(c) (a Rule 41(c) motion to recall the mandate is a proper approach to challenging previous counsel’s effectiveness on appeal, provided the motion is filed “within 180 days from the issuance of the mandate”).
On August 26, 2013, the DCCA denied petitioner’s second motion to recall the mandate as follows:
On consideration of appellant’s motion to recall mandate, and it appearing that appellant previously filed a motion to recall the mandate that was ...