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Graham v. FCC Coleman USP II Warden

United States District Court, District of Columbia

May 20, 2016

DAVID GRAHAM, JR., Petitioner,


          AMY BERMAN JACKSON United States District Judge.

         Petitioner David Graham, Jr., has brought a petition for a writ of habeas corpus under 28 U.S.C. § 2254 to challenge his 2006 murder conviction in the Superior Court of the District of Columbia. Pet. [Dkt. # 1]. Petitioner claims that he was denied the effective assistance of counsel at trial and on direct appeal. The United States contends that the petition should be denied because (1) the Court lacks jurisdiction over the claim based on trial counsel’s ineffectiveness, and (2) the claim based on appellate counsel’s ineffectiveness is procedurally barred. United States’ Opp’n to Pet’r’s Pet. for Writ of Habeas at 1 [Dkt. # 10]. The Court agrees with both points. Accordingly, the petition will be denied for the reasons explained below.

         I. BACKGROUND

         On May 9, 2006, a Superior Court jury convicted petitioner of first-degree murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. Petitioner was sentenced on August 1, 2006 to a prison term of 600 months. Pet. at 1. The conviction arose from the shooting death of Kamau Walker on December 12, 2001, at his residence. See Graham v. United States, 12 A.3d 1159, 1162 (D.C. 2011). The D.C. Court of Appeals (“DCCA”) affirmed petitioner’s conviction on February 10, 2011. The DCCA subsequently affirmed the Superior Court’s denial of petitioner’s collateral motion under D.C. Code § 23-110, and it later denied petitioner’s motion to recall the mandate affirming the convictions. See Pet. at 4-5.

         A. Direct Appeal

         On direct appeal, petitioner challenged the sufficiency of the evidence identifying him as the shooter, particularly the eyewitness testimony of his friend Derrick McCray. Petitioner argued, among other things, that McCray’s testimony was unreliable because he “changed his account of events and was influenced by a plea agreement with the government.” Graham, 12 A.3d at 1163. Petitioner also challenged the admission of another government witness’s statement identifying him to the police on the night of the shooting, and he challenged the trial court’s use of a flight instruction as unsupported by the evidence, unduly prejudicial, and flawed. See Id. at 1164-68. The DCCA rejected each challenge and affirmed the convictions. In doing so, the court held that since McCray’s testimony was not “inherently incredible, ” his testimony alone was sufficient to convict petitioner notwithstanding other contradictory testimony. Id. at 1163-64.

         B. Collateral Motion

         On October 25, 2010, while the direct appeal was pending, petitioner filed his D.C. Code § 23-110 motion in the trial court. He claimed that his trial counsel was ineffective in failing, among other things, “to conduct an adequate pretrial investigation . . ., request[] a Franks hearing . . ., and object to the voluntary manslaughter jury instruction.” United States v. Graham, No. F 5576-03, Order at 4 (Super. Ct. June 6, 2011) [Dkt. # 1-1, ECF pp. 20-28]. Petitioner also alleged prosecutorial misconduct and ineffective assistance of appellate counsel. See Order at 4.[1] In its decision issued after the direct appeal had concluded, the trial court noted that the DCCA had “considered and rejected many of the claims that Graham makes in his motion, ” and it found petitioner’s claim that trial counsel was ineffective to be “vague, conclusory, and unsupported in the record.” Id. at 9. The trial court further noted that petitioner had “failed to establish how [the alleged] omissions - should they exist - prejudiced him to the extent that he was denied a fair trial.” Id. n.5. The court also denied petitioner’s prosecutorial misconduct claim as vague, conclusory and unsupported, and it denied his claim of ineffective assistance of appellate counsel as unavailable under a § 23-110 motion. Id. at 8.

         C. Recall Motion

         On April 6, 2012, petitioner filed a motion in the DCCA to recall the mandate, in which he raised ineffective assistance of appellate counsel. Petitioner faulted appellate counsel for failing to raise as error the trial court’s giving of a “seriously flawed” voluntary manslaughter instruction. Resp’t’s Ex. A, Mot. to Recall Mandate at 3-7 [Dkt. # 10-1]. In addition, petitioner claimed that appellate counsel was ineffective for failing to hold the appeal in abeyance and file a § 23-110 motion based on trial counsel’s failure allegedly “to perform a reasonable factual and legal investigation of the case” on four critical issues set out in the motion. Id. at 7-8. Finally, petitioner renewed his prosecutorial misconduct claim by suggesting that the plea agreement under which McCray testified in exchange for a reduced sentence constituted a corrupt bargain that violated criminal law. See id. at 9-10. The DCCA denied petitioner’s recall motion on August 20, 2013 and declared:

The issues raised in appellant's motion to recall th e mandate have been addressed and rejected by this court in Appeal No. 11-CO-772[2]; therefore, there is no basis to recall the mandate. Diamen v. United States, 725 A.2d 501, 509 (D.C. 1999) (stating that “[i]t is well-settled that where an appellate court has disposed of an issue on appeal, [that issue] will not be considered afresh on collateral attack in a trial court of the same judicial system, absent special circumstances. We are also bound by the related rule that one division of the court cannot overrule the decision of a prior division” (citation omitted)).

Resp’t’s Ex. B, Graham v. United States, No. 06-CF-995 (D.C. Aug. 20, 2013) (per curiam) [Dkt. # 10-2].

         D. The Current Habeas Petition

         In this action, petitioner contends that he is asserting “a straight forward issue that he was deprived of his constitutional right to effective assistance of counsel, where his appellant [sic] counsel failed to challenge the denial [of] his probable cause hearing that he preserved in pre-trial proceedings in the District of Columbia Superior Court held on October 6, 2003.” Pet’r’s Supp.’g Mem. at 9 [Dkt. # 1, ECF No. 15-31]. Petitioner alleges that during his probable cause hearing, the government “knowingly . . . provided materially false statements and prejudicial testimony . . . in acquiring an arrest warrant and the criminal indictment through the grand jury process.” Petitioner seems to argue that the trial court’s refusal to conduct a hearing was contrary to Franksv. Delaware, 438 U.S. 154 (1978), and that appellate counsel therefore was ineffective for failing to raise the issue on direct appeal. See Pet’r’s Supp’g Mem. at 9-15, citing Franks, 438 U.S. at 155-56 (“where the [criminal] defendant makes a substantial preliminary showing that a false statement ...

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