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McCoy v. Thomas

United States District Court, District of Columbia

June 16, 2016

RAYMOND MCCOY, Petitioner,
v.
WARDEN THOMAS, Respondent.

          MEMORANDUM OPINION

          Reggie B. Walton United States District Judge

         The petitioner, proceeding pro se, seeks issuance of a writ of habeas corpus under 28 U.S.C. § 2254. He challenges the verdicts returned against him by a jury of the Superior Court of the District of Columbia on the grounds that he received ineffective assistance of counsel both at trial and on direct appeal to the District of Columbia Court of Appeals (“DCCA”). See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody (“Pet.”) at 4, ECF No. 1. The government contends that the petition should be denied because it lacks merit. Government’s Response to Petitioner’s Pro Se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (“Gov’t’s Resp.”) at 1, ECF No. 13. Under District of Columbia law, the Court lacks jurisdiction over the petitioner’s challenge to trial counsel’s alleged ineffectiveness, and the Court finds the claim arising from appellate counsel’s alleged ineffectiveness unsupported. Consequently, the petition will be denied for the reasons explained below.

         I. BACKGROUND

         Following a jury trial in Superior Court, the petitioner was convicted of first-degree premeditated murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. Pet. at 1, 5. He was sentenced on September 12, 2008, to a prison term of thirty-five years, followed by five years of supervised release. See id.; Gov’t’s Resp. at 3. The events underlying the convictions are summarized as follows:

On October 28, 2004, McCoy shot and killed Imtiaz Mohammed with a .45-caliber pistol as Mohammed sat in the driver's seat of his rental car, which was parked on the 800 block of Rittenhouse St., N.W. That fact was undisputed. McCoy claimed and testified that he acted in self-defense. The government claimed that the act was premeditated murder.

McCoy v. United States, No. 08-CF-1360, Memorandum Opinion and Judgment (D.C. July 21, 2011) (“DCCA July 21 Mem. Op. and J.”) at 1, ECF No. 2 at 34.[1] In addition to the petitioner’s testimony, the jury considered that of the medical examiner and two bystanders. See Gov’t’s Resp. at 1-3 (recounting the trial evidence).

         The DCCA affirmed the petitioner’s convictions in the July 21, 2011 Memorandum Opinion, finding, among other things, that “[t]he government presented substantial evidence at trial refuting McCoy’s claim of self-defense, ” DCCA July 21 Mem. Op. and J. at 4, and that “[t]he government’s evidence was substantial[, ]” id. at 7. The petitioner filed a motion pursuant to D.C. Court of Appeals Rule 41(f) in the DCCA to recall the mandate affirming the convictions, and he filed a petition in the United States Supreme Court for a writ of certiorari, which was denied on October 12, 2012. Gov’t’s Resp. at 3-4. In the recall motion, the petitioner claimed that appellate counsel was ineffective for failing to file a motion under D.C. Code § 23-110 (2001) based on ineffective assistance of trial counsel. A Motion to Recall the Mandate Under D.C. Rule of Appella[te] Procedure [ ] 41 (“Recall Mot.”) at 59-71, ECF No. 2. The petitioner claimed that trial counsel was ineffective for “fail[ing] to cross[-examine a] government witness correctly, call [the decedent’s girlfriend as a ] defense witness and move for a mistrial or other-wise [sic] seek rel[ie]f (e.g., re-argument or curative instruction) after the government[’]s rebuttal[.]” Recall Mot. at 2, ECF No. 2 at 60.

         The DCCA denied the petitioner’s recall motion “on the merits.” McCoy v. United States, No. 08-CF-1360 (D.C. Sept. 9, 2013) (per curiam) (“Sept. 9, 2013 Order”), ECF No. 2 at 44. The DCCA first quoted Watson v. United States, 536 A.2d 1056, 1060-61 (D.C. 1987) (en banc) for the proposition that the petitioner had not “carrie[d] the heavy burden of setting forth in detail, ‘chapter and verse, ’ a persuasive, factually based argument for recalling the mandate.” The Court then stated:

Further, counsel’s decision to not file a D.C. Code § 23-110 motion will be considered ineffective assistance only if the filing of such a motion would have been meritorious. . . . Finally, many of the issues raised in appellant's motion fall within the purview of tactical decisions and, without a showing of prejudice that we find has not been established in this case, do not provide a basis for establishing ineffective assistance of trial counsel.

Id. (citation omitted). The petitioner filed this action in the United States District Court for the Middle District of Pennsylvania, which in turn then transferred the case to this Court. May 28, 2014 Order, ECF No. 7.

         II. DISCUSSION

         1. The Petitioner’s Ineffective Assistance of Trial Counsel Claim

         It is settled that unlike federal and state prisoners, “a District of Columbia prisoner has no recourse to a federal judicial forum [to challenge a Superior Court conviction] unless the local remedy is inadequate or ineffective to test the legality of his detention.” Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir.), cert. denied, 479 U.S. 993 (1986) (internal quotation marks omitted). This is so because D.C. Code § 23-110 authorizes a District of Columbia prisoner to file a motion “to vacate, set aside, or correct [a] sentence on any of four grounds” challenging its constitutionality, Alston v. United States, 590 A.2d 511, 513 (D.C. 1991), and this local remedy “has been found to be adequate ...


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