Venlonte V. Bethea, Appellant,
United States, Appellee.
Submitted June 20, 2017
from the Superior Court of the District of Columbia
FEL-7201-98, Hon. Craig Iscoe, Trial Judge
Richard S. Stolker was on the brief for appellant.
Channing D. Phillips, United States Attorney at the time the
brief was filed, Elizabeth Trosman, Chrisellen R. Kolb, and
Michael E. McGovern, Assistant United States Attorneys, were
on the brief for appellee.
Glickman, Thompson, and Easterly, Associate Judges.
Easterly, Associate Judge
Venlonte V. Bethea appeals the Superior Court's order
denying his motion under D.C. Code § 23-110
(2001)-alleging that he received ineffective assistance of
counsel (IAC) at trial-without a hearing. Because we conclude
that our well established presumption in favor of holding a
hearing on all § 23-110 motions has not been rebutted,
we reverse and remand for a hearing on his IAC claim.
Bethea was convicted by a jury of conspiracy to commit
murder; four counts of assault with intent to kill while
armed; second-degree murder while armed; possession of a
firearm during a crime of violence; carrying a pistol without
a license; and carrying a dangerous weapon. Bethea v.
United States, No. 04-CF-120, Mem. Op. & J. at 1
(D.C. Aug. 9, 2010). On direct appeal, this court affirmed
all of his convictions. Id. Mr. Bethea also sought
to collaterally challenge his convictions by filing a §
23-110 motion in which he alleged that he possessed
newly-discovered, exculpatory evidence and that his trial
counsel had provided him with ineffective
assistance. But, because this motion was filed prior
to Mr. Bethea's sentencing in 2004, the trial court ruled
it was not yet ripe and dismissed it. Post-trial counsel did not
re-file the § 23-110 motion after sentencing. Mr. Bethea
was appointed appellate counsel in 2004; appellate counsel
moved in 2009 (but still during the pendency of Mr.
Bethea's appeal) to "adopt" the previously
dismissed § 23-110 motion and to "issue stay [sic]
pending further investigation and the possible filing of a
supplement to the ineffective assistance
motion."Appellate counsel never filed a supplement,
never moved to lift the stay, and never obtained a ruling on
this motion. In 2015, post-trial counsel, whom the trial
court reinstated for reasons not reflected in the record,
filed the § 23-110 motion that is the subject of this
appeal, apparently reiterating the same claims as were raised
in the previously filed motions.
trial court denied Mr. Bethea's § 23-110 motion
without a hearing. While acknowledging that there is a
presumption in favor of holding a hearing on all §
23-110 motions, see Ramsey v. United States, 569
A.2d 142, 147 (D.C. 1990), the trial court determined that
Mr. Bethea's motion fell within the narrow exception that
allows a trial court to rule on a motion summarily if it
finds "that under no circumstances could the petitioner
establish facts warranting relief." Pettaway v.
United States, 390 A.2d 981, 983-94 (D.C. 1978). As the
trial court noted, this exception encompasses three
categories of claims: those that "(1) are palpably
incredible; (2) are vague and conclusory; or (3) even if
true, do not entitle the movant to relief." White v.
United States, 146 A.3d 101, 109 (D.C. 2016) (quoting
Hardy v. United States, 988 A.2d 950, 961 (D.C.
2010)). The trial court placed this case into the third
category, determining that "defendant's claim would
warrant no relief even if it were true."
review a trial court's decision to deny a § 23-110
petition without hearing for abuse of discretion. Lane v.
United States, 737 A.2d 541, 548 (D.C. 1999); see
also Bellinger v. United States, 127 A.3d 505, 514-15
(D.C. 2015) ("While the decision whether to hold an
evidentiary hearing on a § 23-110 collateral challenge
to the constitutionality of a conviction is committed to the
trial court's discretion, the extent of that discretion
is quite narrow." (internal quotation marks omitted)).
Although the trial court identified a legitimate ground for
denying a § 23-110 petitioner a hearing-namely, that
appellant's claim would warrant no relief even if it were
true-we conclude that the trial court here abused its
discretion by denying the petition summarily.
trial court began its analysis by assessing the likely
prejudice that Mr. Bethea suffered from his trial
counsel's failure to call David Norwood, a witness
who-according to the § 23-110 motion and the affidavit
of Mr. Norwood (attached to the § 23-110 motion)-would
have significantly impeached Wendy Barksdale, a key
government witness at trial. Ms. Barksdale claimed to have
seen the shooting from the window of Mr. Norwood's
apartment, and she testified that, from this vantage point,
she had "no doubt" that she had seen "[Mr.]
Bethea fire a gun into the driver's side window of a
car." Bethea, No. 04-CF-120, Mem. Op. & J.
at 2. Mr. Norwood stated in his affidavit, however, that Ms.
Barksdale could not have been watching from the window of his
home. Mr. Norwood elaborated that, on the day of the murder,
he "left home at approximately 7:00 AM and return[ed] to
[his] home at 7:00 PM" and "[t]here is no way
physically possible for Ms. Wendy Barksdale or [him] to have
been in [his] residence during the hours
court assumed, without explanation, that Mr. Norwood's
testimony would have been as "vague" and
"devoid of practically any detail" as his
affidavit. Preliminarily, we view Mr. Norwood's affidavit
differently. Although it does not say it explicitly, this
affidavit clearly implies that Ms. Barksdale was not at his
home when he left in the morning nor when he returned in the
evening, that he locked the door to his residence, that Ms.
Barksdale did not have a key, and that he had no reason to
believe Ms. Barksdale had any other means of accessing his
home. This much can be readily inferred from Mr.
Norwood's clear statement that "[t]here is no way
physically possible for Ms. Wendy Barksdale . . . to have
been at [his] residence . . . ." Moreover, in making the
assumption that Mr. Norwood's testimony would have
mirrored his affidavit, the trial court failed to recognize
that, at a hearing, Mr. Norwood would be questioned by
counsel for both Mr. Bethea and the government, and his
assertions in his affidavit could be expanded upon- and,
further, that he might not be the only witness called to
testify. (It seems likely that Mr. Bethea and/or his trial
counsel, would also have testified at a § 23-110
hearing, as Mr. Bethea's IAC claims make relevant both
his communications with his trial counsel and any
investigation by counsel related to Mr. Norwood.) By making
assumptions about what testimony would be elicited and then
assessing Mr. Bethea's underlying Strickland
claim in light of those assumptions, the trial court
conflated the procedural question of whether there is a
reason to deny petitioner a hearing on his motion with the
distinct merits question of whether the petitioner's
claims warrant relief (once all evidentiary questions have
been resolved, typically through a hearing).
the procedural question from the merits question, we conclude
that the presumption in favor of granting Mr. Bethea a
hearing was not rebutted. Mr. Norwood's affidavit alleged
specific facts that indicate that counsel provided
ineffective assistance by failing to call a witness who could
have testified that the government's sole eyewitness to
the murder could not have seen what she said she saw.
Accordingly, it cannot be ...