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Fadero v. United States

Court of Appeals of The District of Columbia

March 22, 2018

George Fadero, Appellant,
v.
United States, Appellee.

          Submitted January 30, 2018

          Appeal from the Superior Court of the District of Columbia CF3-3523-11 (Hon. Ronna Lee Beck, Trial Judge)

          George Fadero, pro se.

          Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, and O. Andrea Coronado, Assistant United States Attorneys, were on the brief for appellee.

          Before Glickman, Fisher, and Thompson, Associate Judges.

          Fisher, Associate Judge.

         Appellant George Fadero challenges the trial court's denial of his D.C. Code § 23-110 (2012 Repl.) motion for post-conviction relief. We affirm.

         I.

         This case reaches us for the third time. We summarized the facts in Fadero v. United States, 59 A.3d 1239, 1242-44 (D.C. 2013) (Fadero I), and do so only briefly here. On February 12, 2011, a Metropolitan Police Department Officer stopped appellant for a traffic violation. As the officer was walking away from appellant, he turned around to see appellant's van slowly moving toward him in reverse. The van hit the officer, knocking him to the ground, and causing him injuries. It then sped away from the scene.

         The government charged appellant with several offenses based on this conduct, including felony assault on a police officer while armed ("APOWA"). A jury convicted appellant of four of the charged offenses, including APOWA. We affirmed all convictions, except one, which we held merged with the APOWA count. While that appeal was pending, appellant collaterally attacked the conviction through a § 23-110 motion, claiming ineffective assistance of trial counsel. Fadero v. United States, No. 13-CO-479, Mem. Op. & J. at 1 (D.C. Apr. 23, 2014) (Fadero II). The trial court denied the motion without a hearing, and we affirmed that decision, too. Id. at 4, 6. Appellant filed this second § 23-110 motion pro se. The trial court denied it without a hearing and this appeal followed.

         II.

         This appeal focuses on appellant's APOWA conviction, an offense that derives from two statutory provisions. See Fadero I, 59 A.3d at 1242 n.1 (defining the elements of APOWA). The first is felony assault on a police officer, D.C. Code § 22-405 (c), which makes it illegal to (1) assault a person when the defendant (2) "knew or should have known that the victim was a [law enforcement] officer" and (3) "caused a 'significant bodily injury to the law enforcement officer, ' or committed =a violent act that create[d] a grave risk of causing significant bodily injury to the officer.'" Id. (quoting § 22-405 (c)) (alterations in original). The second predicate is D.C. Code § 22-4502, which provides that defendants may face additional punishment if they commit "a crime of violence . . . when armed with or having readily available . . . [a] dangerous or deadly weapon."

         III.

         Appellant principally argues that the phrase "grave risk of causing significant bodily injury, " incorporated in § 22-405 (c), is unconstitutionally vague in light of Johnson v. United States, 135 S.Ct. 2551 (2015). In that case, the Supreme Court considered a provision of the Armed Career Criminal Act (ACCA) that defined a "violent felony, " in relevant part, as "any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 135 S.Ct. at 2555-56 (quoting 18 U.S.C. § 924 (e)(2)(B) (2012)) (first alteration in original). The Court referred to the italicized language as the "residual clause" and held it void for vagueness. Id. at 2556, 2557. Appellant analogizes the "grave risk" ...


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