Submitted January 30, 2018
from the Superior Court of the District of Columbia
CF3-3523-11 (Hon. Ronna Lee Beck, Trial Judge)
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.
Glickman, Fisher, and Thompson, Associate Judges.
Fisher, Associate Judge.
George Fadero challenges the trial court's denial of his
D.C. Code § 23-110 (2012 Repl.) motion for
post-conviction relief. We affirm.
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.
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
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."
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" ...