Joseph A. Brown, Appellant,
United States, Appellee.
April 27, 2017
Appeals from the Superior Court of the District of Columbia
(CMD-6506-91, FEL-9002-92, and FEL-1695-97) (Hon. Ann
O'Regan Keary, Trial Judge)
E. Baskir for appellant.
Y. Park, Assistant United States Attorney, with whom Channing
D. Phillips, United States Attorney at the time the brief was
filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Carolyn
K. Kolben, Assistant United States Attorneys, were on the
brief, for appellee.
Blackburne-Rigsby, Chief Judge, and Glickman, Associate
Judge, and Nebeker, Senior Judge.
NEBEKER, SENIOR JUDGE.
appeals from the denial, as time or otherwise barred, from
forty-eight pro se and interrelated motions. The motions
collaterally attacked his three convictions in the 1990's
(two were on negotiated guilty pleas on 1991 and 1992 weapons
offenses, and a third for a first-degree murder conviction in
1997). This court appointed present counsel to represent
Brown on the appeal. Brown was serving a life sentence in a
California federal prison for the murder when he was charged
with assault on a prison guard in 2008. He unsuccessfully
presented an insanity defense to that charge, where he had
the burden of persuading the jury by clear and convincing
evidence that he had an abnormal mental condition which
deprived him of capacity for choice and control of his
conduct at the time of the murder. See 18 U.S.C.
§ 17. The jury was unable to reach a verdict and a
mistrial was declared. The indictment was later dismissed on
motion of the government.
argument on appeal is that Brown's four counsel in the
1990's were constitutionally ineffective in failing to
recognize and develop possible insanity defenses to those
charges. He presents his defense expert's testimony in
his California trial (a Dr. A.A. Howsepian) to challenge as
ineffective his four counsel in the 1990's. Brown's
initial argument is that this court should remand and direct
that the trial court hold a hearing on the issue of the
ineffectiveness of his counsel in order to show or justify
cause for the delay in his challenges. In her thirty-page
order, the trial court meticulously dealt with each of
Brown's pleadings, which included many motions based on
D.C. Code § 23-110, error coram nobis, for evidentiary
hearings to amend his sentence, all filed between March 2012
through December 2014. She reasoned that there is no evidence
to explain "why [Brown] failed to raise his ineffective
assistance of counsel claim during his direct appeal . . .
." The court noted that even if Brown had demonstrated
adequate reason for delay, he presents no evidence that
supports "a reasonable probability that . . . the result
of the proceeding would have been different." In fact,
many of the events cited by his psychiatrist, Dr. Howsepian,
as contributing to Brown's insanity occurred after the
cases at issue here, such as Brown's nine years of
solitary confinement, which came after the 1990's
convictions. The trial court also found that the doctor's
opinion pertained only to Brown's insanity at the time of
the 2008 assault, "many years after his conduct in the
instant case." She noted that there was nothing in the
record demonstrating that any prior counsel should have been
aware of any possible condition affecting Brown's mental
condition. The trial court found no obligation on the part of
counsel to investigate Brown's mental health simply
because appellant disclosed that he was shot in 1991. We
order to prevail when bringing a claim of ineffective
assistance of counsel, appellant must show that "his
trial attorney's performance fell below an objective
standard of reasonableness and that there is a reasonable
probability that the error affected the outcome of the trial
to his prejudice." Simpson v. United States,
576 A.2d 1336, 1337 (D.C. 1990) (see Strickland v.
Washington, 466 U.S. 668, 687-88 (1984)). Generally, an
appellant should collaterally attack his conviction on the
basis of ineffective assistance of counsel during the
pendency of his direct appeal. Shepard v. United
States, 533 A.2d 1278, 1280 (D.C. 1987). Where an
appellant failed to do so, we require appellant to show cause
for the delay and prejudice as a result of the delay.
Id. (see Head v. United States, 489 A.2d
450, 451 (D.C. 1985)). In order to show cause, appellant must
show "exceptional circumstances" that prevented him
from bringing his claim in a timely manner. Head,
489 A.2d at 451 (citations omitted). To show prejudice,
appellant must show that the errors at trial created more
than a mere "possibility of prejudice, but that
they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions." Washington v. United
States, 834 A.2d 899, 903 (D.C. 2003) (emphasis in
original) (quoting United States v. Frady, 456 U.S.
152, 170 (1982)).
dissent argues that the question of procedural default as a
result of Brown's failure to bring these claims in a
timely manner "blends" with the question of the
merits of Brown's ineffective assistance of counsel
claims. However, the Supreme Court has said that "the
question of cause for a procedural default does not
turn on whether counsel erred or on the kind of error
counsel may have made." Murray v. Carrier, 477
U.S. 478, 488 (1986) (emphasis added). Ineffective assistance
of counsel excuses a procedural default only where the
ineffectiveness of counsel was the cause of the procedural
default. Id. ("[I]f the procedural default is
the result of ineffective assistance of counsel, the Sixth
Amendment itself requires that responsibility for the default
be imputed to the State ...."); see also
Washington, 834 A.2d at 904 n.10 (interpreting
Murray v. Carrier as saying that
"ineffectiveness of counsel may constitute
'cause' only when that ineffectiveness itself
is the very reason why such claims were not made on
direct appeal" (emphasis in original)). In Brown's
case, there is no ineffectiveness in the first instance.
showed no cause for his failure to file this collateral
attack in a timely manner. We have held that the
unavailability of claims resulting from the trial
counsel's actions are only cause for delay where the
counsel's own failure to effectively communicate with the
defendant led to the delay in filing. See, e.g., White v.
United States, 146 A.3d 101, 105-06 (D.C. 2016) (the
trial court and counsel's misleading statements regarding
appellant's eligibility for parole led to the guilty plea
appellant sought to withdraw once he was properly informed of
his parole eligibility); see supra page 5-6. Here,
Brown alleges the opposite and contends that: a latent
condition, withheld from counsel by defendant, was the cause
of the delay. See infra page 7. Moreover, if
Brown's mental condition was not "reasonably
available" to Brown or his counsel prior to 2009, it is
difficult to deem trial counsel's failure at the time of
trial to investigate the matter in the 1990's
unreasonable. We are therefore unpersuaded by the
dissent's argument that Brown's factual basis for his
claim may not have been reasonably available to him prior to
Dr. Howsepian's assessment for his 2009 trial.
there was no ineffective assistance of counsel, even if Brown
could overcome the procedural bar. There were no observable
symptoms or statements from Brown that could have reasonably
called attention to the possibility of an insanity defense.
The expert testimony from Dr. Howsepian showed that Brown had
been traumatized by injuries in the 1990's and later when
in prison, including a nine-year period of solitary
confinement, and such trauma could produce latent Post
Traumatic Stress Disorder (PTSD). He added that PTSD would
lead to avoiding conversations about its
effect. Indeed, Brown told his examining
psychiatrist that, "I never discussed it [his symptoms]
with anyone. This is the first time." Thus, we have on
this record an admission by Brown that he withheld from his
counsel facts with which he now seeks to charge counsel with
being professionally incompetent for not knowing or
recognizing as the basis for a possible insanity defense. Dr.
Howsepian's ultimate and material testimony was that
Brown was insane in 2008. Regardless, Brown presents his 2008
insanity diagnosis as evidence of his mental state in the
1990's. Moreover, at Brown's initial prison
evaluation no mental disorder was noted.
the dissent's argument to the contrary, there is simply
no evidence that counsel would have had a reason to
investigate appellant's mental state at the time of trial
in the 1990's. Not only did Brown not mention any mental
condition to alert counsel, but also the psychiatric
testimony in the California trial does not describe, and
there is no other showing of, any observable symptoms of an
abnormal mental condition in the 1990's. Therefore, there
was nothing which could have reasonably alerted his counsel
to a possible insanity defense. See Cosio v.
United States, 927 A.2d 1106, 1127 (D.C. 2007) (en banc)
(quoting Rompilla v. Beard, 545 U.S. 374,
383 (2005)) ("[W]e must assess whether the challenged
investigative omission was objectively unreasonable under the
circumstances counsel confronted.... The duty to conduct a
reasonably thorough investigation 'does not force defense
lawyers to scour the globe on the off-chance something will
turn up.'"). Absent some indicia of a mental
condition, there is sufficient ground to find counsel's
actions in the 1990's reasonable.
put, in order for Brown's claim to succeed, the court
would have to engage in pure speculation. Curry v.
United States, 498 A.2d 534, 540 (D.C. 1985) (citing
Williams v. United States, 421 A.2d 19, 25 (D.C.
1980)). Counsel cannot be deemed ineffective for failure to
raise an insanity defense in the absence of any other
we hold that Brown's counsel did not perform in an
objectively unreasonable way and were not ineffective by not
raising insanity defenses. Since we conclude that Brown has
failed to show cause for the delay, we need not reach the
prejudice prong. See Cosio, 927 A.2d at 1131 (when
cause for delay is shown, prejudice must then be considered).
trial court's order is hereby
Glickman, Associate Judge, dissenting.
appeal arises from the denial of appellant Brown's
pro se D.C. Code § 23-110 motions, in which he
pursues relief from convictions in the 1990s on account of
his mental illness and possible insanity at the time.
Brown's principal claim is an
ineffective-assistance-of-counsel challenge to his 1997
conviction for first-degree murder. The salient consideration
for me is that the Superior Court denied this claim without
an evidentiary hearing and without first appointing counsel
to assist Brown, in spite of Brown's current mental
disabilities and incarcerated status and the strong statutory
presumption in favor of holding a hearing. I think this
denial was premature. Brown proffered sufficient facts in my
view to show that, with an attorney's help, he may be
able to overcome the procedural bar and demonstrate that his
trial counsel was ineffective in failing to investigate and
pursue an insanity defense to the murder charge.
murder charge arose from the fatal shooting of Kenneth Powell
on January 31, 1996. Brown himself was shot in the wrist in
the encounter. At trial, the government conceded that the
motive for Brown to shoot Powell - someone he grew up with
and knew very well - was unknown. Brown's defense relied
on his testimony that an unknown third party shot both him
and Powell in a marijuana sale gone bad. It was a weak
defense to a strong government case. This court affirmed
Brown's conviction in an unpublished
first claimed his trial counsel was ineffective in failing to
investigate an insanity defense in the pro se §
23-110 motions he filed in Superior Court in November 2011.
Brown based that claim on a psychiatric evaluation in support
of an insanity defense that he presented to assault charges
brought against him in 2008. Dr. A. A. Howsepian, the
psychiatrist who conducted the evaluation, diagnosed Brown as
suffering from chronic post-traumatic stress disorder
("PTSD") since 1991, when it was triggered by a
profoundly traumatic shooting that left Brown in a coma and
near death. This condition was exacerbated, the psychiatrist
found, by Brown's schizotypal personality disorder and a
history of brain injuries and grand mal ...