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Kirkland v. Baltazar

United States District Court, District of Columbia

October 11, 2018



          Amit P. Mehta United States District Judge


         Petitioner Toussaint Kirkland, proceeding pro se, seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner contends that he was denied his Sixth Amendment right to effective assistance of counsel on appeal of his conviction to the D.C. Court of Appeals. The court need not reach the merits of Petitioner's claim, however, because the Petition is untimely. Accordingly, the Petition is dismissed.


         A. Factual Background

         On May 25, 2011, a grand jury indicted Petitioner on felony charges of aggravated assault while armed, assault with a dangerous weapon, and assault with significant bodily injury. United States' Opp'n to Def.'s Pet. under 28 U.S.C. § 2254 for Writ of Habeas Corpus, ECF No. 15 [hereinafter U.S. Opp'n], at 2; U.S. Opp'n, Ex. A, D.C. Superior Ct. Order [hereinafter D.C. Sup. Ct. Order], at 6. The charges arose out of an incident in which Petitioner was accused of grabbing a woman who approached him while he sat inside a car, punching her in the face, dragging her as he drove for a short distance, and then releasing and running over her. U.S. Opp'n, Ex. B, D.C. Court of Appeals Mem. Op. & J. [hereinafter DCCA Mem. Op. & J.], at 1. Petitioner proceeded to trial in D.C. Superior Court, but on October 19, 2011, the very first day of the proceedings, Petitioner absconded before the start of jury selection. D.C. Sup. Ct. Order at 8. More than a year later, on October 26, 2012, after his re-arrest, Petitioner pleaded guilty to Aggravated Assault While Armed and a felony Bail Reform Act violation. Id. at 9.

         Petitioner thereafter attempted to undo his conviction. On October 9, 2013-almost a year after his plea but before sentencing-Petitioner filed a “Motion to Obligate the Government to Re-Extend Prior Plea Offer Due to Ineffective Assistance of Counsel in Connection with Plea-Bargaining Process and Motion to Withdraw Guilty Plea.” Id. at 1. In that motion, Petitioner claimed that he had received ineffective assistance of counsel because his trial attorney had failed to adequately apprise him of the terms and conditions of the government's pre- and post-indictment plea offers. Id. The trial court held a hearing on Petitioner's ineffectiveness claim, but ultimately rejected it. See generally D.C. Sup. Ct. Order. The court sentenced Petitioner to 156 months of incarceration on the Aggravated Assault While Armed charge and an additional 24-month consecutive sentence on the Bail Reform Act violation. DCCA Mem. Op. & J. at 2.

         Petitioner then filed a timely appeal on June 2, 2014. U.S. Opp'n at 3. The D.C. Court of Appeals affirmed the trial court's denial of Petitioner's ineffectiveness claim on July 23, 2015. See DCCA Mem. Op. & J. at 8. Petitioner then filed for a writ of certiorari to appeal his claim to the U.S. Supreme Court, which the Court denied on January 19, 2016. See Kirkland v. United States, 136 S.Ct. 918 (2016).

         Petitioner's efforts did not end at the Supreme Court. On March 22, 2017, Petitioner filed a motion to recall the mandate with the D.C. Court of Appeals, the procedural device used in the District of Columbia courts to challenge the effectiveness of appellate counsel. U.S. Opp'n at 4; U.S. Opp'n, Ex. D, D.C. Court of Appeals Order. Petitioner asserted that “appellate counsel provided ineffective assistance by failing to note facts that would illustrate plea counsel did not communicate a pre-indictment plea.” Id. at 1. The D.C. Court of Appeals denied the motion on August 29, 2017, finding that the record did not support Petitioner's claim. Id. at 1-2.

         B. Procedural Background

         Petitioner then proceeded to federal court. On October 24, 2017, Petitioner initially filed the instant Petition under 28 U.S.C. § 2254 in the U.S. District Court for the Middle District of Pennsylvania. See Pet. under 28 U.S.C. § 2254 for Writ of Habeas Corpus by Person in State Custody, ECF No. 1 [hereinafter Pet.], Mem. of Arg. in Supp. of 28 U.S.C. § 2254 Mot., ECF No. 1-1 [hereinafter Pet.'s Mem.], at 1-2.[1] The Middle District of Pennsylvania transferred the Petition to this court on December 5, 2017. See Docket Entry, ECF No. 7.

         The Petition asserted two grounds for relief: (1) “[t]rial counsel was ineffective in failing to relay [a] favorable plea offer, ” and (2) “[a]ppellate counsel was ineffective in failing to highlight facts weighing in Petitioner's favor, and failing to argue that his plea was involuntary.” Pet.'s Mem. at 2. After the United States responded to the Petition, see generally U.S. Opp'n, Petitioner withdrew his ineffective assistance of trial counsel claim, acknowledging that “a D.C. Superior Court prisoner may not raise any claim in a § 2254 petition except ineffective assistance of appellate counsel.” Pet.'s Reply to Gov't's Opp'n, ECF No. 17 [hereinafter Pet.'s Reply], at 1. Thus, all that remains of the Petition is the claim of ineffective assistance of appellate counsel.[2]


         Federal courts are authorized to issue a writ of habeas corpus “[o]n behalf of a person in custody pursuant to the judgment of a State court . . . on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). While the D.C. Superior Court is considered a “State court” for purposes of section 2254, see Head v. Wilson, 792 F.3d 102, 106 n.3 (D.C. Cir. 2015), federal habeas review of D.C. Code offenders' convictions is quite circumscribed. Such review is limited because D.C. Code § 23-110 “gives the [S]uperior [C]ourt exclusive jurisdiction of virtually all collateral challenges.” Head, 792 F.3d at 104. The D.C. Circuit, however, has recognized an exception to this general bar on habeas review for the type of claim raised in this case: ineffective assistance of appellate counsel. See Id. at ...

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