United States District Court, District of Columbia
P. Mehta United States District Judge
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.
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.
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.
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
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.
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. The Middle District of Pennsylvania
transferred the Petition to this court on December 5, 2017.
See Docket Entry, ECF No. 7.
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
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