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Johnson v. Wilson

United States District Court, District of Columbia

October 25, 2018

E.D. WILSON, Respondent.



         Petitioner Duane Joseph Johnson was convicted over twenty years ago in D.C. Superior Court. The charges stemmed from a drug-deal-turned-robbery and included murder, assault, robbery, and firearms offenses. Following an unsuccessful direct appeal, Petitioner has spent the intervening decades attempting to obtain collateral relief, first from D.C. courts and now from federal. At this point, his claims have narrowed to a single, fundamental contention: his appellate (and trial) counsel, Frederick J. Sullivan - who subsequently became a Superior Court Magistrate Judge and has now retired - was ineffective.

         U.S. Magistrate Judge G. Michael Harvey, to whom the case was referred, has considered Johnson's claims in a comprehensive Report and recommends that his Petition be denied. See ECF No. 115 (Report and Recommendation). Although Johnson now raises several objections to that Report, the Court agrees with Judge Harvey's careful analysis. It will thus adopt the Report and Recommendation in full and grant judgment to Respondent.

         I. Background

         A. Conviction and Direct Appeal

         The full factual background of this case is set out in detail in the 68-page Report. To recap briefly here, in 1995, Petitioner, who was represented by Judge Sullivan, was convicted in D.C. Superior Court of murder, assault, robbery, and firearms offenses arising from events in the early morning of April 26, 1994. See R&R at 1-2.

         The Government's evidence at trial demonstrated how the murders resulted from an attempted robbery of drug proceeds. Sharon Nash testified that she, Keith Nash, Victor Williams, and Latina Gary went out in Keith Nash's car to buy cocaine. Id. Having made their purchase, they were getting ready to leave when Petitioner, accompanied by Damitra Rowell, ran up to them and asked for a ride. Id. at 3. After Johnson and Rowell entered the car, Petitioner directed the driver to a dead end and told Keith Nash to turn off the engine. Id. Johnson then got out of the car and stood at its rear left side. Id. Sharon Nash saw him point a gun at Keith Nash's head and demand the money the group had used to buy drugs. Id. Informed that the money had already been spent, Johnson fired three shots, two of which fatally struck Keith Nash and one of which wounded Sharon Nash. Id.

         The Government's remaining three eyewitnesses - Gary, Rowell, and Williams - largely corroborated Sharon Nash's description of the evening up to the purchase of the drugs and the agreement to give Petitioner and Rowell a ride. Id. at 3-4. Their accounts diverged slightly as to the shooting and its aftermath. Rowell testified that the day after the shooting, Petitioner approached her, “gave [her] a story to tell” - although she never specified what that story was - and threatened to kill her if she did not comply. Id. at 5. Williams testified that, when Petitioner pulled out the gun, he threatened to kill everyone in the car, and, after musing about whom to kill first, shot Keith Nash in the head and then aimed the gun at the backseat. Id. Williams struggled with Petitioner, who then fled. Id. Gary also testified to Johnson's struggle with Williams and further explained that, after Petitioner fled, Rowell followed, shouting at him. Id. at 6.

         A medical examiner offered testimony corroborating the Government's version of events. He testified that Keith Nash was killed from a close-range shot that struck the left rear of his neck and exited through his lower cheek. Id. at 7. A second bullet struck near the first but did not exit. Id. Sharon Nash was wounded by a shot to the left side of her abdomen. Id. Those three wounds are consistent with the theory that both were sitting in the front seat when they were shot by a person standing at the left rear side of the car. Id.

         Johnson was the only defense witness. Id. He testified that he was selling drugs when he was approached by Williams, who discussed the purchase of some cocaine. Id. When Williams said he had a customer for Johnson around the corner, they went to Keith Nash's car. Id. at 8. Johnson asked Rowell to accompany him because he was feeling uncomfortable about the transaction. Id. After they all got into the car, Williams directed Keith Nash into the alley. Id. When the car stopped, Williams pulled a gun on Petitioner and demanded drugs and money. Id. The two struggled for the gun inside the car, and during the struggle, it fired several times. Id. Eventually Johnson got free and fled the car, with Williams shooting after him. Id.

         On January 19, 1995, a D.C. Superior Court jury found Petitioner guilty of first-degree felony murder while armed, second-degree murder while armed, assault with intent to kill while armed, assault with a deadly weapon, attempt to commit robbery while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. Id. At 9. Cumulatively, Johnson was sentenced to an indeterminate term of imprisonment of 77 years to life. Id.

         On February 12, 1996, he appealed his conviction and sentence to the D.C. Court of Appeals. Id. Judge Sullivan again represented him. Id. The Court of Appeals held that Johnson's appeal lacked merit but, as is typical in such circumstances, remanded the case for re-sentencing because the second-degree murder and attempted-robbery convictions merged with the felony-murder conviction. Id. at 9-10. Johnson was then resentenced to 46 years to life. Id. at 10.

         B. Collateral Review

         Petitioner's collateral-review efforts have been lengthy. In brief, after his unsuccessful direct appeal, Johnson filed letters in D.C. Superior Court asserting ineffective assistance of trial counsel. Id. Following an evidentiary hearing before Judge Russell Canan, Johnson's motion was denied. Id. at 11. He appealed that decision as well, but the D.C. Court of Appeals affirmed in a five-page Memorandum Opinion and Judgment on August 17, 2001. See Johnson v. United States, No. 99-CO-978 (D.C. Aug. 17, 2001) (attached to this Opinion as Appendix A). He filed a motion in late 2005 again alleging ineffective assistance at trial, and then in early 2006 he filed another motion alleging Brady violations and ineffective assistance of both trial and appellate counsel. Id. at 12.

         While these motions were pending, Petitioner discovered that Judge Sullivan had previously represented Williams in a criminal trial in 1985. Id. at 12-13 & n.8. In April 2007, he thus filed another motion in Superior Court to amend his 2006 motion based on his counsel's alleged conflict of interest. Id. at 13. While the conflict claim was pending in Superior Court, Johnson also filed in the D.C. Court of Appeals, seeking relief for ineffective assistance of appellate counsel based on the conflict during the direct appeal. Id. at 14. The Court of Appeals denied Johnson's motion to recall the mandate “without prejudice to the trial court's consideration of the alleged conflict of interest of [Petitioner's] trial counsel (who was also appellate counsel).” Id. at 15 (citation omitted).

         Back in Superior Court, Judge Canan denied Johnson's motions in a thorough and detailed 34-page opinion. See ECF No. 63-10 (Judge Canan Opinion). Treating extensively many of the specific claims Petitioner now reiterates here, he concluded that Judge Sullivan's representation had been effective and not hampered by conflict. Id. at 23-26. Judge Canan also found the Brady claims unpersuasive. Id. at 31. Petitioner subsequently filed four additional motions ...

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