MEMORANDUM OPINION
JAMES
E. BOASBERG UNITED STATES DISTRICT JUDGE.
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 ...