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Evans v. Lockett

United States District Court, District of Columbia

March 1, 2019

ALFRED EVANS, Petitioner,
v.
CHARLES L. LOCKETT, Respondent.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Alfred Evans's Petition for Writ of Habeas Corpus and Attached Appendix Pursuant to 28 U.S.C. § 2254, [Dkt. # 1] (“Pet.”), which the government has opposed. See Government's Resp. to Pet'r's Pet. for a Writ of Habeas Corpus [Dkt. # 16] (“Gov.'s Resp.”) and Pet'r's Reply [Dkt. # 19] (“Reply”). Because the petition is time-barred, the petition will be denied.

         BACKGROUND

         On February 28, 2007, petitioner and his then co-defendant, Frank Johnson, were charged in the District of Columbia Superior Court with first-degree murder while armed, second-degree burglary while armed, first-degree murder while armed (felony-murder), three counts of possession of a firearm during the commission of a crime of violence, and possession of an unlicensed firearm. Pet. at 5. At trial, Johnson was convicted of all counts, but petitioner was convicted of felony-murder predicated upon the second-degree burglary count and acquitted of the other six counts. App. to Pet. [Dkt. # 1-1] (“App.”) at 16-17. Following the verdict, petitioner and Johnson jointly moved for a new trial after discovering that an excluded piece of evidence had been improperly submitted to the jury, and the court granted the motion. Pet. at 5. At that point, the co-defendants' cases were severed at the request of the government. Id. at 6.

         The government proceeded against petitioner on the charge of first-degree felony murder and a newly added charge of obstruction of justice. Pet. at 5. On June 20, 2009, petitioner filed a motion to dismiss the felony-murder charge, arguing that the charge was collaterally estopped and that a retrial would violate the Double Jeopardy Clause of the Fifth Amendment. Id. at 6. The Superior Court denied the motion on October 9, 2009, App. at 24, and petitioner appealed (the “Interlocutory Appeal”). Pet. at 6. The D.C. Court of Appeals affirmed the trial court's decision on January 28, 2010. Evans v. United States, 987 A.2d 1138 (D.C. 2010).

         On April 1, 2011, the jury found petitioner guilty of both obstruction of justice and felony murder. Pet. at 6. On October 7, 2013, petitioner's convictions were affirmed on direct appeal. App. at 86-93. Petitioner did not file a petition for writ of certiorari with the Supreme Court following the affirmance. Pet. at 6.

         While the direct appeal of his conviction was pending, though, petitioner filed a motion with the D.C. Court of Appeals to recall the mandate. Id. In it, he argued that appellate counsel was ineffective with respect to the Interlocutory Appeal. Id. On December 31, 2013, the D.C. Court of Appeals denied the motion. App. at 94.

         Petitioner also filed a motion to vacate his sentence under D.C. Code § 23-110[1] on July 8, 2013, asserting ineffective assistance of counsel. App. at 80. The Superior Court denied the motion on September 10, 2013. Id. at 80-85. The D.C. Court of Appeals affirmed the denial on February 9, 2015, id. at 95, and a motion for rehearing en banc was denied on April 8, 2015. App. at 95-103.

         While the first § 23-110 appeal was pending, petitioner filed a second § 23-110 motion based on an asserted change in the law regarding collateral estoppel. Pet. at 6. The D.C. Court of Appeals affirmed the Superior Court's denial of the second § 23-110 motion on January 11, 2016, Ex. 4 to Gov.'s Resp. [Dkt. # 16-4], and petitioner's motion for a rehearing en banc was denied on March 23, 2016. Gov.'s Resp. at 4.

         On March 31, 2016, the D.C. Court of Appeals issued its mandate. Petitioner then filed a petition for writ of certiorari challenging the denial of the second § 23-110 motion, which was denied by the Supreme Court on December 5, 2016. Pet. at 7; App. at 104. Petitioner filed the instant Petition for a Writ of Habeas Corpus in this Court on December 4, 2017.

         ANALYSIS

         Petitioner argues here that his appellate counsel was ineffective when the Interlocutory Appeal was filed in 2009. See generally Pet. at 27-40. The appeal challenged the Superior Court's refusal to dismiss the second first-degree murder prosecution on collateral estoppel and double jeopardy grounds. Petitioner complains that his lawyer should have argued on appeal that the original conviction for felony murder and acquittals on the burglary and firearms counts were actually consistent, and therefore the retrial was barred by the doctrine of collateral estoppel. In light of that omission, petitioner contends that appellate counsel's performance fell below the constitutionally required standard. The government opposes the petition on the grounds that it comes too late, and it argues that the Court should summarily deny the petition without addressing the merits of the collateral estoppel issue that has already been heard by the District of Columbia Courts.

         A claim of ineffective assistance of appellate counsel is reviewed “under the standard set forth in 28 U.S.C. § 2254.” Williams v. Martinez, 586 F.3d 995, 1002 (D.C. Cir. 2009). Section 2254 provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court ...

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