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 ...