Submitted April 4, 2019
from the Superior Court of the District of Columbia 2015 CF2
008219, Hon. Juliet J. McKenna, Trial Judge
Jenifer Wicks was on the brief for appellant Erwin Dubose,
K. Liu, United States Attorney, and Elizabeth Trosman, T.
Anthony Quinn, and Chrisellen R. Kolb, Assistant United
States Attorneys, were on the brief for appellee.
Fisher, Beckwith, and McLeese, Associate Judges.
Fisher, Associate Judge
convicted appellant Erwin Dubose, Jr., of possession with
intent to distribute cocaine while armed, possession of a
firearm during a crime of violence or dangerous offense
("PFCV"), carrying a pistol without a license
("CPWL"), possession of an unregistered firearm
("UF"), unlawful possession of ammunition
("UA"), and possession of a large capacity
ammunition feeding device. We affirmed his convictions on
direct appeal. See Dubose v. United States, No.
16-CF-610, Mem. Op. & J. (D.C. Sept. 12, 2017). The trial
court subsequently denied relief under D.C. Code §
23-110 (2012 Repl.), and this appeal followed. We affirm.
16, 2015, Metropolitan Police Department ("MPD")
Officers Van Hook and McGinnis responded to a radio call for
a black male wearing jeans, a white tank top, and a colorful
hat, carrying a gun in front of 830 Crittenden Street, N.W.
The officers saw a man matching the description at the
intersection of 8th and Crittenden Streets. Officer Van Hook
stopped the police vehicle and asked to talk to the man, and
the man took off running. Officers Heffelman and Fitzgerald
arrived at the scene and Officers Van Hook and McGinnis
eventually brought appellant to the ground.
told the officers, "I'm going to tell you, I'm
going to tell you, it's in my waist, it's in my
waist." An officer felt a hard object in appellant's
waistband which he recognized to be a gun. A pat down and
search of appellant revealed a pistol loaded with fourteen
cartridges in an extended magazine, 12.2 grams of crack
cocaine, and $1, 339 in cash.
trial, appellant testified that he had purchased the drugs
the day before to cope with his sister's death and the
money was from odd jobs and his family. He asserted that
while he was on the way to a friend's house, he stopped
to urinate in an alley, found the gun lying on the ground,
and was walking to the police station to turn it in for a
reward. Appellant stated that he ran when police approached
because he was "confused and scared, didn't know
what to do."
court affirmed his convictions on direct appeal, rejecting
arguments that the trial court erred in denying his motion to
suppress evidence and in refusing to instruct the jury on the
defense of temporary innocent possession of the firearm and
ammunition. See Mem. Op. & J. at 1, 5. On
October 1, 2017, appellant moved to vacate his convictions
for CPWL, UF, and UA, claiming that he had been denied the
effective assistance of counsel and that those convictions
violated the Second Amendment. Judge McKenna denied
appellant's motion in an order issued on June 15, 2018.
Ineffective Assistance of Counsel Claim
argued that his trial counsel was ineffective "because
he failed to move to dismiss the gun charges pursuant to the
Second Amendment of the United States Constitution." The
trial court denied appellant's § 23-110 motion,
finding that "a ...