Charles A. Thomas v. United States
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Repo rters. Users are requ ested to notify the Clerk of the Court of any formal errors so that corrections may be made b efore the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 94-CF-744, 96-CO-1266, 96-CO-1764 & 99-CO-1232 C HARLES A. T HOMAS, A PPELLANT, v. U NITED S TATES, A PPELLEE. Appeal from the Superior Court of the District of C olumbia (Hon. Mary Ellen Abrecht, Trial Judge) (Argued December 6, 2000 Decided May 17, 2001) John T. Moran, appointed by the court, fo r appellant. Chad T. Sarchio , Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was fi led, John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee. Before T ERRY, R UIZ and R EID , Associate Judges. Opi nion for the co urt by Associate Judge R EID . Con curring a nd dissen ting opin ion b y Associate Judge R UIZ, at p. 11. R EID , Associate Judge: After a bench trial, appellant Charles Thomas was convicted of assault w ith a dangerous weapon ( ADW ), in violation of D.C. Code § 22-502. On appeal, Thoma s raises one d irect, and tw o collateral ch allenges, to h is convic tion. We affirm. FACTUAL SUMMARY According to the government s evidence presented at trial, on November 21, 1991, Junious W. Roberts, Jr., now d eceased due to an unrelated matter, took a short afternoon break from his job as a janitor with the Walter Reed Army Hospital, in the District of 2 Columb ia, during w hich he co nsumed approxim ately forty ounces of beer. As he returned from his break, an individual a pproach ed him and hit his lower left leg with what appeared to be a pipe. Mr. Roberts testified that he got a really good . . . look at his assailant, and that he rem embered his face f rom all up and dow n Georg ia Avenu e, in the D istrict. Detective Loren Cook, an eleven-year veteran of the Metropolitan Police Department ( MPD ), who ha d interview ed Mr. R oberts wh ile he was re covering f rom his injuries at the Washington Hospital Center, testified on cross-examination that [Mr. Roberts] stated that he had been drinking, but agreed that [a]side from the fact that he said th at, [he] did [n ot] appear to be under the influence of alcohol. Defense counsel did not pose an objection to this testimony. Although Mr. Roberts could not recall the name of his assailant, he described the in dividual as a Blac k ma le, ap prox imat ely twenty-six to thirty-two years of age. Approximately five foot eleven, weighing approximately 195 pounds,1 dark complected . . . wearing [a] black hat, black pants and a grey sweatshirt . . . . Mr. Roberts also stated that his a ssailant h ad [b ]rown eyes an d blac k hair. Detective Melvin Hemphill, an MPD Officer with over twenty years of experience, testified that on January 3, 1992, as Mr. Roberts examined a photograph array, he got to the picture of Mr. Thomas and said, [t]his is him right here. He then continued to go through the stack of pictures and came ba ck to [M r. Thoma s s picture] an d said [t]his is him right here. Based upon this identification, Detective Hemphill scheduled a line-up of eight individuals, and, on February 21, 1992, Mr. Roberts selected Thomas from the line-up. 1 At trial, the parties stipulated that in Novem ber 1991, M r. Charles Thomas was five feet eleven inches tall and weighed 198 pounds. 3 Thomas was found guilty on the ADW count, but the jury deadlocked on the mayhem while armed count. Sub sequently, he was sentence d to a term of thirty to ninety month s in prison. He filed a timely direc t appeal. ANAL YSIS The Direct Appeal The Pre-Trial Claims of Ineffective Assistance of Counsel Thomas contends that the trial court conducted an inadequate pre-trial hearing concerning his assertions of ineffective assistance of counsel. [W]hen a criminal defendant complains pretrial about the performance of counsel, the trial judge must make an on-therecord inquiry to elicit whether or not the criteria of professional competence have been met and make findings of fact sufficient to permit appellate review of the ability and preparedness of counsel to render effective assistance. Gordon v. United States, 582 A.2d 944, 945 (D.C. 1990) (citing Monroe v. United States, 389 A .2d 811 (D.C.) , cert. denied, 439 U.S. 1006 (1978)). The trial court may, in its discretion, determine the exact nature of the inquiry . . . . Lane v. United States, 737 A.2d 541, 552 (D.C. 1999) (quoting Nelson v. United States, 601 A.2d 582, 592 (D.C. 199 1)); see also Wingate v. United States, 669 A.2d 1275, 1279 (D .C. 1995). The record before us shows that the trial court fully explored Thomas s alleged dissatisfaction with his counsel. Prior to trial, the trial judge specifically asked Thomas: 4 [I]s there anything about your preparation for trial with [defense counsel] that causes a problem for o ur proceed ing to trial? I mean, are you ready for trial? . . . [D]ifferen ces in personality and style can exist no matter who your lawyer is. [B]ut objectively . . . are there any witnesses . . . is there any evidence, is there something that is out there that [defense counsel] has not investigated for you? To this question, Thomas responded: Just about everything I think he did, that I think that h e did. I can t think of no thing right of fhand th at he hasn t. . . . I think all I would like to do is contact some people, but I have no access to that, so. Defense counsel stated: If I might, Yo ur Hono r, one of the witnesses that Mr. Thomas is referring to is somebody who we think was an eyewitness to the of fense. And my investigator is trying to get him served . . . . [a]s we speak. My understanding from my investigator is that he had contact with this individual on Tuesday . . . . And apparently did not serve a subpoe na on him for reasons known to him, and what I understand were good reasons, but I have told h im to go ba ck again a nd try to locate this individual and serve him. After learning that Thomas s counsel essentially had resolved the main issu e behind h is pretrial claim, the trial jud ge then state d, [s]o I ga ther all of these matters are being worked on even a s we sp eak? Defe nse cou nsel ag reed. In viewing the record, we conclude that the trial judge s specific inq uiry w as sufficient to determin e the truth and scope of [Thomas s] allegations, Monroe, supra, 389 5 A.2d at 820, and was designed to elicit whether or not the . . . criteria of professional competence ha[d] been met. Id. at 821. Defense counsel devoted time during a two-year period to the prepa ration of T homas's ca se and there is no indicatio n, as there w as in McFadden v. United States, 614 A.2d 16 (D.C. 1992), that he had insufficient time to p repare Tho mas's case. Thomas's chief complaint was that he wanted to contact certain witnesses. Howeve r, the record shows that none of the witnesses w ould have testified that Thom as did not commit, or could not have committed, the acts with which he was charged. Furthermore, based upon Thomas s responses to the trial judge , the trial court w as not requ ired to appoint new counsel because th ere wa s clearly no good cause, s uch as c onflict o f interes t, a complete breakdown of communication, or an irreconcilable conflict which [could] lead . . . to an apparently unjust verdict. Johnson v. United States, 585 A.2d 776, 771 (D.C. 1991) (quoting McKe e v. Harris , 649 F .2d 927 , 931 (2 d cir. 19 81), cert. denied, 456 U.S. 917 (1982)). Therefore, we conclude that defense counsel "was prepared 'within the range of competence demanded of attorneys in criminal cases.'" Nelson, supra, 601 A.2d at 592 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). In addition, we are satisfied that the trial court did not abuse its discretion in conducting its inquiry into Tho mas's complain t, since Thomas was questioned on the record about his complaint, and defense couns el prov ided de tails for th e trial jud ge. Id. Detective Cook s Testimony That Mr. Roberts Did Not Seem To Be Intoxicated Thomas argues that th e trial court com mitted plain e rror in permitting Detective Cook to testify that Mr. Roberts did not appear to be under the influence of alcohol, because the government did not provid e [a]n adequ ate fou ndation for [the Detec tive s] lay o pinion . 6 In Harris v. D istrict of Colum bia, 601 A.2d 21 (D.C . 1991) w e held that lay witness [] testi[ mon y] as to whether a person is under the influence of alcohol id. at 25 n.5, is admissible as long as a foundation has been established showing that the w itness ha[d] a reasonab le degree of experienc e in observin g persons who are under the influence of [alcoh ol]. Id. at 2. However, w e further held that in situations w here that matter has not been explored, such a foundation has been assumed to exist. Id. at 25 n.5 (quoting Durant v. United States, 551 A.2d 131 8, 1324 (D.C. 19 88)). In the instant cas e, it is clear that the p redicate or foundation for Detective Cook s lay testimony was not [] explored, id., at trial because, as Thomas concedes, defense counsel failed to pose any objection to Detective Cook s testimony concernin g his belief that Mr. Roberts was not intoxicated. Under these circumstances, such a foundation [is] assumed to exist, id., and alcohol intoxication is considered to be a m atter of c omm on kno wledg e, Duran t, supra, 551 A.2d at 1324. Moreover, as the trial court concluded, Detective Coo k's testimony enabled the jury "[to] determine for itself Mr. Robert's level of impairment." Therefore, we see no erro r, let alon e plain e rror. Brawner v. United States, 745 A.2d 354, 357 (D.C. 200 0). Defense Counsel s Failure To Object To Evid ence Presented A t Trial Concerning T homas s Prior Convictions Thomas maintains that the trial court committed plain error by permitting the prosecutor to : 1) admit extrinsic evidence of prior convictions [] that [] he did not deny ; and 2) argue in closing and rebuttal that [he] had lied. In addition, he contends that the trial court erred by permitting the government to conduct an improper cross examination of 7 him, with regard to his prior convictions. Under the plain error standard, the error must be (1) obvious or readily apparent, and clear under current law; and (2) so clearly prejudicia l to substantial rights as to jeopardize the very fairness and integrity of the trial. Brawner, supra, 745 A.2d at 357 (quoting Coates v. United States, 705 A.2d 110 0, 1104 (D.C. 19 98)) (other quotations and internal quotation marks omitted). This court will reverse under the plain error standard only in exceptional circum stances w here a misc arriage of ju stice wou ld otherwise result. Id. (quoting Peterson v. United States, 657 A.2d 756, 762 (D.C. 1995)) (other quotations and internal quotation marks omitted). Furthermore, "[q]uestions assuming the existenc e of a factu al predicate must be g rounded in a good fa ith belief that th ose facts are susceptible to proof by competent evidence." Ali v. United States, 520 A.2d 306, 313 (D.C. 1 987) (c itation o mitted). Even assuming, without deciding, that the trial court committed error, Thomas has failed to show th at he suffe red "substa ntial prejud ice" as a result of trial cou rt error. See Bowman v. United States, 652 A.2d 64, 71-72. Furthermore, given the strength of the government s case and the weakness of the defense . . ., any possible harm . . . was too trivial too worry about. Washington v. United States, 760 A.2d 187, 196 (D.C. 2000) (quoting Scott v. United States, 619 A.2d 917 , 929 (D.C. 1993 )). First, with respect to the use of extrinsic evidence regarding Thomas' prior convictions, for imp eachm ent pur poses, the prosecutor based his questions on a Pretrial Services Agency report indicating that Thomas had two prior felony carrying a dangerous weapon ("CD W") co nviction s. Thus, the factual predicate for the prosecutor's questions was "grounded in a good faith belief that . . . [he could establish the prior convictions] . . . by 8 competent evidence." Ali, supra, 520 A.2d at 313. Furthermore, although the government introduced a certification of Thomas's convictions for carrying a pistol without a license ("CPWL "), unregistered firearm ("UF"), and unlawful possession of ammunition ("UA") during its rebuttal, we cannot say that the trial court plainly erred in admitting the certification, given the close relationship between CDW and C PWL . See Cooke v. United States, 107 U.S. App. D.C. 2 23, 224-2 5, 275 F.2 d 887, 88 8-89 (196 0); Lucas v. United States, 256 A .2d 574 , 575 (D .C. 196 9). Second, the jury was presented with significant damaging testimony from Thomas, himself, during trial. Thomas testified that he was a crack cocaine abuser and that he had been previously convicted of attempted possession of PCP, po ssession w ith intent to distribute marijuana, and, on two occasions, possession of marijuana. Nonetheless, after hearing the government's assertions that Thomas "lied" during trial, the jury deadlocked on the mayhem while armed count, and convicted Thomas on the lesser included offense of ADW. Thus, even assuming, without deciding, that the government's closing and rebuttal arguments, as well as the cross-examination of Thomas, as to his prior co nvictions, were improper, they were "harmles s beyond a re asonable d oubt beca use there is n o reasona ble possibility that [they] contributed to [Thomas's] convictions." Brewer v. United States, 559 A.2d 317, 323 (D.C. 1989) (citing Chapm an v. Califo rnia, 386 U.S. 18, 23-24 (1967)). In short, we conclude that the trial court s f ailure to interven e, sua spo nte, to correct the governm ent s alleged errors, did not result in su bstantial preju dice to Thomas, requiring a revers al. See Morrison v. United States, 547 A.2d 996 , 1000 (D.C. 198 8). 9 The Collateral Attacks On March 18, 1996, Thomas filed a D.C. Code § 23-110 motion to vacate his sentence. He maintained that he was denied the effective assistance of trial counsel because his counsel: (1) failed to introduce a toxicology report into evidence or call an expert witness on intoxication; (2 ) failed to giv e an open ing stateme nt; and (3) fa iled to elicit damagin g hearsay evidence from Mr. Roberts on cross-examination. Based on the evidence presented at trial, the trial court denied the motion. On August 26, 1996, Thomas filed a motion for reconsider ation, whic h was de nied on O ctober 11, 1 996. Tho mas notice d a timely appe al. Thomas lodged a second § 23-110 motion on March 19, 1999, alleging trial counsel failed to: (1) hire an ex pert to interpre t blood-alco hol conce ntrations; (2) p repare ade quately for trial; (3) impeach witnesses with incon sistent stateme nts; (4) object to hearsay; and (5) object to the use of his CP WL co nviction as a CDW conviction . The trial cou rt denied this motion on Au gust 12 , 1999, e ssentially b ecause "[n]on e of the alleged ly new iss ues . . . warrant[ed] consid eration . . . ." and Tho mas failed to show cause for the failure to raise the new is sues in h is first § 2 3-110 motion or "a fu ndam ental m iscarriag e of jus tice." Under Strickland v. Washington, 466 U.S. 668 (1984), we see no merit to T hom as's § 23-110 claims, see also Brown v. United States, 726 A.2d 149 (D.C. 19 99); nor are we persuaded by his assertion that the trial court "improperly denied without a hearing [his] second post-conviction motion ." 2 Strickland, supra, requ ires T hom as to "sho w that co unse l's 2 With regard to Thomas's appeal of the denial of his motion for recons ideration of his first § 23-110 motion, we note that: "The denial of a [m]otion for [r]econsideration, by itself, is not an appealable order." Perry v. Sera, 623 A.2d 1210, 1221 n.10 (D.C. 1993) (other 10 performance was deficient. . ., [and] that the deficient performance prejud iced the defen se." Id. at 687. Under the second Strickland prong, Thomas cannot show prejudice with regard to his first § 23-110 motion. M r. Roberts d escribed an d specifica lly identified Th omas as h is attacker on three oc casions, and testified that he was certain Thoma s was his attacker. Mr. Roberts had an opportunity to see Thomas during the assault, and recognized him as a member of the local community surrounding Georgia Avenue. He stated that he would "never forget" Thomas's face. In addition, Thomas was unable to present any witnesses to corrobora te his alibi that he was working at a beauty parlor at the time of Mr. Roberts' assault. Therefore, the trial court did not abuse its discretion in denying Thomas's first § 23110 m otion. With regard to Th oma s's second § 23-110 motion, we have said that when a defendant "'has failed to raise a n available challenge to his convictio n on direct a ppeal, he may not raise that issue on co llateral attack unless he shows both cause for his failure to do so and prejudice a s a result of his failure.'" Matos v. United States, 631 A.2d 28, 30 (D.C. 1993) (quoting Head v. United States, 489 A.2d 450, 451 (D.C. 1985) (citation omitted)). 3 Indeed, the "abuse of writ" doctrine precludes consideration of "claims not raised, and thus defaulted, in the first [collateral] proceeding," McCleskey v. Zant, 499 U.S. 467, 490 (1991); and § 23- citations omitted). 3 There was a five-year delay between Thomas's first and second § 23-110 motions. Although he argued, for the first time, that defense counsel was ineffective because he failed to use Mr. Rob ert's grand jury testimony to impeach him, and raised other new particulars, Thomas failed to meet the requirement of Matos, supra, that he show "both cau se for his failure to [include these matters in his f irst § 23-110 motion,] an d prejudice as a result of h is failure." Id. at 30. (q uotation and cita tion om itted). 11 110 (e) states that, "the court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." Thomas provided no "aff idavit or other credible proffer" to su pport his allegations of ineffective assistance of counsel, and thus, was not entitled to a hearing on his second collateral attack m otion. Ready v. United States, 620 A.2d 233, 235 (D.C. 199 3); see also Lane, supra, 737 A.2d at 552. Furthermore, we agree with the trial court's conclusion that he has n ot sustai ned his burden to show cause a nd prej udice. Accord ingly, for the for egoing rea sons, we a ffirm the ju dgment o f the trial court. So ordered. R UIZ, Associate Judge, concurring in part and d issenting in p art. I concur in affirming the trial court s denial of the first 23-110 motion w ithout a hea ring, but not, a s the majority does, based on lack of Strickland prejudice. With respect to the second 23-110 motion, which was filed during the pendency of the direct appeal, I disagree that the trial court need not have considered it on the merits on the ground that it was a second or successive motion for similar relief. D.C. Code § 23-110 (e) (1996 Repl.) (permitting trial court not to entertain such a motion). Therefore, I would remand for the trial court s consideration of the merits of the second 23-110 motion. First 23-110 motion 12 In his first 23-110 motion, Thomas claimed that his trial counsel was ineffective because he failed to obtain and present a toxicolog y report on the p ercentage of alcoho l in the complainant s blood and to present a toxicologist who would explain to the jury how such a level of blood alcohol would be likely to affect the complainant's ability to perceive accurately and to recall those perceptio ns. The majority disposes of the claim of ineffectiveness on the ground that there was no Strickland prejudice because of the purported strength of the c ompla inant s id entifica tion of T homa s as his a ttacker. Unlike the majority, I do not think that the government s case, nor the identification, was particu larly strong. The only issue in contention before the jury was whether Thomas was the person who struck the complainant, Roberts, with a pipe for no apparent reason. The only evidence to that effect was provided by Roberts, w ho identified Thoma s from a p hoto array and then picked him from a line-up severa l week s after th e incide nt. Roberts did not know Thoma s personally, no r his name , but testified tha t he remembered his face from seeing him all up and down Georgia Avenue. There was serious doubt, however, about Roberts ability to accurately perceive, and later identify, Thomas. First, Roberts testified that, at the time of the incident, he w as operating on 1½ to 2 hours sleep after a night o f drinking twenty-four beers. In addition to being inebriated when he was attacked, an equally serious doubt abo ut Roberts s credibility was r aised by the fa ct that, right after the attack, he had identif ied by name a co-wo rker as invo lved in his attack a fact that the m ajority fails to mentio n. This statement was made to the police officer who visited Roberts at the Washington Hospital C enter wh ere he wa s being treate d for the inju ries from th e attack. 13 Roberts then changed his mind and identified Thoma s several w eeks later as h is assailant. 1 The weakness of Roberts s identification, when coupled with the randomness of the attack, and no apparent motive on the part of Thomas to attack Roberts, whom Thom as did not know , hardly m akes fo r an ove rwhelm ing gov ernme nt case. This weakness must be viewed in the context of Thomas's argument that, had his trial counsel attacked Roberts s credibility by presenting to the jury expert testimony on how impaired his perceptual abilities would have been from his heavy drinking, he would not have testified in order to present an alibi. As a result of taking the stand, Thomas was impeached with prior convictions including possession of an unregistered firearm, possession of unregistered ammun ition, and carrying a pistol without a license (CPWL ).2 I would therefore not dispose of the first 23-110 motion on a lack of Strickland prejudice grounded on the strength of the gov ernme nt s case . See Strickland v. Washington, 466 U.S. 668, 694 (1984) (defining prejudice as reasonable probability, that, bu t for couns el s unreaso nable performance, ou tcome of trial would b e different, or confidenc e in verdict is lacking). 3 1 Roberts in itially told police that M r. Carter, a co-w orker and associate w ith whom Roberts had a physical altercation approximately one week prior to the assault, had accompanied his assailant and was involved in the attack. Roberts admitted that he lied about Carter s involvement because [he] wa nted to get Carter for having assaulted him a week earlier. 2 When c ross-exam ining appellant, the prosecutor mistakenly characterized appellant s CPWL conviction as a conviction for carrying a dangerous weapon (CDW) and then argued in closing argument that appellant lied when he denied the CD W con viction. Appellant argued in his second 23-110 motion that trial counsel was ineffective for not objecting to the prosecu tor s cross-ex amination and closing argumen t at trial. 3 For the same reason, I would not conclude that the claim that the trial court erred in failing sua spon te to prevent or correct the prosecutor s cross-examination and closing argument made on direct appeal was harmless. See ante at 8. As the m ajority correctly points out at the beginning of its analysis, those claims were not made to the trial court and our review is limited to plain error. See ante at 7. I conclude there is no plain e rror. 14 Instead, I would affirm the trial court s denial of the first 23-110 motion because, as the trial court determined, the allegedly deficient performance of couns el, the failure to introduce a toxicolog y report and to call a toxicology expert, wa s not so un reasonab le as to fall below the range of acceptable performance by counsel in a case where Roberts had testified to drinking a case of beer and h aving almost no sleep the night before. As juro rs are presumed to know the effects of such heavy drinking, see Harr is v. District of C olumbia , 601 A.2d 21 (D.C . 1991), cou nsel reas ona bly could decide that they were able to evaluate the accuracy of a drunk Roberts s identification of Thomas without expert assistance. Second 23-110 motion The trial court determined that it had no obligation to consider the second 23-110 motion because Thomas had not shown cause and prejudice for his failure to raise those claims of ineffe ctive assistanc e of coun sel during his first collateral attack See Head v. United States, 489 A.2d 450, 451 (D.C. 1993) ( Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure. ). The majority affirms on the same basis, relying on Matos v. United States, 631 A.2d 28, 30 (D .C. 1993). I d isagree that Matos answers the question presented b y this appeal because Matos concerne d a situation w here appe llant failed to r aise an ava ilable challenge to his conviction on direct appeal, yet launched several s imilar collateral a ttacks on his convic tion. Id. Here, on the other hand, Thomas s two 23-110 motions were filed while the direct app eal was p ending an d had bee n stayed, pursu ant to our dire ction in Shepard v. United States, 533 A.2d 12 78, 1280 (D.C . 1987) (indicating that an app ellant who is aware of a basis for alleging ineffective assistance of trial counsel should file a § 23-110 motion 15 during the pendency of a direct ap peal). Thomas s second 23-110 motion was filed after the trial court had denied his first motion alleging ineffectiveness (which concerned different claims of deficient performance) but before any of the claims concerning his trial and collateral attacks had been brief ed, argued or addresse d by this court. Whethe r such a claim is procedurally defaulted is a question of first impression. It is to that issue that I turn my analysis. Let me state at the outset that I would have deferred our decision in this case until the en banc court considers the statutory and constitutional obligations of appellate counsel and the continued validity of the Shepard rule in Williams v. United States, 760 A.2d 205 (D.C. 2000), reh'g granted, 2001 D.C. App. LEXIS 88 (D.C. April 5, 2001). In that case, the en banc court is face d with the q uestion w hether app ellate counsel s f ailure to file a notice of appeal from the d enial of a 23-110 motion filed contemporaneously with direct appeal prevents appellate review of the claim of ineffectiveness of trial counsel. The issue in this case, though not identical, also presents a question about the p erforman ce of app ellate counsel who pro cedurally defa ults his client s cla im of ineffectiveness of trial counsel. In Williams, the defendant argues that the trial court s denial of his claim on the merits for ineffective assistance of trial counsel is entitled to appellate review, whereas here, the defe ndant's claim of ineffectiveness of trial counsel presented in his second 23-110 motion has not been reviewed by any court, at any level. The full court s consideration of the issues in Williams would undoubtedly be helpful to our consideration of this case.4 4 The en banc court has requested that the parties in Williams addres s, inter alia, the following issues: 1. Does an attorney appo inted to represent a defendant on appeal under (contin ued...) 16 In Shepard, we established that appellants who are aware of a basis for alleging ineffective assistance of trial counsel shou ld file 23-110 motions alleging such ineffectiveness during the p end ency of the direct appeal as a w ay of making a reco rd regarding matters relevant to the ineffectiveness claim that do not appear in the record of the case on direct appeal. 533 A.2d at 1280. To provide some teeth to that requirement, we also announced the prospective application of a new rule that if an appellant does not do so, that procedural default will be a barrier to this court s consideration of app ellant s claim. Id. at 1280 (emph asis add ed). 5 We did not address whether consideration by the trial court would be similarly precluded, but Shepard's focus on the pendency of direct appeal suggests that 23-110 motions filed during the pendency of direct appeal comply with Shepard requirements. Both the language of Shepard, as well as its purpose of d eveloping a record 4 (...continued) the Criminal Justice Act, and who files a contemporaneous motion to vacate sentence under D .C. Code Section 2 3-110 in accord ance with Shepard v. United States, 553 A.2d 1278 (D.C. 1987), have a statutory duty to take necessary steps to preserve the denial of that motion for appellate review? 2. If so, does the breach of that d uty violate du e proce ss, see Evitts v. Lucey, 469 U.S. 387, 39 6 (1985); see also, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), which may constitute cause and therefore excuse the failure to note an earlier appeal in a subsequent collateral attack proceeding? 3. If the answer to que stion 1 is no, does the du e process right to effective assistance of counsel on direct app eal, see Evitts, supra, include the obligation of couns el to preserve for appeal the denial of a contemporaneous Section 23-110 motion? Williams, 2001 D.C. App. LEXIS 88 at *2-3. 5 The barrier is not insurm ountable, h oweve r, if the appellant can show cause and prejudice. Id. at 1282. 17 on the ineffectiveness claims to supplement the record on direct appeal, argue against the majority s position that Th omas s secon d 23-1 10 claim has bee n proce durally de faulted . The trial court and the majority rely on D.C. Code § 23-110 (e), which provides that the trial court shall not be required to entertain a second or successive motion for similar relief. Thomas s seco nd 23-110 m otion, which raised claims of ineffectiveness different than those raised in his first motion, wa s not a succes sive m otion. See Junior v. United States, 634 A .2d 411, 417 n.15 (D.C. 1993) (citing McCleskey v. Zant, 499 U.S. 467, 487 (1991), for the proposition that a succe ssive motio n is identical to th e first motion ); see also Hurt v. St. Elizabeths Hospital, 366 A.2d 780, 781 (D.C. 1976) (noting that allegations that merely repeat the previously rejected contentions . . . need not have been considered by the trial ju dge ). The question, therefore, is whether Thomas s second 23-110 motion need not be entertained as a second . . . motion for similar relief. D.C. Code § 23-110 (e). Although we have not p reviously expressly interpreted the meaning of a second motion for purposes of 23-110 (e), we have suggested that it is one that would constitute an abuse of the writ. See Junior, 634 A.2d at 417 n. 15 (indicating that a second motion that alleges a new ground might be considered an abuse of writ); cf. McCleskey, 499 U.S . at 487-88 (im porting cou rtmade abuse of the writ jurisprudence in defin ing when a second or subsequent habeas petition by a state prisoner under 28 U.S.C. § 2244 (b) (199 4) n eed n ot be ente rtain ed by a federal court). 6 In interpreting the statutory reference to second motions we should do 6 The version of 28 U.S.C. § 2244 interpreted in McCleskey stated that a subsequent application for a writ of habeas corpus . . . need not be entertained by a court of the United (contin ued...) 18 so with the interests in fina lity that animate abuse of the writ jurisprudence. 499 U.S. at 491. The Supreme Court has identified those interests as preservation of the deterrent effect of convictions and protection of the government s interest in prosecuting criminal behavior by avoiding the erosion of mem ory and dispe rsion of w itnesses tha t can occu r with delayed retrials. Id. (quoting Kuhlmann v. Wilson, 477 U.S. 436, 453 (1986)). 7 Efficiency is another interest protected by the doctrine of finality, for collateral litigation places a heavy burden on scarce judicial resources, and threatens the capacity of the system to resolve primary disputes. Id. (citing Schneckloth v. Bustam onte, 412 2U.S. 218, 260 (1973) (Powell, J., concurring). 8 To balance those concerns against a prisoner s interest in judicial review of meritorious claims, the Court settled on cause and prejudice, and defined cause as 6 (...continued) States . . . unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ. 28 U.S.C. § 2244 (b) (1994). In language similar to D.C. Code § 23-110 (e), the habeas statute applica ble to persons in federal custody, 28 U.S.C. § 2255 (b), provide d prior to a 1 996 ame ndment th at: [t]he sentencing court shall not be required to entertain a second or successive motion for similar relief. 28 U.S.C. § 2255 (1994). Th e procedu re in federa l court to address second or successive motions was amended in 1996 to require a certification b y the appeals c ourt in accord ance w ith spec ified crit eria. See 28 U.S.C. §§ 2 244, 2255 (200 0 Supp.). 7 In the federal habeas context, the States sovereign power to punish offenders and their good- faith atte mpts to honor constitu tional rig hts are also fru strated. Id. (quoting Murray v. Carrier, 477 U.S. 478, 487 (19 86)). This concern does not apply in the context of our review of 23-110 motions. 8 In this case, only the interest in efficiency is implicated by the unexplained threeyear lapse in filing the second 23-110 motion, as consideration of that mo tion would require the trial cou rt to add ress inef fective ness of trial cou nsel at tw o diffe rent time s. There are no witnesses whose memory was necessary to present or evaluate the claim that counsel was ineffective in failing to object to the prosecutor s cross-examination and closing statem ent. Further, because the direct appeal was pending, the second 23-110 motion did not delay the deterrent value of a final conviction, nor put off the time when the governm ent wou ld have to retry the d efend ant in the event o f revers al on ap peal. 19 requiring a showing that some objective factor external to the defense imped ed counsel s efforts to raise the claim in the first p etition. Id. at 493 (quoting Murray, 477 U.S. at 488). In addition, the C ourt specifie d, constitution ally ineffective a ssistance of counsel . . . is cause for this purp ose. Id. at 494 (quoting Muray, 477 U.S. at 488). Once cause is established, the petitioner must show actual prejudice resulting from the claimed errors.9 If we follow the Court s cause and prejud ice analysis in the conte xt of this app eal, it becomes immediately apparent that a meritorious claim of ineffective assistance of trial counsel will suffice to es tablish cause and prejud ice if there w as a constitutio nal right to effective assistance of appellate counsel. A lthough there is no constitutional right to counsel on collateral attack, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Brown v. United States, 656 A.2d 1133, 1136 (D .C. 1995), th ere is a cons titutional right to counsel on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 396 (1985). In d iscussing the due proc ess right to counsel under the Fourteenth Amendment, the Court distinguishes between appeals as of right and dis cretiona ry appea ls. See Ross v. Moffitt, 417 U.S. 600, 610, 612 (1974) (holding 9 Of course, even if cause and prejudice are not established, a habeas petition must be entertained if the judge considers that the ends of justic e requ ire it. Id. at 495. The miscarriage of justice exception to cause serves as an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty,' guaranteeing that the ends o f justice will be s erved in full. Id. (quoting Stone v. Po well, 428 U.S. 465, 491, n.31 (1976). Because our 23-110 procedures are considered the equivalent of federal collateral attack re view, see D.C. Code § 23-110 (g) (1996 Repl.) (exempting D.C. prisoner claims from federal habeas review unless D.C. procedures are inadequ ate or ineffe ctive to test the legality of h is detention ); Garris v. Lindsay, 254 U.S. App. D.C. 13, 17, 794 F.2d 722, 726 (1986), the restriction in 23-110 (e) with respect to second or successive motions also should be subject, as are the federal pro cedures, to an en ds of ju stice ex ception . See Diamen v. United States, 725 A.2d 501, 5254 (1999) (Ruiz, J., dissenting) (noting that habeas corpus in federal co urts is an equ itable inquiry that provides a remedy when required by the ends of justice ). 20 that neither the D ue Proce ss Clause n or the Fou rteenth Amendment s equal protection guarantee requires the appointment of counsel for discretionary appeals where defendant has already had one a ppeal as of right). It is at this juncture that the filing of the second 23-110 motion during the p endency of direct appe al becom es significan t. Thomas s direct appeal to this cou rt is a ma tter of rig ht, see D.C. Code § 11-721 (1995 Repl.), and so he has a constitutional right to c ounse l for tha t appea l. See Evitts, 469 U.S. at 396. As we have said, the purpose of filing 23-110 motions claiming ineffective assistance of trial counsel during the pendency of direct appeal is to develop a record to supplement the direct appeal, and to consolidate our consideration of all claims into on e appe al. See Shepard, 533 A.2d at 1280. Thus, the constitutional right to counsel is implicated in the presentation of 23-110 motions which are subsi diar y to and supplement the direct appeal. If the failure to include a meritorious claim of ineffective assistance of trial counsel as part of the first 23-110 motion means that the trial court never considers it on the merits under D.C . Code § 23-11 0 (e), and, consequ ently, is not part of the record on direct appeal, appellate counsel s failure constitutes cause which excuse s the pro cedura l defau lt. 10 Cf. Coleman v. Thompson, 501 U.S. 722, 10 I am aware that we have said that [t]he pendency of a direct appeal does not give appellant an y greater right to ap pointmen t of couns el for a § 23 -110 mo tion than he would otherwise have. Kyles v. United States, 759 A.2d 192, 201 (D.C. 2000) (citing Doe v. United States, 583 A .2d 670 , 675 (D .C. 199 0)). Those cases dealt with the requirement that there be a threshold showing on the merits be fore appo intment of counsel is required for a 23-110 motion; specifically, counsel is required where a hearin g must be held . See Doe, 583 A.2d at 672. Althoug h the issue o f entitlemen t to counsel is c ertainly related to this appeal and to the en banc court s consideration of Williams, see supra note 4, those cases assume trial court consideration of the merits of a 23-110 motion before deciding whether a hearing and appointment of counsel are called for; and do not deal with the specific issue presented here, where a 2 3-110 m otion prese nted to the trial court during the pendency of direct appeal receives no consideration by the trial court. Similarly, in Lee v. United States, 597 A.2d 1333 (D.C. 1991), in which th e court did not focus on the significance that the purpose of filing a 23-110 motion contemporaneously with a direct appeal is to supplement that appeal, the trial court had denied the motion on the me rits, not d ismisse d it und er 23-1 10 (e). See id. at 1334. 21 756-57 (1991) (holding that appellate counsel s deficient performance that procedurally defaulted the federal habeas claim by failing to file a timely appeal from state post-conviction proceeding does not constitute cause where defendant has already had his one and only appea l, which involved a two-day evidentiary hearing in a state court considering ineffectiveness of trial coun sel). Under these circumstances, where a 23-110 motion making a constitutional claim of ineffe ctive ass istance o f trial cou nsel is file d durin g the pe ndenc y of the d irect app eal, I would conclude that because a merits review may establish cause, the motion should not have been dismissed as a second motion for purposes of 23-110 (e). Thus, I would remand for the trial court s consideration of the merits.11 11 Appellant argued in his second 23-110 motion that trial counsel was ineffective for failing to object to the prosecutor s mis-characterizing appellant s CPWL conviction and then unfairly labeling appellant as an ou t-and-out li[a r], who would d o almost an ything to avoid conviction. See supra note 2. W hile I do not de cide whe ther the claim of ineffective assistance of trial counsel, in the final analysis, would be meritorious, given the earlier discussion about the weakness of the governmen t s case, I cannot say that the trial court could not have found the claim to be meritorious. It is for the trial judge, who observed the trial, to evaluate the impact of counsel s claimed deficient performan ce on the jury in the first instanc e. 22
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