                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


RONNIE PAYNE,                                         )
                                                      )
                       Petitioner,                    )
                                                      )
                       v.                             )   Civ. Action No. 10-0617 (RMC)
                                                      )
PATRICIA STANSBERRY,                                  )
                                                      )
                       Respondent.                    )


                                  MEMORANDUM OPINION

               Petitioner Ronnie Payne seeks issuance of a writ of habeas corpus under 28

U.S.C. § 2254. He claims that his custody, based on a judgment of conviction entered by the

Superior Court of the District of Columbia, violates the Fifth and Sixth amendments to the

United States Constitution. The Respondent, Warden Patricia Stansberry, moves to dismiss on

the grounds (1) that the petition is time-barred; (2) that claims arising from alleged errors during

the trial proceedings are foreclosed by local remedy D.C. Code § 23-110; and (3) that appellate

counsel was not constitutionally ineffective. Upon consideration of the parties’ submissions and

the entire record, the Court will grant Warden Stansberry’s motion to dismiss.

                                       I. BACKGROUND

               Following a jury trial before Associate Judge George W. Mitchell, Mr. Payne and

co-defendant Ronald E. Garris were convicted of two counts of premeditated first degree murder

while armed, two counts of assault with intent to kill while armed, one count of carrying a pistol

without a license, and one count of possession of a firearm during a crime of violence. Mr.

Payne was sentenced to consecutive sentences ranging from two years to life imprisonment.
Payne v. U.S., 697 A.2d 1229, 1230 & n.1 (D.C. 1997). The underlying facts as recounted by the

District of Columbia Court of Appeals on Messrs. Payne and Garris’ direct appeal are as follows:

               Terence Woodfork, Hezekiah Vaughn, Kenyetta Jeter and Maurice Carey, all
       good friends, were seated in a Nissan Pulsar automobile, outside the Breezes Metro
       Club on Channing Street and Bladensburg Road, N.E., on the night and in the early
       morning hours of March 12 and 13, 1992. While they were sitting and drinking beer
       in the Nissan Pulsar, they spotted a blue or gray car carrying a white female and a
       black male, later identified as Christine Terry and Preston Coe, approach and park.
       Terry and Coe got out of the car and walked toward the Metro Club. Soon another
       car drove up, occupied by two black males. The two black males emerged from their
       car and eventually stood in front of the Nissan Pulsar and opened fire, killing Vaughn
       and Jeter, and injuring Carey in the back and arm. At the time the shots were fired,
       neither Woodfork nor Carey saw anyone else on the street. Later, the police showed
       Woodfork a photo array and he picked out Garris and Payne as the assailants. He
       also made an in-court identification of both men. When Carey was shown the photo
       array by the police, he initially picked out only Coe, the black male who was with the
       white female. He did not identify Garris and Payne until his testimony during their
       trial. However, Carey testified that after the shots were fired, he saw both the car
       carrying the two black males and the one bearing the white female and the black male
       leave the area. The car carrying the black male and white female departed first.
               At the time of the shootings, Officer Stacey Davis was on duty in the Metro
       Club area. He “heard . . . gunshots, stepped to the corner and observed the
       gunshots.” As he ran up Channing Street, he saw a vehicle containing a black man
       and a white woman moving on the street. He also “observed two black males firing
       into or onto a vehicle.” One was dark in complexion and had on a blue jean outfit,
       and the other was light-complected and had on an orange muscle sweat shirt with
       blue jeans. When the men saw the officer, they got into a car and drove away.
       Officer Davis identified Payne in court as one of the men he had seen shooting into
       the Nissan Pulsar.
               Christine Terry testified at trial that she had known Garris for about nine to
       ten months prior to March 13, 1992, and Payne for about six months prior to that
       time. She met both through her then boyfriend, Preston Coe. Earlier on the night of
       the shooting incident, she saw Garris and Payne sitting in a car. Garris had a 45
       millimeter gun in his lap, but she did not see Payne with a weapon. After Terry
       arrived in the area of the Metro Club, she overheard Coe tell Garris and Payne to put
       their guns in the trunk of the car before they went into the club. Payne “said no, that
       the boys in the occupied car [Vaughn, Jeter, Woodfork and Carey] might see where
       they're putting their guns.” She heard Garris say, “we'll try our shootouts on these
       young niggers behind us. . . We'll smoke these young niggers behind us.” Coe and
       Terry left the area. As Coe and Terry were leaving the area, Terry said she “[saw]
       Ronald Garris in front of the . . . blue car . . . shooting into it.” She did not see Payne


                                                   2
       with any gun. About half an hour after Coe and Terry reached their apartment, they
       received a telephone call, and about fifteen minutes after the call Payne and Garris
       arrived. Garris went into Coe's bedroom with Coe, where the two men remained for
       about twenty-five to thirty minutes. Garris and Payne were arrested approximately
       one month after they killed Vaughn and Jeter.

Id. at 1230-32 (footnotes omitted) (alterations in original). On direct appeal, Mr. Payne argued

that the trial court erred in denying his motion for a new trial based on newly discovered

evidence, namely a 9mm. Calico Model M-950 pistol, id. at 1233, and “when it admitted the

eyewitness identification by Officer Stacey Davis and visited the [crime] scene and then affirmed

its ruling on the identification testimony.” Id. at 1234-35 (alterations in original). He also

argued that the trial court erred in giving an aiding and abetting jury instruction and that he was

convicted on insufficient evidence. See Gov’t’s Ex. 14B [Dkt. # 14-16] (Brief for Appellant at

29-34). In its decision issued on July 24, 1997, the D.C. Court of Appeals affirmed Mr. Payne’s

convictions, noting that his arguments “that the evidence was insufficient to convict [him]” and

“that the trial court erred in giving an aiding and abetting instruction” were “without merit.”

Payne, 697 A.2d at 1235 n.12.

               On October 10, 1997, Mr. Payne moved in the D.C. Court of Appeals to recall the

mandate “or alternatively to set aside the panel division judgment.” That court construed the

motion as a petition for rehearing and, on October 13, 1997, denied it. Pet’r Ex. A (Docket Sheet

of Appellate Case No. 93-CF-001643); Gov’t’s Ex. 1.

               On October 28, 1998, the Superior Court received Mr. Payne’s “Motion to Vacate

Sentence and Set Aside Conviction Ineffective Assistance of Trial Counsel and Appellate

Counsel” brought pursuant to D.C. Code § 16-1901 and § 23-110, which was dated August 25,

1998. Gov’t’s Ex. 2. By Order of March 6, 2000, Judge Mitchell summarily denied Mr. Payne’s


                                                  3
“§ 23-110 motion to set aside his conviction because of ineffective assistance of counsel and

[his] motion to have counsel appointed to represent him at a hearing on this matter . . . .” Gov’t’s

Ex. 5.

               On March 25, 2005, Mr. Payne filed in Superior Court a “Motion to Amended

[sic] Original § 23-110(g) Pleading Pursuant [to] Rule 15(a)(c)(1)(2),” in which he challenged

the aiding and abetting jury instruction. Gov’t’s Ex. 7. By Order of March 16, 2006, Associate

Judge Geoffrey M. Alprin denied the motion without first obtaining a response from the

government “because the motion and files and records of the case conclusively show that

defendant is not entitled to relief.” Gov’t’s Ex. 8. Judge Alprin determined that the jury

instructions “on the principles of aiding and abetting and on first degree murder . . . were given in

accordance with the standard ‘red-book’ instructions . . . .” Id. at 1. He also found that Mr.

Payne’s consecutive sentences were proper because he was convicted of two murders and two

assaults. Id. On September 11, 2006, Judge Alprin denied Mr. Payne’s motion for re-entry of

judgment, noting that his appeal time “had lapsed.” See Gov’t’s Ex. 11 at 2. On December 11,

2006, Mr. Payne filed in Superior Court yet another Motion to Vacate Sentence and Set Aside

Conviction for Ineffective Assistance of Counsel. Id.

               On November 24, 2008, Mr. Payne filed a Motion to Vacate Judgment, in which

he sought to vacate the order of September 11, 2006. Id. at 3. By Order of January 19, 2010,

Judge Alprin denied Mr. Payne’s motion for new trial “as successive,” id. at 2, and denied Mr.

Payne’s motion to vacate judgment upon finding that the Superior Court’s rules did not support

Mr. Payne’s claim. Id.




                                                 4
               Meanwhile, on August 14, 2008, Mr. Payne moved in the D.C. Court of Appeals

to recall the mandate. On August 22, 2008, the Court of Appeals, noting that the mandate had

issued on August 15, 1997, denied Mr. Payne’s motion as “untimely filed but without prejudice

to the filing of an appropriate motion in the trial court.” Gov’t’s Ex. 1 at 7. On September 17,

2008, Mr. Payne filed a motion for reconsideration, Gov’t’s Ex. 10, which Warden Stansberry

represents was “rejected.” Resp’t’s Mot. to Dismiss the Pet. for Writ of Habeas Corpus, Filed by

Pet’r Ronnie Payne Pursuant to 28 U.S.C. § 2254, and Mem. in Opp’n to the Pet. (“Gov’t’s

Mem.”) [Dkt. # 14] at 17.1

               On April 19, 2010, Mr. Payne filed the instant habeas action seeking relief under

28 U.S.C. § 2254. He argues that his appellate counsel, Joseph Conte, was ineffective because

he had also represented him at trial and, therefore, had a conflict of interest. Pet. at 11-12. Mr.

Payne contends that “[s]uch representation was objectionable and clearly violated [his] right to

the assistance of counsel under the Sixth Amendment.” Id. at 12. “Because of the obvious

conflict of interest,” Mr. Payne asserts, Mr. Conte failed “to investigate facts relevant [to] a § 23-

110 motion; construct the § 23-110 motion; file the § 23-110 motion; and move the court to

appoint counsel to raise claims regarding ineffective assistance of counsel (at trial), in the § 23-

110 motion.” Id. & Ex. B (Affidavit of Ronnie Payne) (“Payne Aff.”). In addition, Mr. Payne

states in his affidavit that Mr. Conte “did not discuss the appellate process with me in order to

ascertain what issues that I wanted to present in my appellate brief . . . .” Payne Aff. ¶ 7. Mr.

Payne contends that but for Mr. Conte’s conflict, he “would have argued on direct appeal and in



       1
         Warden Stansberry cites Gov’t Ex. 1, which does not contain a ruling on Mr. Payne’s
motion for reconsideration.

                                                  5
a § 23-110 motion that attorney Conte was ineffective during the trial process when he failed to

object to the trial court giving the jury an aiding and abetting instruction.” Pet. at 12. He

suggests that the evidence did not support such an instruction and contends that “[t]rial counsel

should have argued that the indictment only presented facts accusing Petitioner of being the

‘principal’ assailant and not an aider and abettor of the crimes,” id., and that he was denied due

process “since he was not given any notice that the jury [could] consider convicting him under a

different government theory.” Id. at 13.

                Mr. Payne contends further that “[t]he trial court told the jury that it was obligated

to find Petitioner guilty notwithstanding the fact that the government failed to carry its burden.”

Pet. at 14. He asserts that “[b]y instructing the jury that it ‘must’ find the defendant guilty if the

Government has failed to prove any element of the offense, beyond a reasonable doubt, the court

gave the jury the clearly unlawful option of convicting on a lower standard of proof.” Id. at 15.

Mr. Payne attaches to the petition Mr. Conte’s response to his inquiry as to why he did not

challenge the jury instruction on reasonable doubt, Pet’r Ex. C, in which Mr. Conte stated that he

“overlooked the faulty jury instruction” and stated that “under the circumstances your best option

is pursuing the ineffective option which, of course, I cannot help you with.” Pet’r Ex. D. Mr.

Payne asserts that in addition to the foregoing errors, he “would have presented a claim against

trial counsel for his failure to object to the trial judge’s visit to the crime scene by himself.” Pet.

at 14.

                                     II. LEGAL STANDARD

                “A . . . judge entertaining an application for a writ of habeas corpus shall

forthwith award the writ [or issue a show cause order], unless it appears from the application that


                                                   6
the applicant . . . is not entitled thereto.” 28 U.S.C. § 2243. In addition, a hearing on an

application is not required if the application and the government’s return “present only issues of

law.” Id.

               As a general rule, District of Columbia prisoners, such as Mr. Payne, are

foreclosed from federal court review of their convictions by D.C. Code § 23-110, which provides

a post-conviction remedy for D.C. prisoners that “is comparable to” the remedy under 28 U.S.C.

§ 2255 for federal prisoners. Swain v. Pressley, 430 U.S. 372, 375 (1977). The exception is

where the local remedy is shown to be inadequate or ineffective. The District of Columbia

Circuit has determined that § 23–110 does not bar a habeas petition challenging the effectiveness

of appellate counsel “because the Superior Court lacks authority to entertain a section 23–110

motion challenging the effectiveness of appellate counsel.” Williams v. Martinez, 586 F.3d 995,

999 (D.C. Cir. 2009). Thus, “D.C. prisoners who challenge the effectiveness of appellate counsel

through a motion to recall the mandate in the D.C. Court of Appeals will get a second bite at the

apple in federal court.” Id. at 1000. Mr. Payne has satisfied the exhaustion requirement and,

thus, may pursue his claim of ineffective assistance of appellate counsel under “the standard set

forth in 28 U.S.C. § 2254.” Id. at 1002.

               Pursuant to § 2254,

                     [a]n 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 proceedings unless the
      adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as determined by the
      Supreme Court of the United States; or (2) resulted in a decision that was based on an




                                                  7
      unreasonable determination of the facts in light of the evidence presented in the State
      court proceeding.

§ 2254(d). The state courts’ factual determinations are “presumed to be correct. The applicant

[has] the burden of rebutting the presumption of correctness by clear and convincing evidence.”

§ 2254(e)(1). Finally, “the ineffectiveness or incompetence of counsel during Federal or State

collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising

under section 2254.” § 2254(i).

                                          III. ANALYSIS

               Warden Stansberry seeks dismissal of the petition on the grounds that (1) it is

time-barred, (2) it is barred in part by D.C. Code § 23-110, and (3) it fails to state a claim of

ineffective assistance of appellate counsel.

               1. The Statute of Limitations

               Warden Stansberry argues that Mr. Payne’s habeas petition is barred by the one-

year limitations period of 28 U.S.C. § 2244(d)(1), which begins to run from (a) the date a

judgment becomes final; (b) “the date on which the impediment to filing an application created

by State action . . . is removed . . .”; (c) the date on which the Supreme Court recognized a new

constitutional right and made it retroactive to cases on collateral review; or (d) the date “on

which the factual predicate of the claim . . . presented could have been discovered through the

exercise of due diligence.” § 2244(d)(1). She calculates that at the latest, Mr. Payne had until

September 20, 2001, to file this action. See Gov’t’s Mem. at 21-25.

               The limitations period under § 2244 is not jurisdictional and, thus, “is subject to

equitable tolling in appropriate cases.” Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). In



                                                  8
Williams, the D.C. Circuit announced a new circumstance when the local remedy provided by

§ 23-110 is inadequate, thereby opening the door to federal court review of a D.C. prisoner’s

claim of ineffective assistance of appellate counsel (“IAAC”). Williams was finally decided on

December 23, 2009 (reh’g den.), and arguably only then was the impediment to Mr. Payne’s

filing of a § 2254 petition removed. See Williams, 586 F.3d at 1000 (“[W]e have already

recognized some exceptions under section 23-110(g), and today we recognize another.”)

(Emphasis added.) Mr. Payne filed the instant petition four months later, on April 19, 2010.

Applying either the statutory date of when the impediment was removed or principles of

equitable tolling, the Court will deny Warden Stansberry’s motion to dismiss the petition as time-

barred.

               2. The Local Remedy Bar

               It is established that challenges to a Superior Court judgment of conviction must

be pursued in that court under D.C. Code § 23-110. Blair-Bey v. Quick, 151 F.3d 1036, 1042-43

(D.C. Cir. 1998); Byrd v. Henderson, 119 F.3d 34, 36-37 (D.C. Cir. 1997). Absent a showing of

an inadequate or ineffective local remedy, “a District of Columbia prisoner has no recourse to a

federal judicial forum.” Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986), cert. denied, 479

U.S. 993 (1986) (internal footnote omitted). Under District of Columbia law,

     [an] application for a writ of habeas corpus in behalf of a prisoner who is authorized to
     apply for relief by motion pursuant to this section shall not be entertained by . . . any
     Federal . . . court if it appears . . . that the Superior Court has denied him relief, unless
     it also appears that the remedy by motion is inadequate or ineffective to test the
     legality of his detention.

D.C. Code §23-110(g). Warden Stansberry argues correctly that Mr. Payne’s claims based on

errors that occurred at his criminal trial are not subject to review by this Court because Mr. Payne


                                                  9
has not shown that his local remedy was inadequate to address those errors. The fact that Mr.

Payne was unsuccessful in his multiple attempts for relief under § 23-110 does not alone render

the local remedy inadequate or ineffective. Richardson v. Stephens, 730 F. Supp. 2d 70, 72

(D.D.C. 2010) (citing cases). Therefore, the Court, lacking jurisdiction over any claims based on

trial court error, will grant Warden Stansberry’s motion to dismiss such claims.

               3. Ineffective Assistance of Appellate Counsel

               Performance of appellate counsel is measured by the same standards that apply to

trial counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). The Supreme Court has articulated

two separate standards for evaluating the effectiveness of counsel in a criminal case. Under

United States v. Cronic, 466 U.S. 648 (1984), courts will presume a per se violation of the Sixth

Amendment right to counsel only “ ‘if counsel entirely fails to subject the prosecution's case to

meaningful adversarial testing.’ ” Bell v. Cone, 535 U.S. 685, 697 (2002) (quoting Cronic, 466

U.S. at 659) (emphasis in original). Mr. Payne has made no showing in support of a claim under

Cronic.

               Except in those rare circumstances where Cronic applies, courts evaluate claims

of ineffective assistance of counsel under the standard enunciated in Strickland v. Washington,

466 U.S. 668 (1984), which requires (1) showing that counsel's representation fell below an

objective standard of reasonableness; and (2) demonstrating that there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different. United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir. 2008) (quoting Strickland, 466

U.S. at 687–88, 694) (quotation marks omitted). The burden of proof rests on Mr. Payne to show

first “that [Mr. Conte] was objectively unreasonable . . . in failing to find arguable issues to


                                                  10
appeal,” and only if he “succeeds in such a showing, he then has the burden of demonstrating

prejudice. That is, . . . but for [Mr. Conte’s] unreasonable failure . . . he would have prevailed on

his appeal.” Smith, 528 U.S. at 285-86. “Failure to make the required showing of either

deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466

U.S. at 700.

               A court's evaluation of an attorney's performance should be highly deferential, i.e.,

there is a strong presumption that an attorney's conduct fell within the wide range of reasonable

professional assistance. United States v. Toms, 396 F.3d 427, 432 (D.C. Cir. 2005) (quoting

Strickland, 466 U.S. at 689). The fact that a particular litigation strategy failed does not mean

that it had no chance of success or that counsel was ineffective by employing it. “It is all too

tempting for a defendant to second-guess counsel's assistance after conviction or adverse

sentence, and it is all too easy for a court, examining counsel's defense after it has proved

unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”

Strickland, 466 U.S. at 689.

               Because § 2254(i) explicitly precludes a claim predicated on the inadequate

representation of counsel during a collateral proceeding, such as that authorized by D.C. Code

§ 23-110, Mr. Payne has failed to state a habeas claim based on Mr. Conte’s failure to

investigate, construct, and file a motion under § 23-110. See Wright v. Stansberry, No. 11-5046,

2011 WL 2618210 (D.C. Cir., June 24, 2011) (“Appellant's claim that his appellate counsel was

ineffective in litigating a motion pursuant to D.C. Code § 23–110 was properly dismissed

because ‘defendants lack a constitutional entitlement to effective assistance of counsel in state




                                                 11
collateral proceedings’. ”) (quoting Williams, 586 F.3d at 1001) (other citations omitted); accord

Wright v. Stansberry, 759 F. Supp. 2d 49, 51-52 (D.D.C. 2011).

               What remains of Mr. Payne’s IAAC claim independent of Mr. Conte’s failure to

represent him in the collateral proceeding is sketchy, but the Court will accept Warden

Stansberry’s undisputed characterization of the claim as based on Mr. Conte’s failure to (1)

challenge the aiding and abetting instruction; (2) object to the trial judge’s visit to the crime

scene alone; and (3) object to the reasonable doubt instruction. Gov’t’s Mem. at 32-33 (citing

Pet. at 12-14); see Pet’r Ronnie Payne’s Opp’n to Resp’t’s Mot. to Dismiss the Pet. for Writ of

Habeas Corpus, Filed by Pet’r Ronnie Payne Under 28 U.S.C. § 2254, and Mem. in Opp’n to the

Pet. [Dkt. # 16] at 3-4.

               The first two alleged omissions are belied by the record establishing the opposite.

See generally Gov’t’s Ex. 14B (Brief of Appellant).2 In rejecting Mr. Payne’s argument of error

stemming from the trial judge’s behavior, the appellate court stated:

      Clearly, the trial judge should not have visited the scene of the crime alone. However,
      neither Payne nor Garris preserved an objection to the trial judge's visit. Significantly,
      the record shows that prior to visiting the scene of the crime, the trial judge had already
      ruled that Officer Davis was a credible witness. Thus, he did not rely on his visit to
      make factual findings regarding the officer's credibility or the reliability of the
      eyewitness identification. Moreover, although Officer Davis's testimony contained
      some inconsistencies regarding the night of the murders and what he saw, he identified
      both Payne and Garris in court as the men he observed shooting into the Nissan Pulsar
      that night. Therefore, we cannot say that Payne was prejudiced by the trial judge's solo
      visit to the crime scene.



       2
           In ruling on a Rule 12(b)(6) motion to dismiss, the Court may consider "any documents
either attached to or incorporated in the complaint and matters of which the court may take
judicial notice[,] [e.g.,] matters of a general public nature, such as court records, without
converting the motion to dismiss into one for summary judgment.” Baker v. Henderson, 150 F.
Supp.2d 13, 15 (D.D.C. 2001) (citations omitted).

                                                  12
Payne, 697 A.2d at 1235. As to the claimed error based on the jury instruction, the appellate

court, while also rejecting Mr. Payne’s argument that he was convicted on insufficient evidence,

stated that “Payne’s contention that the trial court erred in giving an aiding and abetting

instruction is equally without merit [because] [t]here was sufficient evidence to convict Payne

either as a principal or as an aider and abettor, and the jury could properly return a general verdict

against Payne without specifying whether he was a principal or an aider and abettor.” Id. at 1235

n.12 (citation omitted). Hence, Mr. Payne’s IAAC claim based on two of Mr. Conte’s alleged

omissions rests on a false premise. Because Mr. Conte raised the foregoing issues on direct

appeal, Mr. Payne has not shown that Mr. Conte’s performance as to those issues was objectively

unreasonable.

                Mr. Payne faults Mr. Conte for failing to present as error the following instruction

on reasonable doubt:

      Now, the burden is on the Government to prove the defendants’ guilt, beyond a
      reasonable doubt. This burden of proof never shifts throughout the trial. The law does
      not require a defendant to prove his innocence or to produce any evidence. If you find
      that the Government has proved, beyond a reasonable doubt, every element of the
      offense with which these defendants, or this defendant is charged, it’s your duty to find
      that defendant guilty. On the other hand, if you find that the Government has failed to
      prove any element of the offense, beyond a reasonable doubt, you must find that
      defendant guilty. (Emphasis added.)

Pet’r Ex. D; Gov’t’s Ex. 15 [Dkt. # 14-17] (certified transcript at 94). Mr. Conte did not object

to the instruction at trial. See Gov’t’s Ex. 15 at 114 (Mr. Conte’s stating satisfaction with Judge

Mitchell’s instructions).

                Although Judge Mitchell’s omission of “not” from the final clause constituted

error, it is not a “reasonable probability” that the outcome of Mr. Payne’s appeal would have



                                                 13
been any different had the issue been raised. In determining whether a jury instruction is

constitutionally infirm, the D.C. Court of Appeals applies the test of “whether there is a

‘reasonable likelihood that the jurors who determined . . . guilt applied the instructions in a way

that violated the Constitution[.]” Blaine v. U.S., 18 A.3d 766, 774 (D.C. 2011). “[I]n reviewing

a challenge to a reasonable doubt instruction, the court must determine ‘whether there is a

reasonable likelihood that the jury understood the instructions to allow conviction based on proof

insufficient to meet the Winship standard.’ ” Id., n.30 (quoting Victor v. Nebraska, 511 U.S. 1,

22–23 (1994) (citing In re Winship, 397 U.S. 358 (1970)) (other citation omitted). However,

when, as here, no objection to a defective instruction is made at trial, the D.C. Court of Appeals

inquires as to “whether the alleged defect was ‘plain error’ [by] [asking] first, whether the error

was ‘obvious or readily apparent’ . . . and second, whether the error complained of was ‘so

clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the

trial.’ ” Foreman v. U.S., 633 A.2d 792, 795 (D.C. 1993) (citing Super. Ct. Crim. R. 52(b))

(other citations omitted).

               In hindsight, the omitted word seems so obvious an error that it is surprising that

neither Mr. Conte nor Mr. Garris’ attorney objected to the instruction.3 But see id. at 795-96

(“Finally, the judge made clear to the jury that the government had the burden of proof on each

element of the offense. Taking these instructions as a whole, it simply is not ‘obvious or readily

apparent’ that the judge's reformulation lessened the standard of proof for conviction.”). Even if



       3
          Warden Stansberry speculates that the omission was “a transcription error,” Gov’t’s
Mem. at 45, but absent the court reporter’s affidavit confirming such to be the case, the record
speaks for itself.


                                                  14
the omission were obvious and readily apparent, Mr. Payne’s IAAC claim would fail because it is

not reasonably likely that the D.C. Court of Appeals would have found, after reviewing the

instructions in their entirety, that the fairness and integrity of the trial were compromised. See

Victor, 511 U.S. at 22 (concluding that “taken as a whole, the [reasonable doubt] instructions

correctly conveyed the concept . . . to the jury.”) (citation and internal quotation marks omitted).

               In his lengthy charge to the jury, Judge Mitchell told the jury to consider the

instructions as a whole, to “not take and disregard any instruction, and give more weight to

another, and less weight to another,” and to not “give any special attention to any one instruction

. . . .” Gov’t’s Ex. 15 at 90. He informed the jury several times about the presumption of

innocence and the government’s burden to prove the defendants’ guilt beyond a reasonable doubt

generally, see id at 89-90, 94-95, and as to each offense, see id. at 101-11. In addition, the D.C.

Court of Appeals found from its own examination of “the [eyewitness] testimony of Woodfork,

Carey, Terry and Officer Davis . . . ample evidence upon which reasonable jurors could find the

appellants guilty beyond a reasonable doubt.”4 Payne, 697 A.2d at 1235 n.12.

               The D.C. Court of Appeals’ decision in Foreman, decided nearly four years before

Mr. Payne’s appeal, is also telling. In concluding that no plain error had occurred “in the trial




       4
           In upholding the trial court’s denial of Mr. Payne’s motion for a new trial, and
specifically addressing the prejudice prong of the analysis, the D.C. Court of Appeals observed
that “Payne and Garris were identified by Woodfork and Carey as the men who were standing in
front of the Nissan Pulsar just before they heard multiple shots. Moreover, Officer Davis saw
two persons, not one person, firing a gun. None of the witnesses saw Coe with a gun on the night
of the murders, and, given the other evidence in this case, the fact that the gun was later found in
one of his bags alone ‘would [not] probably produce an acquittal.’ ” Payne, 697 A.2d at 1234
(citation omitted).


                                                 15
judge’s single reformulation of the reasonable doubt instruction,” Foreman, 633 A.2d at 797, the

court explained that:

      [t]he reasonable doubt instruction did not eliminate any essential elements of the
      charged offenses. It did not serve to direct a verdict of guilty. It did not omit to mention
      reasonable doubt altogether . . . . Moreover, this was not a complex case nor one at all
      close on the evidence. The government presented strong proof of assault with a
      dangerous weapon . . . . Under all of the circumstances, the judge's single change in the
      instruction, doubtfully significant as affecting the jury's understanding of the
      government's burden, does not disturb our confidence in the fairness and integrity of the
      trial.

Id. at 796 (alteration in original) (internal quotation marks and citation omitted); see Blaine, 18

A.3d at 775 nn.35, 36 (citing cases affirming convictions despite erroneous instruction based on

strength of the government’s case). Given the similarities between Mr. Payne’s situation and that

of Mr. Foreman, the reasonable likelihood that the D.C. Court of Appeals would have departed

from the Foreman rationale in addressing Mr. Payne’s challenge to the reasonable doubt

instruction is nil. See Foreman, 633 A.2d at 797 (“The plain error rule reflects a ‘careful

balancing of our need to encourage all trial participants to seek a fair and accurate trial the first

time around against our insistence that obvious injustice be promptly redressed.’ ”) (quoting

United States v. Frady, 456 U.S. 152, 163 (1982)). Hence, Mr. Payne has not shown that he was

prejudiced by Mr. Conte’s deficient performance.

                                        IV. CONCLUSION

                For the foregoing reasons, the Court finds that Mr. Payne has not shown his

entitlement to a writ of habeas corpus under 28 U.S.C. § 2254. It therefore will grant Warden

Stansberry’s motion to dismiss. A memorializing order accompanies this Memorandum

Opinion.

                                                         /s/
                                                ROSEMARY M. COLLYER
Date: August 5, 2011                            United States District Judge


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