                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


GILBERT A. MACKALL,                    )
                                       )
               Petitioner,             )
                                       )
               v.                      )      Civil Action No. 13-0797
                                       )
                                       )
ERIC D. WILSON,                        )
                                       )
               Respondent.             )



                                  MEMORANDUM OPINION

       In this action for a writ of habeas corpus brought pro se, petitioner claims that he was

denied the effective assistance of counsel at trial and on direct appeal from his conviction in the

Superior Court of the District of Columbia. See Pet. for a Writ of Habeas Corpus (“Pet.”) at 5-6

[Dkt.# 1]. The United States moves to dismiss the petition (1) as time-barred, (2) for failure to

exhaust the appellate counsel ineffectiveness claim, and (3) for lack of jurisdiction over the trial

counsel ineffectiveness claim. United States’ Mot. to Dismiss Pet’r’s Pet. for a Writ of Habeas

Corpus (“Resp’t’s Mot.”) at 2 [Dkt. # 9]. Upon consideration of the motion and petitioner’s

opposition responding only to the trial counsel issue, see generally Pet’r’s Opp’n [Dkt. # 11], the

Court will grant respondent’s motion on all three grounds and will dismiss this case.

                               PROCEDURAL BACKGROUND

       Respondent has documented the following relevant facts. Following a jury trial in July

1995 in Superior Court, petitioner was convicted of first-degree felony murder while armed,

conspiracy to commit robbery while armed, armed robbery, assault with a dangerous weapon,

and carrying dangerous weapon. On September 7, 1995, petitioner was sentenced to aggregate

prison terms of thirty years to life, running concurrently. On November 27, 1995, petitioner filed
a post-conviction motion under D.C. Code § 23-110, claiming that his trial counsel was

ineffective for numerous failings. (See Resp’t’s Mot. at 3-4.) The sentencing court denied

petitioner’s motion on October 10, 1998, following evidentiary hearings. (Id. at 4.) On appeal

from that order, which was consolidated with petitioner’s direct appeal, the D.C. Court of

Appeals (“DCCA”) affirmed the denial of petitioner’s § 23-110 motion. In addition, the DCCA

affirmed petitioner’s convictions save the armed robbery conviction that the parties agreed

merged with the first-degree felony murder conviction. (Resp’t’s Ex. B, Mem. Op. and

Judgment.) The DCCA’s mandate issued on May 17, 2000; on June 14, 2000, the sentencing

court vacated the armed robbery conviction and resentenced petitioner. (See Ex. D, Judgment

and Commitment Order.)

       Thereafter, petitioner initiated post-conviction proceedings under § 23-110 in July 2000,

and under the Innocence Protection Act in July 2004. Following a hearing on both motions on

July 14, 2004, and a re-sentencing hearing on July 29, 2004 to correct petitioner’s sentence for

the conspiracy conviction, the court denied both motions; it resentenced petitioner on the

conspiracy count. (See Resp’t’s Mot. at 4-5; Ex. F.) The DCCA affirmed the denial of the

foregoing motions on September 13, 2006, and issued the mandate on January 25, 2007. (Exs.

G, H.) Petitioner also sought post-conviction relief on November 9, 2004, which was denied on

March 14, 2005 (Ex. I), and again on March 7, 2005, June 4, 2007, and April 22, 2008. All of

those motions were denied in an order issued on August 14, 2008. (Ex. J, Omnibus Order.) The

DCCA affirmed the trial court’s decision on September 22, 2009, and issued the mandate on

November 20, 2009. (Exs. K, L.)

       Petitioner filed a motion to recall the mandate on February 16, 2011, claiming that he was

denied the effective assistance of appellate counsel when counsel failed to argue (1) that his

Sixth Amendment right to confront witnesses was violated when an autopsy report was admitted
at trial without the medical examiner’s testimony and (2) trial counsel’s ineffectiveness for

failing to object to the autopsy report’s admission. (Ex. M.) The DCCA denied petitioner’s

recall motion on May 31, 2011, on the merits, and denied petitioner’s motion to reconsider on

July 8, 2011 (Exs. N, O, P.) The DCCA determined that the Sixth Amendment’s confrontation

clause “is not retroactively applied to collateral challenges” and that it had “stated that admission

of an autopsy report pre-Crawford v. Washington, 541 U.S. 36 (2004), without objection, does

not rise to the level of a [Strickland] violation.” (Ex. N, Order, citing Mungo v. United States,

987 A. 2d 1145, 1155 (D.C. 2010) (applying Strickland v. Washington, 466 U.S. 688 (1984).)

        Undeterred, petitioner filed yet another post-conviction motion on October 27, 2011,

alleging trial counsel’s ineffectiveness during plea negotiations. That motion was denied as a

successive § 23-110 motion. (Ex. Q.) The DCCA affirmed the denial on March 20, 2013, and

issued the mandate on April 11, 2013. (Exs. R, S.)

        Petitioner filed this habeas action in May 2013. He alleges, inter alia, that he was denied

ineffective assistance on appeal when counsel (1) failed to consult with him so that he could

inform counsel “that it was important to argue. . . that my sentence violated the double jeopardy

clause . . . ”; (2) failed to argue trial counsel’s ineffectiveness in “misadvis[ing] Petitioner about

the penalty for first-degree murder which caused Petitioner to reject a favorable plea offer and go

to trial instead”; and (3) failed to argue trial counsel’s ineffectiveness “by not requesting an

informant instruction at trial.” Pet. at 5.

I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

        Unlike prisoners convicted in state courts or those convicted in a United States District

Court, "a District of Columbia prisoner has no recourse to a federal judicial forum [under either '

2254 or ' 2255] unless [he shows that] the local remedy is inadequate or ineffective to test the

legality of his detention.@ Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir.), cert. denied, 479
U.S. 993 (1986) (internal footnote and quotation marks omitted); see Byrd v. Henderson, 119

F.3d 34, 37 (D.C. Cir. 1997) ("In order to collaterally attack his sentence in an Article III court a

District of Columbia prisoner faces a hurdle that a federal prisoner does not."). Hence, the

Court’s jurisdiction to review petitioner’s convictions is limited to “those claims that could [not]

have been raised through section 23-110” of the D.C. Code. Williams v. Martinez, 586 F.3d 995,

999 (D.C. Cir. 2009) (quoting Blair-Bey v. Quick, 151 F.3d 1036, 1043 (D.C. Cir. 1998)).

       A claim predicated on trial counsel’s ineffectiveness is cognizable under D.C. Code § 23-

110, see Coleman v. Ives, 841 F. Supp. 2d 333, 335 (D.D.C. 2012), and the instant petition

presents no basis for finding the local remedy inadequate or ineffective. On the contrary,

petitioner’s multiple use of the local remedy has resulted in hearings on the merits in both the

trial and appellate courts. The fact that petitioner has not wholly prevailed “does not pave the

way for collateral attack” in this Court. Garris, 794 F.2d at 727 (footnote and citations omitted);

see Wilson v. Off. of the Chairperson, 892 F. Supp. 277, 280 (D.D.C. 1995) (AA petitioner may

not complain that the remedies provided him by D.C. Code ' 23-110 are inadequate merely

because he was unsuccessful when he invoked them.@); accord Charles v. Chandler, 180 F.3d

753, 756 (6th Cir. 1999) (collecting cases). Consequently, the Court will grant respondent’s

motion to dismiss this claim for want of jurisdiction.

II. TIMELINESS AND EXHAUSTION

       In Martinez, the District of Columbia Circuit determined that D.C. Code ' 23B110 does

not bar a habeas petition challenging the effectiveness of appellate counsel Abecause the Superior

Court lacks authority to entertain a section 23B110 motion challenging the effectiveness of

appellate counsel.@ Id., 586 F.3d at 999. Thus, AD.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, under Athe standard set forth in 28 U.S.C.

' 2254.@ Id. at 1002; see also Adams v. Middlebrooks, No. 10-1945, 810 F. Supp. 2d 119, 122

(D.D.C. 2011) (A[T]he clear weight of authority [] finds that a prisoner >in custody pursuant to a

judgment of the D.C. Superior Court= must seek habeas review under 28 U.S.C. ' 2254.@) (citing

cases).

          A petition under ' 2254 must be filed within one year of: a) the date a judgment becomes

final Aby the conclusion of direct review or the expiration of the time for seeking such review@;

(b) Athe 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 Aon which the factual predicate of

the claim . . . presented could have been discovered through the exercise of due diligence.@ 28

U.S.C. ' 2244(d)(1). The limitations period is tolled while Aa properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment or claim is

pending.@ Id. ' 2244(d)(2). Furthermore, the limitations period is not jurisdictional and, thus, Ais

subject to equitable tolling in appropriate cases,@ Holland v. Florida, C U.S. C, 130 S.Ct. 2549,

2560 (2010), namely, when a petitioner shows A(1) that he has been pursuing his rights

diligently, and (2) some extraordinary circumstance stood in his way and prevented timely

filing.@ Id. at 2562 (citation and internal quotation marks omitted).

          Applying a liberal timeline, petitioner filed the current petition in May 2013, two years

after the DCCA denied his motion to recall the mandate on the only claim this Court has

authority to review. He does not set forth any credible reason for equitable tolling. Hence, the

Court finds this claim untimely.




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       Furthermore, respondent argues correctly that dismissal is warranted because petitioner

failed to exhaust the underlying claim of ineffective assistance of appellate counsel, which is not

based on the confrontation clause but on wholly different issues that were not presented to the

DCCA in the February 16, 2011 recall motion. This Court’s habeas review is limited to claims

that the state court adjudicated. See Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (“AEDPA . . .

imposes a highly deferential standard for reviewing claims of legal error by the state courts: A

writ of habeas corpus may issue only if the state court's decision ‘was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by’ this Court.”)

(citing 28 U.S.C. § 2254(d)(1)). Hence, the Court grants respondent’s motion to dismiss also on

the grounds of untimeliness and failure to exhaust. A separate Order accompanies this

Memorandum Opinion.



                                                      ________/s/____________
                                                      ELLEN S. HUVELLE
                                                      United States District Judge
                                                      on behalf of the Calendar Committee

Date: March 29, 2014




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