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MAR 2 3 2017 'rHE couRT oF APPEALS FoR THE
D.Sm,CTo,_-COL DISTRICT oF coLuMBIA
COURT OF APPEL;\A|”.§|A

 

TOUSSAINT KIRKLAND,

Petitioner/Appellant,

v. No.1a-cF-.0616 § n L |E ®

UNITED STATES OF AMERICA,
MAR 2 8 2\!,_

Respondent/Appellee. oH'G' ‘:~'(¢.'l
DlSTFIlCT OF COLUMB|A

COURT OF APPEALS

 

     

 

 

 

MOTION TO RECALL MANDAT§

Comes, now, Petitioner/Appellant, Toussaint Kirkland, pro se,
respectfully moving this honorable court for an order recalling
the mandate in the above captioned case. In Support of this

motion, Petitioner states as follows:

CLAIM ONE
APPELLATE COUNSEL WILLIAM L. WELCH WAS INEFFECTIVE
FOR FAILING TO HIGHLIGHT FACTS THAT COULD HAVE
CHANGED THE OUTCOME OF THE DIRECT APPEAL.

FACTS:

Petitioner raised an Ineffective Assistance of Counsel claim
against his trial attorney Khadijah Ali for failing to relay a
plea offer to him. The Superior Court denied the motion based on
conflicting testimony from Ms. Ali and her paralegal. Specifically,
the court relied heavily on the testimony of Ms. Ali's paralegal,

who testified that she was present when MS. Ali informed the

petitioner of the post-ihdictmea¢; plea offer.

On direct appeal, Petitioner, then represented by William L.
Welch, argued that the Superior Court erred in giving credence to
the conflicting testimony of Ms. Ali and her paralegal. This court,
however, affirmed the Superior Court's decision, stating that the
Superior court judge was entitled to credence to the attorney and

paralegal's testimony over that of the Petitioner.

ARGUMENT:

A motion to recall the mandate will be granted when the claim of
ineffective assistance of counsel is found the court to have
sufficient merit to justify the recall. Stratmon v. United States1
App. D.C. 631 A.2d 1177 (1993).

Appellate counsel William L. welch was ineffective because
he failed to point out facts that could have changed the court's
opinion. Specifically, he failed to point out that the paralegal
provided no testimony or evidence proving that Attorney Khadijah
Ali informed Petitioner of the pre-indictment plea offer. The
court, as well as the paralegal's testimony, focused on the
post-indictment plea offer; whereas, Petitioner argued that his
attorney failed to inform him of the pre-indictment plea offer.

Clearly, the record reveals that the paralegal was not around
when the pre-indictment plea offer was presented to Ms. Ali, nor
was she around when counsel allegedly relayed it to Petitioner.
Giving the fact that counsel, Ms. Ali, wasn't credulous as to how
or when she allegedly informed Petitioner of the plea (f,e., she
provided conflicting testimony), it is highly likely that this
court's decision rested mostly on the testimony of the paralegal.

Had appellate counsel pointed out that the paralegal's testimony

referred only to the post-indictment plea offer, this court might
have had a different opinion in regards to whether Petitioner was
adequately notified and informed of the pre-indictment plea offer.
Furthermore, Appellate counsel failed to point out another
fact that could have changed the outcome of this court's opinion,
a fact that clearly proves that Attorney Ali could not have
adequately informed Petitioner of the pre-indictment plea offer.
The record clearly reveals that.she did not inform him via phone
calls, and that she did not meet with him in person until January
25, 2011. However, on January 24, 2011, she emailed the prosecutor
and stated that Petitioner did not wish to accept the plea. (See
Exhibit l.) Given the fact that Attorney Ali did not communicate
with Petitioner in person until January 25, 2011, it was utterly
impossible for him to have denied a plea offer on or before
January 24, 2011. Appellate counsel was ineffective in failing to
point out this contradiction, for this could have changed this
court's opinion deferring to the Superior Court's fact findings.
Either Appellate counsel was ineffective by failing to point

out crucial discrepancies, or this court erred in deferring the

l

Superior Court's finding of facts. For either reason, Petitioner

prays that the mandate be recalled.

CLAIM TWO
APPELLATE COUNSEL WAS INEFFECTIVE BY FAILING
TO ARGUE THAT PETITIONER'S PLEA WAS lNVOLUNTARY

Facts:

During the change of plea and sentencing hearings, Petitioner

expressed confusion and uncertainty as to the elements of the
offense and whether he wanted to plead guilty to such charge. He
repeatedly stated that he did not have the requisite intent for
the elements of aggravated assault while armed (D.C. Code §§22-404
& 4502). He specifically stated that he did not intend to assault
the victim with his vehical and that, instead, he was simply
trying to flee the scene after "smooshing" the victim, who tried
to assault him upon seeing him with another woman. Clearly, the
Petitioner did not believe or agree that he acted with specific
intent rather than recklessness. Thus, his conduct did not satisfy
elements of the plea, nor did he understand such elements, which

makes such plea involuntary.

Appellate counsel was ineffective by failing to raise this ,

claim.

CONCLUSION
Petitioner ask that this court liberally construe this pleading
and/or appoint counsel to assist him. He is untrained in the law
and without transcripts or documents to help clarify his claims.
He also prays that this court grant his motion to recall the

mandate.

\l

CERTIFICATE OF SERVICE
I hereby certify that on Merch Q§L, 2017 a copy of this motion
was delivered to the prison mailroom to be mailed to Mr.

Christopher R. Howland, United States Attorney's Office, 555

Fourth Street, NW, Washington, DC 20530.

.»’°`~.

”7/ /_é/~// O?q¢'z-u>,

Toussaint Kirkland

 

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