                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
DAVID EARL JONES,                   )
                                    )
            Petitioner,             )
      v.                            )                Civil Action No. 10-1086 (PLF)
                                    )
RONNIE HOLT,                        )
                                    )
            Respondent.             )
____________________________________)


                                  MEMORANDUM OPINION

               David Earl Jones, who has filed a pro se petition for habeas corpus in this Court

under 28 U.S.C. § 2254, moves the Court for an evidentiary hearing. See Petition for Writ of

Habeas Corpus, Docket No. 1 (“Pet.”); Motion for an Evidentiary Hearing, Docket No. 6 (“Mot.

Ev.”). The Court will deny Mr. Jones’s motion for an evidentiary hearing.

               Mr. Jones was convicted of first-degree murder while armed, second-degree

murder while armed, two counts of possession of a firearm during a crime of violence, and

related weapons offenses in the Superior Court of the District of Columbia on April 18, 2001.

See Respondent’s Motion to Dismiss, Docket No 4 (“MTD”), Ex. 9, at 2. His conviction was

upheld by the District of Columbia Court of Appeals on June 29, 2007. See id., Ex. 8, at 2. On

April 20, 2010, Mr. Jones filed an untimely pro se motion with the court of appeals to recall that

court’s mandate based on ineffective assistance of appellate counsel. See id., Ex. 10, at 2.1 The

       1
                A motion to recall the mandate, filed in the District of Columbia Court of
Appeals, is the exclusive means by which a District of Columbia defendant may raise a claim of
ineffective assistance of appellate counsel. Williams v. Martinez, 586 F.3d 995, 997 (D.C. Cir.
2009) (citing Watson v. United States, 536 A.2d 1056, 1060 (D.C. 1987)); Reyes v. Rios, 432 F.
Supp. 2d 1, 3 (D.D.C. 2006) (“In the District of Columbia, challenges to the effectiveness of
court of appeals denied the motion to recall the mandate on May 26, 2010. See id., Ex. 11, at 8.

               While his direct appeal was pending, Mr. Jones also pursued collateral relief in

the Superior Court, pursuant to D.C. Code § 23-110, alleging ineffective assistance of trial

counsel. See MTD, Ex. 5. This effort was unavailing: the Superior Court denied his Section

23-110 motion on September 8, 2008, and the court of appeals affirmed that denial on November

18, 2009. See id., Ex. 5; id., Ex. 9.

               On June 28, 2010, Mr. Jones filed a habeas corpus petition under 28 U.S.C.

§ 2254 with this Court, alleging ineffective assistance of appellate counsel in his direct appeal.

See Pet. at 5A-5B.

               In support of his motion for an evidentiary hearing, Mr. Jones relies on Townsend

v. Swain, 372 U.S. 293 (1963), which held that an evidentiary hearing is required in a federal

habeas proceeding “unless the state-court trier of fact has after a full hearing reliably found the

relevant facts.” Id. at 312-13. Mr. Jones contends that “the fact finding procedure employed by

the Court of Appeals did not adequately provide a full and fair hearing of the petitioner’s claim.”

Mot. Ev. at 1. The court’s procedure was inadequate, according to Mr. Jones, because it “denied

[his] motion to recall the mandate without requiring the government to file a response and

without conducting an evidentiary hearing[.]” Affidavit in Support of Mot. Ev. ¶ 2. Mr. Jones

argues that this failure to hold an evidentiary hearing deprived him of a full and fair adjudication

of his ineffective assistance claims. A hearing was necessary, he avers, to investigate one of the

two claims that he raised in his motion to recall the mandate — that his appellate counsel was



appellate counsel are properly raised through a motion to recall the Court of Appeals’
mandate.”).

                                                  2
ineffective “for failing to argue during the pendency of my direct appeal that my trial counsel was

ineffective for failing to investigate/present an intoxication defense, where there was evidence

that I and the victims were under the influence of PCP at the time the crimes occurred.” Id.

               Among the exhibits included with the respondent’s motion to dismiss are Mr.

Jones’s motion to recall the mandate and a District of Columbia Court of Appeals docket sheet

from Mr. Jones’s case. See MTD, Ex. 10; id., Ex. 11. These documents reveal that Mr. Jones’s

motion to recall the mandate was untimely, in violation of the Rules of the District of Columbia

Court of Appeals, having been filed nearly 29 months after the mandate was issued. See id., Ex.

10, at 2; id., Ex. 11, at 8; see also D.C. APP . R. 41(f) (“Any motion to recall the mandate must be

filed within 180 days from the issuance of the mandate.”). Mr. Jones’s motion was apparently

denied because it was procedurally time-barred.

               The issue of Mr. Jones’s procedural default is significant because the landscape

has shifted significantly in this area of the law since Townsend v. Swain. In Keeney v.

Tamayo-Reyes, 504 U.S. 1 (1992), the Supreme Court partly overruled Townsend. The Court in

Keeney held that a habeas petitioner is not entitled to an evidentiary hearing in federal court if the

petitioner was responsible for failing to develop the facts before the state court unless the

petitioner can show “cause for his failure to develop the facts in state-court proceedings and

actual prejudice resulting from that failure.” Id. at 11.2




       2
                 The Court also acknowledged a “narrow exception” to this standard: “A habeas
petitioner’s failure to develop a claim in state-court proceedings will be excused and a hearing
mandated if he can show that a fundamental miscarriage of justice would result from failure to
hold a federal evidentiary hearing.” Keeney v. Tamayo-Reyes, 504 U.S. at 12.

                                                   3
               Congress subsequently enacted the Antiterrorism and Effective Death Penalty Act

of 1996, 110 Stat. 1214 (1996), which changed the applicable standards further by modifying 28

U.S.C. § 2254. Subsection (e) of that section now states that “[i]f the applicant has failed to

develop the factual basis of a claim in State court proceedings, the court shall not hold an

evidentiary hearing on the claim” unless the applicant shows that one of two criteria are met.

Only one of the exceptions is pertinent here but, for the reasons described below, it provides no

relief for petitioner. As a result of his own procedural default, Mr. Jones has not developed any

factual basis for his ineffective assistance of counsel claims, and he therefore is precluded from

obtaining an evidentiary hearing in this Court.

               Under Section 2254(e), an applicant is entitled to an evidentiary hearing if the

petitioner’s claim relies on “a factual predicate that could not have been previously discovered

through the exercise of due diligence.” Id. § 2254(e)(2)(A)(ii). Interpreting this provision, the

Supreme Court has clarified that any “lack of diligence” must be “attributable to the prisoner or

the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 433 (2000). The Court further

explained that “[d]iligence will require in the usual case that the prisoner, at a minimum, seek an

evidentiary hearing in state court in the manner prescribed by state law.” Id. at 437.

               For state courts to have their rightful opportunity to adjudicate federal
               rights, the prisoner must be diligent in developing the record and
               presenting, if possible, all claims of constitutional error. If the
               prisoner fails to do so, himself or herself contributing to the absence
               of a full and fair adjudication in state court, § 2254(e)(2) prohibits an
               evidentiary hearing to develop the relevant claims in federal court.

Id.




                                                  4
               Under these principles, Mr. Jones’s bid for an evidentiary hearing in this Court

must be denied, because he has not “[sought] an evidentiary hearing in state court in the manner

prescribed by state law,” and thus has not exhibited the “minimum” level of diligence required.

See Williams v. Taylor, 529 U.S. at 437. Mr. Jones’s inability to develop the record regarding

his ineffective assistance of counsel claims was a direct result of his failure to file a motion to

recall the mandate with the District of Columbia Court of Appeals within the prescribed time

period. As noted above, Mr. Jones did not miss this deadline by a matter of days, but rather by

nearly two years, and he offers no reason why his procedural default in the court of appeals

should not be attributed to a lack of diligence. Had he timely raised the issue before the District

of Columbia Court of Appeals and had that court found it unable to resolve the issue without a

factual record, it presumably would have remanded the case to the Superior Court to develop

one.


                                           CONCLUSION

               For the foregoing reasons, Mr. Jones’s motion for an evidentiary hearing is

denied. An Order consistent with this Memorandum Opinion shall issue this same day.

               SO ORDERED.



                                                        /s/
                                                       PAUL L. FRIEDMAN
                                                       United States District Judge

DATE: September 30, 2011




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