                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
CARLTON BLOUNT,                     )
                                    )
                  Petitioner,       )
                                    )
      v.                            )                       Civil Action No. 13-1938 (ABJ)
                                    )
UNITED STATES OF AMERICA,           )
                                    )
                  Respondent.       )
___________________________________ )

                                MEMORANDUM OPINION

       This matter is before the Court on Carlton Blount’s Pro Se Petition for Writ of Habeas

Corpus and Attached Appendix Pursuant to 28 U.S.C. § 2254 [ECF No. 1] and the government’s

Motion to Dismiss Petitioner’s Petition for a Writ of Habeas Corpus [ECF No. 10]. Because

petitioner had an effective means to pursue his claim of ineffective assistance of trial counsel,

and his claim concerning appellate counsel is time barred, the government’s motion will be

granted.

I. BACKGROUND

       In the Superior Court of the District of Columbia, petitioner was convicted of first degree

murder of Natasha Marsh while armed, second degree murder of Andre Wallace while armed,

possession of a firearm during a crime of violence, conspiracy to assault with a dangerous

weapon, obstruction of justice, and carrying a pistol without a license. Pro Se Petition for Writ

of Habeas Corpus and Attached Appendix Pursuant to 28 U.S.C. § 2254 (“Pet.”) at 2 (page

numbers designated by petitioner). The Superior Court imposed an aggregate sentence of 64



                                                1
years to life imprisonment. Id. On June 29, 2004, petitioner’s convictions were affirmed on

direct appeal. See Pet., App. J (Memorandum Opinion and Judgment, Blount v. United States,

No. 01-CF-974 (D.C. Ct. of App. June 29, 2004)); United States’ Motion to Dismiss Petitioner’s

Petition for a Writ of Habeas Corpus (“Resp’t’s Mot.”), Ex. C (docket sheet, United States v.

Blount, No. 01-CF-0974 (D.C. Ct. of App. filed July 12, 2001)) at 2. Petitioner did not file a

motion to recall the mandate until November 21, 2011. See Resp’t’s Mot., Ex. C at 1; Pet. at 5.

The Court of Appeals denied the motion on October 11, 2012. See Resp’t’s Mot., Ex. F (Order,

Blount v. United States, No. 01-CF-974 (D.C. Ct. of App. filed Oct. 11, 2012) (per curiam)).

       On June 6, 2005, petitioner, who was then proceeding pro se, filed a motion for a new

trial in the Superior Court under D.C. Code § 23-110. Pet. at 3. The government filed its

opposition on November 9, 2005, and petitioner filed a reply on November 28, 2006 and a

supplement on January 30, 2007.       Id.   The Superior Court appointed counsel to represent

petitioner, and on January 29, 2008, counsel filed a reply to the government’s opposition on

petitioner’s behalf. Id. at 4. The government filed its response on March 12, 2008. Id. The

Superior Court denied petitioner’s motion on July 23, 2008. Id. The Court of Appeals affirmed

the decision and issued its mandate on December 2, 2009, and on October 4, 2010, the Supreme

Court of the United States denied petitioner’s petition for a writ of certiorari. See Blount v.

United States, 983 A.2d 1064 (D.C. 2009) (table), cert. denied, 131 S. Ct. 214 (2010).

       Petitioner, again proceeding pro se, filed a second § 23-110 motion in the Superior Court

on December 13, 2011; the motion was denied on March 6, 2012. See Pet. at 5; Resp’t’s Mot. at

5.   The Court of Appeals affirmed the decision on May 2, 2013.           Resp’t’s Mot., Ex. G

(Memorandum Opinion and Judgment, Blount v. United States, No. 12-CO-380 (D.C. Ct. of

App. May 2, 2013)).



                                                2
       Petitioner’s last effort in the Superior Court was his Notice of Preservation to Reconsider

First and Second § 23-110 Motions Due to the Intervening Decision in Martinez v. Ryan, 132 S.

Ct. 1309 (2012) Handed Down by the United States Supreme Court on March 20, 2012. Pet. at

5. On consideration of the “notice” and the government’s opposition, the Superior Court denied

petitioner’s request on June 21, 2013. Id. at 5-6.

II. DISCUSSION

A. Ineffective Assistance of Trial Counsel

       Petitioner alleges here that he was denied a fair trial in the Superior Court, see generally

Pet. at 32-44, particularly because of a jury instruction on aiding and abetting that he contends

“allowed the jury to convict [him] of first and second degree murder without finding that [he]

had the same mens rea as the principal,” id. at 38. This Court is authorized to entertain a claim

of trial court error or ineffective assistance of trial counsel only in limited circumstances. See

Williams v. Martinez, 586 F.3d 995, 999 (D.C. Cir. 2009). D.C. Code § 23-110 “entirely

divest[s] the federal courts of jurisdiction to hear habeas corpus petitions by prisoners who had

a [§] 23-110 remedy available to them, unless the petitioner could show that the [§] 23-110

remedy was ‘inadequate or ineffective.’” Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir.

1998) (citing D.C. Code § 23-110(g)); see Reyes v. Rios, 432 F. Supp. 2d 1, 3 (D.D.C. 2006)

(stating that D.C. Code § 23-110 “provided the petitioner with a vehicle for challenging his

conviction based on the alleged ineffectiveness of his trial counsel”); Garmon v. United States,

684 A.2d 327, 329 n.3 (D.C. 1996) (“A motion to vacate sentence under [§] 23-110 is the

standard means of raising a claim of ineffective assistance of trial counsel.”).

       Here, petitioner fails to demonstrate that the remedy available to him under § 23-110 was

inadequate or ineffective; he raised his concerns under § 23-110 twice, and he had the assistance



                                                  3
of counsel when he presented them to the Superior Court the first time. So this Court does not

have jurisdiction to hear petitioner’s claim for ineffective assistance at the trial level.

B. Ineffective Assistance of Appellate Counsel

        A claim of ineffective assistance of appellate counsel falls outside the scope of D.C. Code

§ 23-110. See Williams, 586 F.3d at 998. “[B]ecause the Superior Court lacks authority to

entertain a [§] 23-110 motion challenging the effectiveness of appellate counsel, that section is,

by definition, inadequate to test the legality of [petitioner’s] detention.” Id. But ordinarily, an

ineffective assistance of counsel claim is litigated in the District of Columbia Court of Appeals

on a motion to recall the mandate. See Watson v. United States, 536 A.2d 1056, 1060-61 (D.C.

1987) (en banc).      This Court may review a “federal habeas petition asserting ineffective

assistance of appellate counsel,” but only after a petitioner has “moved to recall the mandate in

the [District of Columbia] Court of Appeals.” Williams, 586 F.3d at 999. This case comes

before this Court after such a motion was denied by the District of Columbia Court of Appeals.


        Petitioner contends that appellate counsel “failed to raise . . . preserved issues” on appeal,

including arguments regarding “the erroneous [aiding and abetting] instruction.” Pet. at 45. A

claim of ineffective assistance of appellate counsel is evaluated under “the standard set forth in

28 U.S.C. § 2254.” Williams, 586 F.3d at 1002.


        In relevant part, § 2254 provides:

                An 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—




                                                   4
               (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 unreasonable
               determination of the facts in light of the evidence presented in the
               State court proceeding.

28 U.S.C. § 2254(d). A federal court does not grant a habeas petition unless it appears that:

               (A) the applicant has exhausted the remedies available in the courts
               of the State; or

               (B) (i) there is an absence of available State corrective process; or
               (ii) circumstances exist that render such process ineffective to
               protect the rights of the applicant.

Id. § 2254(b)(1).

       An individual convicted in and sentenced by the Superior Court of the District of

Columbia is considered a state prisoner for purposes of § 2254. See Smith v. United States, No.

00-5181, 2000 WL 1279276, at *1 (D.C. Cir. Aug. 23, 2000) (per curiam) (A “conviction in the

Superior Court of the District of Columbia is considered a state court conviction under federal

habeas law,” and a challenge to a Superior Court conviction is “properly brought under 28

U.S.C. § 2254.”).

       “Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) .

. . impose[d] a 1-year period of limitation on motions brought under [28 U.S.C. § 2255].” United

States v. Saro, 252 F.3d 449, 251 (D.C. Cir. 2001) (citation omitted). And “[c]ourts have

generally applied the same analysis to the time limitations in § 2254 and § 2255.” United States

v. Cicero, 214 F.3d 199, 203 n.* (D.C. Cir. 2000) (citations omitted).




                                                5
         The limitation period for the filing of a petition under § 2254 is set forth in § 2244. See

Wright v. Wilson, 930 F. Supp. 2d 7, 9 (D.D.C. 2013). It runs from the latter of four possible

dates:

                        (A) the date on which the judgment became final by the
                 conclusion of direct review or the expiration of the time for
                 seeking such review;

                        (B) the date on which the impediment to filing an
                 application created by State action in violation of the Constitution
                 or laws of the United States is removed, if the applicant was
                 prevented from filing by such State action;

                          (C) the date on which the constitutional right asserted was
                 initially recognized by the Supreme Court, if the right has been
                 newly recognized by the Supreme Court and made retroactively
                 applicable to cases on collateral review; or

                        (D) the date on which the factual predicate of the claim or
                 claims presented could have been discovered through the exercise
                 of due diligence.

28 U.S.C. § 2244(d)(1). The limitation period is tolled while “a 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).   Review is pending “until the application has achieved final

resolution through the State’s post-conviction procedures,” Carey v. Saffold, 536 U.S. 214, 220

(2002), including any appeals in the state courts. A criminal conviction becomes final when the

Supreme Court “affirms a conviction on the merits on direct review or denies a petition for a writ

of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States, 537

U.S. 522, 527 (2003); see S. Ct. R. 13(1) (setting 90-day deadline for filing a petition for writ of

certiorari).




                                                  6
       Petitioner’s convictions became final on or about January 20, 2005, or 90 days after the

Court of Appeals issued its mandate on October 21, 2004. The one-year limitation period would

have ended on or about January 20, 2006. Before the limitation period expired, however,

petitioner filed his first § 23-110 motion in the Superior Court. Thus, the limitation period ran

for approximately 136 days, from January 21, 2005 through June 6, 2005, when petitioner filed

his first motion under § 23-110 in the Superior Court. At that point, approximately 229 days of

the limitation period remained. Proceedings with respect to petitioner’s first § 23-110 motion

concluded on October 4, 2010, when the Supreme Court denied his petition for a writ of

certiorari. The limitation period began to run again on October 5, 2010, and expired 229 days

later, on Saturday, May 21, 2011 (or the next business day, Monday, May 23, 2011).

       For purposes of this discussion, the United States, see Resp’t’s Mot. at 6 n.6, and the

Court treat the petition as if it were filed on September 18, 2013, the date on which petitioner

“handed to prison officials, postage prepaid, the instant § 2254 petition and attached appendix . .

. for mailing to the United States District Court [for the] District of Columbia,” Pet. at 59

(Certificate of Mailing). Using that date, it is clear that the instant petition was filed more than

two years after the limitation period expired, and therefore, the petition is time-barred. 1

       Because the limitation period is not jurisdictional, it “is subject to equitable tolling,”

Holland v. Florida, 560 U.S. 631, 645 (2010), where the movant demonstrates “(1) that he has

been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way and prevented timely filing,” id. at 649 (citation and internal quotation marks omitted); see

Norman v. United States, 467 F.3d 773, 775 (D.C. Cir. 2006) (citing Irwin v. Dep’t of Veterans



1
  The filing of petitioner’s second § 23-110 motion did not serve to toll the limitation period
because it was filed on December 13, 2011, roughly 9 months after the limitation period already
had expired.
                                                  7
Affairs, 498 U.S. 89, 96 (1990)) (finding that equitable tolling is denied “where a [petitioner]

‘failed to exercise due diligence in preserving his legal rights’ or showed only ‘a garden variety

claim of excusable neglect’”).

       Here, petitioner contends that he has pursued his rights diligently, see Petitioner’s Reply

to the Government’s Motion to Dismiss Petitioner’s Habeas Corpus Petition Under 28 U.S.C. §

2254 [ECF No. 15] (“Reply”) at 5, and he recounts his efforts to seek relief in the District of

Columbia courts under D.C. Code § 23-110 and this district court under 28 U.S.C. § 2241. 2 See

Reply at 6-7. He first notes that “neither the court of appeals, nor appellate counsel for indigent

appellants, inform[ed]” him of his “right” to seek recall of the Court of Appeals’ mandate, which

for him would have been the first opportunity to litigate an ineffective assistance of appellate

counsel claim. Id. at 2. Petitioner also explains that, as a District of Columbia Code offender

incarcerated in federal facilities, he lacked “the benefit of . . . trained legal assistance versed in

D.C. law and rules of the courts.” Id. at 3. He further explains that his efforts were hampered by

his confinement in segregated housing units, delays in sending and receiving mail, delays in

acquiring transcripts, transfers among correctional institutions, and limited access to his legal

papers and the law library. See id., App. K (Motion to Recall Direct Appeal Mandate) at 1-2.

While petitioner may have been diligent, he has not demonstrated that extraordinary

circumstances prevented him from filing a petition within the one-year limitation period.




2
   Petitioner’s petition for a writ of habeas corpus under 28 U.S.C. § 2241 was dismissed for lack
of jurisdiction. “[T]his Court provide[d] no forum for the claim of ineffective assistance of
appellate counsel because [Petitioner] ha[d] neither stated nor shown that he moved in the
District of Columbia Court of Appeals to recall the mandate and his request was denied.” Blount
v. Wilson, No. 11-0743, 2011 WL 1526945 (D.D.C. Apr. 19, 2011). Petitioner since has filed a
motion to recall the mandate, which the Court of Appeals denied on October 11, 2012. See
Resp’t’s Mot., Ex. F.
                                                  8
       Neither petitioner’s lack of access to a law library, nor his inability to secure transcripts,

nor his transfer from one correctional facility to another is considered to be an extraordinary

circumstance. See, e.g., United States v. Destine, __ F. Supp. 2d __, __, 2014 WL 294500, at *5

(D.D.C. Jan. 28, 2014) (finding that petitioner whose “only explanation . . . his delay is that he

“was in the special housing unit, with no access to a law library to file a timely § 2255 [motion],”

demonstrated neither extraordinary circumstance nor diligent pursuit of his rights to warrant

equitable tolling). Petitioner’s placement in segregative detention without access to his legal

papers and to a law library is not an extraordinary circumstance either. See Cicero, 214 F.3d at

204 (finding that petitioner whose convictions became final in 1994 failed to demonstrate

extraordinary circumstances to warrant equitable tolling despite showing that, during last six

months of limitations period ending on April 24, 1997, he “was separated from his legal papers

during a transfer between prisons”). Nor is an untimely filing excused because of a petitioner’s

“ignorance of the law or unfamiliarity with the legal process.” Id. at 203 (citing Fisher v.

Johnson, 174 F.3d 710, 714 (5th Cir. 1999)).

       Furthermore, even if petitioner had filed this petition on time, he has not demonstrated

that his local remedy for an ineffective assistance of appellate counsel claim was inadequate or

ineffective. He had available to him the option of filing in the Court of Appeals a motion to

recall the mandate, a remedy he eventually pursued in November 2011. “[T]he availability of

such a course precludes the finding of inadequacy or ineffectiveness required to maintain

jurisdiction in this Court.” Hewitt v. Smith, No. 05-1861, 2006 WL 1722330, at *3 (D.D.C. June

20, 2006). And according to petitioner, the Court of Appeals decided his motion to recall the

mandate on the merits rather than on procedural grounds. See Reply at 9-11. His lack of success

did not render the remedy inadequate or ineffective either. See Collier v. United States, No. 99-



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5120, 1999 WL 1336229, at *1 (D.C. Cir. Dec. 15, 1999) (per curiam) (“Failure to prevail [on a

motion to recall the Court of Appeals’ mandate] does not render his local remedies inadequate or

ineffective.”), cert. denied, 529 U.S. 1118 (2000); see also Garris v. Lindsay, 794 F.2d 722, 727

(D.C. Cir. 1986) (per curiam) (“It is the inefficacy of the remedy, not a personal inability to

utilize it, that is determinative, and appellant’s difficulty here is simply that his circumstances

preclude him from invoking it.”).

III. CONCLUSION

       The Court concludes that petitioner’s petition for a writ of habeas corpus is time-barred,

and that he had access to effective procedures for post-conviction relief in the District of

Columbia courts. The government’s motion to dismiss therefore will be granted. An Order is

issued separately.

                                                     /s/
                                                     AMY BERMAN JACKSON
                                                     United States District Judge

DATE: September 25, 2014




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