                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
LAMONT PEETE,                       )
                                    )
                  Petitioner,       )
                                    )
      v.                            )                 Civil Action No. 12-1218 (EGS)
                                    )
UNITED STATES OF AMERICA,           )
                                    )
                  Respondent.       )
___________________________________ )


                                  MEMORANDUM OPINION

       This matter is before the Court on Lamont Peete’s petition for a writ of habeas corpus.

For the reasons discussed below, the petition will be denied and this action will be dismissed.

                                        I. BACKGROUND

       Petitioner and his co-defendant, Jeremiah Mungo, were tried in the Superior Court of the

District of Columbia on charges of first degree murder and weapons offenses. See Pet. for Writ

of Habeas Corpus Pursuant to 28 U.S.C. § 2254(d)(1) (“Pet.”) at 2. “[T]he jury in . . . the first

trial was unable to reach a verdict and the court declared a mistrial.” Mungo v. United States,

987 A.2d 1145, 1147 (D.C. 2010), cert. denied, 131 S. Ct. 964 (2011). According to petitioner,

“the jury hung 11 to 1, heavily in favor of acquittal.” Pet. at 6. Petitioner and Mungo were

retried in 2000. Id. at 2, 6. “The government presented several eyewitnesses who testified that

they saw Mungo and [petitioner], both carrying pistols, enter the alley and approach the driver’s

side of a parked car occupied by [the decedents] Powell and Isaac,” and that they saw petitioner

“fire[] multiple shots into the car from a distance of two to three feet away, turn[] to leave, and

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then fire[] a second round of shots into the car.” Mungo, 987 A.2d at 1148. “Police found

Powell slumped over the steering wheel and Isaac in the passenger’s seat, both having sustained

multiple gunshot wounds.” Id.

        During jury selection, the prosecutor was experiencing back pain and he found it difficult

to stand for extended periods of time. See Pet. at 8. He “raised the possibility of conducting voir

dire in the jury room instead of the courtroom.” Mungo v. United States, 987 A.2d 1145, 1148

(D.C. 2010). “To accommodate the prosecutor’s unfortunate plight, [petitioner’s] counsel

advocated for an alternative setting . . . in the jury room.” Pet. at 3. Petitioner’s presence in the

jury room for the jury selection proceedings, however, required that he be “outfitted with a stun

belt.” Id. at 2. According to petitioner, trial counsel “engineered and brought about the stun belt

arrangement so as to enable voir dire to take place in the jury room,” id. at 9, without first

obtaining petitioner’s consent. This stun belt arrangement allegedly presented petitioner with

“an unconstitutional ultimatum – to wit: either forego [his] absolute right to be present at jury

selection to the extent that it will transpire in the jury room, or forego [his] right to be free of

visible restraints in front of the jury which derogate [his] presumption of innocence.” Id. at 3

(emphasis removed); see id. at 14. “[T]he ominous appearing stun belt hardware” not only was

plainly visible to the jurors, but also “negatively influenced” the perception of at least one juror

“in colorful fashion.” 1 Id. at 4; see id. at 9. “[T]his time around[,] outfitted with a stun belt that




1
   There was an evidentiary hearing on petitioner’s § 23-110 motion in the summer of 2006,
Mungo, 987 A.2d at 1148, at which one juror, a D.C. Department of Corrections officer,
“testified that he had seen the belt, knew it to be a stun belt, and that engendered in him a strong
inclination that [petitioner] was an especially bad criminal, thus the need for the belt . . . , and
moreover that [petitioner] was guilty.” Pet. at 9.
                                                   2
jurors . . . saw in plain view [during two days of jury voir dire, petitioner] was convicted.” Id. at

2; see Mungo, 987 A.2 at 1149. 2

        In this action, petitioner brings a claim of ineffective assistance of appellate counsel.

According to petitioner, appellate counsel’s error arises from the selection of arguments

presented to the District of Columbia Court of Appeals. See, e.g., Pet. at 2-3, 9-10. Appellate

counsel faulted the trial court for permitting and trial counsel for failing to object to the stun

belt’s use, see id. at 2, 4, even though she should have known that consideration of these issues

“was foreclosed under the invited error doctrine.” Id. at 5. “It was established pretty

conclusively that it was defense counsel who engineered and brought about the stun belt

arrangement so as to enable voir dire to take place in the jury room,” id. at 9, and petitioner

“cannot invite error and then complain of prejudice.” Id. at 26 (quoting Mack v. United States,

310 A.2d 234, 236-37 (D.C. 1973)).

        Instead, petitioner contends, appellate counsel should have raised an alternative “clearly

actionable basis” for granting a new trial. Pet. at 10. He claims that “a new trial was warranted

on the basis that [trial] counsel actually elicited [petitioner’s] subjection to the stun belt in

usurpation of certain rights (the waiver of which is the ultimate decision of the client), and that

this culminated in demonstrated prejudice to [petitioner’s] right to a fundamentally fair trial.” Id.

In other words, appellate counsel should have argued that trial counsel not only was ineffective

but also violated his right to a fair trial by failing to obtain petitioner’s express consent to use of

the stun belt before offering to conduct voir dire in the jury room as an accommodation to the

prosecutor. Had trial counsel properly consulted petitioner, petitioner “would have elected . . .



2
   “The record establishes that [petitioner and Mungo] did wear stun belts during two days of
jury voir dire while they sat at one end of a table about fifteen feet away from where individual
jurors were seated during their interviews.” Mungo, 987 A.2d at 1149.
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the only option that permitted him both to participate[] in selecting the jury which would decide

his fate and to do so free of any restraints that would, inter alia, undermine his presumption of

innocence in front of that jury.” Id. at 23 (emphasis in original). He would have “remain[ed] in

the courtroom setting for voir dire,” id., without “the taint of the stun belt,” id. at 25.

         Petitioner asserts that he has been denied “a fair trial [before an] impartial jury . . . on

account of his trial counsel’s deficient representation and because his appellate counsel failed to

assign error thereto.” Id. at 29. He requests “a writ of habeas corpus vacating his conviction”

because “that conviction was obtained in violation of his [c]onstitutional rights under the Fifth

Amendment to a fundamentally fair trial and under the Sixth Amendment to effective assistance

of counsel.” Id. at 1.

                                           II. DISCUSSION

         Petitioner may bring a claim of ineffective assistance of appellate counsel in federal

district court. See Williams v. Martinez, 586 F.3d 995, 998-99 (D.C. Cir. 2009), cert. denied,

130 S. Ct. 2073 (2010). In assessing such a claim, the Court applies the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984), 1 which in the appellate context has been stated

as follows:
1
    Under Strickland, a petitioner claiming ineffective assistance of trial counsel must show:

         First, the defendant must show that counsel’s performance was deficient. This
         requires showing that counsel made errors so serious that counsel was not
         functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
         Second, the defendant must show that the deficient performance prejudiced the
         defense. This requires showing that counsel’s errors were so serious as to deprive
         the defendant of a fair trial, a trial whose result is reliable. Unless a defendant
         makes both showings, it cannot be said that the conviction or death sentence
         resulted from a breakdown in the adversary process that renders the result
         unreliable.

Strickland, 466 U.S. at 687.

                                                    4
               [Petitioner] must first show that his counsel was objectively
               unreasonable in failing to find arguable issues to appeal – that is,
               that counsel unreasonably failed to discover nonfrivolous issues
               and to file a merits brief raising them. If [Petitioner] succeeds in
               such a showing, he then has the burden of demonstrating prejudice.
               That is, he must show a reasonable probability that, but for his
               counsel’s [error], he would have prevailed on his appeal.

Smith v. Robbins, 528 U.S. 259, 285 (2000) (internal citations omitted); see Williams v.

Martinez, 683 F. Supp. 2d 29, 32 (D.D.C. 2010) (“To show ineffective assistance of appellate

counsel, [petitioner] must show that his appellate counsel’s performance was (1) deficient and

(2) prejudiced his defense such that there was a reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”) (internal

quotation marks and citation omitted). “‘Judicial scrutiny of counsel’s performance must be

highly deferential,’ and ‘a court must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.’” Knowles v. Mirzayance, 556 U.S.

111, 124 (2009) (quoting Strickland, 466 U.S. at 689). “Failure to make the required showing of

either deficient performance or sufficient prejudice defeats the ineffectiveness claim.”

Strickland, 466 U.S. at 700 (emphasis added); see Smith, 528 U.S. at 288 (“In sum, Robbins

must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective

assistance of appellate counsel.”). Here, then, petitioner must demonstrate that appellate

counsel’s failure to pursue an ineffective assistance of trial counsel claim – on the ground that

trial counsel subjected petitioner to the stun belt without first securing his consent in violation of

his Fifth Amendment right to a fair trial – was itself deficient and prejudicial.




                                                  5
       Appellate counsel not only addressed the use of the stun belt on direct appeal but also

included a claim of ineffective assistance of trial counsel. 3 The District of Columbia Court of

Appeals summarized the arguments as follows:

               Acknowledging that their trial counsel neither objected to use of
               the stun belts nor asked the court to consider other security options,
               appellants now argue that the trial court plainly erred in directing
               or permitting use of the belts without making findings on the
               record to justify use of the devices. They also argue that their
               lawyers provided ineffective assistance by their failure to object to
               use of the stun belts, to propose alternatives, to ensure that the belts
               were not visible to jurors, to ensure that the court made relevant
               findings, and to ensure that the Marshal’s Service rules for use of
               stun belts were followed.

Mungo, 987 A.2d at 1149. The Court of Appeals was not persuaded, however, “that the trial

court plainly erred in permitting the use of stun belts during the jury voir dire proceedings.” Id.

at 1150. Nor did the Court of Appeals find error “in the trial court’s denial of [petitioner’s]

ineffective assistance claims premised on [his counsel’s] failure to object to the use of stun

belts.” Id. Furthermore, it was reasonable to view “defense counsel’s willingness to accept the

use of stun belts in conjunction with voir dire in the jury room [as] a tactical decision by

counsel,” the objective of which was to allow petitioner and Mungo to be involved in the jury

selection process. Id. at 1150.

       The Court of Appeals has concluded not only that trial counsel’s performance was not

deficient, but also that the same issues petitioner raises in this action “were addressed and

rejected in [its] opinion affirming his convictions.” Pet., Attach. (Order, Peete v. United States,

Nos. 00-CF-1145 & 09-CF-237 (D.C. Ct. App. June 22, 2011) (denying motion to recall

mandate)). Furthermore, the Court of Appeals found that petitioner “has failed to demonstrate

3
       Appellate counsel also raised the stun belt issue in a post-conviction motion in the
Superior Court under D.C. Code § 23-110. See Pet. at 2. Appeal of the § 23-110 ruling was
consolidated with the direct appeal of petitioner’s convictions. See Mungo, 987 A.2d at 1148.
                                                  6
that appellate counsel was constitutionally ineffective. Id. This Court concurs.

       Appellate counsel “need not (and should not) raise every nonfrivolous claim,” but rather

“may select from among them in order to maximize the likelihood of success on appeal.” Smith,

528 U.S. at 288 (citing Jones v. Barnes, 463 U.S. 745 (1983)). No “indigent defendant has a

constitutional right to compel appointed counsel to press nonfrivolous points requested by the

client, if counsel, as a matter of professional judgment, decides not to present those points.”

Jones, 463 U.S. at 751. Petitioner, in hindsight, objects to the use of the stun belt and attributes

his subsequent conviction to the negative inference the jurors must have drawn from the stun

belt. The use of the stun belt and its potentially prejudicial effects were the bases of the direct

appeal and post-conviction motion, and appellate counsel clearly raised these issues in the

District of Columbia courts. Her performance, therefore, was not deficient. Even if appellate

counsel’s performance had been deficient, petitioner does not demonstrate that there was “a

reasonable probability that, but for counsel’s professional errors, the result of the proceedings

would have been different.” Strickland, 466 U.S. at 693-94. His assertion that, “without the

taint of the stun belt (which the jury would not have seen but for counsel’s unauthorized voir dire

move), the jury would have done as did the jury in the first trial – lock 11 to 1 in favor of

acquittal,” Pet. at 25, is mere speculation.

                                        III. CONCLUSION


       The petitioner’s habeas petition must be denied, and this action will be dismissed. An

Order accompanies this Memorandum Opinion.



                                                       EMMET G. SULLIVAN
                                                       United States District Judge

DATE: April 29, 2013

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