                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 DUANE JOSEPH JOHNSON,

        Petitioner,
                v.                                        Civil Action No. 10-178 (JEB)
 E.D. WILSON,

        Respondent.


                                 MEMORANDUM OPINION

       Petitioner Duane Joseph Johnson was convicted over twenty years ago in D.C. Superior

Court. The charges stemmed from a drug-deal-turned-robbery and included murder, assault,

robbery, and firearms offenses. Following an unsuccessful direct appeal, Petitioner has spent the

intervening decades attempting to obtain collateral relief, first from D.C. courts and now from

federal. At this point, his claims have narrowed to a single, fundamental contention: his

appellate (and trial) counsel, Frederick J. Sullivan — who subsequently became a Superior Court

Magistrate Judge and has now retired — was ineffective.

       U.S. Magistrate Judge G. Michael Harvey, to whom the case was referred, has considered

Johnson’s claims in a comprehensive Report and recommends that his Petition be denied. See

ECF No. 115 (Report and Recommendation). Although Johnson now raises several objections to

that Report, the Court agrees with Judge Harvey’s careful analysis. It will thus adopt the Report

and Recommendation in full and grant judgment to Respondent.




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I.     Background

       A.      Conviction and Direct Appeal

       The full factual background of this case is set out in detail in the 68-page Report. To

recap briefly here, in 1995, Petitioner, who was represented by Judge Sullivan, was convicted in

D.C. Superior Court of murder, assault, robbery, and firearms offenses arising from events in the

early morning of April 26, 1994. See R&R at 1–2.

       The Government’s evidence at trial demonstrated how the murders resulted from an

attempted robbery of drug proceeds. Sharon Nash testified that she, Keith Nash, Victor

Williams, and Latina Gary went out in Keith Nash’s car to buy cocaine. Id. Having made their

purchase, they were getting ready to leave when Petitioner, accompanied by Damitra Rowell, ran

up to them and asked for a ride. Id. at 3. After Johnson and Rowell entered the car, Petitioner

directed the driver to a dead end and told Keith Nash to turn off the engine. Id. Johnson then got

out of the car and stood at its rear left side. Id. Sharon Nash saw him point a gun at Keith

Nash’s head and demand the money the group had used to buy drugs. Id. Informed that the

money had already been spent, Johnson fired three shots, two of which fatally struck Keith Nash

and one of which wounded Sharon Nash. Id.

       The Government’s remaining three eyewitnesses — Gary, Rowell, and Williams —

largely corroborated Sharon Nash’s description of the evening up to the purchase of the drugs

and the agreement to give Petitioner and Rowell a ride. Id. at 3–4. Their accounts diverged

slightly as to the shooting and its aftermath. Rowell testified that the day after the shooting,

Petitioner approached her, “gave [her] a story to tell” — although she never specified what that

story was — and threatened to kill her if she did not comply. Id. at 5. Williams testified that,

when Petitioner pulled out the gun, he threatened to kill everyone in the car, and, after musing



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about whom to kill first, shot Keith Nash in the head and then aimed the gun at the backseat. Id.

Williams struggled with Petitioner, who then fled. Id. Gary also testified to Johnson’s struggle

with Williams and further explained that, after Petitioner fled, Rowell followed, shouting at him.

Id. at 6.

        A medical examiner offered testimony corroborating the Government’s version of events.

He testified that Keith Nash was killed from a close-range shot that struck the left rear of his

neck and exited through his lower cheek. Id. at 7. A second bullet struck near the first but did

not exit. Id. Sharon Nash was wounded by a shot to the left side of her abdomen. Id. Those

three wounds are consistent with the theory that both were sitting in the front seat when they

were shot by a person standing at the left rear side of the car. Id.

        Johnson was the only defense witness. Id. He testified that he was selling drugs when he

was approached by Williams, who discussed the purchase of some cocaine. Id. When Williams

said he had a customer for Johnson around the corner, they went to Keith Nash’s car. Id. at 8.

Johnson asked Rowell to accompany him because he was feeling uncomfortable about the

transaction. Id. After they all got into the car, Williams directed Keith Nash into the alley. Id.

When the car stopped, Williams pulled a gun on Petitioner and demanded drugs and money. Id.

The two struggled for the gun inside the car, and during the struggle, it fired several times. Id.

Eventually Johnson got free and fled the car, with Williams shooting after him. Id.

        On January 19, 1995, a D.C. Superior Court jury found Petitioner guilty of first-degree

felony murder while armed, second-degree murder while armed, assault with intent to kill while

armed, assault with a deadly weapon, attempt to commit robbery while armed, possession of a

firearm during a crime of violence, and carrying a pistol without a license. Id. at 9.




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Cumulatively, Johnson was sentenced to an indeterminate term of imprisonment of 77 years to

life. Id.

         On February 12, 1996, he appealed his conviction and sentence to the D.C. Court of

Appeals. Id. Judge Sullivan again represented him. Id. The Court of Appeals held that

Johnson’s appeal lacked merit but, as is typical in such circumstances, remanded the case for re-

sentencing because the second-degree murder and attempted-robbery convictions merged with

the felony-murder conviction. Id. at 9–10. Johnson was then resentenced to 46 years to life. Id.

at 10.

         B.     Collateral Review

         Petitioner’s collateral-review efforts have been lengthy. In brief, after his unsuccessful

direct appeal, Johnson filed letters in D.C. Superior Court asserting ineffective assistance of trial

counsel. Id. Following an evidentiary hearing before Judge Russell Canan, Johnson’s motion

was denied. Id. at 11. He appealed that decision as well, but the D.C. Court of Appeals affirmed

in a five-page Memorandum Opinion and Judgment on August 17, 2001. See Johnson v. United

States, No. 99-CO-978 (D.C. Aug. 17, 2001) (attached to this Opinion as Appendix A). He filed

a motion in late 2005 again alleging ineffective assistance at trial, and then in early 2006 he filed

another motion alleging Brady violations and ineffective assistance of both trial and appellate

counsel. Id. at 12.

         While these motions were pending, Petitioner discovered that Judge Sullivan had

previously represented Williams in a criminal trial in 1985. Id. at 12–13 & n.8. In April 2007,

he thus filed another motion in Superior Court to amend his 2006 motion based on his counsel’s

alleged conflict of interest. Id. at 13. While the conflict claim was pending in Superior Court,

Johnson also filed in the D.C. Court of Appeals, seeking relief for ineffective assistance of



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appellate counsel based on the conflict during the direct appeal. Id. at 14. The Court of Appeals

denied Johnson’s motion to recall the mandate “without prejudice to the trial court’s

consideration of the alleged conflict of interest of [Petitioner’s] trial counsel (who was also

appellate counsel).” Id. at 15 (citation omitted).

       Back in Superior Court, Judge Canan denied Johnson’s motions in a thorough and

detailed 34-page opinion. See ECF No. 63-10 (Judge Canan Opinion). Treating extensively

many of the specific claims Petitioner now reiterates here, he concluded that Judge Sullivan’s

representation had been effective and not hampered by conflict. Id. at 23–26. Judge Canan also

found the Brady claims unpersuasive. Id. at 31. Petitioner subsequently filed four additional

motions between October 2008 and June 2010 in Superior Court and the D.C. Court of Appeals.

See R&R at 17–18. All four were denied. Id.

       Hoping for better luck in a change of venue, on January 29, 2010, Johnson filed his first

petition in federal court, raising a variety of claims. Id. at 19. All except the claim for

ineffective assistance of appellate counsel (IAAC) were dismissed because the petition was not

the proper method of redress. Id. Petitioner therefore in February 2013 filed the operative

Petition alleging IAAC, which was originally assigned to Judge Amy Berman Jackson. Id. at 20.

Once counsel appeared on Petitioner’s behalf in February 2014, Judge Jackson referred the

matter to Judge Harvey for a Report and Recommendation. Id. at 22.

       Judge Harvey, before penning a remarkably thorough 68-page Report, held an

evidentiary hearing, at which he took testimony from Judge Sullivan, CJA Investigator Brendan

Andrew Wells, and Petitioner. Id. at 22–25. Judge Harvey then carefully analyzed the testimony

and made a series of credibility findings. He determined that Judge Sullivan was credible,

“candid[,] and non-evasive,” and that he was not ineffective as appellate counsel. Id. at 1, 36.



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On August 14, 2018, the case was randomly transferred from Judge Jackson to this Court, which

now issues its Opinion.

II.    Legal Standard

       Under Federal Rule of Civil Procedure 72(b), once a magistrate judge has entered her

recommended disposition, a party may file specific written objections. The district court “must

determine de novo any part of the magistrate judge’s disposition that has been properly objected

to.” Fed. R. Civ. P. 72(b)(3); see, e.g., Winston & Strawn LLP v. FDIC, 841 F. Supp. 2d 225,

228 (D.D.C. 2012) (stating that court must conduct de novo review of objections to magistrate

judge’s report and recommendation). The district court may then “accept, reject, or modify the

recommended disposition.” Fed. R. Civ. P. 72(b)(3).

III.   Analysis

       Petitioner raises three sets of objections to the Report, targeting Section III.A on

Antiterrorism and Effective Death Penalty Act deference, Section III.C on the alleged conflict of

appellate counsel, and Section III.D on other ineffective-assistance-of-appellate-counsel claims.

The Court addresses each in turn.

       A.      Section III.A: AEDPA Deference

       As AEDPA governs federal courts’ habeas jurisdiction over state-court decisions, there

are two questions of AEDPA deference here — legal and factual — which the Court will take in

order. Federal courts addressing exhausted habeas claims must generally defer to a state court’s

legal conclusions. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 101–03 (2011).

Petitioner nevertheless contends that no deference is appropriate in his case because D.C. courts

did not pass on his IAAC claims; as a result, he believes that the Report erred to the extent it

“suggests that deference is owed to [D.C. courts’] prior legal conclusions.” ECF No. 120



                                                 6
(Petitioner’s Objections) at 11. Judge Harvey, however, neither concluded that such deference

was owed, nor at any point did he defer to state-court conclusions. This is because he

determined — and this Court agrees — that it was unnecessary to resolve the appropriate scope

of deference where Petitioner could not prevail even if no deference were given. Id. at 32–33.

Petitioner elaborates that, even if the R&R “did not arrive at a firm conclusion,” this Court

should find error because “Judge Harvey appears to have partially relied on D.C. courts’ prior

decisions” on pages 51 and 53 of the Report. Id. at 11 n.8. Although the Report recites those

rulings, it does not rely on them. See R&R at 51, 53. As no legal deference appears in the

Report, the Court need not further discuss this point.

       As to deference to factual conclusions, conversely, Judge Harvey concluded — and this

Court agrees — that “factual findings of the D.C. Courts are entitled to deference,” as mandated

by 28 U.S.C. § 2254(e)(1), which “stat[es] that ‘determination of a factual issue made by a State

court shall be presumed to be correct.’” Id. at 31 n.15. Johnson asserts that “presumption may

be rebutted with ‘clear and convincing evidence.’” Pet. Obj. at 12. Petitioner, however, does not

point to such evidence, nor does he elaborate on his assertion that the D.C. courts’

“determinations were made on materially incomplete records and were grounded in incorrect

legal principles, and thus are not entitled to AEDPA’s presumption of correctness.” Id. Absent a

reasoned explanation of why no deference is owed, this Court is compelled to conclude that

AEDPA mandates deference to factual findings.

       B.      Section III.C: Conflict Claims

       Petitioner next raises a series of challenges to Section III.C of the Report, which

addresses his IAAC claim based on an alleged conflict of interest. Specifically, Johnson objects

to Judge Harvey’s findings that Judge Sullivan was credible; that no adverse inference was



                                                 7
appropriate based on Judge Sullivan’s treatment of Petitioner’s case files; and that his claims had

to satisfy the Strickland standard, as opposed to the more lenient Cuyler standard, to warrant

relief. See Pet. Obj. at 13, 16, 20. If Judge Harvey had decided these questions differently, that

could have led to a different outcome on the conflict issue.

               1.      Credibility

       Beginning with the first of these, Johnson furnishes an array of putative inconsistencies in

Judge Sullivan’s testimony. Id. at 13–16. Judge Harvey took that testimony at an evidentiary

hearing, and, having done so, determined that Judge Sullivan’s “demeanor was open and his

answers . . . candid and non-evasive.” R&R at 36. Johnson does not challenge that finding.

Each of the challenges he does raise to Judge Sullivan’s credibility based on the substance of his

testimony, moreover, was squarely and persuasively addressed by Judge Harvey. Upon its own

examination of the transcript, the Court agrees and has little to add.

       Petitioner first argues that Judge Sullivan was inconsistent in his explanations for failing

to recognize that he had previously represented one of the Government’s witnesses — Victor

Williams — in a prior criminal trial, alternately citing a misspelling in his database of clients and

asserting that he did not run conflict checks through the database or otherwise. See Pet. Obj. at

13–14. Judge Harvey carefully reviewed and extensively quoted Judge Sullivan’s relevant

statements in D.C. Superior Court and in the response to a D.C. Bar Complaint filed by

Petitioner and came to the conclusion — shared by this Court — that Judge Sullivan had not

been inconsistent. See R&R at 36–38. In neither case did he assert that the misspelling caused

him to overlook his prior representation at Williams; he merely stated that the name was

misspelled. At the evidentiary hearing, Judge Sullivan said directly that the misspelling “really




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had nothing to do with [not realizing the prior representation,]” and it was that neither of them

“recognize[d]” each other at trial. See ECF No. 102 (Transcript) at 89:2-5.

       Johnson also maintains that Judge Sullivan was inconsistent in describing the extent to

which he investigated Williams before trial and that a reasonable pretrial investigation would

have uncovered the prior Williams representation. See Pet. Obj. at 14, 15–16. Again, Petitioner

misses the mark. As the Report explains, Judge Sullivan was consistent in explaining he would

have tried to find and interview government witnesses for trial, although not for the appeal. See

R&R at 38–39. Petitioner’s objection centers on a statement that before trial Judge Sullivan “did

nothing to investigate Victor Williams’s criminal history . . . because he didn’t feel it was

necessary.” Pet. Obj. at 14 (internal quotations and citation omitted). There, Johnson is citing to

a portion of Judge Sullivan’s testimony where he explains that he would not necessarily have

investigated Williams’s past convictions, see Tr. at 55:12, a statement not inconsistent with his

explanation that he tried to “find” and “get a statement from [Williams]” as part of a more

general pretrial investigation. Id. at 52:6.

       Nor was Judge Sullivan’s account of his pretrial investigative process generally

inconsistent. Contrary to Petitioner’s representation, Judge Sullivan did not indicate that “he

could not think of a situation in which he would not have conducted the required research with

respect to a government witness.” Pet. Obj. at 16 (citing Tr. at 44:18-23). Rather, he testified

that “there were” circumstances in which he would not run a government witness in the database,

“but what they were, [he did not] know.” Tr. 44:20-21. His testimony, read fairly, explains his

general practices but acknowledges some uncertainty about specifics and exceptions given the

amount of time that has now passed. Even if Williams had been run in the database in this case,

as Judge Harvey explained in the Report, see R&R at 39–40, that research would not necessarily



                                                 9
have uncovered the prior representation because of the way the case database was structured and

the amount of time required to obtain case jackets. See ECF No. 103 (Evidentiary Hearing

Continued Transcript) at 51:1-18, 54:3-25, 55–57.

       Finally, Petitioner urges that Judge Sullivan was not consistent in his description of his

file-retention policies. See Pet. Obj. at 15 & n.10. The only putative inconsistency that Johnson

highlights is that between Judge Sullivan’s testimony that he generally kept Bar complaints as

part of a “complete file”; that he discarded files from before his judgeship when he joined the

bench in September 2005; but that he nevertheless had disposed of Petitioner’s April 13, 2007,

complaint to Bar Counsel. Id. at 15 n.10. Even assuming Judge Sullivan had not testified clearly

as to his practice with complaints after he joined the bench, he was clear in May 2007, in a letter

replying to Bar Counsel, that he could not respond fully to the complaint without seeing

Johnson’s file, which he had, years earlier, returned to him. See ECF No. 78-24 (Letter to Bar

Counsel) at 1; see also R&R at 41. That returning a file to a client might have caused Judge

Sullivan to depart from his file-retention policies in one instance does not cast doubt on the

credibility of his testimony generally or even as to the essentials of his retention policy.

               2.      Adverse Inference

       Petitioner also objects to the Report’s determination that no adverse evidentiary inference

was warranted based on Judge Sullivan’s “improper disposal of Petitioner’s client files.” Pet.

Obj. at 16. As an initial matter, Judge Harvey found that Judge Sullivan was credible in

testifying that he never disposed of Johnson’s file but rather returned it to him. See R&R at 41.

Examining the transcript and other evidence, this Court agrees. See Letter to Bar Counsel at 1;

Tr. at 19, 30. As a result, although the Court appreciates Petitioner’s difficulty in proving a

negative, see Pet. Obj. at 18, it has no basis to doubt the determination that the file was returned



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to Johnson. To the extent Johnson relies, as he did before Judge Harvey, on D.C. Bar Legal

Ethics Opinion 206 to show that Judge Sullivan had an obligation to retain his files, Judge

Sullivan discharged any such obligation by returning the files to Petitioner. See D.C. Bar Legal

Ethics Opinion 206 at 339 (1989).

       Even if the Court were not to credit that determination, moreover, it finds that Petitioner

has not established at least two of the three requirements for adverse inference. As Judge Harvey

noted, “[T]o merit imposition of an evidentiary sanction, the proponent must establish” three

things: an obligation to preserve the evidence; a culpable state of mind in the destruction or loss

of the evidence; and the relevance of the destroyed or altered evidence to the claims or defenses

of the party seeking it. See R&R at 40 (citing Ashraf-Hassan v. Embassy of France in the United

States, 130 F. Supp. 3d 337, 340 (D.D.C. 2015)).

       Johnson has not adduced any evidence of a culpable state of mind. Petitioner relies on

Elliott v. Acosta, 291 F. Supp. 3d 50 (D.D.C. 2018), for the proposition that he need not show

bad faith, but only that Judge Sullivan’s actions were “deliberate.” ECF No. 122 (Pet. Reply) at

12. Elliott, in fact, holds that a claimant need not show purposefulness and that negligence will

suffice. See 291 F. Supp. 3d at 68. In other words, the case does not stand for the proposition

that any non-accidental disposal is culpable. And here, Johnson has not adduced any facts to

show that any disposal was either purposeful or negligent.

       Finally, Johnson has not shown that a “reasonable factfinder could conclude” that the

files would have supported his claims here. See Ashraf-Hassan, 130 F. Supp. 3d at 340.

Petitioner insists that “[w]hat Judge Sullivan’s records could prove about what Judge Sullivan

knew about his representation of Victor Williams and Williams’s prior arrest records, would

have been critical to Petitioner’s habeas claims.” Pet. Obj. at 19. What is not clear —



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particularly given Judge Sullivan’s repeated and credible testimony that had he recognized

Williams at the time, he would have notified all parties and the court, see Tr. 76:24–25, 77:1–9,

77:25, 89:2–8, 94:1–15 — is what document or set of notes Johnson believes would prove

useful.

                 3.      Cuyler Standard

          Next, Petitioner cites error in Judge Harvey’s decision not to accord him relief for his

ineffective-assistance claims under the Cuyler standard — i.e., if a counsel’s conflict of interest

adversely affected her performance, prejudice is presumed. See Cuyler v. Sullivan, 446 U.S. 335

(1980). This standard is satisfied where “appellate counsel labored under an actual conflict of

interest that adversely affected his performance.” R&R at 43 (citing U.S. v. Gantt, 140 F.3d 249,

254 (D.C. Cir. 1998)). “The sine qua non of such a claim is that the attorney knew of the

conflict during the challenged representation.” Id. (citing U.S. v. Berkeley, 567 F.3d 703, 709

(D.C. Cir. 2009)). As Judge Harvey concluded, to the extent “Judge Sullivan’s testimony

concerning his failure to recall his representation of . . . Williams [is] credible[,] . . . Petitioner’s

conflict of interest claims under Cuyler . . . fail.” Id.

          Petitioner does not challenge that reasoning beyond reasserting his objections to the

credibility findings addressed above. Instead, he principally presses an alternate theory —

namely, that Judge Sullivan could be said to have been laboring under an actual conflict to the

extent he had a “personal interest in avoiding ineffective assistance of trial counsel claims.” Pet.

Obj. at 20. In other words, since Judge Sullivan himself was the trial counsel, he did not want to

press the theory on appeal that he had been ineffective at trial.

          Here, the Court departs slightly from Judge Harvey’s reasoning but reaches the same

result — i.e., that Johnson cannot prevail under the Cuyler standard pursuant to this theory



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either. The Report concludes that the Circuit has foreclosed this argument because it has

“rejected . . . ‘attempts to force their ineffective assistance claims into the actual conflict of

interest framework . . . and thereby supplant the strict Strickland standard with the far more

lenient Cuyler test.’” R&R at 44 n.27 (quoting United States v. Bruce, 89 F.3d 886, 893 (D.C.

Cir. 1996)). The Circuit did clarify, though, that “[i]f an attorney fails to make a legitimate

argument because of the attorney’s conflicting interest, . . . then the Cuyler standard has been

met.” Bruce, 89 F.3d at 896. It subsequently elaborated that counsel’s interest in avoiding an

advice-of-counsel defense where raising that defense would reveal counsel’s inaccurate legal

advice could qualify as a conflict under Cuyler. See U.S. v. Taylor, 139 F.3d 924, 932 (D.C. Cir.

1998). The court cautioned, however, that an attorney must actually “be forced to make a choice

advancing his own interest at the expense of his client’s,” and that “a hypothetical conflict

having no effect on . . . counsel’s representation [is not] enough to come within Cuyler’s reach.”

Id. at 930–31 (citations omitted).

        The Court finds that Petitioner has raised only such a hypothetical conflict. As an initial

matter, the Court is given some pause by the attempt to bootstrap the ineffective-assistance-of-

trial-counsel claim into a proceeding where the Court lacks jurisdiction to adjudicate it. Even

assuming this Court can address the substance of the claim, it lacks merit for two independent

reasons. First, it is plain that Judge Sullivan at the time of appeal believed himself to have been

effective trial counsel. See Tr. at 103:15–25, 104:1–24, 105:5–25, 106:1–20, 107:21–25, 108:1–

21, 109:23–5; 110:1–16; Continued Tr. at 19:10–16. Such belief defeats any Cuyler claim

because, for Cuyler to apply, an attorney must be aware of his conflict during the challenged

representation. See Berkeley, 567 F.3d at 709.




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        Second, where, as here, the Court finds there was no colorable ineffective-assistance-of-

trial-counsel claim, any conflict would be “hypothetical,” as counsel was not “forced to make a

choice advancing his own interest at the expense of his client’s.” Taylor, 139 F.3d at 930–31.

Having reviewed the D.C. Court of Appeals’s analysis of the ineffective-assistance-of-trial-

counsel arguments, the Court agrees with — without deferring to — its conclusion that Judge

Sullivan was an effective trial counsel. See Johnson, No. 99-CO-978. Although Petitioner now

maintains that Judge Sullivan was ineffective because he did not reasonably research and prepare

or develop a defense theory of the evidence, see Pet. Obj. at 21, the Superior Court, after a

hearing at which both Petitioner and Judge Sullivan testified, found that “counsel understood

[Petitioner’s] version of events, . . . [he] reviewed the testimony, . . . [and he] sat down on more

than one occasion to go over extensively what he perceived to be [Petitioner’s] version of this

particular event.” Johnson, No. 99-CO-978 at 3 (internal quotation marks and citation omitted).

This Court defers to those factual findings and independently concludes that Judge Sullivan’s

preparation and performance were reasonable. As to Petitioner’s final argument — that Judge

Sullivan was ineffective in failing to raise “numerous problems with the discovery at trial,” Pet.

Obj. at 21 — the Court assumes he is referring to the Brady issues addressed in the next section.

In short, however, they likewise provide no basis on which to conclude Judge Sullivan was

ineffective at trial.

        C.       Section III.D: Other IAAC Claims

        Petitioner last argues that Section III.D of the Report — which addresses his

ineffectiveness claims unrelated to conflict — suffers from essentially two legal errors, both

having to do with his contention that Judge Sullivan was ineffective for failing to raise a variety

of Brady claims. Judge Harvey found that Judge Sullivan could have been ineffective on that



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basis only if the Brady claims “would likely have succeeded on appeal,” R&R at 50 (citation

omitted), and that none of the claims met that standard. Id. at 55–56. Taking Petitioner’s two

objections in turn, the Court agrees with the Report’s analysis.

                1.      Cumulative Effect

        Johnson first contends that the Report erred because it did not address the cumulative

effect of the Brady claims, but rather assessed them in isolation. See Pet. Obj. at 22. Petitioner

is correct that courts must cumulatively evaluate the materiality of wrongfully withheld

evidence. See Wearry v. Cain, 136 S. Ct. 1002, 1007 (2016) (citing Kyles v. Whitney, 514 U.S.

419, 441 (1995)). Evidence is “material” if it “could reasonably be taken to put the whole case

in such a different light as to undermine confidence in the verdict.” R&R at 49 (quoting Banks

v. Dretke, 540 U.S. 668, 698–99 (2004)). The Report, however, does invoke those standards

before concluding that “Petitioner fails here because he has not established a Brady violation in

the first instance.” Id. at 50.

        Even assuming the Report could have more explicitly assessed the cumulative effect of

the claims, it would not have made a difference because two of the three pieces of evidence

Petitioner points to were not withheld, and the third is not material. Specifically, in his

Objections, Petitioner highlights that: (1) Gary sought out Rowell to beat her before Rowell

talked to the police; (2) Gary surrendered Keith Nash’s gun to the police after the shooting; and

(3) Williams’s 1994 arrest for armed robbery was not papered by prosecutors. See Pet. Obj. at

24. The first two facts were disclosed at trial, see R&R at 51, and Petitioner has not even

attempted to establish, as he must to succeed on this claim, prejudice from disclosure at — rather

than preceding — trial. Id. at 51–52 (citing United States v. Clarke, 767 F. Supp. 12, 40–41

(D.D.C. 2011)). As to Williams’s 1994 arrest, which Petitioner contends “would have been



                                                 15
admissible to show that Williams was biased or had motivation to curry favor with the

[G]overnment,” Pet. Obj. at 24, there is a closer question. Johnson, however, never explains why

the particular circumstances of the Government’s decision not to prosecute an earlier case would

have led to bias here. More importantly, there were three other eyewitnesses to the murder with

substantially similar testimony and corroborating forensics such that the Court cannot conclude

that the admission of the Williams evidence would have undermined confidence in the verdict.

See also R&R at 55–56. Even accumulated, then, this evidence would not give the Court pause

to revisit the jury’s decision.

                2.      Brady Standard

        Next, and relatedly, Johnson contends that the Report applied the incorrect standard to his

Brady claims, invoking sufficiency of the evidence to support his conviction rather than

sufficiency of the withheld evidence to undermine confidence in the verdict, and that, more

specifically, Judge Harvey incorrectly analyzed the 1994 arrest as though it had to be outcome

determinative. See Pet. Obj. at 25–26. As should be clear from the previous analysis, the first

argument is curious, as the Report did employ the standard that Petitioner maintains is proper.

See R&R at 49–50. Likewise, as to the treatment of the arrest, Judge Harvey never concluded it

had to be outcome determinative for the claim to succeed. Rather, he determined — and this

Court cannot disagree — that because there was a great deal of corroborating evidence, the

introduction of the arrest would not have undermined confidence in the verdict. To support that

conclusion, in part, he cites to United States v. Lampkin, 159 F.3d 607 (D.C. Cir. 1998), to

which Petitioner objects because Lampkin is not a Brady case. See Pet. Obj. at 26. That may be

true, but Petitioner himself relied upon Lampkin, see R&R at 55, and the case nevertheless

stands for the proposition that when evidence related to a no-papered arrest is wrongfully



                                                16
withheld, that fact does not “undermine[] confidence in the conviction” where that witness’s

testimony was supported by ample other evidence. See Lampkin, 159 F.3d at 612, 613 (quoting

United States v. Yunis, 924 F.2d 1086, 1096 (D.C. Cir. 1991)).

IV.    Conclusion

       For the foregoing reasons, pursuant to Local Civil Rule 72.3(c), the Court will adopt

Magistrate Judge Harvey’s April 11, 2018, Report and dismiss the case. A separate Order

consistent with this Opinion will issue this day.


                                                         /s/ James E. Boasberg
                                                         JAMES E. BOASBERG
                                                         United States District Judge
Date: October 25, 2018




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APPENDIX A
