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             DISTRICT OF COLUMBIA COURT OF APPEALS

                        Nos. 05-CO-1261 & 05-CO-1262

                      WALLACE G. MITCHELL, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                         Appeals from the Superior Court
                           of the District of Columbia
                                 (FEL-3556-90)

                    (Hon. James E. Boasberg, Motions Judge)

(Argued November 1, 2012                          Decided December 12, 2013)
      Steven R. Kiersh for appellant.
      Angela G. Schmidt, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States
Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H.
Danello, Mary B. McCord, and Kacie M. Weston, Assistant United States
Attorneys, were on the briefs, for appellee.
      Before OBERLY, BECKWITH, and EASTERLY, Associate Judges.

      BECKWITH, Associate Judge: Appellant Wallace Mitchell, serving a life

sentence for murder and other crimes, appeals the Superior Court‟s denial of his

second post-conviction motion. Among other claims, Mr. Mitchell requested that

“blood evidence” left at the scene be tested for DNA, which then-Superior Court

Judge James E. Boasberg construed as an application under the Innocence
                                          2




Protection Act (IPA), D.C. Code §§ 22-4131 to -4135 (2012 Repl.)1—specifically,

§ 22-4133, which governs post-conviction DNA testing. Mr. Mitchell claimed that

DNA testing would implicate his codefendant Floyd Calloway or someone else as

the assailant and thus help establish his innocence, and he appeals the court‟s

rejection of his application for testing. The government—quoting police testimony

from the trial and attaching the police evidence report, both purporting to show that

no testable material exists—asserts that Mr. Mitchell‟s application “fails at its

inception . . . because the record does not indicate that any DNA evidence was

collected from the crime scene.” We ordered supplemental briefing on this issue,

and now hold that if the government responds to an application for post-conviction

DNA testing by claiming not to possess biological material, it bears the burden of

substantiating that claim, and the unsworn claim it has offered in this case does not

satisfy that burden.


      As to whether the trial court erred in ultimately rejecting Mr. Mitchell‟s

request for DNA testing, we conclude that the court properly construed the request

as an application under the IPA, but required too much of Mr. Mitchell under the

threshold requirements of § 22-4133 (b) and also erred in not applying the

      1
          All subsequent statutory references are also to D.C. Code (2012 Repl.).
                                         3




“reasonable probability” evidentiary standard of § 22-4133 (d).       We therefore

reverse the court‟s ruling denying Mr. Mitchell‟s application for DNA testing and

remand that issue for consideration under the proper standard. We affirm the

court‟s determination that all of Mr. Mitchell‟s remaining claims lack merit.


                                I.     Background


      In 1991, a jury convicted Mr. Mitchell of armed premeditated murder, armed

felony murder, armed first-degree burglary, armed assault with intent to kill, and

possession of a firearm during a crime of violence. Mitchell v. United States, 629

A.2d 10, 11 (D.C. 1993). In the direct appeal from those convictions, we described

the facts as follows:


                    The government‟s evidence at trial revealed that
                    on January 16, 1990, appellant, in the company of
                    Mr. Floyd Calloway and Ms. [Rebecca] Halicki,
                    drove from his residence in Youngstown, Ohio to
                    the District of Columbia to “get [appellant‟s] wife
                    [Ms. Denise Mitchell] in Washington, D.C.”
                    Suspecting that his wife had taken up residence
                    with Messrs. Nelson and Arrington who “won‟t let
                    her go,” appellant was overheard stating: “I don‟t
                    mind shooting somebody if I have to.” . . . At
                    approximately 3:00 a.m., after some initial
                    difficulty in finding the apartment building—
                    which provoked appellant to “want to hurt
                    someone that much more”—Ms. Halicki located
                    the building where Nelson and Arrington
                                       4




                  resided. . . . Upon entering the building, the trio
                  proceeded to Nelson‟s door, whereupon appellant
                  and Mr. Calloway positioned themselves on either
                  side while Ms. Halicki proceeded to knock on the
                  door. Mr. Arrington responded to the knock and,
                  with the door closed, explained to Ms. Halicki that
                  he did not know where to find Ms. Mitchell. After
                  a brief conversation, Mr. Arrington opened the
                  door and peeped out. At that moment, Halicki
                  jumped to the side and Arrington, sensing trouble,
                  slammed the door shut. Appellant fired two
                  shotgun blasts through the door, striking Mr.
                  Arrington in the arm and back. Mr. Arrington ran
                  toward Mr. Nelson‟s room and informed Mr.
                  Nelson that he had been shot and that the shooter
                  was coming through the front door. While Nelson
                  leapt from his bed and closed the bedroom door,
                  Arrington hid in the closet. Appellant then fired a
                  shotgun blast through the bedroom door hitting
                  Nelson, entered the room, and began interrogating
                  Nelson about Denise Mitchell‟s whereabouts.
                  Although Nelson insisted that he did not know and
                  pleaded for his life, appellant reloaded one of the
                  guns and fired three more times. Mr. Nelson died
                  from his wounds.

Id. at 11-12.


      This second post-conviction motion under § 23-110 follows three habeas

petitions in federal court—all pro se, none successful. Among other claims, Mr.

Mitchell requested that “blood evidence” be tested for DNA. Acting pro se and

“ignorant of the actual requirements of the IPA,” as he later explained, Mr.

Mitchell framed his request for DNA testing as a § 23-110 motion for post-
                                         5




conviction relief, instead of as a § 22-4133 motion for post-conviction DNA

testing, and did not deliberately set out to meet the initial requirements of the IPA

or the four specific requirements of § 22-4133 (b). That is, under § 22-4133 (a),

the biological material must “be identified as evidence in the case,” be in the

government‟s possession or have been carefully maintained, and not have been

“previously subject to DNA testing” for any of four enumerated reasons. And

under § 22-4133 (b):


                   (b) The application shall:

                   (1) Include an affidavit by the applicant, under
                   penalty of perjury, stating that the applicant is
                   actually innocent of the crime that is the subject of
                   the application; . . .

                   (2) Identify the specific evidence for which DNA
                   testing is requested;

                   (3) Set forth the reason that the requested DNA
                   testing was not previously obtained; and

                   (4) Explain how the DNA evidence would help
                   establish that the applicant is actually innocent
                   despite having been convicted at trial or having
                   pled guilty.
                                         6




       The court ordered the government to respond to Mr. Mitchell‟s motion.2

Among other arguments, the government pointed out alleged deficiencies in Mr.

Mitchell‟s application for DNA testing and urged the court to deny it as improperly

pled. Mr. Mitchell then undertook to respond to the government, again asking for

counsel in order to “eliminate any deficiencies in these pleadings due to ignorance

of the law.” Now aware of the § 22-4133 pleading requirements, he argued that he

had fortuitously pled them “by chance,” except for the affidavit claiming

innocence, which he then included.3


      The court determined that Mr. Mitchell had “failed to meet the requirements

of § 22-4133,” explaining that Mr. Mitchell had “not submitted the proper affidavit

stating that he is actually innocent of this crime” or “identified the specific

evidence he seeks to have tested.” The court‟s “particular concern,” however, was

Mr. Mitchell‟s “failure, in his detailed explanation of the need for DNA testing, to


      2
          The court took its cue from § 22-4133 (c): “Unless the application and
files and records of the case conclusively show that the applicant is entitled to no
relief, the court shall notify the prosecution of an application made pursuant to
subsection (a) of this section and shall afford the prosecution an opportunity to
respond.”
      3
         The government filed its opposition on June 15, 2005, and Mr. Mitchell
replied two weeks later, in a filing dated June 30, 2005. The court evidently had
not received Mr. Mitchell‟s reply before issuing its order on July 15, 2005.
                                          7




adequately explain how such testing would help establish his actual innocence.” In

the court‟s view, the IPA—specifically § 22-4135 (c)(2)—“requires specific, non-

conclusory facts that demonstrate that the movant is actually innocent despite

having been convicted at trial,” and there was “no explanation as to how the

absence of Defendant‟s DNA at the scene or the presence of another party‟s DNA

could provide specific evidence of actual innocence.”

      Mr. Mitchell asked for reconsideration and again explained how DNA

testing would establish his innocence. The court again denied his request for DNA

testing, stating that “Defendant reasserts arguments the Court has previously found

unconvincing.”4 Mr. Mitchell appeals.


                                   II.    Analysis


   A. The Alleged Absence of Testable Biological Material


      We first address the government‟s suggestion on appeal that a court may

deny a prisoner‟s application for post-conviction DNA testing of biological

material based on the government‟s pronouncement that the sought-after material

does not exist. The government contends, that is, that Mr. Mitchell‟s claim “fails
      4
          The court had by then received Mr. Mitchell‟s previous filings.
                                         8




at its inception . . . because the record does not indicate that any DNA evidence

was collected from the crime scene.” In support, the government cites the 1991

trial testimony of the police officer who collected evidence at the crime scene.

That officer testified that he recovered latent fingerprints as well as shotgun

wadding, casings, and pellets. He also took photographs, which depicted blood,

but as the government states, he “did not testify that he recovered any blood or hair

from the crime scene.” Attaching the 1990 Crime Scene Evidence Report, which

also does not record any biological material, the government concludes that Mr.

Mitchell‟s application for DNA testing must fail “[b]ecause there simply is no

DNA evidence from the crime scene to test.”


      The IPA, which enables D.C. prisoners to apply for DNA testing of

biological material “at any time,” D.C. Code § 22-4133, and which also allows

petitioners to “move the court to vacate the conviction or to grant a new trial on

grounds of actual innocence based on new evidence,” § 22-4135, was designed “to

eliminate the absence of a judicial remedy for persons who obtain new evidence

that affirmatively shows their innocence more than three years after conviction or

plea of guilty,” Bouknight v. United States, 867 A.2d 245, 251 (D.C. 2005). Under

section (d) of § 22-4133, the court “shall order DNA testing” if it determines that
                                           9




the application satisfies the requirements of § 22-4133 (a) and (b) and if it

determines that “there is a reasonable probability that testing will produce non-

cumulative evidence that would help establish that the applicant was actually

innocent of the crime for which the applicant was convicted or adjudicated as

delinquent.”


      The IPA does not explain, and we have not addressed, how a court should

proceed when the government opposes an applicant‟s request for DNA testing on

grounds that the sought-after biological material does not exist or no longer exists.

Mr. Mitchell claimed, without providing support, that “blood samples were

retained.” The trial court did not determine—and was not asked to determine—

whether any such material existed. We ordered supplemental briefing and asked

the parties to address, among other things, “who shall have the burden of proving

that testable material exists.”


      Both the statute‟s text and its purpose lead us to conclude that if the

government responds to an application under the IPA for DNA testing by alleging

that it possesses no testable biological material, it bears the burden of

substantiating that claim.        The statute implicitly places the burden on the

government, as § 22-4134 (a) requires law enforcement agencies to “preserve
                                          10




biological material that was seized or recovered as evidence . . . for 5 years or as

long as any person incarcerated in connection with that case or investigation

remains in custody, whichever is longer.”5 Section 22-4133 (c) also directs that

“[u]pon receiving notice of an application [for DNA testing], the prosecution shall

take the necessary steps to ensure that any remaining biological material that was

obtained in connection with the case or investigation is preserved pending the

completion of proceedings under this section.” In addition, placing the burden on a

non-custodian—the applicant—may thwart the purpose of the statute by rendering

relief under the IPA almost impossible. See Jeffrey v. United States, 892 A.2d

1122, 1128 (D.C. 2006) (“We must also be mindful that our interpretation is not at

variance with the policy of the legislation as a whole.”).


      Other states with statutes allowing post-conviction DNA testing based on

claims of actual innocence have similarly determined that the government‟s

obligation to preserve sought-after biological material carries a concomitant

obligation to produce it or explain why it cannot be produced. The Maryland


      5
        The IPA allows that “[n]otwithstanding subsection (a),” the District of
Columbia may dispose of biological material after 5 years if it first provides an
opportunity for interested persons to apply for DNA testing. D.C. Code § 22-4134
(b).
                                        11




Court of Appeals, for example, has held that “because the evidence has been in the

custody of the State, the State has the burden of establishing that it no longer

exists.” Blake v. State, 909 A.2d 1020, 1028 (Md. 2006) (collecting cases); see

also People v. Pitts, 828 N.E.2d 67, 72 (N.Y. 2005) (“[I]t is the People, as the

gatekeeper of the evidence, who must show what evidence exists and whether the

evidence is available for testing.”).

      The government argues that “[p]lacing the burden on the applicant to

establish that specific, testable material was acquired by the government as

evidence in the case” would comport with the applicant‟s burdens to “[i]dentify the

specific evidence for which DNA testing is requested” under § 22-4133 (b) and to

prove materiality under § 22-4133 (d). We disagree. It is one thing to name

testable evidence and to explain why it matters and another thing entirely to prove

it exists. The government further argues that placing the burden on applicants

would not render relief under the IPA almost impossible because applicants “are

aware of the evidence that was introduced at their trials” or was disclosed through

discovery. See Super. Ct. Crim. R. 16. But again, being aware of the evidence at

one‟s trial, or of the evidence disclosed through discovery, does not enable an

applicant to rebut the government‟s claim that the evidence never existed or no
                                        12




longer exists. Finally, the government argues that placing the burden on the

government would disturb the finality of the criminal conviction. With regard to

DNA testing spurred by claims of actual innocence, however, disturbing finality

may be the very point. See Bouknight, 867 A.2d at 251 (explaining D.C. Council‟s

aims in passing the IPA).


      Our supplemental briefing order also asked the parties to address “generally

what kind of showing . . . would be sufficient to meet this burden.” We note at the

outset that the procedure must comport with the applicant‟s “liberty interest” under

the IPA. “The IPA has created a liberty interest in providing for post-conviction

relief, and the District‟s procedures for vindicating that interest must satisfy due

process.” Hood v. United States, 28 A.3d 553, 562 (D.C. 2011); see also Dist.

Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 68 (2009)

(“Osborne does, however, have a liberty interest in demonstrating his innocence

with new evidence under state law.”). We recognize that a “state-created right can,

in some circumstances, beget yet other rights to procedures essential to the

realization of the parent right.” Connecticut Bd. of Pardons v. Dumschat, 452 U.S.

458, 463 (1981). Our procedures for implementing the IPA thus must be worthy of

the “parent right.” Given the liberty interest at stake, a court cannot ratify the
                                         13




government‟s representation that the biological evidence does not exist without

providing the applicant with an opportunity to weigh in on the procedure the

government employed in reaching that conclusion. See Arey v. State, 29 A.3d 986,

991 (Md. 2011) (Arey II) (“Arey still must be given the opportunity to probe,

challenge, or otherwise respond to the statements in the affidavit before a decision

can be rendered.”); Arey v. State, 929 A.2d 501, 510 (Md. 2007) (Arey I) (“[I]f the

court determines that there is a genuine factual dispute as to whether the evidence

exists, ordinarily the court should hold a hearing.”); Blake, 909 A.2d at 1030

(citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).


      In Blake, the Maryland Court of Appeals rejected the government‟s

proffer—a police memorandum responding to a prosecutor‟s request, stating that

“[t]he Evidence Control Section was checked by the undersigned, and there was no

Evidence found for that case,” 909 A.2d at 1022—because “[t]here are many other

likely places,” other than an evidence locker, “where the evidence may have been

stored,” id. at 1031.6 The government says Blake is different because the applicant


      6
           See Postconviction DNA Testing: Recommendations for Handling
Requests, National Institute of Justice, National Commission on the Future of DNA
Evidence (Sept. 1999), https://www.ncjrs.gov/pdffiles1/nij/177626.pdf.          This
national report urged prosecutors to avoid hastily dismissing prisoners‟ requests for
                                                                      (continued…)
                                         14




there sought “DNA testing of scientific evidence used by the State at his trial,” id.

at 1021, while Mr. Mitchell seeks DNA testing of material not used at his trial. It

argues that the record here “does not indicate that any DNA evidence was collected

from the crime scene.”


      Several factors suggest that the material‟s absence from the record, while

probative, may not be dispositive of its nonexistence. The record, especially in the

pre-DNA era, might not reflect when a garment or a weapon or other tangible

evidence contains biological material. Police might have obtained material not

ultimately included in the record, and, in such cases, that very absence from the

record might have contributed to a wrongful conviction. Limiting the search to

evidence in the record might also lead the government to check the record instead

of its inventory.




(…continued)
DNA testing and recommended checking police evidence rooms, prosecutors‟
offices (for evidence introduced at trial), crime laboratories, hospitals or clinics
(for sexual assault kits), defense counsel offices, court evidence rooms, and the
offices of court clerks and court reporters. Id. at 46. “Finding the evidence is the
most difficult part of the process. . . . Many times all parties believe that the
evidence has been destroyed, when in fact it has not.” Id. at 45.
                                          15




         Finally, the IPA‟s strictures dispel any concern that prisoners could compel

police officials to needlessly search their inventories.     An applicant for post-

conviction DNA testing must still meet the § 22-4133 (b) requirements and show,

under § 22-4133 (d), “a reasonable probability that testing will produce non-

cumulative evidence that would help establish that the applicant was actually

innocent of the crime.” By the IPA‟s terms, Mr. Mitchell bears these burdens. But

he does not carry the obligation to investigate whether the material exists. The

government assumed that obligation to the extent it urged us to bypass

consideration of § 22-4133 (b) and (d) and deny Mr. Mitchell‟s application for

DNA testing because “there simply is no DNA evidence from the crime scene to

test.”


         In sum, if the government asks the court to deny an application for post-

conviction DNA testing—not by contesting whether the testing would yield

exculpatory evidence but by asserting that the sought-after evidence does not

exist—then consistent with the liberty interests at stake, we require a reasonable

search for the evidence, meaning an extensive search in any place the evidence

could reasonably be found. See Washington v. State, 37 A.3d 932, 945 (Md. 2012)

(stating that “the State must check every location where the evidence could
                                          16




reasonably be located”); Blake, 909 A.2d at 1031 (requiring “an extensive search

for the evidence”). In this case, we do not know where the government checked,

what it checked for, or whom it checked with—if it checked at all. In fact, the

government appears to have relied exclusively on trial records. We do not know,

merely by reviewing those records, whether the sought-after material once existed,

and if it existed, whether it was retained.7 Absent such an accounting, we cannot

say that Mr. Mitchell‟s application “fails at its inception.”


      On remand, if the government contends that the material does not exist or no

longer exists, it must proffer evidence of a reasonable search—evidence that the

defense might probe at a hearing—and the trial court should determine whether the

government has reasonably searched for Mr. Mitchell‟s sought-after “blood

evidence.” The trial court‟s inquiry is not whether the material does not exist or no

longer exists, but whether the government has performed a “reasonable search.” If

      7
          In a series of recent decisions, the Maryland Court of Appeals has refined
its parallel doctrine on post-conviction searches for biological evidence. See, e.g.,
Washington v. State, 37 A.3d at 943-46(summarizing several prior decisions);
Horton v. State, 985 A.2d 540, 549 (Md. 2009) (deeming the government‟s
showing insufficient where it only showed “that [the] evidence was authorized for
destruction,” not “that any evidence was actually destroyed”); Arey I, 929 A.2d at
508 (requiring the government to “identify the protocol [for the destruction of
evidence] that was in place from the time of the trial to the time of the request for
testing, if possible, and see if that protocol was followed”).
                                         17




the government cannot demonstrate that it has performed a reasonable search, the

court can order it to take additional measures.          The locations and overall

reasonableness of the search depend on the particular facts of the case.8


   B. The Requirements of § 22-4133 (b)


      We next consider whether Mr. Mitchell‟s request for DNA testing met the

requirements of § 22-4133 (b). The trial court concluded that Mr. Mitchell “has

not submitted the proper affidavit stating that he is actually innocent of this crime,

      8
          For reasonable searches, see, e.g., People v. Garcia, 886 N.Y.S.2d 110,
111 (N.Y. App. Div. 2009) (“The People presented detailed affidavits by the
detectives and the prosecutor, based on personal knowledge, setting forth their
diligent but unsuccessful efforts to locate certain items recovered in 1995 from the
scene of a homicide. This satisfied the People‟s burden to show that the evidence
on which forensic DNA testing was to be performed could no longer be located
and was thus no longer available for testing.”); People v. Velez, 859 N.Y.S.2d 568
(N.Y. App. Div. 2008) (“[T]he People met their burden of establishing that no such
evidence is available for testing by submitting an official record indicating that the
evidence was destroyed in 1994.”). For unreasonable searches, see, e.g., Horton,
985 A.2d at 547 (concluding that the government had not met its burden where
“the [hospital‟s] microbiology department, which might have screened the victim‟s
samples for sexually-transmitted diseases, had not been searched”); People v. West,
837 N.Y.S.2d 415, 416-17 (N.Y. App. Div. 2007) (determining that the
government had not met its burden when relying “solely upon a State Trooper‟s
affirmation that the evidence had been destroyed” because “it does not claim to be
based upon personal knowledge of the evidence‟s destruction, does not state the
source of the Trooper‟s knowledge or reveal when or where the evidence was
destroyed,” and is “lacking . . . any reference to police records of the evidence‟s
storage or disposal”).
                                          18




nor has he identified the specific evidence he seeks to have tested.”9 The court

noted that these “administrative requirements could be remedied through a

properly filed application,” and we presume that the court would have afforded Mr.

Mitchell an opportunity to remedy any deficiencies in his application if it believed

Mr. Mitchell could meet the fourth pleading requirement to explain how the DNA

results would help show innocence. But the court did not believe Mr. Mitchell

could meet that fourth requirement. In its view, Mr. Mitchell “fail[ed], in his

detailed explanation of the need for DNA testing, to adequately explain how such

testing would help establish his actual innocence,” and it again rejected Mr.

Mitchell‟s request for DNA testing after later receiving his affidavit.


      In our view, Mr. Mitchell‟s initial motion10—together with the affidavit filed

with his later reply—met the four requirements of § 22-4133 (b). “To the extent

that the statute affords the trial court discretion in its application of the IPA, we

review for abuse of discretion.” Veney v. United States, 936 A.2d 811, 822 (D.C.

2007). Whether the court applied the correct legal standard is a question of law
      9
        At the time of this order, the court had not received Mr. Mitchell‟s reply to
the government‟s opposition, which included his affidavit claiming innocence.
      10
          Though we refer to one “initial” motion, there were actually two initial
motions, both of which were received, according to the court‟s date stamp, before
the court ordered the government to respond.
                                        19




that we consider de novo. See Davis v. United States, 564 A.2d 31, 35 (D.C. 1989)

(en banc).


      Section 22-4133 (b)(1) required Mr. Mitchell to state, under penalty of

perjury, that he is actually innocent of the crime. Mr. Mitchell submitted an

affidavit in his response to the government opposition. But even before doing so,

he claimed to be “100% positive that such a test will exonerate” him. Section 22-

4133 (b)(2) required Mr. Mitchell to identify the specific evidence for which he

was requesting DNA testing. Contrary to the motion court‟s finding, Mr. Mitchell

met this requirement in his initial motion by identifying “scatterings of blood

leading from a rear bedroom, where the homicide occurred, to the front door of the

apartment.” In his later response, he requested testing of “all blood samples

collected at the crime scene, which was a small two bedroom apartment.” Given

the finite crime scene in this case, “specific evidence” cannot be so specific as to

require Mr. Mitchell to compile a literal laundry list of material—bloody sock,

bloody carpet, bloody footprint. Such a strict requirement would obstruct the

IPA‟s goal of exonerating wrongfully convicted prisoners.           Mr. Mitchell‟s

application requesting testing of bloody material from the apartment met the

requirements of § 22-4133 (b)(2).
                                          20




      Section 22-4133 (b)(3) required him to set forth the reason DNA testing had

not previously been completed. He met this requirement by stating that “DNA

testing was not available at the time of the original trial” in 1991.


      Section 22-4133 (b)(4) required Mr. Mitchell to explain how DNA testing

would help establish his innocence. He met this requirement by explaining that

“the assailant became involved in a scuffle with the decedent,” that “the depth of

the battle” yielded a “high probability that the assailant himself was injured in the

brawl,” and that given the government‟s single-shooter theory, and other evidence

suggesting that a single person had committed the crime, “a DNA test will point a

clear finger at the true perpetrator.” The court acknowledged that Mr. Mitchell had

offered a “detailed explanation of the need for DNA testing.” But it erred in

asking whether he had “adequately explain[ed]” how DNA testing would help

establish his innocence. Section 22-4133 (b)(4) requires an applicant to “[e]xplain

how the DNA evidence would help establish that the applicant is actually

innocent”—not to explain adequately or sufficiently, just to explain.


      Except for the missing affidavit, Mr. Mitchell met the § 4133 (b)

requirements entirely in his initial motion. The IPA identifies the evidentiary

standard (“reasonable probability”) in a later section, § 22-4133 (d), suggesting
                                         21




that § 22-4133 (b) is not the place to assess the plausibility of the explanation, but

rather is a checklist of threshold requirements. Because § 22-4133 (b)(4) requires

only a basic explanation, the trial court should have checked off § 22-4133 (a),

which the government did not contest, checked off the requirements of § 22-

4133 (b), and proceeded to evaluate Mr. Mitchell‟s application under § 22-

4133 (d).


   C. The Evidentiary Standard of § 22-4133 (d)


      We next address whether the trial court assessed Mr. Mitchell‟s application

for DNA testing under the evidentiary standard set forth in § 22-4133 (d)—namely,

whether “there is a reasonable probability that testing will produce non-cumulative

evidence that would help establish that the applicant was actually innocent.” We

consider de novo whether the court used the correct “reasonable probability”

standard of § 22-4133 (d). See Davis, 564 A.2d at 35.


      In denying Mr. Mitchell‟s application for DNA testing, the court stated that

“the IPA requires specific, non-conclusory facts that demonstrate that the movant

is actually innocent despite having been convicted at trial,” citing § 22-4135 (c)(2).

It found “no explanation as to how the absence of Defendant‟s DNA at the scene or

the presence of another party‟s DNA could provide specific evidence of actual
                                            22




innocence.” Yet the IPA does not require an applicant for DNA testing to show

“specific” evidence of innocence. The court appears to have mistakenly borrowed

the pleading requirement of “specific, non-conclusory facts” from § 22-4135 (c),

which governs motions “to vacate the conviction or to grant a new trial on grounds

of actual innocence based on new evidence,” § 22-4135 (a), and assessed Mr.

Mitchell‟s request against that requirement, as opposed to using the “reasonable

probability” standard of § 22-4133 (d).11


      Rather than deciding ourselves whether Mr. Mitchell showed a “reasonable

probability,” we remand his application for DNA testing to the trial court to give it

an opportunity to parse alternative versions of the factual record and to apply the

      11
          The IPA requires a movant seeking to vacate a conviction to plead with
greater specificity than a movant seeking DNA testing. Before a court can “vacate
the conviction or . . . grant a new trial on grounds of actual innocence based on
new evidence,” § 22-4135 (a), the movant‟s “motion shall set forth specific, non-
conclusory facts: (1) Identifying the specific new evidence; (2) Establishing how
that evidence demonstrates that the movant is actually innocent despite having
been convicted at trial or having pled guilty; and (3) Establishing why the new
evidence is not cumulative or impeaching.” § 22-4135 (c). The court must grant a
new trial if it concludes “that it is more likely than not that the movant is actually
innocent.” § 22-4135 (g)(2). The court must vacate the conviction and dismiss the
relevant count with prejudice if it concludes “by clear and convincing evidence
that the movant is actually innocent.” § 22-4135 (g)(3). A court‟s inquiry into an
application for DNA testing thus differs from its inquiry into these other motions.
The trial court applied the “specific, non-conclusory facts” requirement correctly
with reference to Mr. Mitchell‟s other claims, discussed infra.
                                        23




reasonable probability standard in the first instance.12 See Johnson v. Payless Shoe

Source, Inc., 841 A.2d 1249, 1257 (D.C. 2004) (“A litigant is „entitled to have the

trial judge exercise . . . discretion unfettered by erroneous legal thinking.‟ Where

this has not occurred, we ordinarily remand for reconsideration of the ruling under

the proper standard.” (quoting Wright v. United States, 508 A.2d 915, 919 (D.C.

1986))).


   D. Mr. Mitchell’s Other Claims


      The trial court‟s other rulings concern Mr. Mitchell‟s alleged new evidence

of actual innocence, alleged prosecutorial misconduct, § 23-110‟s constitutionality,

the court‟s jurisdiction vis-à-vis the Bureau of Prisons, and the denial of a



      12
           According to Mr. Mitchell, the record shows that the assailant became
bloodied from fighting the decedent. DNA testing on “blood evidence,” if it
matched someone other than the decedent, could therefore identify the assailant.
Cf. Cuffey v. United States, 976 A.2d 897, 899 (D.C. 2009) (finding that the
applicant could not demonstrate a reasonable probability that “DNA testing of [the
victim‟s] shirt would help establish appellant‟s actual innocence of the murder”
because the presence of another person‟s blood on the shirt in addition to the
applicant‟s own blood would not have helped establish the applicant‟s innocence).
The government disputes whether the assailant would have emerged bloodied.
And if the assailant left without spilling blood, DNA testing on blood evidence
would reveal nothing. The relevant sections of the transcript have not been lodged
in this appeal.
                                        24




hearing.13 We address these claims in turn, and in each respect, we uphold the trial

court‟s ruling.


                  1. New Evidence


      Mr. Mitchell seeks to qualify several items as newly discovered evidence

under the IPA.      The IPA defines “new evidence” as that which “[w]as not

personally known and could not, in the exercise of reasonable diligence, have been

personally known to the movant at the time of the trial or the plea proceeding”;

“[w]as personally known to the movant at the time of the trial or the plea

proceeding, but could not be produced at that time” for several enumerated

reasons; or “[w]as obtained as a result of post-conviction DNA testing.” § 22-4131

(7). New evidence must demonstrate “actual innocence,” § 22-4135 (a), which is

defined as a showing “that the person did not commit the crime of which he or she

was convicted.” § 22-4131 (1). See also Bousley v. United States, 523 U.S. 614,

623 (1998) (“„Actual innocence‟ means factual innocence, not mere legal

insufficiency.”).



      13
          On appeal, Mr. Mitchell has not pursued his earlier claim that his
sentence violated Blakely v. Washington, 542 U.S. 296 (2004).
                                           25




      Mr. Mitchell reports having been diagnosed with paranoid schizophrenia and

anti-social personality disorder while in prison and presents these psychiatric

diagnoses as “new evidence” under the IPA. He argues that his mental illness,

which he claims to have suffered from at the time of his trial, rendered him “not

responsible for any of his actions during the time of the alleged crime” and “not

competent to stand trial.” The IPA does not offer him relief, however, because, as

the trial court concluded, “this information in no way establishes [his] actual

innocence” and because, as he could describe symptoms “going back to his teens,”

his illness is not “new” within the meaning of the IPA.


      Mr. Mitchell pursues this claim not just under the IPA but also under § 23-

110, arguing that the trial court violated his due process rights to a fair trial when it

did not question his competence or order a competency examination sua sponte.

To test a defendant‟s competency to stand trial, we ask “whether he has sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding” and “whether he has a rational as well as factual understanding of

the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960).14


      14
        In addition, as mandated by due process, see Gorbey v. United States, 54
A.3d 668, 678 (D.C. 2012), D.C. Code § 24-531.01 (1) defines “competence” to
                                                                 (continued…)
                                         26




The record from Mr. Mitchell‟s trial undermines his claim by showing that he

participated intelligently and vigorously in his defense. See Hargraves v. United

States, 62 A.3d 107, 115 (D.C. 2013) (finding trial court did not err in finding

defendant competent to stand trial); Bradley v. United States, 881 A.2d 640, 647

(D.C. 2005) (finding trial court did not err in not ordering competency hearing sua

sponte).

      Mr. Mitchell also presents as new evidence an affidavit from Denise

Mitchell, dated June 8, 2005. The affidavit states that “some portions of my

testimony and statement were not true,” and that she was forced to engage in

sexual relations with two male detectives who gave her “financial assistance” and

coached her on her testimony. Mr. Mitchell argues that while the affidavit does

not assert his innocence, “the reasonable inference is clearly implied.” No doubt

that these allegations, if true, constitute appalling conduct by the police. Even so,

the allegations do not implicate Mr. Mitchell‟s innocence, much less meet the

evidentiary burden in § 22-4135 (g)(2) or § 22-4135 (g)(3). The court did not



(…continued)
mean “that a defendant has sufficient present ability to consult with his or her
lawyer with a reasonable degree of rational understanding and has a rational, as
well as a factual, understanding of the proceedings against him or her.”
                                         27




abuse its discretion in finding that Ms. Mitchell‟s affidavit does not establish Mr.

Mitchell‟s innocence.


      Nor do Ms. Mitchell‟s allegations warrant relief under Brady v. Maryland,

373 U.S. 83, 87 (1963).      Ms. Mitchell did not witness the crime.       Her trial

testimony described the “repeated emotional and physical abuse by [Mr. Mitchell]

throughout their marriage,” which went to Mr. Mitchell‟s motive for attacking the

men he thought were living with her. Mitchell, 629 A.2d at 13. Her vague

recantation—that “some portions of my testimony and statement were not true”—

does not cast doubt upon the statement she gave to a female police interviewer,

against whom she alleges no misconduct, in the hours immediately after the

murder, where she also described Mr. Mitchell‟s extensive violence toward her.

Given the limited scope of Ms. Mitchell‟s trial testimony and the government‟s

untainted evidence corroborating its substance, we cannot say that these

allegations, even if true, demonstrate a “reasonable probability” that the jury would

have reached a different outcome had the government disclosed the alleged

misconduct and enabled the defense to impeach Ms. Mitchell‟s testimony. See

Kyles v. Whitley, 514 U.S. 419, 434 (1995); Meade v. United States, 48 A.3d 761,

767 (D.C. 2012) (The complainant‟s “failure to repudiate or deny her
                                         28




contemporaneous account of what happened makes it unlikely that her alleged

recantation would lead to a different result.”); Ginyard v. United States, 816 A.2d

21, 32 (D.C. 2003) (“The burden is on the defendant to establish such a reasonable

probability.”).


      Also as new evidence, Mr. Mitchell presents an affidavit from his

codefendant Rebecca Halicki, dated October 2, 1995, recanting certain statements

she made to the police after her arrest. Ms. Halicki did not testify at Mr. Mitchell‟s

trial and the parties dispute whether she testified at the grand jury. Mr. Mitchell

did not raise this claim in his first § 23-110 motion, filed in 1996, despite taking

the stand at the 1997 evidentiary hearing granted on that motion and despite

knowing that Ms. Halicki had recanted. In an effort to show cause for this failure,

he claims that he did not physically possess the affidavit—a state of affairs he

attributes to Ms. Halicki‟s “multiple housing moves and arrests,” which made

“locating and communicating with her impossible at times.”           But where Mr.

Mitchell was aware of the content of the affidavit and yet failed to raise it in his

testimony at his evidentiary hearing nearly two years later, the court did not abuse

its discretion in declining to find “cause” and deeming the claim procedurally
                                         29




barred.15 See Bradley, 881 A.2d at 646 (“To establish sufficient cause for failing to

assert his current claims in his previous motion, appellant must show that he „was

prevented by exceptional circumstances‟ from doing so.”); Washington v. United

States, 834 A.2d 899, 902 (D.C. 2003) (“[W]hen, as in this case, the defendant has

already launched several collateral attacks on his conviction, the reasons

supporting the application of the cause and prejudice test are even more

compelling.” (internal quotation marks and citations omitted)).


      Finally, Mr. Mitchell presents as new evidence his February 1990 phone bill,

showing calls in Ohio on the night before and morning after the murder. Mr.

Mitchell claims that “this evidence could not have been obtained sooner through

due diligence” due to his arrest and the home‟s vacancy. The court did not abuse

its discretion in rejecting his claim that no one could have gained access to the


      15
           The trial court also expressed doubt that Ms. Halicki‟s recantation—
which contradicted her testimony at her own trial incriminating Mr. Mitchell,
Halicki v. United States, 614 A.2d 499, 500-01 n.8 (D.C. 1992)—“would probably
produce an acquittal in a new trial.” See Meade v. United States, 48 A.3d at 766
(denying an IPA claim in part because the complainant‟s recantation “would, at
best, have been used to impeach her initial account of the events”); United States v.
Kearney, 682 F.2d 214, 219 (D.C. Cir. 1982) (“Recanting affidavits and witnesses
are looked upon with „the utmost suspicion‟ by the courts.”). Under the IPA, a
court must conclude “that it is more likely than not that the movant is actually
innocent” before granting a new trial. § 22-4135 (g)(2).
                                          30




records and in concluding that Mr. Mitchell did not meet the due diligence

standard for newly discovered evidence, especially considering that Mr. Mitchell‟s

parents owned and could enter the house.          See Bouknight, 867 A.2d at 255

(discussing the due diligence standard). The court also did not abuse its discretion

in finding that the records do not establish innocence because they “do not identify

the person who made or received the phone calls.” In addition, as the government

notes, Mr. Mitchell could have driven from Ohio to D.C. and back to Ohio

between phone calls.


                2. Prosecutorial Misconduct


      Mr. Mitchell alleges that the government committed misconduct by

knowingly offering false testimony from Rebecca Halicki and Denise Mitchell and

by obtaining Ms. Halicki‟s testimony under threat of prosecution. The court did

not abuse its discretion in ruling that Mr. Mitchell had “failed to provide any actual

evidence whatsoever of government misconduct in his case.”


      Ms. Halicki, who was not a witness at Mr. Mitchell‟s trial but may have

testified at the grand jury, does not allege prosecutorial misconduct in her affidavit,

and Mr. Mitchell has not substantiated this claim as to her. Ms. Mitchell, by

contrast, at least states that she told the prosecutor that “some portions of my
                                         31




testimony and statement were not true” and that the prosecutor “told me it would

still be alright.” The affidavit does not indicate what parts of her testimony were

false. Nor does it challenge the descriptions of domestic violence that she gave on

the morning of the murder to a police officer whom she does not accuse of

misconduct—statements that were consistent with her trial testimony. In addition,

Mr. Mitchell has not shown cause for not bringing these claims in his previous

collateral attack. See Washington, 834 A.2d at 902; Head v. United States, 489

A.2d 450, 451 (D.C. 1985).


      Mr. Mitchell also claims that the government withheld police notes that

supposedly identified two eyewitnesses, thereby violating its obligations under

Brady v. Maryland. But in ruling on Mr. Mitchell‟s first § 23-110 motion, the trial

court, after a hearing, found that Mr. Mitchell‟s trial counsel had received the notes

among the discovery materials and, having taken other steps to locate

eyewitnesses, was not ineffective for failing to pursue those leads. In considering

this most recent § 23-110 motion, the court therefore did not abuse its discretion in

denying Mr. Mitchell‟s claim that the government withheld certain police notes.


      Nor did the court abuse its discretion in rejecting Mr. Mitchell‟s argument

that the government‟s ballistics evidence was “flawed and based upon „junk
                                        32




science‟” and that “the government knew of these short-comings in their evidence

gathering . . . and did nothing to correct” them.16 He neither substantiates these

allegations nor explains how the ballistics evidence, even if flawed, contributed to

his conviction.


                  3. Constitutional Challenge to § 23-110


      Mr. Mitchell‟s equal protection challenge to § 23-110—a statute that indeed

treats D.C. prisoners differently from other “state” prisoners—is foreclosed by

Swain v. Pressley, 430 U.S. 372 (1977). See also Garris v. Lindsay, 794 F.2d 722,

726 (D.C. Cir. 1986). In Swain, the Supreme Court considered whether § 23-110

“denied persons convicted in [D.C. courts] equal protection of the laws” given that

these persons “must assert any collateral attack on their convictions before Art. I

judges, whereas persons convicted under general federal law are allowed to attack

their convictions before Art. III judges.” 430 U.S. at 379 n.12. The Court held

that § 23-110 did not violate equal protection because “[a] rational basis for the

classification is found in the purpose behind the Court Reform Act.” Id. This

      16
          The government considered this claim “abandoned” because Mr. Mitchell
did not address it in his opening brief, which he prepared pro se. His court-
appointed counsel argued the issue in his reply brief. Considering Mr. Mitchell‟s
pro se status, we choose to address it.
                                         33




rational basis also undercuts Mr. Mitchell‟s unsubstantiated allegation that § 23-

110 was “intended to cause racial discrimination.”


                4. Presentence Investigation Report


      Mr. Mitchell argues that the D.C. Superior Court has jurisdiction to correct

the Federal Bureau of Prisons‟ reliance on a flawed presentence report and

separation order. Reviewing this jurisdictional claim de novo, United States v.

Crockett, 861 A.2d 604, 607-08 (D.C. 2004), we conclude that the court properly

construed this claim as a petition for writ of habeas corpus because it concerns “the

executive department‟s execution of sentence, not the trial court‟s imposition of

sentence.” Alston v. United States, 590 A.2d 511, 514 (D.C. 1991). As we have

explained, it therefore “may not be raised under § 23-110,” id., and must be raised

in federal court against the custodian. Crockett, 861 A.2d at 607 (no jurisdiction to

direct the BOP on implementing prisoner‟s sentence).17




      17
           The trial court still sought to provide Mr. Mitchell‟s penitentiary with a
copy of the amended presentence report and the trial court‟s earlier order
rescinding the troublesome separation order. We note that Mr. Mitchell would not
be asking the federal court to alter records prepared in another jurisdiction, but
rather to lodge with his custodian already-corrected records.
                                            34




                 5. Hearing


       For claims under the IPA, “the question whether a hearing is required is

confided to the sound discretion of the trial court.”      Meade, 48 A.3d at 765

(citation omitted). Consistent with our discussion of the trial court‟s rulings,

though the court may hold a hearing concerning DNA testing on remand, we

conclude that the court did not abuse its discretion in determining that Mr.

Mitchell‟s claims fit into the “three categories of claims that do not merit hearings:

(1) vague and conclusory allegations, (2) palpably incredible claims, and (3)

assertions that would not merit relief even if true.” Ramsey v. United States, 569

A.2d 142, 147 (D.C. 1990). See also D.C. Code § 22-4135 (e)(l) (requiring no

hearing under the IPA where “the motion and files and records of the case

conclusively show that the movant is entitled to no relief”); Bell v. United States,

871 A.2d 1199, 1201 (D.C. 2005) (“The standard for when a hearing must be held

under the IPA mirrors exactly the standard for a hearing required by D.C. Code

§ 23-110 . . . .” (internal citation omitted)).


                                    III.   Conclusion


       For the reasons stated above, we affirm in part, reverse in part, and remand

for further proceedings.
35




     So ordered.
