                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
_____________________________________
                                      )
GUILLERMO SOMARRIBA GONZALEZ, )
                                      )
                Petitioner,           )
                                      )
               v.                     )
                                      )    Civ. Action No. 13-1647 (ABJ)
STACEY STONE, WARDEN,                 )
                                      )
                Respondent.           )
_____________________________________ )

                                 MEMORANDUM OPINION

       Petitioner Guillermo Somarriba Gonzalez seeks a Writ of Habeas Corpus Pursuant to

28 U.S.C. § 2254. He claims that his appellate counsel was ineffective for failing to raise

“specified claims through a D.C. Code § 23-110 [motion] during the course of the direct appeal,”

and that as a result, he lost his opportunity to pursue a claim of ineffective assistance of trial

counsel. Pet. at 3. The record establishes, though, that petitioner raised the claim that his lawyer

was ineffective on multiple occasions, and that his claim was reviewed. In any event, for the

reasons explained below, the Court finds the petition untimely under the applicable statute of

limitations, and it finds no grounds for equitable tolling. Accordingly, the petition will be

dismissed as time-barred.

I.     BACKGROUND

       Following a jury trial in the Superior Court of the District of Columbia, petitioner was

convicted of three counts of assault with a dangerous weapon, three counts of possession of a

firearm during a crime of violence, and one count of carrying a pistol without a license. See

Resp’t’s Ex. 1, Somarriba-Gonzalez v. United States, No. 05-CF-1011, Mem. Op. and J. (D.C.



                                                 1
Mar. 14, 2007) [Dkt. # 15-1]. Petitioner was sentenced on July 20, 2005, to an aggregate prison

term of fifteen years, followed by three years of supervised release. The convictions arose from

gun shots petitioner fired in the area of 13th and Clifton Streets, N.W., in the District of Columbia.

Id. at 2. On direct appeal to the District of Columbia Court of Appeals (“DCCA”), petitioner,

through counsel, argued that plain error occurred when the prosecutor was allowed “to refer to

animosity and events between two ‘groups’ in the neighborhood, to explain the motive for the . . .

shooting.” Id. Petitioner also raised errors with regard to (1) the identification testimony of a

government witness; (2) the government’s impeachment of another of its witnesses (a target of the

shooting); (3) a “concurrent intent” instruction 1; and (4) the trial judge’s response to a jury note

during deliberations. Mem. Op. and J. at 2–4. The DCCA, “discerning no error,” affirmed

petitioner’s convictions on March 14, 2007. Id. at 1.

       Petitioner subsequently filed two separate collateral motions in Superior Court to attack his

convictions and two separate motions in the DCCA to recall the mandate affirming the convictions.

       A.      Collateral Motions

       Petitioner filed his first collateral motion on March 14, 2008.          The Superior Court

construed the filing captioned “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

Sentence By a Person in Federal Custody” as brought under D.C. Code § 23-110, and it denied

relief on October 5, 2009. Pet., Ex. 2, U.S. v. Somarriba-Gonzalez, No. F-770-04, Order (Super.

Ct. Oct. 5, 2009) [Dkt. # 1-1] at 11-14. Petitioner raised “two claims of prosecutorial misconduct

and four claims of ineffective assistance of trial counsel,” which the court found were procedurally




1       The DCCA found the giving of this instruction to be harmless error since petitioner was
acquitted of assault with intent to kill and the evidence supported the lesser-included conviction of
assault with a dangerous weapon.

                                                  2
barred since petitioner had not demonstrated “cause for, and prejudice from, his failure to raise

[those then-available claims] on direct appeal.” Order at 1–2. Nevertheless, the court proceeded

to address petitioner’s claims and found them “substantively insufficient to warrant relief on their

merits.” Id. at 2. The court determined that the “presumption” under DCCA precedent to hold

a hearing on the ineffective assistance claim did not apply because petitioner’s “arguments [were]

vague and conclusory, and . . . belied by the evidentiary record.” It added: “[m]ost importantly,

[petitioner] [has made] no specific showing as to how he was prejudiced by his counsel’s alleged

deficiencies.” Id. at 3, applying standard of Strickland v. Washington, 466 U.S. 668, 687 (1984).

The court found petitioner’s prosecutorial misconduct claims based on alleged Brady violations

“equally unavailing.” Id. at 3–4.

       The DCCA affirmed the Superior Court’s denial of petitioner’s first section 23-110 motion,

on both procedural and substantive grounds, in an unpublished decision issued on December 20,

2011. Pet., Ex. 2, Somarriba-Gonzalez v. United States, No. 09-CO-1443, Judgment (D.C. Dec.

20, 2011) [Dkt. # 1-1] at 16.

       Petitioner filed a second motion under D.C. Code § 23-110 in Superior Court on February

28, 2012, in which he again claimed that his trial counsel was ineffective. He also claimed that a

new trial was warranted because the government “failed to timely disclose potentially exculpatory

evidence, as is required by Brady v. Maryland, 373 U.S. 83 (1963).” Pet., Ex. 2, United States v.

Somarriba-Gonzalez, No. 2004-FEL-770, Order at 2 (D.C. Super. Ct. Apr. 9, 2012 [Dkt. # 1-1] at

17–22. Despite finding the motion “procedurally barred as successive” and variations of the

previously raised claims “barred as an abuse of procedure,” the court explained that it would deny

the motion in any event because the “allegations are vague, conclusory, and wholly incredible.”

Id. at 6. The court noted that petitioner’s counsel was “an experienced and highly skilled trial


                                                 3
attorney,” and other than his “own conclusory assertions,” petitioner had “presented no evidence

that trial counsel failed to request Brady material, failed to investigate, or was unprepared for trial.”

Id.

        The DCCA affirmed the Superior Court’s denial of petitioner’s second section 23-110

motion in an unpublished decision issued on December 21, 2012, and it denied petitioner’s motion

for reconsideration on March 28, 2013. See Resp’t’s Ex. 5. In its affirmance, the DCCA

determined that petitioner’s motion was “properly denied . . . as procedurally barred as a successive

motion.” Pet., Ex. 2, Somarriba-Gonzalez v. United States, No. 12-CO-684, Judgment (D.C. Dec.

21, 2012) [Dkt. # 1-1] at 23. It also observed that the Superior Court had “properly rejected”

petitioner’s claims since “he failed to demonstrate cause or prejudice in failing to raise these claims

in his direct appeal or prior collateral attack,” and that “the trial court correctly concluded that

petitioner’s claims were vague and conclusory. Therefore a hearing on the motion was not

required.” Id.

        B.       Recall Motions

        On July 23, 2009, petitioner filed his first motion to recall the mandate issued on April 5,

2007, which the DCCA denied as untimely on August 13, 2009. Resp’t’s Opp. at 8, quoting

Somarriba-Gonzalez v. United States, No. 05-CF-1011, Order (D.C. Aug. 13, 2009). See Watson

v. United States, 536 A.2d 1056, 1059 (D.C. 1987), quoting D.C. App. R. 41(c) (a Rule 41(c)

motion to recall the mandate is a proper approach to challenging previous counsel’s effectiveness

on appeal, provided the motion is filed “within 180 days from the issuance of the mandate”).

        On August 26, 2013, the DCCA denied petitioner’s second motion to recall the mandate

as follows:




                                                   4
               On consideration of appellant’s motion to recall mandate, and it
               appearing that appellant previously filed a motion to recall the
               mandate that was denied by the court on August 13, 2009, it is

               ORDERED that appellant’s motion to recall the mandate is denied.
               Assuming, but not deciding, that appellant is not procedurally barred
               from filing a successive motion to recall the mandate, appellant’s
               assertion that his appellate counsel provided ineffective assistance
               by failing to file a D.C. Code § 23-110 motion on his behalf does
               not create a basis to recall the mandate. Appellant’s motion fails to
               identify any specific deficiency in trial counsel’s performance
               warranting the filing of such a motion. See Watson v. United
               States, 536 A.2d 1056, 1060 (D.C. 1987) (en banc) (providing that
               the appellant carries the heavy burden of setting forth in detail,
               “chapter and verse,” a persuasive, factually based argument for
               recalling the mandate). Moreover, this court has previously
               addressed and rejected appellant's claim of ineffective assistance of
               trial counsel in Appeal No. 09-C0-1443.

Somarriba-Gonzalez v. United States, No. 05-CF-101, Order (D.C. Aug. 26, 2013) [Dkt. # 6] at 3.

Petitioner filed this section 2254 action on October 25, 2013.

II.    ANALYSIS

       A.      Timeliness

       Respondent argues correctly that the instant petition is time-barred under the Antiterrorism

and Effective Death Penalty Act (“AEDPA”). As a “would-be federal habeas petitioner,” a D.C.

prisoner must “comply with the strictures of AEDPA – the federal court’s ‘labyrinth’ collateral

review procedure.” Head v. Wilson, 792 F.3d 102, 106 (D.C. Cir. 2015). This includes filing a

federal habeas petition within one year from the date a conviction becomes final “either by

conclusion of direct review (i.e., denial of certiorari by the U.S. Supreme Court) or by expiration

of the time for seeking direct review.” Id., citing 28 U.S.C. § 2244(d)(1)(A) (parenthesis in

original). The statute of limitations is tolled during the pendency of “a properly filed application

for State post-conviction or other collateral review with respect to the pertinent judgment or



                                                 5
claim.” 28 U.S.C. § 2244(d)(2). The “1–year limitations period [is not tolled] during the

pendency of a petition for certiorari” based on the denial of post-conviction relief. Lawrence v.

Florida, 549 U.S. 327, 332 (2007).

       The DCCA affirmed petitioner’s convictions on March 14, 2007. Petitioner had ninety

days to petition the Supreme Court for a writ of certiorari, see S. Ct. R. 13(1) and Clay v. United

States, 537 U.S. 522, 527 (2003), thereby making his conviction final on June 12, 2007. The

clock ran for nine months and two days before petitioner filed his first section 23-110 motion to

vacate in Superior Court. The clock stopped running between March 14, 2008, when the motion

was filed, and December 20, 2011, when the DCCA affirmed the denial of that motion. Thus,

petitioner had until March 20, 2012 (nine months having already run) to file his petition in this

Court. 2 The filing of this action on October 25, 2013 was therefore untimely under AEDPA. 3




2      December 21, 2012 marked the one-year deadline for filing the petition.

3       To the extent that petitioner suggests that the time ran from March 28, 2013, when the
DCCA finally affirmed the denial of his second D.C. Code § 23-110 motion, or August 26, 2013,
when the DCCA denied his second motion to recall the direct appeal mandate, see Pet’r’s Traverse
at 11, he is mistaken. Calculating the filing deadline from those dates would undermine the
purpose of AEDPA’s one-year limitation period, which “quite plainly serves the well-recognized
interest in the finality of state court judgments [and] reduces the potential for delay on the road to
finality by restricting the time that a prospective federal habeas petitioner has in which to seek
federal habeas review.” Duncan v. Walker, 533 U.S. 167, 179 (2001), citing Calderon v.
Thompson, 523 U.S. 538, 555–56 (1998). Moreover, that time calculation would contravene
“AEDPA’s clear purpose to . . . encourage litigants first to exhaust all state remedies and then to
file their federal habeas petitions as soon as possible.” Id. at 181, citing §§ 2244(d)(1), (d)(2),
2254(b), (e)(2), 2264(a) (emphases in original). Finally, the Supreme Court has read section
2244’s tolling provision in conjunction with the tolling provision governing habeas proceedings
in capital cases, see id, which clearly states that the limitations period is tolled “from the date on
which the first petition for post-conviction review or other collateral relief is filed until the final
State court disposition of such petition.” 28 U.S.C. § 2263(b)(2) (emphases supplied).

                                                  6
        B.     Tolling

        Since “obstacles may prevent a prisoner from filing a timely habeas petition, AEDPA

expressly contemplates that the limitations period may be tolled.” Head, 792 F.3d at 106, citing

§ 2244(d)(1)(B)-(D). In addition, since AEDPA’s statute of limitations is not a jurisdictional bar,

it may also be subject to equitable tolling. Id. But neither statutory nor equitable tolling applies

here.

               1.      Statutory Tolling

        Section 2244 provides:

               A 1-year period of limitation shall apply to an application for a writ
               of habeas corpus by a person in custody pursuant to the judgment of
               a State court. The limitation period shall run from the latest of –

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

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

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

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

Id. § 2244(d)(1).

        Petitioner argues that the decision of the Court of Appeals in Williams v. Martinez, 586

F.3d 995 (D.C. Cir. 2009), removed an impediment to federal court review of D.C. prisoners’

claims of ineffective assistance of appellate counsel. Pet’r’s Traverse at 10–11 [Dkt. # 17]. In


                                                 7
Williams, the Court determined that the jurisdictional barrier to federal court review of D.C.

convictions, codified in D.C. Code § 23-110(g), does not apply to claims that appellate counsel

was ineffective “because the Superior Court lacks authority to entertain a section 23-110 motion

[raising such claims];” thus, “that section is, by definition, inadequate to test the legality of [the

prisoner’s] detention.” 586 F. 3d at 998. Accordingly, under the safety valve contained in

section 23-110, this Court may exercise jurisdiction over a D.C. prisoner’s “federal habeas petition

asserting ineffective assistance of appellate counsel after the prisoner [has] moved to recall the

mandate in the D.C. Court of Appeals.” 4 Id. at 999.

       The D.C. Circuit Court of Appeals has since clarified that Williams did not remove an

impediment to federal habeas review, as petitioner argues here. Rather, Williams “simply made

explicit what had already been implicit: when the D.C. Court of Appeals barred prisoners from

raising [ineffective assistance of appellate counsel] claims under section 23-110 in the early 1980s,

the plain terms of section 23-110(g) opened the door to federal habeas review for those claims.”

Head, 792 F.3d at 109. Consequently, “nothing in [the D.C. Circuit’s] pre-Williams jurisprudence

prevented [petitioner] from pursuing his [ineffective assistance of appellate counsel] claim in a

timely federal habeas petition.” Id. at 108. Furthermore, the instant petition does not present a

claim based on a newly recognized constitutional right and, as evidenced by petitioner’s first

collateral motion, the factual predicate for his ineffective assistance claim was known to him in




4        In contrast, in Ground Two of the habeas petition, petitioner claims that “the miscarriage
of justice exception” to a procedurally defaulted claim applies because evidence excluded from
his trial establishes his actual innocence. Pet. at 21–24. But a claim of actual innocence may be
brought under D.C. Code ' 23-110(a) and, thus, is foreclosed in this court by subsection (g).
Ibrahim v. United States, 661 F.3d 1141, 1143–47 (D.C. Cir. 2011).

                                                  8
2008. So the December 20, 2011 date, when the DCCA affirmed the denial of petitioner’s first

post-conviction motion, controls to defeat a basis for statutory tolling.

                2.      Equitable Tolling

        “Equitable tolling is available to a party only if he shows (1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented

timely filing.” Menominee Indian Tribe of Wis. v. United States, 764 F.3d 51, 58 (D.C. Cir. 2014),

quoting Holland v. Fla., 560 U.S. 631, 649 (2010) (other citation omitted).              “To count as

sufficiently ‘extraordinary’ to support equitable tolling, the circumstances that caused a litigant’s

delay must have been beyond its control.” Id. The “delay cannot be a product of that litigant’s

own misunderstanding of the law or tactical mistakes in litigation.” Head, 792 F. 3d at 107,

quoting Menominee Indian Tribe of Wis., 764 F. 3d at 58.

        Petitioner argues, as an extraordinary circumstance, that he was “led” to believe “during

the course of the direct appeal that the right forum for [his] ineffective assistance of trial counsel’s

claims were through a motion [after] direct appeal pursuant to 28 U.S.C. 2255.” Pl.’s Traverse at

12. He then posits that his “substantial rights” were “adversely affected” because claims of

ineffective assistance of trial counsel “are essentially waived” under D.C. law if they are not

“pursued during the pendency of the direct appeal by means of a motion in the trial court pursuant

to D.C. Code § 23-110.” Id. As noted above, petitioner’s premise is simply wrong since the

state court addressed the merits of his ineffective assistance claim on multiple occasions and

rejected the claim each time. More to the point, petitioner has not shown that his delay in filing

his petition in this Court was due to any circumstances, let alone extraordinary circumstances,

beyond his control.




                                                   9
       Besides, under section 2254’s deferential standard, “if a state court has already rejected an

ineffective-assistance claim, a federal court may grant habeas relief only if the decision was

‘contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.’” Yarborough v. Gentry, 540 U.S. 1, 5

(2003), quoting 28 U.S.C. § 2254(d)(1). In other words, “under AEDPA, if the state-court

decision was reasonable, it cannot be disturbed.” Hardy v. Cross, 132 S. Ct. 490, 495 (2011).

The Supreme Court recently reaffirmed:

               When the claim at issue is one for ineffective assistance of counsel
               . . . , AEDPA review is “doubly deferential,” Cullen v. Pinholster,
               563 U.S. 170, 190 (2011), because counsel is “strongly presumed to
               have rendered adequate assistance and made all significant decisions
               in the exercise of reasonable professional judgment,” Burt v. Titlow,
               571 U.S. ––, ––, 134 S. Ct. 10, 17 (2013) . . . . In such
               circumstances, federal courts are to afford “both the state court and
               the defense attorney the benefit of the doubt.” Burt, supra, at ––,
               134 S. Ct., at 13.

Woods v. Etherton, No. 15-723, 2016 WL 1278478, at *2 (U.S. Apr. 4, 2016) (per curiam). Thus,

it is unclear what particular injustice would be corrected if petitioner had made a case for equitable

tolling. See Menominee Indian Tribe, 764 F.3d at 58 (“Holland [v. Florida] emphasizes that

courts must keep in view equity’s purpose[] [of] correcting particular injustices.”).




                                                 10
                                        CONCLUSION

        This action for a writ of habeas corpus is time-barred under AEDPA’s one-year limitations

period, and the circumstances support neither statutory nor equitable tolling. Accordingly, the

petition will be dismissed. An order will issue separately.




                                             AMY BERMAN JACKSON
                                             United States District Judge

DATE:     April 13, 2016




                                               11
