                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


JERRY T. GRAHAM,                                 :
                                                 :
                        Petitioner,              :
                                                 :
        v.                                       :       Civil Action No. 11-0149 (GK)
                                                 :
B.A. BLEDSOE et al.,                             :
                                                 :
                        Respondents.             :


                                    MEMORANDUM OPINION

        The United States Court of Appeals for the District of Columbia Circuit has remanded in part

this action for a writ of habeas corpus for this Court to address “in the first instance”: (1) “appellant’s

second petition for habeas relief, docketed on March 25, 2011, as a ‘supplemental memorandum’

to his first petition” and (2) “the claim made in the addendum and memorandum in support of

appellant’s first habeas petition that counsel in Graham’s direct appeal of his drug conviction was

ineffective for, inter alia, failing to raise the ineffectiveness of Graham’s trial counsel.” No. 11-

5104, Order (Dec. 9, 2011) at 1.

        I. BACKGROUND

        Petitioner was charged in a multi-count indictment with possession of cocaine with intent to

distribute (“PWID”) while armed, first-degree murder while armed, and two related firearms

violations. “The murder counts related to the shooting of an individual in a carry-out restaurant . .

. on February 27, 1994. The drug counts related to items found on [Petitioner] when he was arrested

following a police pursuit . . . after the shooting.” Addendum to Title 28 U.S.C. 2241(c)(3)

(“Addendum”) [Doc. # 1-1], Attachment (Graham v. United States, No. 95-CO-287 (Feb. 14, 1996),
Memorandum Opinion and Judgment at 1). The drug counts were severed from the murder and

firearms counts, and separate trials ensued in the Superior Court of the District of Columbia. See

Graham v. United States, 895 A.2d 305, 306 (D.C. 2006). On the drug charge, a jury convicted

Petitioner of the lesser-included offense of unarmed PWID. Id. Following a separate jury trial,

Petitioner was convicted of the murder and firearms charges. Id. The District of Columbia Court

of Appeals affirmed each conviction in separate appeals. See id. (citing Graham v. United States,

No. 95-CF-786, 792 A.2d 1072 (Table) (D.C. Jan. 31, 2001) (PWID conviction) (unpublished);

Graham v. United States, No. 97-CF-240 (D.C. Jan. 8, 2002) (murder and firearms convictions)

(unpublished)). On January 30, 2006, the D.C. Court of Appeals affirmed the denial of Petitioner’s

motion for relief from the PWID conviction under D.C. Code § 23-110. See Graham, 895 A.2d at

307-8.

         II. REVIEW STANDARD

         An application for a writ of habeas corpus under § 2254

         shall not be granted with respect to any claim that was adjudicated on the merits in
         State court proceedings unless the adjudication of the claim (1) resulted in a decision
         that was contrary to, or involved an unreasonable application of, clearly established
         Federal law, as determined by the Supreme Court of the United States; or (2) resulted
         in a decision that was based on an unreasonable determination of the facts in light of
         the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Furthermore, in these proceedings, “a determination of a factual issue made

by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing evidence.” Id. § 2254(e)(1).




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        III. THE SECOND PETITION1

        In his second habeas petition, Petitioner challenges his convictions of first-degree murder,

carrying a pistol without a license, and possession of a firearm during a crime of violence following

a jury trial in Superior Court. Second Pet. [Doc. # 9] at 2. He was sentenced on January 31, 1997,

to a prison term of 30 years to life. Id. Petitioner acknowledges that the foregoing convictions are

based on “the same evidence and facts” supporting the PWID conviction. Mot. to Consolidate [Doc.

# 6] at 1.

        Petitioner claims that “trial counsel was ineffective from beginning to end of my case.”

Second Pet. at 5. Specifically, Petitioner claims that his trial counsel “failed to introduce any

evidence pointing to my actual innocent [sic]” and that trial counsel “mishandled” identification

evidence. Petitioner also claims that the prosecutor “fail[ed] to prove beyond a reasonable doubt all

essential elements of the murder.” Id.

        As this Court explained in its initial ruling (“Graham 1") [Doc. # 12], it is well established

that challenges to a Superior Court judgment of conviction must be pursued in that court under D.C.

Code § 23-110, see Blair-Bey v. Quick, 151 F.3d 1036, 1042-43 (D.C. Cir. 1998); Byrd v.

Henderson, 119 F.3d 34, 36-37 (D.C. Cir. 1997). Absent a showing of an inadequate or ineffective

local remedy, “a District of Columbia prisoner has no recourse to a federal judicial forum,” Garris

v. Lindsay, 794 F.2d 722, 726 (D.C. Cir.), cert. denied, 479 U.S. 993 (1986) (internal footnote




        1
          On March 25, 2011, another judge of this Court, concluded that a newly submitted habeas
petition and the petition initiating this action were “substantially the same” and granted Petitioner’s
“[b]uried” motion to consolidate. Order [Doc. # 10]. As a result, the Clerk docketed the second
petition on March 28, 2011, as a “Supplemental Memorandum” to the initial petition [Doc. # 9] , and
docketed separately, inter alia, Petitioner’s motion to consolidate [Doc. # 6].

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omitted). The statute provides that

      [an] application for a writ of habeas corpus in behalf of a prisoner who is authorized to
      apply for relief by motion pursuant to this section shall not be entertained by . . . any
      Federal . . . court if it appears . . . that the Superior Court has denied him relief, unless
      it also appears that the remedy by motion is inadequate or ineffective to test the legality
      of his detention.

D.C. Code § 23-110(g). Petitioner has not demonstrated the inadequacy of the available local

remedy to address trial counsel’s alleged ineffectiveness. See D.C. Code § 23-110(a) (authorizing

D.C. prisoners to move to vacate, set aside, or correct a sentence “imposed in violation of the [U.S.]

Constitution or the laws of the District of Columbia”); Reyes v. Rios, 432 F. Supp. 2d 1, 3 (D.D.C.

2006) (“Section 23-110 provided the petitioner with a vehicle for challenging his conviction based

on the alleged ineffectiveness of his trial counsel.”). Therefore, the second petition provides no basis

for issuing a writ of habeas corpus.

        IV. THE ADDENDUM TO THE INITIAL PETITION

        In Ground Two of his initial habeas petition challenging the PWID conviction, Petitioner

claimed that his appellate counsel was ineffective in failing “to file a post-conviction 23-110 motion

arguing” the ineffectiveness of trial counsel “at the suppression hearing and at trial.” Pet. at 5.

Based on that stated ground and the supporting facts set forth in the petition, this Court found no

basis for relief because the applicable habeas statute expressly precludes a claim of ineffective

assistance of appellate counsel predicated on counsel’s representation during collateral proceedings.

See Graham 1 at 4 (quoting 28 U.S.C. § 2254(i)).

        A strained reading of Petitioner’s Addendum [Doc. 1-1] and Memorandum of Points and

Authorities in Support of Petition for a Writ of Habeas Corpus Pursuant to Title 28 U.S.C.

2241(c)(3) (“Mem”) [Doc. # 2] reveals that Petitioner also faults appellate counsel for failing to raise

on direct appeal the ineffective assistance of trial counsel based on: (1) alleged trial errors arising

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from a suppression hearing at which Petitioner alleges government witnesses committed perjury,

see Addendum at 7-11,2 (2) trial counsel’s “not showing prosecutorial misconduct” stemming from

the alleged perjured testimony at the suppression hearing, id. at 11-12, and (3) trial counsel’s alleged

failure to “explor[e] the fact that the government violated Petitioner’s [constitutional] rights by

placing [him] on [a] median strip” during a “show-up identification procedure” allegedly to make

him appear taller. Id. at 16. In sum, Petitioner seems to assert that appellate counsel should have

argued that “trial counsel failed to effectively litigate the Petitioner’s motion to suppress evidence,”

apparently based in large part on the alleged suggestive identification of him at the crime scene.3

Mem. at 2.

        Under the circumstances presented, to determine whether counsel was constitutionally

ineffective at trial or on direct appeal, the Court follows the two-pronged test laid out in Strickland

v. Washington, 466 U.S. 668, 687 (1984).4 First, Petitioner must show counsel's performance was

so deficient that the representation “fell below an objective standard of reasonableness under

prevailing professional norms.” United States v. Gwyn, 481 F.3d 849, 853 (D.C. Cir. 2007)

(restating the Strickland test). Second, this deficiency must have prejudiced the trial and/or appeal

       2
         Because of the poor quality of the electronically scanned document, some portions of the
69-page document, including page numbers, are barely legible. Therefore, the Court will cite to the
page numbers assigned by the electronic docket.
       3
           In Petitioner’s 70-page second petition where he claims ineffective assistance of trial
counsel, he does not seem to also claim ineffective assistance of appellate counsel. Because the
petition is not a model of clarity, however, the Court will assume for the sake of finality that this
claim applies also to the separate appeal of the murder-firearms convictions.
       4
         The Supreme Court has articulated two separate standards for evaluating the effectiveness
of counsel in a criminal case. Under United States v. Cronic, 466 U.S. 648 (1984), courts will
presume a per se violation of the Sixth Amendment right to counsel only “ ‘if counsel entirely fails
to subject the prosecution's case to meaningful adversarial testing.’ ” Bell v. Cone, 535 U.S. 685, 697
(2002) (quoting Cronic, 466 U.S. at 659) (emphasis in original). Such is not the case here; thus
Strickland guides the Court’s analysis.

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such that “there is a reasonable probability that, but for counsel's errors, the result of the proceeding

would have been different.” Id. A court does not have to address both components of the inquiry

if the petitioner makes an insufficient showing on one of them. Strickland, 446 U.S. at 697; see

Smith v. Robbins, 528 U.S. 259, 285 (2000) (Strickland’s test is the “proper standard for evaluating”

ineffective assistance of appellate counsel claims). Here, Petitioner has failed to meet either prong

of the Strickland test.

        As the D.C. Court of Appeals noted in denying Petitioner’s motion for relief under D.C. Code

§ 23-110 from the PWID conviction, “[t]he only claim pertinent to this case which was raised in

appellant's motion was his assertion that the trial court had erred in denying his motion to suppress

evidence. As the trial court recognized, he made the very same contention in the direct appeal from

his conviction, and this court rejected it and affirmed the judgment in January 2001.” Graham, 895

A.2d at 307. In addition, the instant record establishes that counsel challenged the “show-up

identification” in both of Petitioner’s direct appeals.

        In affirming the PWID conviction, the D.C. Court of Appeals found that the evidence against

Petitioner was “strong” and that “[t]he search of [Petitioner’s] person incident to his arrest did not

depend on [the show-up] identification . . . because Officer Padberg’s observations alone established

probable cause to arrest him.” Mem. Op. and Judgment [Doc. # 1-1] at 2. In addition, the court

determined that there was no “reasonable possibility that [the show-up] identification of [Petitioner]

as the gunman at the restaurant contributed to [his] conviction of PWID, which was based on the

police discovery in [Petitioner’s] jacket pocket of some twenty-five ziplock [sic] bags containing

crack cocaine.” Id.

        In the appeal of the murder and firearms convictions arising from the same incident, the D.C.

Court of Appeals noted that it “had repeatedly upheld the validity of show-up procedures carried out,

                                                   6
as here, soon after the commission of the crime and the apprehension of a suspect, even though the

suspect is then plainly in police custody,” and it concluded that it found “no basis to fault the trial

court’s ruling that no undue suggestivity was present in the show-up herein.” Mem. Op. and

Judgment [Doc. # 6] at 1-2.

        Furthermore, in addressing Petitioner’s argument that he was convicted on insufficient

evidence, the D.C. Court of Appeals dispelled any notion of an unreliable identification based on

Petitioner’s argument that the identifier “had only a side view of the shooter and [Petitioner’s] height

and complexion did not match the description he gave the police immediately after the shooting.”

Id. at 2. The court reasoned that the identifier had “testified that he looked at the shooter’s face well

enough that he would be able to recognize him the next time he saw him [and had] described the

shooter’s race, age and clothing to the police and [Petitioner] matched each of these when he was

picked up.” Id. The court also stated that “[t]wo police officers observed [Petitioner] emerging from

the crime scene with gun in hand and fleeing the scene. The officers followed in hot pursuit, losing

sight of him only for a brief interval before succeeding in arresting him.” Id. Finally, the court

acknowledged “certain inconsistences” in the identification of Petitioner but found them “not so

significant as to prevent the jury from reaching a sustainable verdict of guilty.” Id. at 3.

        Petitioner seems to assert that appellate counsel was ineffective for failing to assign as

specific error on direct appeal the ineffectiveness of trial counsel based on the foregoing issues, but

he has not demonstrated any basis for such a claim. From all indications, trial counsel preserved the

suppression issues for appeal and appellate counsel advanced them on appeal. Therefore, Petitioner

has not shown that appellate counsel performed deficiently in failing to argue trial counsel’s

ineffectiveness. Even if he could make such a showing, the D.C. Court of Appeals’ rejection of

Petitioner’s arguments on the merits based on evidence produced at Petitioner’s trials would belie

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any claim of resulting prejudice. See Smith, 528 U.S. at 285 (prejudice is demonstrated by showing

a “reasonable probability” that but for counsel’s deficient performance, the petitioner “would have

prevailed on his appeal.”) (citation omitted).

       V. CONCLUSION

       For the foregoing reasons, the Court finds no grounds in either the second habeas petition or

the addendum and memorandum supporting the initial habeas petition to warrant issuing a writ of

habeas corpus under 28 U.S.C. § 2254.

       The Clerk shall immediately transmit this Memorandum Opinion to the United States Court

of Appeals for the District of Columbia Circuit.




                                                       /s/
January 26, 2012                                       GLADYS KESSLER
                                                       United States District Judge




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