                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
TRACY PINKNEY,                      )
                                    )
            Petitioner,             )
                                    )
      v.                            )                 Civil Action No. 08-2044 (RMC)
                                    )
UNITED STATES OF AMERICA, et al., )
                                    )
            Respondents.            )
____________________________________)


                                 MEMORANDUM OPINION

               This matter is before the Court on the motion to dismiss filed on behalf of the United

States and an opposition filed by petitioner Tracy Pinkney (“Pinkney”). For the reasons discussed

below, the motion will be granted and the petition will be denied.

                                      I. BACKGROUND

                          Criminal Charges, Conviction, and Sentence

               On April 2, 1996, in the 4600 block of A Street, S.E., Pinkney and Darryl Curry

approached three men, pulled handguns, and during this encounter, Pinkney shot and killed Phillip

Baldwin (“Baldwin”). See Resp’t’s Mot. to Dismiss Pet. for a Writ of Habeas Corpus (“Gov’t

Mot.”) [Dkt. # 28] at 6–7. In an indictment filed on August 6, 1996, id. at 2, Pinkney “was charged

with first-degree premeditated murder while armed, first-degree felony murder while armed,

conspiracy to commit robbery, attempted robbery, two counts of assault with a dangerous weapon

(ADW), and two firearms offenses.” Pinkney v. United States, 851 A.2d 479, 482 (D.C. 2004). The



                                                 1
conspiracy charge was dismissed before the trial, id., which took place between September 10, 1997,

and October 2, 1997, in the Superior Court of the District of Columbia. Gov’t Mot., Ex. B (Order,

United States v. Pinkney, Case No. F-2830-96 (D.C. Super. Ct. June 6, 2001)) at 2. Pinkney’s

motion for judgment of acquittal on the armed robbery and felony murder charges was granted at the

close of the Government’s case. Pinkney, 851 A.2d at 482. “The jury found [Pinkney] guilty of

ADW and second-degree murder while armed, as a lesser included offense of the remaining

first-degree murder charge, but acquitted him on all the remaining counts of the indictment.” Id.;

see Pet. for a Writ of Habeas Corpus (“Pet.”) [Dkt. # 1] at 3. The Superior Court imposed a prison

sentence of 40 to 120 months for ADW, and a consecutive sentence of 20 years to life for second-

degree murder while armed. Gov’t Mot., Ex. A (Judgment and Commitment Order, United States

v. Pinkney, Case No. F-2830-96 (D.C. Super. Ct. Dec. 2, 1997)).

                           Pre-Trial Disqualification of Trial Counsel

               “Ten days after he was indicted, [Pinkney] retained an attorney, Douglas Wood, to

represent him.” Pinkney, 851 A.2d at 484. On October 2, 1996, the Government moved to

disqualify counsel, Gov’t Mot. at 2, based on Douglas Wood’s (“Wood”) representation of David

Henderson (“Henderson”), a potential rebuttal witness for the Government, id. at 11. Wood “had

previously represented . . . Henderson in an unrelated criminal matter, and at the time the

government filed its motion, . . . Wood was representing him in a case in the United States District

Court that was scheduled for sentencing, as well as an upcoming trial in the Superior Court.”

Pinkney, 851 A.2d at 484. “[T]he government’s concern was that information . . . Wood had gleaned

from his representation of Henderson would be relevant to . . . Wood’s cross-examination of

Henderson.” Gov’t Mot. at 11.


                                                 2
                 At a hearing on October 9, 1996, the Government proffered that Henderson met a

person who allegedly had paid Pinkney to kill Baldwin. Gov’t Mot. at 11. Further, the Government

proffered that Henderson later had contact with Pinkney, and that Pinkney “indicated that indeed he

had killed [Baldwin]” although Pinkney’s version of events differed from the Government’s case.

Id. In addition, the Government proffered:

                 [Pinkney] . . . was afraid that the codefendant, Mr. Curry, was going
                 to cut a deal with the Government and that at the suggestion of Mr.
                 Wood, . . . get Mr. Curry his own attorney. Mr. Pinkney indicated
                 that he, in fact, paid Mr. Wood and had paid [another attorney] to
                 represent Mr. Curry in an effort to keep Mr. Curry quiet, so he would
                 not cooperate with the Government. [T]he Government [was] in
                 possession of a letter written by Mr. Pinkney to Mr. Henderson where
                 [Mr. Pinkney] indicates . . . how [Mr. Curry’s attorney, Mr. Curry,
                 Mr. Wood and himself] met to try to strategize the best way to handle
                 this case, . . . in an effort again to keep Mr. Curry quiet and to try to
                 beat the charge[.]

Id. The Government proposed to use Pinkney’s “admitted involvement in the homicide [as]

evidence . . . at trial.” Id.

                 Wood notified the court that he was withdrawing from his representation of

Henderson and that Henderson should be appointed new counsel. Id. at 12. He suggested that the

court “conduct a hearing to see if any attorney-client privilege would be violated by . . . Wood’s

continued representation of . . . [Pinkney].” Id. Wood argued “that perhaps Henderson was not

really a witness, that the court had no information about how he became a witness, and that Pinkney

claimed Henderson did not know anything about the case.” Id. Wood proposed that the court could

determine the nature of Henderson’s testimony at a hearing, assess Henderson’s credibility,

determine whether Wood could effectively cross-examine Henderson about his testimony without

addressing matters regarding his prior representation of Henderson, and inquire as to whether


                                                    3
Henderson would waive any objection to Wood’s disclosure of prior confidences. Id. If Henderson

were not called to testify, Wood’s disqualification would mean that Pinkney would be denied his

chosen counsel. See id.

                The court determined that Pinkney had “a Sixth Amendment right to counsel of his

choice, . . . a right to conflict-free representation and . . . vigorous representation by someone without

. . . restraints on [his] ability to do a thorough and effective cross-examination of a witness called

against him.” Id. Further, the court acknowledged Henderson’s “right not to have any of his

confidences exposed.” Id. at 13. Although Pinkney expressed his willingness to waive any conflict

of interest, the court found that Pinkney could not possibly effect a knowing and intelligent waiver

of confidentiality without knowing exactly what Henderson’s testimony would be:

                [Henderson] . . . could agree to have Mr. Wood free to take advantage
                of his knowledge of him in cross-examination . . . if Mr. Wood not
                only knew what the testimony was going to be about and therefore
                was able to decide in advance what kinds of things would be used in
                cross-examination and that very disclosure would . . . require the
                Government to disclose something that [it doesn’t] have to disclose
                but it would . . . emasculate any cross-examination if you told the
                witness in advance what you’ll be using and that would be clearly
                unfair to Mr. Pinkney.

Id. According to Pinkney, Henderson’s testimony would be a “total fabrication [which] would

indeed require vigorous and aggressive cross-examination.” Id. And “it would not be fair to . . .

Pinkney to have his cross-examination cut short and it would not be fair to [Henderson] to have that

cross-examination done by someone” with whom he had shared confidences. Id. In short, the court

did not believe the case could proceed with Wood’s continued participation. Id. Justice required

Wood’s withdrawal and an opportunity for Pinkney to choose new counsel. Id. “A new attorney

later entered an appearance for [Pinkney],” and after this attorney “and two successors were allowed


                                                    4
to withdraw for various reasons, a sixth attorney (Wood had been the second) entered the case and

represented [Pinkney] through the trial and sentencing.” Pinkney, 851 A.2d at 485.

               During voir dire on the first day of trial on September 11, 1997, defense counsel

learned that Henderson did not appear on the Government’s witness list. See Pinkney, 851 A.2d at

490; see Pet. at 7. Defense counsel promptly “moved to stay the proceeding, strike his own

appearance as counsel, and reinstate . . .Wood as defense counsel.” Pinkney, 851 A.2d at 490. If

the motion had been granted, it “would have necessitated a delay in the trial,” principally because

“Wood had had no contact with the case for several months.” Id.1 The court denied the motion, id.,

“mainly because the litigants were sort of in the middle of trial and because . . . Wood’s successor

counsel was finally prepared and ready for trial.” Id. at 491 (internal quotation marks omitted). As

stated previously, the trial resulted in Pinkney’s conviction for ADW and second degree murder

while armed.

                Post-Conviction Proceedings in the District of Columbia Courts

               On October 14, 1997 and on January 12, 1998, Pinkney filed motions under D.C.

Code § 23-110 to vacate his sentence. Gov’t Mot. at 3. These and his various supplemental

filings were considered and denied on June 6, 2001. See id., Ex. B. The court rejected Pinkney’s

claim of ineffective assistance of trial counsel based on counsel’s alleged failure to cross-examine


       1
          The case initially was set for trial on February 24, 1997. Gov’t Mot., Ex. C (Transcript,
United States v. Pinkney, Case No. F-2380-96 (D.C. Super. Ct. Nov. 1, 2004)) at 164:18-19. The
court granted defense counsel’s unopposed request for a continuance, and the trial was then set to
begin on May 6, 1997. Id. at 165:5–9. On the day the trial was set to begin, successor counsel was
allowed to withdraw because she credibly believed that Pinkney had threatened her, id. at 165:8–24,
and the case was continued until September 1997, id. at 166:2-4. Accordingly, as of the September
1997 trial commencement date, there had already been two significant continuances. Id. at 166:3–9.
Had Wood been reinstated, “the case would have been continued at a point when everybody was
there and ready for trial.” Id. at 166:6–9.

                                                 5
witnesses effectively, see id. at 4–10, failure to call other witnesses, see id. at 10–13, and “a major

tactical disagreement,” id. at 13, with regard to counsel’s chosen argument in his closing, see id. at

13–14. Pinkney filed a timely notice of appeal, Gov’t Mot. at 3, and on June 17, 2004, the District

of Columbia Court of Appeals affirmed the denial of his § 23-110 motion and rejected the remaining

motions except one raising the question of whether the trial court should have permitted Wood to

resume his representation of Pinkney when it appeared that the conflict of interest which had

disqualified him had been resolved. See Pinkney, 851 A.2d at 491. While “leav[ing] the details of

the remand proceedings to the discretion of the trial court,” id. at 492, the Court of Appeals set forth

the trial court’s task on remand:

                [I]f the court concludes that . . . Wood would not have re-entered the
                case when [Pinkney] moved to reinstate him as counsel, then the
                judgment of conviction shall stand affirmed. But if the court finds
                that . . . Wood was willing and able to represent [Pinkney] after
                learning that Henderson would not be a witness, and if the court can
                be assured that there would be no risk that Henderson’s rights would
                be infringed by Wood’s renewed representation of [Pinkney], it shall
                vacate the judgment and order a new trial.

Id. (internal quotation marks and footnote omitted).

                On remand, the Superior Court held an evidentiary hearing, see Gov’t Mot., Ex. C

(Transcript, United States v. Pinkney, Case No. F-2380-96 (D.C. Super. Ct. Nov. 1, 2004)), during

which the prosecutor, Henderson, Henderson’s attorney, and Wood testified, see Gov’t Mot. at 14.

The court concluded that “Henderson still was a potential rebuttal witness,” id., Ex. C at 158:18, and,

therefore, “the premise of [Wood’s] disqualification continued and remained in effect as of the time

of trial.” Id. at 162:8–10.




                                                   6
               Even if Wood had been reinstated as Pinkney’s counsel, the judge found that Wood

had been unable to re-enter the case on the eve of trial. The court did not believe that Wood “was

ready to try [the case] right away,” Gov’t Mot., Ex. C at 162:24–15, but rather “would have asked

for a continuance,” id. at 162:25 to 163:1, as would “any criminal defense lawyer in his situation,”

id. at 163:12–13. The charge was first degree murder, and the case was “fairly complex,” id. at

163:18, such that “it would have been completely appropriate for a . . . lawyer who had not had any

contact with the case for 11 months if [he were] brought in to say [he] needed some additional time,”

id. at 163:18–21. Addressing the factors set forth in Leak v. United States, 757 A.2d 739, 744–45

(D.C. 2000), the court made additional findings which militated against Wood’s reinstatement and

the supported need, had Wood been reinstated, for a continuance. There had already been significant

continuances granted at points where all parties were prepared for trial (at least one of which was

attributed to Pinkney’s dissatisfaction with previous appointed counsel), so that another continuance

would result in inconvenience to the litigants, witnesses and the court, prejudice flowing from yet

another continuance, and that the complexity of the case would have necessitated another

continuance. See Gov’t Mot., Ex. C at 164:4 to 170:3. The court thus found that “the reason for Mr.

Wood’s disqualification continued as of September of [1997],” id. at 170:6–7, providing no basis

to disturb the conviction.

               Pinkney filed a timely notice of appeal, and Jonathan Willmott (“Willmott”) was

appointed to represent him before the District of Columbia Court of Appeals. See Gov’t Mot., Ex.

I (Brief for Appellant, Pinkney v. United States, No. 04-CO-1501 (D.C. Ct. of App. filed Aug. 23,

2005)) at 3. Willmott framed the question on appeal as follows:




                                                 7
               Whether [Pinkney’s] original attorney [Wood] should have been
               reinstated since the lawyer unequivocally said he would have re-
               entered the case, the so-called rebuttal witness [Henderson] was not
               really a potential rebuttal witness, and the other factors suggested the
               appropriateness of honoring [Pinkney’s] right to chosen counsel.

Id., Ex. I at iv. Willmott argued that the case “present[ed] a mixed question of fact and law.” Id. at

25. Citing cases focusing on a criminal defendant’s Sixth Amendment right to counsel of his choice,

see, e.g., Wheat v. United States, 486 U.S. 153, 164 (1988), Yancey v. United States, 755 A.2d 421,

425 (D.C. 2000), appellant counsel urged reversal of Pinkney’s conviction “so that Wood . . . can

try the case,” Gov’t Mot., Ex. I at 35. The Government responded that the trial court’s decision to

deny Pinkney’s request for a new trial could be reversed only for abuse of discretion, id., Ex. K

(Brief for Appellee, Pinkney v. United States, No. 04-CO-1501 (D.C. Ct. App. filed Oct. 20, 2005))

at 25, a position Pinkney opposed in a reply brief. See generally id., Ex. J.

               The Court of Appeals affirmed the Superior Court’s decision:

               A motion for reinstatement of previously disqualified counsel
               implicates a defendant’s Sixth Amendment right to counsel of one’s
               own choosing. See [Pinkney, 852 A.2d] at 490. However, this right
               is not absolute. Although there is a presumption in favor of a
               defendant’s choice of counsel, “that presumption may be overcome
               . . . by a showing of a serious potential for conflict.” Wheat v. United
               States, 486 U.S. 153, 164 (1988). Here, after a full hearing on
               remand, the trial court found that there remained “a very strong
               possibility” that the government could call Henderson as a rebuttal
               witness (which did not have to be shown on the witness list).
               Appellant takes issue with this finding as a factual matter, but “[t]his
               court accepts the trial court’s findings of fact unless they lack
               evidentiary support.” Veney v. United States, 738 A.2d 1185, 1193
               (D.C. 1999). This finding is based on ample support in the record
               here and is determinative where no other circumstances are
               demonstrated which would dissipate the factors indicating a serious
               potential of conflict discussed in the first appeal.




                                                  8
Id., Ex. D (Memorandum Opinion and Judgment, Pinkney v. United States, Case No. 04-CO-1501

(D.C. Ct. App. Oct. 25, 2006) (per curiam)). The petition for rehearing or rehearing en banc was

denied. Id., Ex. E (Order, Pinkney v. United States, Case No. 04-CO-1501 (D.C. Ct. App. Jan. 16,

2007) (per curiam)). His petition to recall the mandate, in which he alleged ineffective assistance

of appellate counsel, also was denied. Id., Ex. F (Order, Pinkney v. United States, Case No. 04-CO-

1501 (D.C. Ct. App. Apr. 6, 2007) (per curiam)).

               Undaunted, Pinkney filed another § 23-110 motion in the Superior Court claiming

ineffective assistance of appellate counsel. Gov’t Mot., Ex. G (Pet. for Writ of Habeas Corpus, Case

No. 1996 FEL 2830 (D.C. Super. Ct. Apr. 2, 2008)) at 6. The court denied the motion,

acknowledging that “a claim for ineffective assistance of appellate counsel cannot be heard in the

trial court.” Id., Ex. H (Order, United States v. Pinkney, Case No. F-2380-96 (D.C. Super. Ct. Aug.

29, 2008)) at 2.

                    E. Allegations of the Petition for a Writ of Habeas Corpus

               Pinkney files this petition under 28 U.S.C. § 2241. Pet. at 1. He alleges that the

Superior Court erred by disqualifying Wood based on a conflict of interest, and by refusing to

reinstate Wood after the conflict had been resolved. See id. at 5–8. Pinkney further alleges that the

District of Columbia Court of Appeals erred in remanding the matter to the Superior Court for the

purpose of determining whether Wood could have reentered the case, rather than reversing his

conviction. See id. at 8–9. Lastly, Pinkney raises a claim of ineffective assistance of appointed

appellate counsel, evidenced by (1) Willmott’s concession during the oral argument that Henderson

was a potential government witness, see id. at 10, and (2) his argument using an incorrect legal

standard for appellate review, see Pet’r’s Mot. to Supplement Pet. for a Writ of Habeas Corpus [Dkt.


                                                 9
#12] at 2–4. Pinkney asks this Court to reverse the District of Columbia courts’ rulings and to vacate

his criminal convictions. See Pet. at 10.

                                         II. DISCUSSION

                                            A. Timeliness

               A federal district court may “entertain an application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment of a State court only on the ground that he

is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2254(a). Respondent argues that the petition, although filed under 28 U.S.C. § 2241, properly is

considered a petition of a state prisoner under 28 U.S.C. § 2254, based on D.C. Circuit precedent that

a person in custody pursuant to a judgment and conviction of the Superior Court of the District of

Columbia is considered a state prisoner for at least one purpose.2 See Madley v. U.S. Parole

Comm’n, 278 F.3d 1306, 1308–10 (D.C. Cir. 2002) (concluding that “a court of the District is a state

court for purposes of [28 U.S.C. §] 2253(c)”); Garris v. Lindsay, 794 F.2d 722, 724 n.8 (D.C. Cir.

1986) (per curiam) (finding that a petitioner sentenced in the Superior Court of the District of

Columbia who filed habeas petition under 28 U.S.C. § 2241 was a state prisoner for purposes of

certificate of appealability requirement under 28 U.S.C. § 2253).

               A petition under 28 U.S.C. § 2254 must be filed within a one-year limitations period,

28 U.S.C. § 2244(d)(1), calculated as follows:


       2
          The district court is authorized to grant a writ of habeas corpus to a prisoner who “is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). A prisoner who is “in custody pursuant to the judgment of a State court” may seek
habeas relief in a federal district court on these grounds, see id. § 2254(a), but first he must either
“exhaust[] the remedies available in the courts of the State,” id. § 2254(b)(1)(A), if there are
available remedies or show that “circumstances exist that render such process ineffective to protect
[his] rights.” Id. § 2254(b)(1)(B)(ii).

                                                  10
               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). The limitations period is tolled while “a properly filed application for State post-

conviction or other collateral review with respect to the pertinent judgment or claim is pending.”

Id. § 2244(d)(2).

               According to Respondent, Pinkney’s convictions became final on April 16, 2007, the

date on which the time to file a petition for a writ of certiorari in the Supreme Court of the United

States from the denial of his motion for rehearing or rehearing en banc by the District of Columbia

Court of Appeals expired. Gov’t Mot. at 29. The deadline for filing the instant petition, absent a

basis for tolling the limitations period, thus would have fallen on April 16, 2008. Id. at 30.

Alternatively, factoring in the filing of the § 23-110 motion Pinkney signed and dated March 24,

2008 (which the Clerk of Court filed on April 2, 2008 and the Superior Court denied on August 29,

2008), as tolling the one-year limitations period under 28 U.S.C. § 2244(d)(2), Respondent believes

that the deadline was extended to September 20, 2008. Id. Pinkney signed and mailed this federal



                                                 11
habeas petition on October 8, 2008 (which the Clerk of Court filed on November 19, 2008), after the

one-year limitations period expired.

               Judges on this and other federal district courts have concluded that persons serving

sentences imposed by the Superior Court of the District of Columbia are state prisoners for purposes

of 28 U.S.C. § 2244. See Williams v. Apker, Civ. No. 10-0522, 2011 WL 1118497, at *1 n.1 (D.D.C.

Mar. 28, 2011) (“Because . . . the petitioner is in custody pursuant to a judgment of the D.C. Superior

Court, which is considered a state court, the court construes the petition as made under 28 U.S.C.

§ 2254, the federal law governing petitions for writs of habeas corpus filed in federal courts by state

prisoners.”); Davis v. Cross, Civ. No. 10-761, 2011 WL 1119650, at *2 (D.D.C. Mar. 27, 2011)

(“Because Petitioner is in custody pursuant to a judgment of a state court, he makes his petition

under 28 U.S.C. § 2254.”); Moorer v. Quintana, No. CV 10-0908, 2010 WL 5670919, at *3 (C.D.

Cal. Dec. 29, 2010) (Magistrate Report and recommendation to dismiss habeas petition filed by a

D.C. Code offender as untimely under 28 U.S.C. § 2241(d)(1)), adopted, 2011 WL 318140 (C.D.

Cal. Jan. 26, 2011); Banks v. Smith, 377 F. Supp. 2d 92, 93 (D.D.C. 2005) (considering petitioner

who was sentenced by a judge sitting by designation of the District of Columbia Court of Appeals

a state prisoner); see also James v. Smith, No. 1:08-cv-01325, 2008 WL 5329954, at *3 (E.D. Cal.

Dec. 19, 2008) (concluding that, even if the federal district court had jurisdiction to entertain the

habeas petition of a D.C. Code offender, it was time-barred under 28 U.S.C. § 2244(d)(1)); Williams

v. Smith, No. 1:08-CV-0535, 2008 WL 4057859, at *2 (E.D. Cal. Aug. 28, 2008) (same); but see

Wright v. Stansberry, 677 F. Supp. 2d 286, 287 n.2 (D.D.C. 2010) (stating that “[t]he provisions of

28 U.S.C. § 2244(d)(1) and § 2254 do not apply to persons convicted and sentenced in the Superior

Court for the District of Columbia”). There appears to be no controlling authority for the proposition


                                                  12
that a person challenging a Superior Court conviction or sentence is subject to the one-year

limitations period set forth in 28 U.S.C. § 2244(d). The Court presumes without deciding that the

petition was timely filed.

                       B. Claims of Error by the District of Columbia Courts

                Under District of Columbia law, a prisoner convicted and sentenced in the Superior

Court may file a motion in that court to vacate, set aside, or correct his sentence “upon the ground

that (1) the sentence was imposed in violation of the Constitution of the United States or the laws

of the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the

sentence was in excess of the maximum authorized by law, [or] (4) the sentence is otherwise subject

to collateral attack.” D.C. Code § 23-110(a). Although habeas relief in federal court is available to

a District of Columbia Code offender who “is in custody in violation of the Constitution . . . of the

United States,” 28 U.S.C. § 2241(c)(3), his habeas petition “shall not be entertained by . . . any

Federal . . . court if it appears that the [petitioner] has failed to make a motion for relief under [D.C.

Code § 23-110] or 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.”3 D.C. Code § 23-

110(g); see also Byrd v. Henderson, 119 F.3d 34, 36–37 (D.C. Cir. 1997) (finding that “a District

of Columbia prisoner has no recourse to a federal judicial forum unless the local remedy is

inadequate or ineffective to test the legality of his detention”).

                “It is well-established that the mere denial of relief by the local courts does not render

the local remedy inadequate or ineffective.” Joyner v. O’Brien, Civ. No. 09-0913, 2010 WL 199781,


        3
         The phrase “‘[r]emedy by motion’ plainly refers to motions filed pursuant to section 23-
110(a).” Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 2073
(2010).

                                                   13
at *2 (D.D.C. Jan. 15, 2010) (citations omitted); see Corley v. U.S. Parole Comm’n, Civ. No.

08-1342, 2009 WL 2606554, at *3 (D.D.C. Aug. 26, 2009) (citing Garris, 794 F.2d at 727); see also

Morton v. United States, Civ. No. 07-5253, 2008 WL 4726051, at *1 (D.C. Cir. June 12, 2008) (per

curiam) (denying request for certificate of appealability on the ground that appellant “may not

challenge his District of Columbia convictions in federal court unless his remedy under D.C. Code

§ 23-110 is inadequate or ineffective to test the legality of his detention . . . , and [t]he § 23-110

remedy . . . is not considered inadequate or ineffective simply because the requested relief has been

denied”).

                  Pinkney vigorously has contested his conviction and sentence, both in the Superior

Court by filing motions under D.C. Code § 23-110 and by appealing unfavorable rulings to the D.C.

Court of Appeals. His allegations of error by the Superior Court properly were raised in and decided

by the Court of Appeals, and this Court is without jurisdiction to review or overturn these rulings.

In short, Pinkney cannot avail himself of this federal forum merely because his prior attempts to

challenge his conviction and sentence in the District of Columbia courts have not been successful.

                            C. Ineffective Assistance of Appellate Counsel

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

district court. See Williams v. Martinez, 586 F.3d 995, 998–99 (D.C. Cir. 2009), cert. denied, 130

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

v. Washington, 466 U.S. 668 (1984),4 which in the appellate context has been described as follows:


       4
            Under Strickland, a petitioner claiming ineffective assistance of trial counsel must show:

                 First, the defendant must show that counsel’s performance was
                 deficient. This requires showing that counsel made errors so serious
                                                                                        (continued...)

                                                  14
                  [Petitioner] must first show that his counsel was objectively
                  unreasonable in failing to find arguable issues to appeal – that is, that
                  counsel unreasonably failed to discover nonfrivolous issues and to
                  file a merits brief raising them. If [Petitioner] succeeds in such a
                  showing, he then has the burden of demonstrating prejudice. That is,
                  he must show a reasonable probability that, but for his counsel’s
                  [error], he would have prevailed on his appeal.

Smith v. Robbins, 528 U.S. 259, 285 (2000) (internal citations omitted); see Williams, 683 F. Supp.

2d at 32 (“To show ineffective assistance of appellate counsel, [petitioner] must show that his

appellate counsel’s performance was (1) deficient and (2) prejudiced his defense such that there was

a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”) (internal quotation marks and citation omitted).

                  Pinkney ably articulates the elements of an ineffective assistance of appellate counsel

claim, see, e.g., Pet. at 4; Pet’r’s Reply Mot. to Resp’t’s Mot. to Dismiss Pet’r’s Writ of Habeas

Corpus (“Pet’r’s Reply”) [Dkt. # 29] at 25–26, yet his complaints about Willmott’s performance do

not pertain to an unreasonable failure to identify and to argue non-frivolous issues on appeal or any

prejudice Pinkney may have suffered because of Willmott’s alleged errors. Pinkney’s second appeal

presented only one issue: whether Wood was able to represent Pinkney when the trial commenced

in September 1997. Willmott’s appellate brief articulated reasons why Wood should have been


       4
           (...continued)
                   that counsel was not functioning as the “counsel” guaranteed the
                   defendant by the Sixth Amendment. Second, the defendant must
                   show that the deficient performance prejudiced the defense. This
                   requires showing that counsel’s errors were so serious as to deprive
                   the defendant of a fair trial, a trial whose result is reliable. Unless a
                   defendant makes both showings, it cannot be said that the conviction
                   or death sentence resulted from a breakdown in the adversary process
                   that renders the result unreliable.

Strickland, 466 U.S. at 687.

                                                     15
reinstated, based not only on Wood’s testimony regarding his availability and willingness to resume

representation, but also on Pinkney’s Sixth Amendment right to counsel. See generally Gov’t Mot.,

Ex. I. The brief also challenged the trial court’s conclusion that a conflict of interest existed at the

time Pinkney’s trial began. See id. at 27–31. It cannot be said that Willmott’s identification of

appealable issues was somehow deficient.

                According to Pinkney, Willmott erred by conceding a factual matter at oral argument

– that Henderson remained a potential rebuttal witness for the government – and in effect, by

admitting the existence of a conflict of interest barring Wood’s reinstatement. See Pet’r’s Reply at

21–23. Pinkney asserts that the Superior Court’s ruling was “erroneous and not supported by the

record,” id. at 17; see also id. at 19, in light of the testimony presented by Wood, Henderson and

Henderson’s attorney. See id. at 4–10. If Willmott had relied on their testimony and argued in favor

of application of the “clearly erroneous” standard of review, Pinkney asserts, “the record already

established on the remand hearing . . . would have gained a reverse [sic] with the evidence

presented.” Id. at 26.

                The pertinent exchange at oral argument proceeded as follows:

        JUDGE:                  Well, doesn’t everything turn on a factual finding that the trial
                                judge made, namely the factual finding that Henderson would
                                have been a potential government witness? If that factual
                                finding stands, doesn’t everything else follow?

        MR. WILLMOTT:          No. I do not think so because of two things. The question of
                               whether Henderson would be a government witness, there’s
                               no doubt that the trial court was correct in that Henderson was
                               a potential government witness, a potential rebuttal witness.
                               But I think that the appellate court –

        JUDGE:                  So you concede that fact?



                                                  16
       MR. WILLMOTT:           Yes. That he was a potential witness.

       JUDGE:                  What you found, though, was there a very strong possibility.
                               That’s the factual finding. There was a very strong
                               possibility. That’s the factual finding. There was a very
                               strong possibility that Henderson would be a rebuttal witness.

       MR. WILLMOTT:           That’s where I believe that the Court erred because –

       JUDGE:                  Erred or there is no substantial evidence to support that?

       MR. WILLMOTT:           Well, I don’t think there was substantial evidence either
                               because –

       JUDGE:                  I mean, that’s a factual finding. It’s not a legal issue. It’s just
                               was there a strong possibility or not. And the trial court I
                               thought had assumed from the testimony of government
                               counsel, which I assume she could credit, that there was a
                               very strong possibility. Is that – do I have it wrong?

       MR. WILLMOTT:           Well, essentially the Court could look at the testimony but it
                               also had to look at the facts, and the facts were that
                               Henderson was not (inaudible), Henderson was not
                               (inaudible) in. Henderson would have been an uncooperative
                               witness.

       JUDGE:                  Your argument is that the finding was clearly erroneous?

       MR. WILLMOTT:           That’s one of my arguments.

       JUDGE:                  But if it’s not clearly erroneous, doesn’t that really resolve the
                               issue before us?

       MR. WILLMOTT:           No. Because I think the Court has to still revisit that issue
                               because the standard – I believe it’s a de novo standard.

Gov’t Mot., Ex. L (excerpt of transcript of oral argument on September 16, 2006) at 4:7 to 6:1.

Contrary to Pinkney’s assertions, Willmott not only argued that the trial judge’s findings were clearly

erroneous, but also attempted to expand the scope of the Court of Appeals’s review.




                                                  17
               If, as Pinkney insists, the Court of Appeals limited itself to a “clearly erroneous”

standard, it would not disturb the trial court’s findings of fact as long as they were supported by

evidence in the record. See Veney, 738 A.2d at 1193. The relevant factual finding here was that

Henderson remained a potential rebuttal witness for the government. It followed that the conflict

of interest persisted, barring Wood’s reinstatement as Pinkney’s defense counsel. If the Court of

Appeals were to conduct a de novo review, however, Pinkney would have benefitted from a fresh

consideration of Wood’s disqualification. In this scenario, the Court of Appeals could have made

its own findings of fact based on the record before the trial court. If it were to conclude that

Henderson was not a potential rebuttal witness, that Wood was willing and able to resume his

representation of Pinkney, and that Henderson’s rights would not be infringed thereby, the Court of

Appeals could have vacated the judgment and ordered a new trial. In short, de novo review of

Henderson’s status as a potential rebuttal witness offered Pinkney a better chance of success on

appeal, and Willmott argued for de novo review.

               The Court of Appeals concluded that the trial court conducted “a full hearing on

remand, [and] found that there remained a very strong possibility that the government could call

Henderson as a rebuttal witness (which did not have to be shown on the witness list).” Gov’t Mot.,

Ex. C (Memorandum Opinion and Judgment, Pinkney v. United States, No. 04-CO-1501 (D.C. Ct.

App. Oct. 25, 2006)) at 1 (internal quotation marks omitted). Pinkney took “issue with the finding

as a factual matter, but [the Court of Appeals] ‘accepts the trial court’s findings of fact unless they

lack evidentiary support.’” Id. (quoting Veney, 738 A.2d at 1193). The Court of Appeals found, and

this Court concurs, that the trial judge’s “finding is based on ample support in the record . . . and




                                                  18
is determinative where no other circumstances are demonstrated which would dissipate the factors

indicating a serious potential of conflict.” Id. at 1–2 (footnote omitted).

                                      III. CONCLUSION

               Pinkney’s claims of trial court error are matters which have been properly raised in

the Superior Court by motion under D.C. Code § 23-110 and reviewed by the District of Columbia

Court of Appeals. Pinkney has not demonstrated any error on the part of his appellate counsel, let

alone an error of such severity that it caused him to lose his appeal. Therefore, his claim of

ineffective assistance of appellate counsel must fail. For these reasons, the Petition for a Writ of

Habeas Corpus [Dkt. # 1] will be denied, Respondent’s Motion to Dismiss the Petition for a Writ

of Habeas Corpus [Dkt. # 28] will be granted, and this civil action will be dismissed. A

memorializing Order accompanies this Memorandum Opinion.



Date: August 9, 2011                                            /s/
                                                  ROSEMARY M. COLLYER
                                                  United States District Judge




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