Dubose, Jr. v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CO-674

ERWIN DUBOSE, JR., APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2015 CF2 008219)

(Hon. Juliet J. McKenna, Trial Judge)

(Submitted April 4, 2019 Decided August 8, 2019)

Jenifer Wicks was on the brief for appellant Erwin Dubose, Jr.

Jessie K. Liu, United States Attorney, and Elizabeth Trosman, T. Anthony

Quinn, and Chrisellen R. Kolb, Assistant United States Attorneys, were on the

brief for appellee.

Before FISHER, BECKWITH, and MCLEESE, Associate Judges.

FISHER, Associate Judge: A jury convicted appellant Erwin Dubose, Jr., of

possession with intent to distribute cocaine while armed, possession of a firearm

during a crime of violence or dangerous offense (“PFCV”), carrying a pistol

without a license (“CPWL”), possession of an unregistered firearm (“UF”),

unlawful possession of ammunition (“UA”), and possession of a large capacity

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ammunition feeding device. We affirmed his convictions on direct appeal. See

Dubose v. United States, No. 16-CF-610, Mem. Op. & J. (D.C. Sept. 12, 2017).

The trial court subsequently denied relief under D.C. Code § 23-110 (2012 Repl.),

and this appeal followed. We affirm.

I. Background

On June 16, 2015, Metropolitan Police Department (“MPD”) Officers Van

Hook and McGinnis responded to a radio call for a black male wearing jeans, a

white tank top, and a colorful hat, carrying a gun in front of 830 Crittenden Street,

N.W. The officers saw a man matching the description at the intersection of 8th

and Crittenden Streets. Officer Van Hook stopped the police vehicle and asked to

talk to the man, and the man took off running. Officers Heffelman and Fitzgerald

arrived at the scene and Officers Van Hook and McGinnis eventually brought

appellant to the ground.

Appellant told the officers, “I’m going to tell you, I’m going to tell you, it’s

in my waist, it’s in my waist.” An officer felt a hard object in appellant’s

waistband which he recognized to be a gun. A pat down and search of appellant

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revealed a pistol loaded with fourteen cartridges in an extended magazine, 12.2

grams of crack cocaine, and $1,339 in cash.

At trial, appellant testified that he had purchased the drugs the day before to

cope with his sister’s death and the money was from odd jobs and his family. He

asserted that while he was on the way to a friend’s house, he stopped to urinate in

an alley, found the gun lying on the ground, and was walking to the police station

to turn it in for a reward. Appellant stated that he ran when police approached

because he was “confused and scared, didn’t know what to do.”

This court affirmed his convictions on direct appeal, rejecting arguments that

the trial court erred in denying his motion to suppress evidence and in refusing to

instruct the jury on the defense of temporary innocent possession of the firearm

and ammunition. See Mem. Op. & J. at 1, 5. On October 1, 2017, appellant

moved to vacate his convictions for CPWL, UF, and UA, claiming that he had

been denied the effective assistance of counsel and that those convictions violated

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the Second Amendment.1 Judge McKenna denied appellant’s motion in an order

issued on June 15, 2018.

II. Ineffective Assistance of Counsel Claim

Appellant argued that his trial counsel was ineffective “because he failed to

move to dismiss the gun charges pursuant to the Second Amendment of the United

States Constitution.” The trial court denied appellant’s § 23-110 motion, finding

that “a motion to dismiss these charges would have been fruitless.”

We review the trial judge’s legal conclusions de novo and “accept the

judge’s factual findings unless they lack evidentiary support.” Bost v. United

States, 178 A.3d 1156, 1210 (D.C. 2018). In order to obtain relief based on

ineffective assistance of counsel, “appellant must demonstrate both that his

counsel’s performance was constitutionally deficient, and that the deficient

performance prejudiced his defense.” Id. (alteration omitted) (quoting Otts v.

United States, 952 A.2d 156, 164 (D.C. 2008)); see Strickland v. Washington, 466

U.S. 668, 687 (1984). “To establish prejudice, appellant must show that there is a

1

Appellant does not challenge his convictions for possession of cocaine

with intent to distribute while armed, PFCV, and possession of a large capacity

ammunition feeding device.

5

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

proceeding would have been different.” Bost, 178 A.3d at 1210 (internal quotation

marks omitted).

‘“Judicial scrutiny of counsel’s performance must be highly deferential,’ and

‘a court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.”’ Turner v. United States, 166

A.3d 949, 953 (D.C. 2017) (quoting Strickland, 466 U.S. at 689). The proper

measure of attorney performance is “reasonableness under prevailing professional

norms.” Cosio v. United States, 927 A.2d 1106, 1123 (D.C. 2007) (en banc)

(quoting Strickland, 466 U.S. at 688). “A fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of hindsight . .

. .” Strickland, 466 U.S. at 689. Therefore, “we must ‘judge the reasonableness of

counsel’s challenged conduct on the facts of the particular case, viewed as of the

time of counsel’s conduct.”’ Otts, 952 A.2d at 164 (emphasis in Otts) (quoting

Strickland, 466 U.S. at 690).

At the time appellant was arrested, District law required a person applying

for a license to carry a pistol to show “good reason” for needing to carry a firearm.

See D.C. Code § 22-4506(a) (effective June 16, 2015) (2016 Supp.) (limiting

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licenses to those who can show “good reason to fear injury” or “any other proper

reason for carrying a pistol”). Appellant appears to argue that his trial counsel

should have asserted that this requirement was invalid, as the District of Columbia

Circuit later held in Wrenn. The D.C. Circuit concluded that “the individual right

to carry common firearms beyond the home for self-defense . . . falls within the

core of the Second Amendment’s protections” and remanded for the district court

to enjoin enforcement of the District’s “good reason” law. Wrenn v. District of

Columbia, 864 F.3d 650, 661, 668 (D.C. Cir. 2017). What appellant fails to

acknowledge is that Wrenn was decided one year after his jury trial and

sentencing. Moreover, “[t]his court has consistently held, contrary to Wrenn, that

there is no Second Amendment right to carry a concealed firearm in public.”

Hooks v. United States, 191 A.3d 1141, 1144 n.3 (D.C. 2018) (citing Gamble v.

United States, 30 A.3d 161, 169 (D.C. 2011)); Mack v. United States, 6 A.3d 1224,

1236 (D.C. 2010)).

In any event, “failure to anticipate a change in the law is not ineffective

assistance of counsel.” Stratmon v. United States, 631 A.2d 1177, 1185 (D.C.

1993). Given this court’s prior rulings on Second Amendment issues, and the

obligation of the Superior Court to follow those precedents, appellant cannot

establish that his counsel’s performance was deficient. Moreover, for the reasons

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we explain below, appellant cannot establish that he was prejudiced by his

counsel’s failure to anticipate the D.C. Circuit’s holding in Wrenn.

III. Second Amendment Claim

Even if appellant had raised a Second Amendment challenge to the CPWL,

UF, and UA counts at or before trial, that challenge would have failed for various

sound reasons.2

A. The UF and UA Convictions

2

Appellant did not raise his Second Amendment claim at trial or on direct

appeal. Wrenn was decided in July 2017, but this court did not issue its

Memorandum Opinion and Judgment in appellant’s direct appeal until September

2017. Appellant did not seek leave to file a supplemental brief. “Section 23-110 is

not a substitute for a direct appeal. Thus, where a defendant has failed to raise an

available challenge to his conviction on direct appeal, he may not raise that issue

on collateral attack unless he shows both cause for his failure to do so and

prejudice as a result of his failure.” Wu v. United States, 798 A.2d 1083, 1089

(D.C. 2002) (alteration, internal citations, and internal quotation marks omitted).

However, the government did not raise a claim of procedural default in the § 23-

110 proceedings. Moreover, the government states that we need not decide in this

appeal whether appellant has procedurally defaulted his free-standing Second

Amendment claim because “the Court must examine the Second Amendment

claim to resolve the ineffectiveness claim.”

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“[N]o person . . . in the District shall possess or control any firearm, unless

the person . . . holds a valid registration certificate for the firearm.” D.C. Code § 7-

2502.01(a) (2015 Supp.). Furthermore, no person shall possess ammunition in the

District unless he has a valid registration certificate for a firearm. D.C. Code § 7-

2506.01(a)(3) (2015 Supp.). Appellant stipulated at trial that he did not hold such

a registration certificate, and the jury found him guilty of possessing the firearm

and ammunition.

Appellant now asserts that these convictions violate the Second Amendment,

but he cites no controlling authority for that proposition. Although Wrenn

invalidated the “good reason” provision of the licensing statutes, it did not disturb

the separate requirement to register a firearm. Wrenn, 864 F.3d at 666-68

(summarizing holding). “[B]asic registration of handguns is deeply enough rooted

in our history to support the presumption that a registration requirement is

constitutional.” Heller v. District of Columbia, 670 F.3d 1244, 1253 (D.C. Cir.

2011). We have held that certain qualifications for firearms registration “are

compatible with the core interest protected by the Second Amendment.” Lowery v.

United States, 3 A.3d 1169, 1176 (D.C. 2010).

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Registration remains a prerequisite for lawfully possessing a firearm or

ammunition in the District of Columbia. Nothing in Wrenn or Supreme Court

precedent has invalidated the provisions cited above requiring registration of a

firearm. Therefore, appellant’s UF and UA convictions stand.

B. The CPWL Conviction

Appellant also argues that the CPWL statute is invalid both facially and as

applied to him. 3 A facial challenge “amounts to an argument that no application of

the CPWL statute could be constitutional.” Brown v. United States, 979 A.2d 630,

639 (D.C. 2009) (internal quotation marks omitted). “An ‘as-applied’ challenge

requires that the application of the statute, by its own terms, infringe constitutional

freedoms in the circumstances of the particular case.” Lowery, 3 A.3d at 1175

(alterations and internal quotation marks omitted). In other words, “an as-applied

challenge is ‘a claim that a statute is unconstitutional on the facts of a particular

case or in its application to a particular party.’” Id. (quoting BLACK’S LAW

DICTIONARY 261 (9th ed. 2009)).

3

Appellant’s brief to this court is less than clear as to whether he is raising

an as-applied challenge, but the trial judge’s order from which he appeals

addressed and rejected an as-applied claim as well as a facial challenge. The

government has briefed the appeal as if appellant were still pursuing an as-applied

challenge, and appellant did not file a reply brief disclaiming such an argument.

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As discussed above, this court continues to recognize after Wrenn that “there

is no Second Amendment right to carry a concealed firearm in public.” Hooks,

191 A.3d at 1144 n.3 (internal quotation marks omitted). “We are not bound by

Wrenn, ‘and the fact that a constitutional issue is presented here does not compel

us to give greater weight to the circuit court’s opinion.’” Id. at 1144 n.3 (alteration

omitted) (quoting United States v. Simmons, 302 A.2d 728, 732 (D.C. 1973)).

In order to carry a pistol lawfully outside the home, a person must have a

license to do so. D.C. Code § 22-4504(a) (2016 Supp.) (“No person shall carry

within the District of Columbia either openly or concealed on or about their person

a pistol, without a license . . . .”). That prohibition was in effect at the time of

appellant’s arrest. Moreover, as we explained in Hooks, Wrenn did not invalidate

the statute which prohibits carrying a pistol without a license.

However, at the time appellant was arrested, the statute which dealt with the

issuance of licenses contained the “good reason” provision later invalidated in

Wrenn. Appellant’s primary argument therefore seems to be that, because he could

not satisfy the “good reason” requirement, no valid statute prohibited him from

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carrying a pistol without a license. This assertion is based on a misreading of

Wrenn.

Wrenn did not invalidate the statutory scheme which required a person to

obtain a license to carry a pistol outside the home. Severing the “good reason”

provision in light of Wrenn, D.C. Code § 22-4506 remains operative and reads:

“The Chief of the Metropolitan Police Department . . . may, upon the application

of a person having a bona fide residence or place of business within the District of

Columbia, . . . issue a license to such person to carry a pistol concealed upon his or

her person, if . . . he or she is a suitable person to be so licensed.” Hooks, 191 A.3d

at 1146. This court has repeatedly affirmed the facial constitutionality of the

District’s licensing requirements. See, e.g., Brown, 979 A.2d at 639-40 (explaining

that the CPWL statute is not invalid on its face).

Nor has appellant demonstrated that the CPWL statute is unconstitutional as

applied to him. Even after Wrenn, registering a pistol remains a prerequisite for

obtaining a license to carry that pistol in the District of Columbia. See D.C. Code

§ 7-2509.02(a)(2) (2015 Supp.). Appellant stipulated at trial that he had not

registered the firearm. (In fact, he unconvincingly disavowed ownership of the

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pistol and testified that he found it in an alley and was going to turn it in to the

police for a reward.)

Appellant thus has not established that the “good reason” requirement in

effect at the time of his arrest unconstitutionally precluded him from obtaining a

license to carry a pistol. In order for the “good reason” requirement to have that

impact, appellant would have to be otherwise qualified to receive a license. As

noted, he had not in fact registered the pistol. We therefore agree with the trial

court’s conclusion that appellant’s “failure to register his weapon is fatal” to any

as-applied Second Amendment challenge to his CPWL conviction. Furthermore,

to be a “suitable person” qualified for a concealed-carry license, the applicant must

meet all of the requirements for registering a firearm. See 24 DCMR § 2335.1

(2015) (“A person is suitable to obtain a concealed carry license if he or she

[m]eets all of the requirements for a person registering a firearm . . . ; [h]as

completed a firearms training course . . . ; [and] [h]as not exhibited a propensity for

violence . . . .” (among other conditions); see also D.C. Code §§ 22-4506 (2016

Supp.), 7-2502.03 (2015 Supp.).4 Appellant has not demonstrated that he was a

“suitable person” at the time of his arrest.

4

The qualifications for registration of a firearm include, among other

things, never having been convicted of a felony, not having been convicted within

(continued…)

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IV. Conclusion

Appellant has not established ineffective assistance of counsel. Moreover,

his Second Amendment claim is without merit. For the reasons discussed, the

judgment of the Superior Court is

Affirmed.

(…continued)

five years prior to the application for registration of “any law restricting the use,

possession, or sale of any narcotic,” and completing a firearms training course.

D.C. Code § 7-2502.03(a)(2), (a)(4)(A), (a)(13)(A)-(B) (2015 Supp.).