Amicus Curiae Brief — Carlton J. Blount, Petitioner v. United States
Supreme Court briefMar 28, 2018
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No. 17-8011
IN THE
npremt &tul of gle lbftb tatø
CARLTON J. BLOUNT,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR
COURT OF APPEALS-APPOINTED AMICUS
AS AMICUS CURIAE IN SUPPORT OF PETITIONER
SETH P. WAXMAN
DAVID M. LEHN
Counsel of Record
ARPIT K. GARG
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
david.lehn@wilmerhale.com
General Page 2
QUESTIONS PRESENTED
Whether federal courts should take a functional
approach to assessing whether a state court reopened
direct appeal for purposes of computing the limitations
period under the Antiterrorism and Effective Death
Penalty Act of 1996;
Whether, absent a request by the government
to be relieved of a mistaken concession that renders a
habeas petition timely or a sua sponte finding of extraordinary circumstances to do so, a federal court of
appeals lacks authority to disregard the government's
concession and dismiss the petition as untimely;
Whether a federal habeas court acts improperly if it denies a certificate of appealability based on its
resolution of the ultimate merits of the issue for which
a certificate of appealability is sought.
(i)
General Page 3
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............................................
TABLE OF AUTHORITIES ..........................................vi
INTEREST OF AMICUS.................................................1
INTRODUCTION..............................................................2
STATEMENT.....................................................................4
Factual Background .............................................4
The Decision Below..............................................8
REASONS FOR GRANTING THE PETITION...........12
THE COURT ERRONEOUSLY REFUSED To
ASSESS WHETHER THE D.C. COURT OF
APPEALS HAD FUNCTIONALLY REOPENED
DIRECT APPEAL FOR PURPOSES OF
COMPUTING THE HABEAS LIMITATIONS
PERIOD .........................................................................12
THE COURT CONTRADICTED THIS COURT'S
CLEAR PRECEDENT IN RELIEVING THE
GOVERNMENT
OF
ITS
MISTAKEN
CONCESSION WHERE THE GOVERNMENT
HAD NOT REQUESTED SUCH RELIEF AND
THE COURT DID NOT DETERMINE THAT
EXTRAORDINARY
CIRCUMSTANCES
WARRANTED SUCH RELIEF......................................18
THE COURT FURTHER CONTRADICTED
THIS COURT'S CLEAR PRECEDENT BY
DENYING THE COA BASED ON ITS
RESOLUTION OF THE ULTIMATE MERITS
OF THE APPEAL.......................................................... 20
CONCLUSION................................................................. 23
General Page 4
iv
TABLE OF CONTENTS—Continued
Page
APPENDIX
Opinion of the United States Court of Appeals
for the District of Columbia Circuit, Blount
v. United States, 860 F.3d 732 (June 27,
2017) ....................................................................App.la
Memorandum Opinions of the United States
District Court for the District of Columbia:
Dismissing petition for a writ of habeas
corpus (September 25,2014) .......................... App.38a
Denying motion for reconsideration (January 7, 2015) .......................................................App.49a
Denying motion for a certificate of appealability (March 13, 2015) ..................................App.51a
Orders of the United States Court of Appeals
for the District of Columbia Circuit:
Referring COA motion to the merits panel
and appointing counsel as amicus curiae
(February 18,2016) ......................................... App.54a
Denying petition for panel rehearing (November 14, 2017)..............................................App.56a
Denying petition for rehearing en bane
(November 14,2017) ....................................... App.58a
Opinions and Orders of the District of Columbia Court of Appeals:
Affirming judgment of the trial court (June
29, 2004) ............................................................App.60a
General Page 5
V
TABLE OF CONTENTS—Continued
Page
Affirming denial of § 23-110 petition (November 10, 2009) .............................................. App.72a
Ordering briefing on motion to recall the
mandate (August 29,2012).............................App.75a
Denying motion to recall the mandate (October 11, 2012) .................................................. App.77a
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V1
TABLE OF AUTHORITIES
CASES
Page(s)
Buck v. Davis, 137 S. Ct. 759 (2017) ..........3,11,17,20-21
Carey v. Saffold, 536 U.S. 214 (2002) .........................3, 14
Day v. McDonough, 547 U.S. 198 (2006).................... 4, 19
Head v. United States, 626 A.2d 1382 (D.C.
1993) ............................................................................... 6
Irwin v. Department of Veterans Affairs,
498 U.S. 89 (1990) .......................................................10
Jefferson v. Budge, 419 F.3d 1013 (9th Cir.
2005) ............................................................................... 9
Jimenez v. Quarterinan, 555 U.S. 113 (2009) ...3,8,12-13
Jordan v. Fisher, 135 S. Ct. 2647 (2015).........................22
Long v. United States, 83 A.3d 369 (D.C.
2013) ........................................................9, 13,15-16,22
Lynch v. Dolce, 789 F.3d 303 (2d Cir. 2015)...................22
Miller-El v. Cockrell, 537 U.S. 322 (2003)................. 4, 11
Pace v. DiGuglielmo, 544 U.S. 408 (2005) ....................... 9
Panetti v. Quarterman, 551 U.S. 930 (2007) .................23
Porter v. McCollum, 558 U.S. 30 (2009).........................22
Rhines v. Weber, 544 U.S. 269 (2005) ............................... 9
Smith v. Robbins, 528 U.S. 259 (2000)............................22
Urcinoli v. Cathel, 546 F.3d 269 (3d Cir. 2008)............... 9
Watson v. United States, 536 A.2d 1056 (D.C.
1987) ................................................................7-8, 14-15
Williams v. Taylor, 529 U.S. 362 (2000) ........................23
General Page 7
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Wilson-Bey v. United States, 903 A.2d 818
(D.C. 2006).....................................................................5
Wood v. Milyard, 566 U.S. 463 (2012) ........................3, 18
Young v. United States, 535 U.S. 43 (2002) .....................9
STATUTES AND RULES
28 U.S.C.
§2244 ............................................................. 8, 10, 12, 14
§2253.............................................................................22
D.C. Code §23-110 ......................................... 6,10-11,18,20
General Page 8
IN THE
upmnc Qimwt of tI Thttteh tatrø
No. 17-8011
CARLTON J. BLOUNT,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR
COURT OF APPEALS-APPOINTED AMICUS
AS AMICUS CURIAE IN SUPPORT OF PETITIONER
INTEREST OF AMICUS'
Undersigned counsel of record, David M. Lehn, was
appointed by the United States Court of Appeals for
the District of Columbia Circuit to serve as amicus Curiae in favor of petitioner. In that capacity, Mr. Lehn
filed opening and reply briefs and presented oral arguNo counsel for a party authored this brief in whole or in
part. Neither such counsel nor a party made a monetary contribution intended to fund the preparation or submission of this brief,
and no person or entity other than amicus and his law firm made
such a monetary con-tribution. Counsel of record for the parties
received timely notice of amicus's intent to file this brief. The parties' letters consenting to the filing of this brief are on file with the
Clerk.
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2
ment. Although Mr. Lehn's appointment has concluded, he believes this Court would benefit frOm additional
discussion of the issues presented by the pro se certiorari petition.
INTRODUCTION
Canton Blount was convicted of murder in D.C.
Superior Court—even though his trial counsel objected
that the jury instruction unconstitutionally permitted
conviction without the requisite mens rea; even though
the jury instruction was later held unconstitutional in
another case; and even though the government has
never argued that there was sufficient evidence to find
him guilty under a constitutionally valid instruction.
Unfortunately for Blount, his direct-appeal counsel
did not pursue the objection on appeal—even though
the instruction was, as the D.C. Court of Appeals
acknowledged, "under active criticism and discussion at
the time"; even though Blount had specifically directed
his appellate counsel to raise the objection; and even
though most of the arguments that appellate counsel
did raise were so weak that the D.C. Court of Appeals
"summarily dispose[d]" of them in a single footnote.
Blount has since filed two federal habeas petitions
in the United States District Court for the District of
Columbia on the ground that his direct-appeal counsel's
failure to raise the preserved and meritorious constitutional objection to the jury instruction qualified as ineffective assistance of appellate counsel ("IAAC"). The
district court dismissed the first petition for lack of exhaustion—erroneously, because the court should have
held the petition in abeyance pending exhaustion—and
dismissed the second as untimely. Blount's certiorari
petition concerns the erroneous dismissal of his second
habeas petition.
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3
After the district court denied Blount a certificate
of appealability ("COA") on its dismissal of the second
habeas petition, Blount appealed to the United States
Court of Appeals for the District of Columbia Circuit
and sought a COA from that court, arguing (with Amicus's support) that his second habeas petition was timely because either the D.C. Court of Appeals had restarted the limitations clock by reopening his direct appeal via a motion to recall the mandate, or he was entitled to sufficient equitable tolling in light of his first habeas petition. In a published opinion, the panel voted 21 to reject those arguments and denied Blount a COA.
Judge Williams dissented.
The ruling below conflicts with this Court's precedent in three ways. First, under Jimenez v. Quarterman, 555 U.S. 113 (2009), Carey v. Saffold, 536 U.S. 214
(2002), and Buck v. Davis, 137 S. Ct. 759 (2017), the
court erroneously took a formalistic rather than functional approach to determine whether the D.C. Court of
Appeals had reopened Blount's direct appeal. Second,
under Wood v. Milyard, 566 U.S. 463 (2012), the court
had no authority to sua sponte relieve the government
of its concession (mistaken though it was) that Blount's
first habeas petition had been timely filed, absent a
finding that exceptional circumstances justified such
relief. And third, under Buck the court erroneously
denied the COA based on its resolution of the ultimate
merits of the appealed issue rather than the requisite
threshold assessment.
The petition for a writ of certiorari should be
granted, and a COA issued, both because Blount deserves to have his potentially meritorious IAAC claim
heard and because correction of the errors below will
affect how lower courts resolve timeliness questions for
countless federal habeas petitions.
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Moreover, the second and third errors implicate
this Court's power to supervise appellate courts' application of important federal standards. This Court has
repeatedly sought to clarify and enforce these standards in the face of their misapplication—in Wood and
Buck, as well as Day v. McDonough, 547 U.S. 198
(2006), and Miller-El v. Cockrell, 537 U.S. 322 (2003).
That the decision below so plainly contravenes these
standards shows that those precedents may be insufficient to ensure lower courts' compliance. Consequently, this Court should consider summarily reversing the
decision below on Questions Two and Three in light of
Wood and Buck to emphasize the proper application of
the standards they articulate.
STATEMENT
A. Factual Background2
1. Canton Blount was charged with two counts of
murder in D.C. Superior Court. "At trial, the government's primary theory was that Blount alone shot the
victims. Blount's defense was that one of his friends
pulled the trigger." App.2a. As the trial progressed, it
became evident that Blount had a legitimate defense to
the prosecution's primary theory. The government
acknowledged that "on this record a reasonable juror
could say, 'we are not sure who the shooter is." C.A.
JA87; see also C.A. JA69 ("I think a jury could find that
they can't necessarily agree on who the shooter is").
Indeed, the D.C. Court of Appeals later observed that
Blount had "presented evidence, which if believed,
2 This discussion focuses on the essential elements of this
case's lengthy procedural history. For a more complete treatment, see Amicus C.A. Br. 6-20,40-44.
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could establish that [someone else], not Canton Blount
was the shooter." App.70a n.12.
Crediting that possibility, the trial judge instructed
the jury that Blount could be guilty of murder as an accomplice if the homicide was the "natural and probable
consequence[]" of some other crime "in which he intentionally participate[d]," even if he did not have "the
same intent that the principal offender had." App.2a.
Blount's trial counsel objected that the accomplice instruction "eliminated the mens rea element of the
[murder] offense, violating the Sixth Amendment's
guarantee of a jury verdict on every element." App.3a.
The judge overruled the objection and gave the problematic accomplice instruction (as well as a principal
instruction), and the jury convicted Blount of both
murders in a general verdict. Id.
On direct appeal, Blount's appellate counsel failed
to raise Blount's constitutional objection to the accomplice instruction. There was no legitimate justification
for that failure, as the D.C. Court of Appeals later concluded. See App.73a (rejecting Blount's contention that
"his appellate counsel was justified in not raising the
issue on direct appeal"). Blount had specifically directed his appellate counsel in writing to raise the objection, see C.A. JA142, JA144, and the objection was
preserved and clearly had merit—as the D.C. Court of
Appeals later observed, the instruction "was under active criticism and discussion at the time," App.73a, and
indeed in a subsequent case, Wilson-Bey v. United
States, 903 A.2d 818 (D.C. 2006), "held unconstitutional
the very same jury instruction used in Blount's case, on
the very grounds that Blount had raised at trial,"
App.3a. Moreover, that objection was obviously far
stronger than the three objections raised on appeal that
the D.C. Court of Appeals "summarily dispose[d]" of in
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as single footnote. App.64a, 70a n.12; see App.28a-29a
(Williams, J., dissenting).
After Blount's convictions were affirmed, he filed a
pro se motion for post-conviction relief under D.C. Code
§23-110, asserting his constitutional objection to the accomplice instruction. App.3a-4a. Although the D.C.
Court of Appeals had decided Wilson-Bey during the
motion's pendency, the Superior Court denied Blount's
motion, and the D.C. Court of Appeals affirmed, finding
that the claim was "procedurally defaulted because
Blount had failed to raise it on direct appeal." Id.
Blount filed a pro se federal habeas petition asserting (among other things) an IAAC claim, which the district court dismissed for failure to exhaust. App.4a. In
the District of Columbia, the mechanism to assert an
IAAC claim is a motion to the D.C. Court of Appeals to
recall the mandate issued on direct appeal. id. Blount
had not filed such a motion because, understandably, he
did not grasp "the District's byzantine process for pursing [IAAC] claims," App.32a (dissent), and the same
direct-appeal counsel who had failed to raise the accomplice-instruction objection had also abruptly terminated his representation upon the denial of Blount's direct appeal without informing Blount of his options for
post-conviction relief. See Amicus C.A. Br. 13-14, 3536.
Now aware of his obligations, Blount "diligent[ly]
filed his [pro sell motion to recall just 31 days after
the COA on his first [habeas] petition was denied."
App.30a-31a (dissent). The D.C. Court of Appeals will
Direct-appeal counsel's failure to "advise [Blount] of such
further legal remedies as may be available to him" was itself professionally deficient conduct. Head v. United States, 626 A.2d
1382, 1384 n.4 (D.C. 1993).
General Page 14
grant a recall motion if it has "on [its] face sufficient
merit." Watson v. United States, 538 A.2d 1056, 1060
(D.C. 1987) (en bane). Upon receiving Blount's recall
motion, the D.C. Court of Appeals issued an order stating:
it appearing that, in finding appellant guilty of
murder, the jury may have relied upon the aiding and abetting instruction which included the
language this court held to be unconstitutional in Wilson-Bey
and it further appearing that while trial counsel objected to the instruction as improperly eliminating the essential element of mens rea, appellate counsel did
not raise the Wilson-Bey issue on direct appeal,
it is ordered
that [the government] shall
file a response to the motion to recall the mandate addressing the issues raised in appellant's
motion, including whether appellant's counsel
on appeal rendered deficient performance in
failing to challenge the constitutionality of the
aiding and abetting instruction, and if so
whether there is a reasonable likelihood that
this court would have granted appellant a new
trial.
...,
...
App.75a-76a. The court also ordered "that the motion
to recall the mandate is held in abeyance until further
order of the court." App.76a.
After receiving the government's response brief,
the D.C. Court of Appeals ordered "that the motion to
recall [the] mandate is denied." App.77a. The court
explained:
[B]ased upon the entire record, any error was
harmless due to the overwhelming evidence
presented at trial and the government's theory
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that appellant was the sole shooter. Therefore,
appellant has not met the high standard necessary to recall the mandate.
App77a-78a.
Finally, Blount filed the current pro se habeas petition on September 18, 2013. The district court dismissed the petition as untimely under the one-year limitations period imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28
U.S.C. §2244(d)(1). App.5a. The court also denied
Blount's motion for reconsideration and his motion for a
COA. Id.
B. The Decision Below
Blount timely appealed the dismissal and sought a
COA from the United States Court of Appeals for the
District of Columbia Circuit. A motions panel referred
his COA motion to the merits panel and appointed
Amicus. App.54a-55a. The merits panel then received
full briefing from the parties and Amicus, heard oral
argument by Amicus and the government, and denied
the COA. App.20a.
Although Blount's habeas petition appeared to be
untimely, App.7a-8a, he and Amicus argued that it was
indeed timely for two separate and independent reasons. First, under Jimenez v. Quartern?an, the D.C.
Court of Appeals had reset the limitations clock when it
reopened direct review in the course of evaluating the
recall motion; the new clock did not begin to run until
after that court's October 2012 denial of the recall motion, less than one year before this habeas petition was
filed. See 555 U.S. 113, 119 (2009); App.8a-9a. Under
D.C. procedure, if the recall motion has "on [its] face
sufficient merit," Watson, 536 A.2d at 1060, the court
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"recall[s] the mandate and reopen[s] the movant's appeal in order to fully explore and then decide whether
there was ineffective assistance of counsel on the first
appeal," Long v. United States, 83 A.3d 369, 378 (D.C.
2013) (quotation marks omitted). Blount and Amicus
argued that, although the D.C. Court of Appeals had
formally denied Blount's recall motion, its orders revealed that "functionally" it had reopened the direct
appeal. App.13a. The court below, however, refused to
take a functional approach and declared simply that the
D.C. Court of Appeals had not reopened the direct appeal because it "expressly 'ordered that the motion to
recall mandate be denied." App.14a. (quoting D.C. Ct.
App. order).
Second, Amicus argued that Blount was "entitled
to equitable tolling that would make his habeas petition
timely." App.15a. Amicus presented two theories of
equitable tolling. One theory was based on the district
court's erroneous dismissal of Blount's first habeas petition for failure to exhaust. Under Rhines v. Weber,
the district court should have held that petition in
abeyance while Blount exhausted. 544 U.S. 269, 278
(2005). This erroneous dismissal was an "extraordinary
circumstance [that] stood in [Blount's] way" because it
unnecessarily jeopardized the timeliness of his potentially meritorious IAAC claim. Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005). Thus, because Blount had
"pursu[ed] his rights diligently" by promptly exhausting upon that dismissal and then returning to federal
court via the current habeas petition, he was entitled to
equitable tolling until that return. Id.; see App.30a-32a
(dissent); see also, e.g., Urcinoli v. Cat hel, 546 F.3d 269,
274-276 (3d Cir. 2008); Jefferson v. Budge, 419 F.3d
1013, 1016-1017 (9th Cir. 2005).
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10
The other theory was that Blount's first habeas petition was a "defective pleading" entitling him to equitable tolling during its pendency. Young v. United
States, 535 U.S. 43, 50 (2002) (quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)). That
period of equitable tolling was sufficient to render this
habeas petition timely when combined with various periods of statutory tolling to which Blount was entitled.
App.15a.
The court below recognized that both theories
worked only if Blount's first habeas petition was itself
timely. The government affirmatively conceded that it
was timely, App.17a, but Amicus candidly advised the
Court that the government's position appeared to rest
on factual and legal errors. The government believed
that Blount's §23-110 motion statutorily tolled the limitations period (see 28 U.S.C. §2244(d)(2)) between its
apparent filing on June 6, 2005, and this Court's denial
on October 4, 2010, of Blount's ensuing certiorari petition to review the denial of that motion. App.16a-17a.
Amicus explained, however, that neither of those dates
was correct. Blount actually filed his §23-110 motion
later (November 16, 2005), and the resulting statutory
tolling actually ended earlier (December 2, 2009, when
the D.C. Court of Appeals' mandate issued). Id. Using
the correct dates, Blount's first habeas petition was untimely.
Amicus nevertheless argued that the equitabletolling theories were viable because of the government's concessions. Amicus pointed out that until that
point, the government had repeatedly, in the district
court and the court of appeals, used the wrong dates for
the filing of the §23-110 motion and the expiration of
the resulting statutory tolling. C.A. JA169, JA180. Indeed, as noted, the government had even affirmatively
General Page 18
11
told the court of appeals that the first habeas petition
was timely. The district court had also consistently
used the incorrect dates. App.39a, 44a-45a. On top of
that, after Amicus pointed out the errors and argued
that the government was bound by them, the government "failed to respond to amicus's waiver argument."
App.17a.
The court of appeals, however, declared that it
would "use the correct dates, despite the government's
repeated failure to argue for them." App.17a. The
court explained that to do otherwise "would be to decide the case on facts and law that all know to be false."
App.18a. Further, the court said that there was "no
justification" to find a waiver or forfeiture because
"Blount himself introduced the error" regarding the
filing date of the §23-110 motion and the government
had consistently maintained that the current habeas
petition was untimely. Id.
Based on its reasoning, the court concluded that
"jurists of reason would not find debatable the district
court's procedural holding that Blount's petition was
time-barred," and. accordingly denied the COA.
App.20a.
Judge Williams dissented, charging that the majority had "perform[ed] a full-blown merits review on the
timeliness of Blount's petition—exhausting legal and
factual arguments, crafting a new rule for interpreting
state law, and invoking the court's rarely-used discretion to forgive the government its concessions"—
something this Court had held "inappropriate at the
COA stage" just a few months earlier in Buck v. Davis,
137 S. Ct. 759 (2017). App.21a (dissent). Further, in
Judge Williams's view, Blount's timeliness arguments
were not merely debatable, App.21a-28a; they were
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12
correct, App.30a-37a. Judge Williams also concluded
that Blount's IAAC claim was at least "debatable
Amongst jurists of reason." App.28a-29a (quoting Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)). Consequently, he concluded, the COA should have been
granted. App.30a.
On November 14, 2017, the court of appeals denied
Blount's petition for rehearing and rehearing en banc.
App.56a-59a. On January 11, 2018, Blount filed his certiorari petition, which was docketed on March 6, 2018.
REASONS FOR GRANTING THE PETITION
I. THE Coum ERRONEOUSLY REFUSED To ASSESS
WHETHER THE D.C. COURT OF APPEALS HAD FUNCTIONALLY REOPENED Dmicr APPEAL FOR PURPOSES
OF COMPUTING TILE HABEAS LIMITATIONS PERIOD
The Court should grant the petition to clarify what
its precedent already indicates: federal habeas courts
should take a functional approach in assessing whether
a state court reopened a petitioner's direct appeal for
purposes of applying AEDPA's limitations provision.
Had the court of appeals done so here, it would have
found that the D.C. Court of Appeals reopened Blount's
direct appeal and thus restarted the limitations clock
less than one year before Blount filed the current habeas petition.'
A. In Jimenez v. Quarterinan, this Court held
that AEDPA's one-year limitations period is "reset"
"where a state court in fact reopen[s] direct review"
of the conviction; in such a case, the limitations period
...
It is undisputed that if the disposition of the recall motion
restarted the clock under Jinwnez, the current habeas petition is
timely.
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13
begins anew upon the conclusion of the reopened appeal
or the expiration of the time for seeking review of the
reopened appeal. 555 U.S. 113, 120-121 & n.4 (2009); see
28 U.S.C. §2244(d)(1)(A). That is because regardless of
whether the reopened direct appeal is ultimately successful, its reopening makes the "conviction
again
capable of modification." 555 U.S. at 120. And in the
District of Columbia, recalling the mandate "reopens
the movant's appeal," Long v. United States, 83 A.3d
369, 378 (D.C. 2013) (quotation marks omitted), satisfying Jimenez's test for restarting the limitations clock.
...
The court below, however, concluded that because
the D.C. Court of Appeals "never recalled the mandate," it necessarily "did not reopen Blount's direct appeal." App.14a. But the question under Jimenez is not
whether the D.C. Court of Appeals recalled the mandate; it is whether that court reopened the direct appeal. That recalling the mandate is sufficient to reopen
the appeal does not mean it is also necessary to do so.
Rather, as Judge Williams explained, this Court has
instructed federal habeas courts to take a functional
approach to determining whether direct appeal was reopened, and thus it is possible for the D.C. Court of
Appeals to have reopened the appeal without recalling
the mandate. App.34a-35a. The court's formalistic approach—considering only whether the state court said
it was reopening the appeal by recalling the mandate—
contravened this Court's decisions.
In Jimenez itself, this Court indicated that a functional approach should be used when it declared that
the limitations period resets if the state court "in fact
reopen[s] direct review." 555 U.S. at 120-121 & n.4
(emphasis added). Taking a functional approach in this
context follows from this Court's general approach to
habeas (and more broadly, to the intersection of federal
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14
statutes and state procedures). In Carey v. Saffold, the
Court confronted the question of how to apply AEDPA's tolling provision—which excludes the "time during which a properly filed application for State postconviction or other collateral review with respect to the
pertinent judgment or claim is pending," 28 U.S.C.
§2244(d)(2)—.to California's "unique state collateral review system." 536 U.S. 214, 217 (2002). The word
"pending," the Court said, "cover[s] the time between a
lower state court's decision and the filing of a notice of
appeal to a higher state court." Id. at 217, 219-221.
California's system "does not involve a notice of appeal,
but rather the filing (within a reasonable time) of a further original state habeas petition in a higher court."
Id. at 217. The Court did not get trapped in formalities,
declaring that "for purposes of applying a federal statute that interacts with state procedural rules, we look
to how a state procedure functions, rather than the particular name that it bears." id. at 223. The Court observed that in practice, prisoners in California "can obtain
basic appellate review" through "an 'original'
petition" filed in a higher court. Id. at 221-222. Thus,
the Court found that "California's system functions in
ways sufficiently like other state systems of collateral
review to bring intervals between a lower court decision and a filing of a new petition in a higher court within the scope of the statutory word 'pending." Id. at
223.
...
B. A functional analysis shows that the D.C. Court
of Appeals actually reopened Blount's direct appeal
notwithstanding its denial of the recall motion, thereby
resetting the limitations clock under Jimenez.
Under D.C. law, a recall motion calls only for a
prima facie evaluation of the claim: the motion should
be granted if it has "on [its] face sufficient merit."
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15
Watson v. United States, 536 A.2d 1056, 1060 (D.C.
1987) (en banc) (emphasis added). The moving party
makes a prima facie case not by relying on "conclusory
assertions," but by pointing to specific authority
("giv[ing] 'chapter and verse") and adducing "factual
support." Id. In contrast, in the reopened appeal the
court "fully explore[s] and then decide[s]" the IAAC
claim. Long, 83 A.3d at 378 (quotation marks omitted).
Blount's recall motion plainly met the recall standard, for many reasons.
First, it raised a potentially meritorious IAAC
claim, infra Part III.B, supported by specific legal authority and factual evidence, see C.A. JA145-151.
Second, the D.C. Court of Appeals stated that,
"[o]n consideration" of the motion, "it appear[ed] that
the jury may have relied upon" the unconstitutional
accomplice instruction and that Blount's appellate
counsel had failed to challenge that instruction even
though his trial counsel had objected to it. App.75a.
That was an explicit acknowledgment that Blount's
claim had "on its face sufficient merit." Watson, 536
A.2d at 1060.
Third, and relatedly, the court directed the government to address the ultimate merits of the IAAC
claim: "whether [Blount's] counsel on appeal rendered
deficient performance in failing to challenge the constitutionality of the aiding and abetting instruction, and if
so whether there is a reasonable likelihood that this
court would have granted [Blount] a new trial."
App.76a. That is the precise inquiry that the court
would undertake after reopening the appeal. Long, 83
A.3d at 378. Concurrently, the court ordered that the
recall motion be "held in abeyance until further order of
the court," App.76a—an action that was unnecessary if
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16
the court viewed itself as simply resolving the recall
motion rather than attending to another matter, namely, the underlying merits.
Finally, after receiving the government's briefing,
the court ruled that, "based upon the entire record, any
error was harmless." App.77a-78a. Reaching a conclusion about the ultimate merits of a claim after reviewing "the entire record"—rather than simply concluding
that the claim lacked facial merit—is indistinguishable
from the "deci[sion]" that the D.C. Court of Appeals
would render after conducting a "fufl[] explor[ation]" in
a reopened appeal. Long, 83 A.3d at 378.
The D.C. Court of Appeals, indeed, has acknowledged that, although its usual process is to "first" grant
the recall motion and "later" decide "the merits of the
re-opened appeal," it will sometimes resolve the ultimate merits of an IAAC claim concurrently with its
disposition of a recall motion. Long, 83 A.3d at 378 n.15.
In Long, the court approved a "streamlined approach,"
whereby the court "expedite[s] matters by combining
[its] discussion of the [recall] motion's merit with the
resolution of appellant's [IAAC] claim." Id. at 378 &
n.15. True, in Long the court expressly granted the recall motion before ruling for the defendant on the IAAC
claim. See App.11a. But where the court decides that
the IAAC claim ultimately fails, it understandably may
find it administratively convenient to express that conclusion through a denial of the recall motion. A federal
habeas court should accommodate such practicalities.
As Judge Williams pointed out, App.34a, the panel
majority's "struggle to understand" how the D.C. Court
of Appeals could have said it was denying the recall
motion but actually resolved the ultimate merits of the
IAAC claim, App.14a, is puzzling in light of this Court's
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17
decision in Buck. There, this Court found that the
Fifth Circuit did in the COA context precisely what
Blount contends the D.C. Court of Appeals did on his
recall motion: "The court below phrased its [COAl determination in proper terms—that jurists of reason
would not debate that Buck should be denied relief—
but it reached that conclusion only after essentially deciding the case on the merits." 137 S. Ct. at 773 (citation omitted). For example, this Court noted, the Fifth
Circuit had repeatedly said that Buck had "not shown
extraordinary circumstances that would permit relief"
under Rule 60. Id. at 773 (quoting decision under review). Such declarations reflected the appellate court's
"ultimate merits determinations," id. at 774, much like
the D.C. Court of Appeals' declaration that, "based upon the entire record, any error was harmless," App.77a78a. Perhaps, though, the difficulty the court below
had grasping the possibility that an appellate court
might say it is deciding only a threshold question but
actually decide the ultimate question explains why (as
discussed below) the majority committed the same error that the Fifth Circuit committed in Buck.
Finally, the court below attacked a strawman when
it concluded that if Blount were right about the reopening, "that would mean that any habeas petitioner could
unilaterally reopen direct review and restart his limitations clock simply by filing a frivolous motion to recall
the mandate." App.13a. The deficiency of a frivolous
claim is apparent on its face. But as explained later,
Blount's IAAC claim was facially legitimate, irtfra Part
III.B, hence the D.C. Court of Appeals went deeper to
resolve the ultimate merits.
General Page 25
M.
H. Tim Coum CONTRADICTED Tins COURT'S CLEAR
PRECEDENT IN RELIEVING THE GovEimniENT OF ITS
MISTAKEN CONCESSION WEERE THE GOVERNMENT
HAD NOT REQUESTED SUCH RELIEF AND THE COURT
Dm NOT DETERMINE THAT EXTRAORDINARY CIRCUMSTANCES WARRANTED SUCH RELIEF
The refusal of the court below to hold the government to its concessions about the timeliness of Blount's
first habeas petition (including its concessions regarding the period during which Blount's §23-110 motion
tolled the limitations period) contravenes this Court's
precedent—so clearly that summary reversal is appropriate.
A. "Ordinarily," a defendant "forfeit[s]" a defense
by not timely raising it. Wood v. Milyard, 566 U.S. 463,
470 (2012) (quotation marks omitted). "A court is not at
liberty to bypass, override, or excuse a State's deliberate waiver"—its "knowing[] and intelligent[] relinquish[ment]"—"of a limitations defense." Id. at 466,
470 n.4, 472-473. Where the State's failure to raise a
limitations defense "stem[s] from an inadvertent error," however, "a court of appeals has discretion to address [it], sua sponte"—but only "in exceptional cases."
Id. at 473-474; see also id. at 471 ("federal appellate
courts have discretion, in exceptional cases, to consider
a [timeliness] argument inadvertently overlooked by
the State in the District Court") (quotation marks and
alterations omitted).
...
As Judge Williams observed, the panel majority
failed to apply these rules. App.25a-27a. Even if the
government's concessions here reflect inadvertent error rather than deliberate waiver (a point the government has never asserted), the court below was empowered to ignore the concessions only if the government
General Page 26
19
asked for that or it found the existence of extraordinary
circumstances. Here, the government never argued
that it should be relieved of its concessions, and the
court never inquired into any extraordinary circumstances. Instead, the court found "no justification" for
"decid[ing] the case on facts and law that all know to be
false," App.18a, thus inverting the presumption in favor
of forfeiture recognized in Wood.
B. Had the court adhered to the correct standard,
it could not have found the requisite extraordinary circumstances. "[T]he interests of justice would be better
served by addressing the merits" of Blount's IAAC
claim, Day v. McDonough, 547 U.S. 198, 210 (2006)
(quotation marks omitted), because the claim plainly is
potentially meritorious, infra Part III.B. And when
Amicus pointed out the government's errors and argued that the government had waived or forfeited any
untimeliness defense based on the correct dates, the
government "failed to respond to amicus's waiver [or
forfeiture] argument." App.17a. Even if that silence
does not amount to a waiver, it at least reveals that
even the government did not believe it should be relieved of its errors. Finally, extensive substantive litigation occurred based on the incorrect dates: in the district court, on the motions to dismiss, for reconsideration, and for a COA; and in the court of appeals, on the
motion for a COA. See id.5
These circumstances are quite different from those in Day,
where this Court held that the district court "had discretion to
correct the State's error" in calculating the "tolling time" of a habeas petition—there was no suggestion that Day's habeas petition
was potentially meritorious, the state had not passed on an opportunity to explain why it should not be bound by its mistake, and
the state had not repeatedly stated its incorrect calculation in both
the district court and the court of appeals. 547 U.S. at 201-202.
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20
In sum, as Judge Williams explained, the majority
"chose[] to respond to the government's errors with
easy magnanimity, and to Blount's diligence with merciless exactitude. This approach is particularly troubling given the strength of Blount's underlying [IAAC]
argument." App.27a.6
M. THE COURT FURTHER CONTRADICTED Tins CouRT's
CLEAR PRECEDENT BY DENYING This COA BASED ON
ITS RESOLUTION OF THE ULTIMATE MERITS OF THE
APPEAL
Even if the arguments above regarding the petition's timeliness are not, at this point, conclusive, they
are enough to entitle Blount to a COA. The contrary
conclusion of the majority below is so inconsistent with
this Court's clear precedent that, again, summary reversal is warranted.
A. "At the COA stage," this Court has explained,
the only question is whether the applicant has
shown that jurists of reason could disagree
with the district court's resolution of his constitutional claims or that jurists could conclude
the issues presented are adequate to deserve
encouragement to proceed further.
This
threshold question should be decided without
full consideration of the factual or legal bases
adduced in support of the claims.
Buck, 137 S. Ct. at 773 (quotation marks and citation
omitted).
6
The court below blamed Blount for initially "introduc[ing]"
the erroneous date for the filing of the §23-110 motion. App.18a.
That is irrelevant. The government had the professional training
and ample opportunity to identify and correct the error yet "repeated[ly] fail[ed]" to do so, App.17a.
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21
Just a few months before the court below issued its
decision, this Court rebuked the Fifth Circuit for
"phras[ing] its [COA] determination in proper terms—
that jurists of reason would not debate that Buck
should be denied relief—but ... reach[ing] that conclusion only after essentially deciding the case on the merits." Buck, 137 S. Ct. at 773 (citation omitted). That
the Fifth Circuit had improperly resolved the underlying merits was revealed in its conclusive statement that
the habeas petitioner had "not shown [the necessary]
extraordinary circumstances." Id. at 773-774 (quoting
decision under review).
Here, the court below committed the same error.
Although the court sometimes couched its conclusions
in terms of debatability, see, e.g., App.19a ("The thread
by which those theories hang ... is too thin to make the
issue debatable."), it actually performed a full examination of the facts and law on the dispositive issues—
whether the D.C. Court of Appeals had reopened the
direct appeal and whether the government's concession
should be disregarded—diligently marching through
arguments and counterarguments, see App.8a-19a; cf.
App.19a n.6 (denying that the court was performing full
examination because it "refrained from reaching" other
issues). The court also reached conclusive assessments
of the ultimate merits on those issues: "In short, the
D.C. Court of Appeals did not reopen Blount's direct
appeal ...," App.14a (emphasis added); "Even if a party's waiver or forfeiture could ever lead a reasonable
jurist to accept such an erroneous premise, there is no
justification for doing so here," App.18a (emphasis
added).
The circumstances here show even more clearly
than in Buck that the court improperly denied the COA
based on its assessment of the ultimate merits. As dis-
General Page 29
22
cussed above, the dispositive issues were at least debatable. See App.27a-28a (dissent). The motions panel
referred Blount's case to a merits panel; surely it would
not have done so just to waste the merits panel's time
on an appeal that no reasonable jurist could find debatable. And a circuit judge dissented in Blount's favor,
also "indicat[ing] that reasonable minds could differ"
and thus the COA should have issued, Jordan v. Fisher, 135 S. Ct. 2647, 2651 (2015) (Sotomayor, J., dissenting from denial of writ of certiorari, joined by Ginsburg
and Kagan, JJ.); 28 U.S.C. §2253 (single circuit judge
may issue COA)—especially because Judge Williams
not only found Blount's timeliness and IAAC arguments debatable but also found Blount's timeliness arguments meritorious.
B. Under the correct standard, the COA should be
granted. Not only is the habeas petition's timeliness at
least debatable, as discussed, but so is the substance of
Blount's IAAC claim, as Judge Williams recognized,
App.28a-29a. Because Blount had specifically directed
his appellate counsel to raise the accomplice-instruction
objection and because the objection was preserved and
clearly stronger than other objections raised, supra
pp.5-6, Blount's direct-appeal counsel's failure to raise
it was professionally deficient. See Smith v. Robbins,
528 U.S. 259, 285 (2000); Lynch v. Dolce, 789 F.3d 303,
312-316 (2d Cii'. 2015); Long, 83 A.3d at 375; see also
Amicus C.A. Br. 47497 And there is "a reasonable
probability that [on direct appeal, the D.C. Court of
Appeals] would have rejected the government's claim
of harmlessness beyond a reasonable doubt." App.29a
The deficiency "element" of Blount's IAAC claim is evaluated "de 'novo" because the D.C. Court of Appeals "did not decide" it.
Porter v. McCollum, 558 U.S. 30,39 (2009) (per curiam).
General Page 30
23
(dissent).' The government, the trial judge, and the
D.C. Court of Appeals all acknowledged that reasonable jurors could have found that Blount was not the
principal, see supra pp.4-5, and the government has
never argued that there was sufficient evidence to
meet the accomplice-liability standard required by Wilson-Bey. See Amicus C.A. Br. 52-54.
CONCLUSION
The petition for a writ of certiorari should be
granted. The Court should consider summary reversal
on Questions Two and Three.
Respectfully submitted.
SETH P. WAXMAN
DAVID M.LEHN
Counsel of Record
ARP1T K. GARG
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
david.lehn@wilmerhale.com
MARCH 2018
The prejudice element of Blount's IAAC claim is evaluated
de novo because the D.C. Court of Appeals applied the wrong
standard. App.29a (dissent); Amicus C.A. Br. 50-52; Amicus C.A.
Reply 23-27; see Panetti v. Quarterm,an, 551 U.S. 930, 953-954
(2007); Williams v. Taylor, 529 U.S. 362, 391-399, 405-406, 413
(2000).
General Page 31
APPENDICES
General Page 2
la
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
No. 15-5056
CARLTON J. BLOUNT,
Appellant,
V.
UNITED STATES OF AMERICA
AND DISTRICT OF COLUMBIA,
Appellees.
Argued November 17, 2016
Decided June 27, 2017
OPINION
Before: HENDERSON and GRIFFITH, Circuit
Judges, and WILLIAMS, Senior Circuit Judge.
Dissenting opinion filed by Senior Circuit Judge
WILLIAMS.
GRIFFITH, Circuit Judge:
Canton Blount is a prisoner convicted of two murders who filed a habeas petition under 28 U.S.C. § 2254.
The district court dismissed the petition as timebarred, a decision that Blount now seeks to appeal. But
the federal habeas statute restricts such appeals.
Blount's "appeal may not be taken to the court of appeals" unless he obtains a certificate of appealability
(COA). 28 U.S.C. § 2253(c)(1). To do so, Blount must
make a sufficient initial showing to a judge or circuit
justice. Id. § 2253(c)(1)-(2). Blount requests a COA
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2a
from us, but because he has not made the necessary
showing, we must deny his request.
On the night of February 8, 2000, Carlton Blount
and two friends attended a basketball game at Blount's
former high school. There, Blount and one of his
friends got into a fight with a student at the school,
Andre Wallace. After onlookers broke up the fight,
Blount and his friends left the school and went looking
for Wallace. They eventually drove to the home of Wallace's girlfriend, Natasha Marsh, and the couple arrived
shortly afterwards. An argument erupted, gunshots
ensued, and Wallace and Marsh were killed.
Blount was charged in D.C. Superior Court with
several counts, including the murders of Wallace and
Marsh. At trial, the government's primary theory was
that Blount alone shot the victims. Blount's defense
was that one of his friends pulled the trigger. The
judge instructed the jury that even if a friend was the
shooter, Blount could be convicted under the doctrine
of accomplice liability. The judge's instructions included the following statements:
It is not necessary that [Blount] have had the
same intent that [the] principal offender had
when the crime was committed, or that he had
intended to commit the particular crime committed by the principal offender.
An aider and abetter is legally responsible for
the acts of other persons that are the natural
and probable consequences of the crime in
which he intentionally participates.
J.A. 121-22. The defense objected that making Blount
responsible for the "natural and probable consequences
General Page 4
3a
of the crime" allowed him to be convicted even if he
lacked the necessary mens ma. Under the judge's instruction, an accomplice could be convicted of firstdegree murder without proof that he acted with premeditation and deliberation. That, the defense argued,
eliminated the men.s rea element of the offense, violating the Sixth Amendment's guarantee of a jury verdict
on every element. The judge overruled the objection,
and in February 2001, the jury convicted Blount of
first-degree murder of Marsh, second-degree murder of
Wallace, and several related counts. Blount was sentenced to prison for sixty-four years to life.
On appeal, Blount was represented by new counsel,
who failed to renew the constitutional challenge to the
jury instruction. The D.C. Court of Appeals affirmed
Blount's convictions and sentence. It denied his motion
for rehearing on October 13, 2004, and formally ended
the appeal by issuing a mandate on October 21, 2004.
Blount did not petition the U.S. Supreme Court for review.
About two years later, in an unrelated case, the
D.C. Court of Appeals held unconstitutional the same
jury instruction used in Blount's case, on the very
grounds that Blount had raised at trial. See Wilson,Bey v. United States, 903 A.2d 818, 826, 82944 (D.C.
2006) (en bane). But because Blount's conviction had
already been affirmed on direct review, the decision
had no immediate effect on him.
Meanwhile, Blount had begun a series of unsuccessful pro se collateral challenges to his conviction. On
November 16, 2005—over a year after the D.C. Court
of Appeals denied his motion for rehearing, the last decision in his direct appeal—Blount signed and mailed
from prison to the court a motion for collateral review
General Page 5
4a
under D.C. Code § 23-110.' The motion included a challenge to the accomplice-liability instruction, but the trial court held the claim procedurally defaulted because
Blount had failed to raise it on direct appeal. The court
denied Blount's motion and the D.C. Court of Appeals
affirmed, issuing its mandate on December 2, 2009.
Blount's next collateral challenge was a federal habeas petition, which he signed on March 17, 2011.2
Among other arguments, Blount claimed for the first
time that he received ineffective assistance of appellate
counsel (IAAC) during his direct appeal because his
appellate lawyer had failed to challenge the constitutionality of the now discredited jury instruction. The
district court dismissed the petition, holding that
Blount had not yet exhausted his local remedies on the
IAAC claim, and that the court lacked jurisdiction over
his other claims. Blount v. Wilson, No. 11-0743, 2011
WL 1526945 (D.D.C. Apr. 19, 2011). Both the district
court and this court denied Blount's request for a COA.
Blount v. Wilson, No. 11-7060 (D.C. Cir. Sept. 27, 2011).
Blount then returned to the D.C. Court of Appeals
to raise his IAAC claim through the proper local mechanism: a motion to recall the mandate that the court
had issued in his direct appeal. See Watson v. United
States, 536 A.2d 1056, 1060 (D.C. 1987) (en banc) (establishing the motion to recall the mandate as the D.C.
procedure for raising an IAAC claim). Although
Blount's motion, filed by mail on October 28, 2011, was
There is some dispute as to whether another date—other
than the one on which Blount signed and mailed his motion—
should be considered the filing date when calculating the limitations period here. We discuss this issue below in section II.B.ii.
2
The filing date of this petition is also in dispute, as discussed
in section 1I.B.ii.
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5a
untimely, the D.C. Court of Appeals excused that flaw
and ordered the government to respond on the merits.
The court ultimately denied Blount's motion in late
2012, holding that "based upon the entire record, any
error was harmless," and therefore Blount had "not
met the high standard necessary to recall the mandate." Blount v. United States, No. 01-CF-974, at 1
(D.C. Oct. 11, 2012).
Around the same time as Blount made that motion
to recall the mandate, he filed a second motion for collateral review under D.C. Code § 23-110, raising claims
not directly at issue here. The trial court denied the
motion and the D.C. Court of Appeals affirmed in May
2013.
Which brings us to Blount's present federal habeas
petition, filed under 28 U.S.C. § 2254 on September 18,
2013. The rules for habeas petitions challenging statecourt judgments govern Blount's habeas petition, because the federal habeas statute "recognizes that 'a
court of the District [of Columbia] is a state court.'
"Head v. Wilson, 792 F.3d 102, 106 n.3 (D.C. Cir. 2015)
(quoting Madley v. U.S. Parole Comm'n, 278 F.3d 1306,
1308 (D.C. Cir. 2002)). The district court granted the
government's motion to dismiss, holding in relevant
part that Blount's habeas petition was filed outside the
one-year limitations period imposed by 28 U.S.C.
§ 2244(d)(1), enacted as part of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L.
No. 104-132, § 101, 110 Stat. 1214, 1217. Blount filed a
motion for reconsideration under Federal Rule of Civil
Procedure 59(e), which the district court denied, holding again that his petition was time-barred.
Blount timely filed a notice of appeal but failed to
obtain a COA from the district court. He now requests
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6a
one from us. We have jurisdiction over that request
under 28 U.S.C. § 2253(c), and we appointed arnicus curiae to argue in support of Blount.
II
The procedural history of this case is knotted, and
the creative theories raised in Blount's favor only compound that complexity. But the case is complicated, not
close. When the knots are untangled and the arguments unpacked, there is no reasonable dispute:
Blount's habeas petition was untimely. The answer is
thus clear even under the "limited" inquiry we conduct
when considering a request for a COA. Buck v. Davis,
U.S.
137 S.Ct. 759, 774, 197 L.Ed.2d 1
(2017).
_____,
To obtain a COA, the applicant must make "a substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c)(2). A "substantial showing" is a
demonstration "that reasonable jurists could debate
whether the petition should have been resolved in a
different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'
"Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595,
146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4, 103 S.Ct. 3383, 77 L.Ed.2d 1090
(1983)). Where, as here, "the district court denies a habeas petition on procedural grounds without reaching
the prisoner's underlying constitutional claim," the successful COA applicant must show us that "jurists of
reason would find debatable" not only "whether the
petition states a valid claim of the denial of a constitutional right," but also "whether the district court was
correct in its procedural ruling." Id. at 478, 120 S.Ct.
1595.
...
...
General Page 8
7a
"Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that
the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further." Id. at 484, 120 S.Ct. 1595. Because Blount's petition was plainly time-barred and no jurist of reason
could take issue with that procedural ruling by the district court, we deny his request for a COA without having to reach his constitutional claim.'
A
Blount's habeas petition is subject to a one-year
limitations period. See 28 U.S.C. § 2244(d)(1). All
agree that Blount's one-year clock runs from the date
when his judgment of conviction "became final by the
conclusion of direct review or the expiration of time for
seeking such review." Id. § 2244(d)(1)(A). Statutory
tolling pauses the clock 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). In some circumstances, equitable tolling can also apply. See Holland v. Florida,
560 U.S. 631, 634, 130 S.Ct. 2549, 177 L.Ed.2d 130
(2010).
Blount's limitations period began to run on January
11, 2005, when time expired for seeking Supreme Court
Because we deny the COA on those grounds, we also decline
to address either the district court's alternative procedural holding that D.C. Code § 23-110 barred Blount's IAAC claim or the
propriety of Blount's naming the "United States of America (District of Columbia)" as respondent and filing his petition in the U.S.
District Court for the District Court of Columbia. IAAC claim or
the propriety of Blount's naming the "United States of America
(District of Columbia)" as respondent and filing his petition in the
U.S. District Court for the District of Columbia.
General Page 9
review in the direct appeal of his conviction. See J.A.
203 (showing that the D.C. Court of Appeals denied rehearing on October 13, 2004); SUP. CT. R. 13 (providing that the time for petitioning for a writ of certiorari
expires ninety days after the denial of rehearing).
Three hundred nine days of the one-year limitations
period then elapsed before Blount filed a local postconviction motion under D.C. Code § 23-110 on November 16, 2005, starting statutory tolling. That tolling
ended on December 2, 2009, when the D.C. Court of
Appeals issued its mandate in the section 23-110 proceedings, cf Holland, 560 U.S. at 638, 130 S.Ct. 2549
(ending statutory tolling when mandate issued), and
the limitations period's remaining 56 days expired on
January 27, 2010. Blount filed his present habeas petition in 2013: over three years later, and thus considerably out of time.
B
The recounting of that timeline provides enough
analysis to end the case. Blount and amicus raise several alternative theories in an effort to argue that it is
at least debatable that his habeas petition was timely.
None succeeds.
Principally, Blount and amicus contend that the
D.C. Court of Appeals reopened direct review in 2012,
thereby restarting the entire one-year limitations period for Blount's habeas petition that expired in 2010.
Under Jimenez v. Quarterinan, 555 U.S. 113,129 S.Ct.
681, 172 L.Ed.2d 475 (2009), a "conviction [is] no longer
final for purposes of § 2244(d)(1)(A)" when a court "reopen[s] direct review of [the] conviction." Id. at 120,
129 S.Ct. 681. In that event, the AED- PA limitations
clock starts anew when the reopened appeal reaches a
General Page 10
9a
final judgment. See id. According to Blount and amicus, the D.C. Court of Appeals reopened direct review
in Blount's case in evaluating his motion to recall the
direct-appeal mandate, which Blount made to exhaust
his local remedies on his IAAC claim.
That theory fails, however, for the simple reason
that the D.C. Court of Appeals never granted Blount's
motion to recall the mandate. There is no reasonable
debate over whether the motion was granted: the court
"ordered that the motion to recall mandate [be] denied." Blount v. United States, No. 01-CF-974, at 1
(D.C. Oct. 11, 2012) (capitalization altered). And there
is no reasonable debate over whether this disposition
reopened the appeal: the D.C. Court of Appeals has
never held that denying a motion to recall the mandate
reopens an appeal.
To fully explain these issues requires a bit more
discussion. When a movant raises an IAAC claim
through a motion to recall the mandate, the D.C. Court
of Appeals first determines whether the motion has "on
[its] face sufficient merit" to justify disturbing the
judgment. Watson v. United States, 536 A.2d 1056,
1060 (D.C. 1987) (en bane). If so, the court will then
"recafl[] the mandate and reopen[] the movant's appeal in order to fully explore and then decide whether
there was ineffective assistance of counsel on the first
appeal." Id. at 1061. By reopening the direct appeal, a
recall of the mandate resets the filing deadline for a
federal habeas petition, regardless of whether the reopened appeal is ultimately resolved in the appellant's
favor. But critically, the appeal is not reopened until
the motion to recall the mandate is granted. Id.; see also id. ("A motions panel granted the request [to recall
the mandate], vacated our original judgment, and
thereby revitalized [the] direct appeal." (emphasis add-
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ed)); Head v. United States, 626 A.2d 1382, 1384 (D.C.
1993) ("[B]y granting the motion to recall the mandate,
the direct appeal is revived ...."). This requirement ensures that "judgments will not be disturbed" except "in
the presence of exceptional circumstances." Watson,
536 A.2d at 1060. In Blount's case, the D.C. Court of
Appeals "ordered that the motion to recall mandate
[be] denied," Blount, No. 01-CF-974, at 1 (capitalization
altered) (emphasis added), which left the original mandate intact, the direct appeal closed, and the habeas filing deadline untouched.
Blount and amicus try several paths around this
obstacle, but each finds a dead end. To begin with, they
argue that the D.C. Court of Appeals followed an unconventional procedure in which the court simultaneously denied Blount's motion to recall the mandate, and
reopened and rejected his direct appeal. The D.C.
Court of Appeals followed a similar procedure in Long
v. United States, 83 A.3d 369 (D.C. 2013). There, the
court granted a motion to recall the mandate raising an
IAAC claim and, in the same opinion, resolved the direct appeal by vacating the sentences at issue. Id. at
378, 384. The court explained that it was "combin[ing]
those procedural steps"—that is, "resolution of the
question of the motion's merit and resolution of [the]
appellant's re-opened appeal"—because they "require[d] an examination of the same issues, so that a
ruling on one [was] essentially a decision on the other."
Id. at 378 n.15. Blount and amicus argue that the D.C.
Court of Appeals did the same in his case. In one fell
swoop, they argue, the court resolved Blount's motion
to recall the mandate and his underlying IAAC claim.
By reaching the latter, they argue, the court reopened
direct review of Blount's appeal.
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First, this argument misreads Long. That case,
where the court granted the motion, tells us nothing
new about this case, where the court denied the motion.
Long's streamlined approach is perfectly consistent
with the rule that a motion to recall the mandate reopens an appeal only when granted. In Long, the court
first "grant[ed] appellant's motion to recall the mandate as sufficiently meritorious, and after re-opening
appellant's direct appeal," then resolved the IAAC
claim. Id. at 384 (emphases added). Long's innovation
was to take those two steps in a single opinion. As
Blount and amicus would have it, however, Long also
made the two steps equivalent: the court's decision on
the motion to recall the mandate becomes the same as a
decision on the merits of the IAAC claim in the reopened direct appeal. Not so. Recalling the mandate is
antecedent, logically and procedurally, to resolving the
direct appeal. Taking both steps in the same opinion
made sense in Long, because recalling the mandate at
the first step allowed it to reach the second step of resolving the appeal, and the court saw no need to wait
for a second opinion to do so. When the court refuses to
recall the mandate, however, it has no occasion to proceed to the reopened appeal. Put simply, in a single
gesture the court can unlock the door and step into the
room, but if it leaves the door shut, it can go no further.
Second, even if Blount and amicus were right that
D.C. law somehow allows a court to resolve the underlying IAAC claim even when declining to recall the
mandate, the D.C. Court of Appeals did not do that
here. The court concluded only that Blount "ha[d] not
met the high standard necessary to recall the mandate." Blount, No. 01-CF-974, at 1 (emphasis added).
The court did not go beyond that threshold inquiry and
take up whether Blount met the standard for vacating
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his conviction on direct review. According to amicus,
there are signs that the court did actually reach the underlying appeal: for instance, the court invoked the
merits of Blount's IAAC claim, based its decision "upon
the entire record," id., and issued a separate order requesting a response from the government. But those
signs do not contradict the court's declaration that it
applied only the standard for recalling the mandate; instead, they are fully consistent with that disposition.
The movant's "heavy initial burden" requires him to
make "a persuasive case for recall of the mandate" by
showing that the IAAC claim has "sufficient merit" to
warrant reopening the appeal and giving the claim full
consideration. Watson, 536 A.2d at 1060. To determine
whether Blount's IAAC claim had sufficient merit, the
court assessed it in light of the record and the government's arguments. Concluding that Blount failed to
satisfy his initial burden, the court never moved beyond
that threshold inquiry.
Having failed to show that the D.C. Court of Appeals recalled the mandate by using the procedure followed in Long, Blount and amicus take a different tack.
They argue that the court's analysis in denying the motion to recall the mandate was so much like what the
court would have done on direct review that the court
effectively reopened direct review. In particular, they
note that the court denied Blount's motion on the
ground that his IAAC claim lacked merit, which is the
same analysis the court would have conducted if reviewing a reopened direct appeal. With no direct support for this notion of functional equivalence, Blount
and amicus extrapolate from the Supreme Court's
statement in Jimenez that when a court reopens an appeal, the "conviction [is] again capable of modification
through direct appeal to the state courts and to [the
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Supreme Court] on certiorari review." 555 U.S. at 120,
129 S.Ct. 681. Blount and amicus argue that the D.C.
Court of Appeals functionally treated Blount's conviction as "capable of modification" by assessing the merits of his IAAC claim.
We reject this argument, too. The D.C. Court of
Appeals does not reopen a completed appeal simply because its reasoning in denying a motion to recall the
mandate mirrors the reasoning it would use on a reopened appeal. That logic leads to incongruous results.
Consider a hypothetical motion to recall the mandate
raising a wholly frivolous IAAC claim. The court would
deny the motion because the IAAC claim is frivolous.
If the court were reviewing a reopened direct appeal
with the same claim, the court would likewise conclude
that the claim is frivolous. According to the argument
advanced by Blount and amicus, because the court performed the same analysis when reviewing the motion to
recall the mandate as it would have if reviewing a reopened direct appeal, resolving the motion reopened direct review. But that would mean that any habeas petitioner could unilaterally reopen direct review and restart his limitations clock simply by filing a frivolous
motion to recall the mandate. That cannot be. Instead,
the court must deliberately agree to reopen direct review. Here, the court refused to do so.
Jimenez does not suggest otherwise. The passage
on which Blount and amicus rely simply describes what
'rehappens after a state court issues an "order
stor[ing] the pendency of the direct appeal.' "555 U.S.
at 120, 129 S.Ct. 681 (quoting Ex parte Torres, 943.
S.W.2d 469, 472 (Tex. Crim. App. 1997)). After such an
order, the conviction becomes "again capable of modification through direct appeal to the state courts and to
[the Supreme Court] on certiorari review." Id. Here,
...
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the D.C. Court of Appeals issued no order restoring the
direct appeal. The order instead denied the motion to
recall the direct-appeal mandate. Blount's conviction
thus never became capable of modification "through direct appeal to" the D.C. courts or the U.S. Supreme
Court. Those courts could hear no new direct appeal
while the original direct-appeal mandate remained in
effect.
In short, the D.C. Court of Appeals did not reopen
Blount's direct appeal because the court never recalled
the mandate.' Our dissenting colleague would resolve
the issue differently, but we share a key premise. He
concludes that the D.C. Court of Appeals reopened
Blount's appeal because its "disposition of Blount's motion comprised both a decision to recall and a decision
on the merits." Dissenting Op. at 751. We agree that
would be the disposition necessary to reopen the appeal. But we struggle to understand how the court
could have "deci[ded] to recall," id., when it expressly
"ordered that the motion to recall mandate [be] denied," Blount, No. 01-CF-974, at 1 (capitalization altered). Because we see no reasonable debate over
whether the D.C. Court of Appeals denied Blount's bid
"It may appear harsh at first glance not to adjust Blount's
limitations clock after his motion to recall the mandate languished
in the D.C. courts. But we expect (with no need to decide here)
that statutory tolling would pause the clock during such proceedings, because a motion to recall the mandate raising an IAAC
claim is a form of local "post-conviction or other collateral review."
28 U.S.C. § 2244(d)(2). Even if this were so, however, Blount
would not benefit from statutory tolling because his time ran out
before he filed his motion to recall the mandate. That is why he
must take the more aggressive position that his motion restarted
the clock altogether. As we have explained, that position is clearly
incorrect.
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to reopen his appeal, he is not entitled to a COA on this
theory.
U
In the alternative, Blount argued to the district
court that he is entitled to equitable tolling that would
make his habeas petition timely. Although he does not
press that argument before us in his pro se briefs,
court-appointed amicus does. Cf. Bowie v. Maddox,
642 F.3d 1122, 1135 n.6 (D.C. Cir. 2011) ("We have no
qualms about addressing an argument raised by courtappointed amicus curiae and not by the pro se party on
whose behalf he was appointed to present arguments."). Amicus's first theory of equitable tolling is
that Blount's first federal habeas petition should have
been stayed and held in abeyance, an approach endorsed in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528,
161 L.Ed.2d 440 (2005). Under that theory, because the
limitations clock would have stopped while the first petition was held in abeyance, equitable tolling would apply from the filing of Blount's first petition until the filing of the present one. Second, amicus argues that
Blount's pursuit of judicial remedies through his first
petition, although unsuccessful, warranted equitable
tolling during the pendency of that petition. Cf Irwin
v. Dept of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct.
453, 112 L.Ed.2d 435 (1990) ("We have allowed equitable tolling in situations where the claimant has actively
pursued his judicial remedies by filing a defective
pleading during the statutory period ....").
But under either theory, equitable tolling begins
only when Blount filed his first federal habeas petition.
By then the limitations period had already expired. As
explained above in section ILA, the limitations period
expired on January 27, 2010, and Blount's first federal
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habeas petition was filed over a year later, in March
2011. Regardless of the legal merits of amicus's theories, neither theory would start equitable tolling early
enough to make Blount's petition timely.
Amicus's only response is that we should modify
our calculation of the limitations period in two ways,
both of which amicus concedes are actually incorrect.
Amicus Br. 10 & n.3, 41-42. First, amicus wants us to
use June 6, 2005 as the filing date for Blount's first motion under D.C. Code § 23-110, which starts statutory
tolling. In the district court, the parties and the court
assumed that was the proper filing date, but that was
wrong twice over. For one, the date appears to be a
typographical error meaning to refer to June 5, 2006,
the date on which the D.C. Superior Court docketed the
motion. See J.A. 190. For another, the docketing date
is not the filing date. The motion was filed when Blount
mailed the motion on November 16, 2005. See S.A. 6970; Houston. v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379,
101 L.Ed.2d 245 (1988) (holding that a prisoner files a
document at the time he "deliver[s] it to the prison authorities for forwarding to the court clerk"). Next,
amicus wants us to adopt a second error from the government's district-court briefing: using October 4, 2010,
when the Supreme Court denied certiorari review of
Blount's first section 23-110 motion, as the end date for
Amicus suggests that the filing date of the first petition is
uncertain, but the uncertainty does not affect our analysis. Blount
signed the petition on March 17, 2011, S.A. 7, so he presumably
filed it on that date or later. But Blount claimed before the district court in present proceedings that he filed the petition in December 2010, and the government failed to object. See Amicus Br.
12 & nd. Regardless of whether we consider the petition filed in
December 2010 or March 2011, the filing date came long after the
limitation period expired in January 2010.
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statutory tolling. But Supreme Court review does not
count towards statutory tolling, so the correct end date
is December 2, 2009, when the D.C. Court of Appeals
issued its mandate. See Lawrence v. Florida, 549 U.S.
327, 329, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (holding
that a petition for certiorari does not extend statutory
tolling); Holland, 560 U.S. at 638, 130 S.Ct. 2549 (ending statutory tolling when mandate issued).
Only if we adopted both errors would Blount's first
habeas petition appear timely, making amicus !s equitable-tolling theories viable. Amicus argues that we
should do so because the government waived any objection. As amicus observes, the government included
both errors in its district-court briefing, mistakenly
stated in its appellate briefing that Blount's first federal habeas petition was timely, and failed to respond to
arnicus'.s waiver argument.
We will use the correct dates, despite the government's repeated failure to argue for them. Gf. Nattah
v. Bush, 605 F.3d 1052, 1058 (D.C. Cir. 2010) ("[W]e
may affirm the district court's decision 'on the basis of
any grounds which support it.' "(alterations omitted)
(quoting In re Swine Flu Immunization Prods. Liab.
Litig., 880 F.2d 1439, 1444 (D.C. Cir. 1989))); cf. also
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111
S.Ct. 1711, 114 L.Ed.2d 152 (1991) ("When an issue or
claim is properly before the court, the court retains
the independent power to identify and apply the proper
construction of governing law."). It is particularly clear
that we have no basis to adopt the first error of using
June 6, 2005 as the filing date for Blount's first D.C.
Code § 23-110 motion. That date is not only wrong, but
it is undisputedly and indisputably so. As explained
above, it is an apparent typographical error without a
scintilla of support in the record or the law. To treat
...
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the section 23-110 motion as filed on June 6, 2005— and
to treat Blount's first habeas petition as timely and his
equitable tolling theories as viable—would be to decide
the case on facts and law that all know to be false.
Even if a party's waiver or forfeiture could ever
lead a reasonable jurist to accept such an erroneous
premise, there is no justification for doing so here.
Notwithstanding the government's mistake, Blount had
ample notice of the issue and opportunity to argue the
point. In fact, it was amicus—raising the equitabletolling arguments in support of Blount—who candidly
identified the date error. Even more significantly,
Blount himself introduced the error. His habeas petition, the opening filing in the present litigation, averred
that he filed his D.C. Code § 23-110 motion "{o]n June 6,
2005." J.A. 6. That may well have been an honest mistake, but all the same, the government and district
court used that date only after Blount did first. We see
no reason why Blount should get the benefit of an error
he introduced. Instead, under all these circumstances,
we think it obvious that the correct date should apply.
Finally, AEPDA's waiver rules do not require otherwise. True, under AEDPA a court may not "bypass,
override, or excuse [the government's] deliberate
waiver of a limitations defense." Wood v. Milyard, 566
U.S. 463, 132 S.Ct. 1826, 1830, 182 L.Ed.2d 733 (2012);
cf also id. at 1833-34 (explaining that a court may,
however, excuse the unintentional forfeiture of a timeliness defense). But the government has not waived,
forfeited, or conceded its defense that Blount's current
petition is untimely. Far from it: the government
raised that defense below, prevailed, and now argues
for affirmance on that ground. The government merely
failed to make a particular argument, based on the correct date calculation, in support of that defense. Nor
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did the government waive its limitations defense
against Blount's first habeas petition. To be sure, the
government wrongly stated in the present proceedings
that the first petition was timely. But that statement
does not somehow retroactively waive a defense from
the prior proceeding.
In sum, the equitable-tolling theories do not justify
a COA. The thread by which those theories hang—that
we should calculate Blount's limitations period using a
date all agree is wrong—is too thin to make the issue
debatable.'
6 Our dissenting colleague writes that we have conducted a
"full-blown merits review" rather than a threshold COA inquiry.
Dissenting Op. at 743, 744-45. To his accusation that we ["focus[]
squarely on the merits," id. at 745, we admit that some review of
the merits is unavoidable in "a threshold inquiry into the underlying merit of the claims," Buck, 137 S.Ct. at 774 (quoting Miller-El
v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931
(2003)). But he overstates the nature of our analysis. We have
reviewed the merits only to answer a limited question: Are the
issues close, or is it clear that dismissing Blount's petition was correct? To the extent the dissent objects to the amount of analysis
we perform, we acknowledge that our opinion could have been
shorter (though the outcome no different) had we merely computed the limitations period, see section ILA, and left it at that. But
we thought it better for all if we described Blount's arguments for
a different computation and explained why we found them clearly
unavailing. We find it difficult to believe that the COA standard
requires us to make our opinion more cursory. And to be clear, we
have not impermissibly given "full consideration to the factual or
legal bases adduced in support of the claims," Buck, 137 S.Ct. at
773 (quoting Miller-El, 537 U.S. at 336,123 S.Ct. 1029). We have
done nothing more than reject Blount's timeliness theories on
their face. We have also refrained from reaching a number of factual and legal questions in the case, including whether equitable
tolling is required by Rhines v. Weber, 544 U.S. 269, 125 S.Ct.
1528, 161 L.Ed.2d 440 (2005), or Irwin v. Dept of Veterans Affairs,
498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), and whether
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III
We conclude that jurists of reason would not find
debatable the district court's procedural holding that
Blount's petition was time-barred. We therefore deny
Blount's request for a certificate of appealability.
So ordered.
Blount's IAAC claim is entitled to habeas relief. In the end, if our
opinion looks to our dissenting colleague like a rejection of
Blount's arguments on the merits, that is because, as the Supreme
Court has observed, "when a court of appeals properly applies the
COA standard and determines that a prisoner's claim is not even
debatable, that necessarily means the prisoner has failed to show
that his claim is meritorious," Buck, 137 S.Ct. at 774. As we see it,
we have simply asked whether Blount's arguments rise to the level of reasonable debate. We conclude that they do not.
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WILLIAMS, Senior Circuit Judge, dissenting:
My colleagues have determined that no "jurists of
reason would find
debatable" whether Canton
Blount's habeas petition is timely. See Maj. Op. at 736
(quoting Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct.
1595, 146 L.Ed.2d 542 (2000)). As a jurist formerly
known as reasonable, I disagree. In the form of a Certificate of Appealability ("COA") analysis, the majority
performs a full-blown merits review on the timeliness
of Blount's petition—exhausting legal and factual arguments, crafting a new rule for interpreting state law,
and invoking the court's rarely-used discretion to forgive the government its concessions. Such an analysis
is inappropriate at the COA stage, as the Supreme
Court clearly held only a few months ago. Buck v. Davis,
U.S.
137 S.Ct. 759, 197 L.Ed.2d 1 (2017).
In fact, Blount's contentions easily we perform, we
acknowledge that our opinion could have been shorter
(though the outcome no different) had we merely computed the limitations period, see section ILA, and left it
at that. But we thought it better for all if we described
Blount's arguments for a different computation and explained why we found them clearly unavailing. We find
it difficult to believe that the COA standard requires us
to make our opinion more cursory. And to be clear, we
have not impermissibly given "full consideration to the
factual or legal bases adduced in support of the claims,"
Buck, 137 S.Ct. at 773 (quoting Miller-El, 537 U.S. at
336, 123 S.Ct. 1029). We have done nothing more than
reject Blount's timeliness theories on their face. We
have also refrained from reaching a number of factual
and legal questions in the case, including whether equitable pass the Court's threshold COA test. More importantly, once over that modest hurdle, Blount's
claims on appeal warrant a remand to the district court.
...
__,
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I first explain why Blount's claims entitle him to a
COA, and, having done so, propose a merits disposition.
In 2001 a District of Columbia jury was asked to
determine if Blount committed murder, a specific intent
crime. Over defense counsel's objection, the trial court
instructed the jury that Blount could be convicted even
if he did not intend to commit murder. Transcript,
United States v. Blount, No. F-983-00, at 73-75 (D.C.
Super. Ct. Feb. 20, 2001). All the jury needed to find
was that (1) Blount "intentionally participated]" in
some crime and (2) that murder was a "natural and
probable consequence" of that crime. Id. Blount was,
quite unsurprisingly, convicted. On appeal, his new
counsel neglected to raise the rejection of trial counsel's
objection to the jury instruction, and the conviction was
affirmed. Blount's conviction is thus marred by two
prima facie constitutional errors. The jury instructions
omitted necessary elements of the crime. See United
States. v. Gaudin, 515 U.S. 506, 509-10, 115 S.Ct. 2310,
132 L.Ed.2d 444 (1995); see also Wilson-Bey v. United
States, 903 A.2d 818, 826, 843-44 (D.C. 2006) (en bane)
(finding the same jury instructions unconstitutional).
And Blount's appellate counsel did not challenge the
substance of these instructions, though the error was
compelling and properly preserved. See Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756
(2000) (articulating Sixth Amendment test for appellate
counsel's "failure to raise a particular claim"); see also
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). His appellate lawyer's error,
bound up with the trial court's error, is the subject of
Blount's current petition.
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Blount filed this petition (his second) over a dozen
years after his conviction. Absent some reason to stop
the clock, it would appear untimely against the oneyear statute of limitations in 28 U.S.C. § 2244(d)(1).
But Blount has offered two reasons for us to find him
entitled to have the merits of his petition addressed.
First, Blount claims that he is entitled to equitable
tolling of the statute of limitations as of the date he
filed his first federal habeas petition. That petition contained the same claim as the current one, but it was
dismissed for lack of exhaustion (Blount had not yet
employed the District's device for seeking relief on his
claim of ineffective appellate counsel, i.e., asking the
D.C. Court of Appeals to recall its mandate). Assuming
that the first petition was timely (a fact the government conceded), and assuming that it was improperly
dismissed rather than stayed (a highly probable conclusion), Blount would be entitled to equitable tolling for a
reasonable period, thereby overcoming the time barrier.
Second, and independent of the first argument,
Blount asserts that the D.C. Court of Appeals reopened his case on October 11, 2012, when it adjudicated his motion to recall the mandate. As per Jimenez v.
Quarterman, 555 U.S. 113, 129 S.Ct. 681, 172 L.Ed.2d
475 (2009), a state court's decision to re-open an appeal
resets the limitations period. If the D.C. Court of Appeals in fact reopened Blount's case, then it would not
have become "final" again until January 9, 2013, when
the 90- day window closed on petitioning for certiorari
of the October decision; § 2244(d)(1)'s one-year limit
would thus give him until January 2014 to file a new petition. Blount filed his current petition in 2013, so it
would also be timely if his reopener theory is correct.
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My colleagues examine both issues, but they create
a chimerical beast, neither COA nor merits analysis and
in disregard of the sequence mandated by statute and
the Supreme Court. Before Miller-El v. Cockrell,
"[m]any Courts of Appeals decisions ha[d] denied applications for a COA only after concluding that the applicant was not entitled to habeas relief on the merits."
537 U.S. 322, 348, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)
(Scalia, J., concurring). The Supreme Court put an end
to that practice, declaring that a COA is a "threshold
question" that "should be decided without 'full consideration of the factual or legal bases adduced in support
of the claims.' "Buck, 137 S.Ct. at 773 (quoting MillerEl, 537 U.S. at 336, 123 S.Ct. 1029). A court cannot de
facto "decid[e] the case on the merits" and then use
that determination to deny the COA. Id. In Buck the
Fifth Circuit had issued a brief unpublished opinion
that "phrased its determination in proper terms" of the
COA standard, id., insisting that it was performing an
"[ilnitial examination" and merely looking for any
"plausible argument" on the merits, see Buck v. Stephens, 623 Fed. Appx. 668, 673-74 (5th Cir. 2015). But
the Court looked past those recitations to find that the
Fifth Circuit's analysis was "essentially" the same as
would be performed on an actual merits review. Buck,
137 S.Ct. at 773.
The majority today also focuses squarely on the
merits—but does so with even less pretense of a COA
analysis than in the Fifth Circuit's Buck opinion. Although a "thorough" consideration of the issues certainly suggests that we've moved beyond the COA stage,
see Buck, 137 S.Ct. at 774, the primary fault of the majority opinion isn't that it's lengthy and detailed, compare Maj. Op. at 742-43 n.6; the problem, as we'll see, is
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that it resolves a number of subtle issues, clearly debatable among reasonable jurists (as here).
That is a "fundamental" error, Miller-El, 537 U.S.
at 342, 123 S.Ct. 1029, though one whose correction
would likely do Blount no good—the majority opinion
leaves little doubt that my colleagues would deny the
claim if they recognized the merits as being properly
before the panel. In any event, the merits analysis they
perform is not simply inappropriate at this stage; it is,
as I explain after discussing the COA, incorrect.
To warrant a COA Blount need only show that reasonable jurists could disagree about one of his two procedural arguments, along with, of course, his constitutional claim of right. See Slack, 529 U.S. at 478, 120
S.Ct. 1595 (COA should be granted when the prisoner
shows "at least" that reasonable jurists could disagree
over both the procedural propriety and the substance
of the petition). On the equitable tolling point, the government has insisted to us that Blount's first habeas
petition was timely. Gov't Opposition to Mot. for COA,
No. 15-5056, at 4 n.5 (July 27, 2015) ("Gov't Opp."); see
Maj. Op. at 741. Given this concession, tolling for a reasonable period from that date could render the second
petition timely as well.
But relying on our discretionary authority to forgive "the government's [] failure," my colleagues resolve that the first petition was time barred and that
any tolling from that date would be pointless. Maj. Op.
at 741-42. How such a forgiveness becomes indisputable among reasonable jurists I cannot fathom. In Day
v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 164
L.Ed.2d 376 (2006), the Court found discretion in the
courts to overlook a state's mistaken assertion that a
habeas petition was timely; it agreed with the state's
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contention that the exercise of that discretion should
depend on "whether the administration of justice is
better served by dismissing the case on statute of limitations grounds or by reaching the merits of the petition." Id. at 208-09, 126 S.Ct. 1675. The Court later
cautioned in Wood v. Milyard, 566 U.S. 463, 132 S.Ct.
1826, 182 L.Ed.2d 733 (2012), that "appellate courts ordinarily abstain from entertaining issues that have not
been raised and preserved" and that they "should reserve" their Day "authority for use in exceptional cases." Id. at 1834.
The majority disregards the principle of Day v.
McDonough, paying no attention to its instruction to
consider whether the administration of justice is better
served by holding the government to its concession.
Instead the majority insists that Blount's argument
would require deviating from certain "correct dates"
and expresses doubt that a "waiver or forfeiture could
ever lead a reasonable jurist" to deviate so, at least not
without justification beyond the concession itself. Maj.
Op. at 741-42. But under Day and Wood those doubts
are misplaced. And treating Blount's first petition as
timely would not require changing any of the majority's
reconstructed dates. As the majority agrees that equitable tolling would begin "when Blount filed his first
federal habeas petition," id. at 741, and the government
conceded the timely filing of that petition, Gov't Opp. at
4 n.5, the majority's calculations merely show that
Blount needs what is being requested: equitable tolling
for every day between the first and second petitions.
It makes no difference that the government never
waived its statute of limitations defense to the current,
second petition. Maj. Op. at 742-43. The government's
explicit concession that Blount'sflrst petition was "filed
within the one-year statute of limitations," Gov't
General Page 28
27a
Opp. at 4 n.5, if accepted by us, opens the door to equitable tolling and defeats the government's general
timeliness objection to the second. Under the Court's
cases, the government's concession (even if erroneous)
should be excused only in "exceptional" circumstances.
See Wood, 132 S.Ct. at 1834; Day, 547 U.S. at 209-10,
126 S.Ct. 1675. The majority offers nothing remotely
exceptional here.
In exercising the discretion allowed by Wood and
Day, my colleagues have chosen to respond to the government's errors with easy magnanimity, and to
Blount's diligence with merciless exactitude. This approach is particularly troubling given the strength of
Blount's underlying Strickland argument. See Rhines
v. Weber, 544 U.S. 269, 278, 125 S.Ct. 1528, 161 L.Ed.2d
440 (2005) (courts should be wary of dismissing "potentially meritorious" habeas claims). And regardless of
how my colleagues treat the government's concession,
they are incorrect to insist on fully resolving that issue
at the COA stage. "[A] court of appeals should not decline the application for a COA merely because it believes the applicant will not demonstrate an entitlement to relief." Miller-El, 537 U.S. at 337, 123 S.Ct.
1029.
In some cases, a choice might be discretionary but
nonetheless obvious to any reasonable jurist. Not so
here, where the default rule lies in Blount's favor (a
party must live with its concessions) and Blount's constitutional claim is likely to succeed. Blount's equitable
tolling argument is hardly one we can say all reasonable
jurists would reject. He has thus made the necessary
showing on the procedural part of the COA. (Blount's
Jimenez theory would also survive the threshold analysis suitable for a COA, but as Blount's equitable tolling
argument is enough to earn him a COA for review of
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28a
the district court's procedural holding, I discuss
Jimenez only below, as an alternative route for reversal
in the appeal proper.)
The substance of Blount's Strickland claim also deserves a COA. When it adjudicated Blount's motion to
recall the mandate, the D.C. Court of Appeals "did not
decide" the first Strickland prong, deficiency, but may
have ruled on the second prong, prejudice—reasonable
jurists would therefore decide deficiency de novo and
review prejudice with deference to that court. See
Porter v. McCollum, 558 U.S. 30, 38-39, 130 S.Ct. 447,
175 L.Ed.2d 398 (2009); see also 28 U.S.C. § 2254(d). In
Robbins, the Supreme Court adopted the Seventh Circuit's formula for ascertaining deficiency when counsel
omitted an issue on appeal: appellate advocacy is constitutionally deficient when "ignored issues are clearly
stronger than those presented." 528 U.S. at 288, 120
S.Ct. 746. Blount has offered more than enough evidence on this front. His appellate counsel neglected to
challenge the unconstitutional jury instructions even
though that challenge had been preserved by trial
counsel and those instructions "w[ere] under active
criticism and discussion at the time," Blount v. United
States, No. 08-CO-959, 983 A.2d 1064, slip op. at 1 (D.C.
Nov. 10, 2009) ("Blount II") (affirming denial of postconviction relief for the jury instruction error, because
Blount's appellate counsel had no "cause" to omit that
claim). The minor weaknesses of this argument—e.g.,
the possibility that the error could be found harmless,
see Neder v. United States, 527 U.S. 1, 4,119 S.Ct. 1827,
144 L.Ed.2d 35 (1999)—offer scant reason for omitting
it. And it remains far more compelling than the points
Blount's appellate counsel did raise, contentions almost
bound to lose, such as that the court admonished trial
counsel too harshly during cross-examination and that
General Page 30
29a
it was error to give an accomplice instruction because
the indictment failed to allege accomplice liability. See
Blount v. United States, No. 01-CF- 974, 859 A.2d 651,
slip op. at 3-7 & n.12 (D.C. June 29, 2004) ("Blount I")
(affirming conviction on direct appeal).
As for the prejudice prong, the D.C. Court of Appeals stated that "based upon the entire record, any error was harmless due to the overwhelming evidence
presented at trial." Blount v. United States, No. 01CF-974, 859 A.2d 651, slip op. at 1 (D.C. Oct. 11, 2012)
("Blount II') (order adjudicating motion to recall the
mandate). That analysis misses the nuance of the test
mandated by Robbins: whether there is "a reasonable
probability that, but for his counsel's unreasonable failure he would have prevailed on his appeal." 528 U.S.
at 285, 120 S.Ct. 746. Thus it would suffice for Blount
to show, as he has, a reasonable probability that the
original appellate panel would have rejected the government's claim of harmlessness beyond a reasonable
doubt. When you multiply a fraction of a burden (reasonable probability) by a fraction of a burden (rebutting
government's contention that the jury instruction made
no difference beyond a reasonable doubt), you get a
smaller fractional burden: Blount need establish only a
reasonable probability that the government might not
have established harmless error. The D.C. Court of
Appeals was incorrect to require Blount to rebut the
government's harmlessness contention entirely.
Whether that mistake amounts to an "unreasonable application" of Strickland, reasonable jurists might debate. See 28 U.S.C. § 2254(d). And that is all that
Blount need show "at this stage," where "we only ask
whether
deference" to the state court decision is
"debatable amongst jurists of reason." Miller-El, 123
S.Ct. at 1042.
...
...
General Page 31
30a
For these reasons, the majority should have granted the COA rather than issue, as they did, an advisory
opinion on the merits followed by a summary denial of
the COA. As I find grounds for granting the COA, I
now proceed to the appeal proper, on which I find the
majority's advisory opinion mistaken. Readers may
wonder why I did not simply grant the certificate myself and thus provide my colleagues with jurisdiction to
reach.the merits decision that they do. A circuit judge
acting alone is authorized to grant a COA. 28 U.S.C. §
2253(c)(1); Fed. R. App. Pro. 22(b)(1)-(2). But as far as
I can tell, no judge has ever taken that step in this
court, certainly not after panel oral argument. I have
chosen not to do so partly out of comity but more out of
futility; a move to the more difficult appeal stage
would—so far as appears—not yield a difference in my
colleagues' conclusion. Nonetheless, I now move on to
the merits, the logical sequel to my view on the COA.
Turning to "full consideration" of the procedural
merits, Buck, 137 S.Ct. at 773, I find Blount entitled to
equitable tolling— covering the time spent adjudicating
Blount's first federal petition as well as the short periods it took him to go from our court back to the D.C.
Court of Appeals and from there back to federal court.
(Blount's time litigating the motion to recall the mandate can be tolled as a matter of course. See Maj. Op.
at 740 n.4.) Equitable tolling is appropriate under the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, when
the prisoner "has been pursuing his rights diligently"
and "some extraordinary circumstance stood in his
way." Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct.
2549, 177 L.Ed.2d 130 (2010). Blount has certainly been
diligent. He filed his motion to recall just 31 days after
General Page 32
31a
the COA on his first petition was denied. Compare
Blount v. Wilson, No. 117060 (D.C. Cir. Sept. 27, 2011)
(denying COA) with Mot. to Recall Direct Appeal Mandate, Blount v. United States, No. 01-CF-974 (mailed
October 28, 2011). As for an extraordinary blocking
circumstance, that can be found in the ill-advised handling of Blount's first petition, which the district court
(along with this court) construed too narrowly and dismissed too readily, rather than holding it in abeyance
for Blount to exhaust his District remedy.
Blount had not exhausted his Strickland claim before he brought his first petition. But "pleading errors
may be corrected through the liberal construction or
amendment we are accustomed to providing a pro se
prisoner." Davis v. U.S. Sentencing Comm'n, 716 F.3d
660,667 (D.C. Cir. 2013). Blount's Strickland claim was
intertwined with one that had been exhausted in District post-conviction proceedings: that the jury charge
was unconstitutional. See Blount v. Wilson, No. 117060, at 1-2 (noting that the first petition appeared to
raise both claims). Blount had already challenged those
instructions via the District's procedure for postconviction relief, D.C. Code § 23-110. See Blount II at
1. Although the D.C. Court of Appeals acknowledged
that the instructions were "improper," it affirmed the
denial of that challenge because he had not raised the
issue on direct appeal. Id. When his federal habeas petition is read to focus on that claim, the Strickland argument still plays a role; it serves to excuse his procedurally defaulting in his direct appeal. See Edwards v.
Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146
L.Ed.2d 518 (2000). Blount's first petition then, was a
mix of both exhausted and unexhausted claims. And "it
likely would be an abuse of discretion for a district
court to deny a stay and dismiss a mixed petition if the
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32a
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and
there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Rhines, 544 U.S.
at 278, 125 S.Ct. 1528. Blount's mixed petition satisfied
each Rhines element.
First, Blount's unexhausted claim had considerable
merit; second, his failure to exhaust was due, at least in
part, to the District's byzantine process for pursuing
Strickland claims of appellate representation; and
third, he did not—and had no incentive to—engage in
"dilatory litigation tactics," as those tactics would prolong his time in prison. Dismissing Blount's first petition also ran counter to our precedent on unexhausted
Strickland claims flowing to us from the D.C. Court of
Appeals. In Streater v. Jackson, 691 F.2d 1026 (D.C.
Cir. 1982), a petitioner for federal habeas for ineffective
assistance of appellate counsel had been stymied by the
then prevailing uncertainty in the District over where
such a claim could get review. Recognizing the interaction between that confusion and the requirement of exhausting state remedies, we held the federal petition in
abeyance so that the petitioner could pursue whatever
the District might offer. Id. at 1028. Both Rhines and
Streater show that Blount's first petition should have
been stayed, not dismissed.
Equitable tolling would correct this unfortunate
mistake and retroactively stop the clock during the
pendency of Blount's first petition and during the reasonable amount of time it took Blount to file his motion
to recall and his second federal habeas petition. The
district court was incorrect to deny Blount equitable
tolling, and its decision should be reversed.
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33a
Blount's Jimenez claim also warrants reversal. The
D.C. Court of Appeals views its procedure for Strickland-based motions to recall the mandate (its sole remedy for constitutionally defective appellate counsel) as
a two-step process. There is a decision on the motion
itself, and then, if the motion is granted, full consideration of the Strickland claim and the merits of the recalled appeal. See Long v. United States, 83 A.3d 369,
378 & n.15 (D.C. 2013).
The parties here appear to agree that the first
stage does not qualify as a reopening under Jimenez
but that the second does. That shared assumption
seems a reasonable reading of Jimenez, where the
Court specifically found that, as a matter of plain meaning, 28 U.S.C. § 2244(d)(1)(A)'s trigger for the AEDPA's one-year habeas limitations period—"the date on
which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking
such review"—encompasses not only standard conclusion of direct review but also instances where a state
court re-opens and re-concludes direct review. 555 U.S.
at 11920, 129 S.Ct. 681.
But as Long itself illustrates, the D.C. Court of Appeals may collapse into a single proceeding its grant of
the motion to recall and its adjudication of the reopened appeal. 83 A.3d at 378 n.15.' A composite proThere are, practically speaking, three steps combined in
Long: an initial Strickland inquiry when reviewing the motion to
recall the mandate; the post-recall complete Strickland analysis;
and the adjudication of the claim that should have been brought in
the original appeal. Id. at 378-84 (performing initial Strickland
analysis, full Strickland analysis, and plain error analysis simultaneously, then remanding to district court because there was plain
error). Performance of either of the latter two steps would indicate re-Opening.
General Page 35
34a
cess would also count as re-opening direct review, and
Blount claims this occurred in his case. In Long the
movant ultimately prevailed in the reopened appeal,
but there is nothing preventing the use of Long's
streamlined process in cases where the movant ultimately loses (as did Blount). The two steps in the D.C.
Court of Appeals's process impose successively increasing burdens on the defendant: he need only show "sufficient merit" to pass the first stage but can only prevail
in the second stage after the court "fully explores" his
Strickland claim. Griffin v. United States, 598 A.2d
1174, 1175-76 (D.C. 1991) (emphasis and internal quotation marks omitted). As a matter of logic, a court can,
in a single proceeding, find that a movant clears the
lower hurdle but not the higher one. Indeed, this ladder of increasing burdens should sound familiar: it is
the process AEDPA's COA provision calls for us to follow here—analyze the COA and then (if we grant the
COA) address the merits.
My colleagues recognize the possibility of a combined grant-and-reject process. See Maj. Op. at 738-39.
But they insist that when the D.C. Court of Appeals
claims it has dismissed a motion at the first stage, we
must end our inquiry, even if that court's "reasoning
mirrors the reasoning it would use on a reopened appeal." Id. at 739. They reject Blount's "notion" of analyzing what a state court actually did, preferring to
treat as final what it said it did. See id.
Blount's "notion," though, flows from the Supreme
Court's command: we are to analyze the state court decision to see if "in fact" it re-opened the appeal.
Jimenez, 555 U.S. at 120 n.4, 129 S.Ct. 681. "[Fjor purposes of applying" AEDPA provisions "that interact[ I
with state procedural rules, we look to how a state procedure functions, rather than the particular na',ne that
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35a
it bears." Carey v. Saffold, 536 U.S. 214, 223, 122 S.Ct.
2134, 153 L.Ed.2d 260 (2002) (emphasis added). Federal courts applying AEDPA are admonished not to take
what the state court said it was doing "as an absolute
bellwether" for what it actually did. Id. at 226, 122
S.Ct. 2134. Doubtless there may be close cases, such as
this one, but accepting the burden of adjudicating these
cases is, in the Supreme Court's judgment, radically
preferable to willful ignorance. Closing ourselves off to
reality does no honor to state courts and no justice to
habeas petitioners.
Still, my colleagues contend that horrendous consequences would flow from treating a denial of a motion
to recall the mandate as a reopening of the appeal—
even in cases where the state court's reasoning "mirrors" what it "would use on a reopened appeal." Maj.
Op. at 73940. The majority envisions prisoners evading time limits altogether as they endlessly filed frivolous motions to recall the mandate. See id. But state
and federal courts have formidable tools to prevent
such gamesmanship. First, the D.C. Court of Appeals
invites little chance of re-opening when it follows its
standard practice of dismissing motions to recall when
they are facially insufficient. Here though, the court
issued multiple orders, noted the apparent sufficiency
of Blount's claims, and applied the legal standard appropriate for a re-opened appeal. See Dissent, infra, at
74041. Second, there is the District's 180-day deadline
for motions to recall the mandate, after which the D.C.
Court of Appeals may dismiss a motion procedurally
with no hint of re-opening. D.C. Ct. App. R. 41(f). The
court waived that bar in Blount's case, further indicating its desire to plumb the merits. Finally, any fear of
meretricious reopening must assume extraordinary
sloppiness on the part of federal courts in interpreting
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36a
state court decisions. We are quite capable of comprehending that though all cats have four legs (with a few
exceptions), not all animals with four legs are cats.
Characterizing a motion to recall as frivolous may "mirror[ ]" a merits dismissal for frivolity, but the reasoning
would be inconsistent with any idea that the court went
on to the second stage of its procedure. Compare Maj.
Op. at 739-40.
I would follow the Supreme Court's example in
Carey, looking to the substance of the D.C. Court of
Appeals's decision, not its form. Judged from this perspective, the decision almost certainly re-opened
Blount's appeal. After Blount filed his motion, the D.C.
Court of Appeals released an order noting that "the jury may have relied upon the aiding and abetting instruction which included the 'reasonable and probable
consequences' language this court held to be unconstitutional"; requesting a response from the government;
and concluding that Blount "appear[ed]" to have raised
a viable Strickland claim. Order, Blount v. United
States, No. 01-CF-974 (D.C. Aug. 29, 2012). Thus the
court seems to have concluded that "on their face"
Blount's claims had "sufficient merit," see Watson v.
United States, 536 A.2d 1056, 1060 (D.C. 1987) (plurality); see Griffin, 598 A.2d at 1176, and that it was necessary "to consider more fully and then decide" whether a
Strickland violation had occurred, see Stratmon v.
United States, 631 A.2d 1177, 1178 (D.C. 1993) (internal
quotation marks omitted). That is precisely the reasoning the D.C. Court of Appeals uses when it "recall[s]
the mandate." See Stratmon, 631 A.2d at 1178.
Consistent with this interpretation of the first order, the court's next order on Blount's motion appears
to involve the type of "full[ I explor[ation]" one expects
in a recalled appeal. See Griffin, 598 A.2d at 1176. As
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37a
mentioned in my discussion of Blount's Strickland
claim, the second order invoked the precise legal test,
harmless error, that should govern the reopened appeal. See Blount III at 1. Thus it went well beyond
what would have been necessary simply to deny recall
of the mandate. Compare Maj. Op. at 738-39. To be
sure, the D.C. Court of Appeals's precedents on this
issue are somewhat confusing. Despite case law asserting that the motions to recall are decided "on their
face," Watson, 536 A.2d at 1060, the D.C. Court of Appeals once ordered "an evidentiary hearing by the trial
court" on such a motion, Stratmon, 631 A.2d at 1180.
But the best reading of the decisional array appears to
be that the D.C. Court of Appeals's disposition of
Blount's motion comprised both a decision to recall and
a decision on the merits. Thus this panel would have
done well to find Blount's petition timely by virtue of
Jirne'iwz as well as the equities (and certainly within
the realm of reasonable disagreement).
Finding grounds for granting the COA and for ultimately finding Blount's petition not time-barred, I
would reverse on the timing issue and remand for the
district court to address the merits of the constitutional
claim. See Mickles-El v. D.C. Gov't, No. 98-7019, 1998
WL 846649, at *1 (D.C. Cir. Nov. 24, 1998).
I respectfully dissent.
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38a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 13-1938 (ABJ)
CARLTON BLOUNT,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
Document 16
Filed September 26, 2014
MEMORANDUM OPINION
This matter is before the Court on Canton Blount's
Pro Se Petition for Writ of Habeas Corpus and Attached Appendix Pursuant to 28 U.S.C. § 2254 [ECF
No. 1] and the government's Motion to Dismiss Petitioner's Petition for a Writ of Habeas Corpus [ECF No.
10]. Because petitioner had an effective means to pursue his claim of ineffective assistance of trial counsel,
and his claim concerning appellate counsel is time
barred, the government's motion will be granted.
I. BACKGROUND
In the Superior Court of the District of Columbia,
petitioner was convicted of first degree murder of Natasha Marsh while armed, second degree murder of
Andre Wallace while armed, possession of a firearm
during a crime of violence, conspiracy to assault with a
dangerous weapon, obstruction of justice, and carrying
a pistol without a license. Pro Se Petition for Writ of
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39a
Habeas Corpus and Attached Appendix Pursuant to 28
U.S.C. § 2254 ("Pet.") at 2 (page numbers designated by
petitioner). The Superior Court imposed an aggregate
sentence of 64 years to life imprisonment. Id. On June
29, 2004, petitioner's convictions were affirmed on direct appeal. See Pet., App. J (Memorandum Opinion
and Judgment, Blount v. United States, No. 01-CF-974
(D.C. Ct. of App. June 29, 2004)); United States' Motion
to Dismiss Petitioner's Petition for a Writ of Habeas
Corpus ("Resp't's Mot."), Ex. C (docket sheet, United
States v. Blount, No. 01-CF-0974 (D.C. Ct. of App. filed
July 12, 2001)) at 2. Petitioner did not file a motion to
recall the mandate until November 21, 2011. See
Resp't's Mot., Ex. C at 1; Pet. at 5. The Court of Appeals denied the motion on October 11, 2012. See
Resp't's Mot., Ex. F (Order, Blount v. United States,
No. 01-CF-974 (D.C. Ct. of App. filed Oct. 11, 2012) (per
curiam)).
On June 6, 2005, petitioner, who was then proceeding pro se, filed a motion for a new trial in the Superior
Court under D.C. Code § 23-110. Pet, at 3. The government filed its opposition on November 9, 2005, and
petitioner filed a reply on November 28, 2006 and a
supplement on January 30, 2007. Id. The Superior
Court appointed counsel to represent petitioner, and on
January 29, 2008, counsel filed a reply to the government's opposition on petitioner's behalf. Id. at 4. The
government filed its response on March 12, 2008. Id.
The Superior Court denied petitioner's motion on July
23, 2008. Id. The Court of Appeals affirmed the decision and issued its mandate on December 2, 2009, and
on October 4, 2010, the Supreme Court of the United
States denied petitioner's petition for a writ of certiorari. See Blount v. United States, 983 A.2d 1064 (D.C.
2009) (table), cert. denied, 131 S. Ct. 214 (2010).
General Page 41
40a
Petitioner, again proceeding pro Se, filed a second
§ 23-110 motion in the Superior Court on December 13,
2011; the motion was denied on March 6, 2012. See Pet.
at 5; Resp't's Mot. at 5. The Court of Appeals affirmed
the decision on May 2, 2013. Resp't's Mot., Ex. G
(Memorandum Opinion and Judgment, Blount v. United States, No. 12-CO-380 (D.C. Ct. of App. May 2,
2013)).
Petitioner's last effort in the Superior Court was
his Notice of Preservation to Reconsider First and Second § 23-110 Motions Due to the Intervening Decision
in Martinez v. Ryan, 132 S. Ct. 1309 (2012) Handed
Down by the United States Supreme Court on March
20, 2012. Pet. at 5. On consideration of the "notice" and
the government's opposition, the Superior Court denied
petitioner's request on June 21, 2013. Id. at 5-6.
II. DISCUSSION
A. Ineffective Assistance of Trial Counsel
Petitioner alleges here that he was denied a fair
trial in the Superior Court, see generally Pet. at 32-44,
particularly because of a jury instruction on aiding and
abetting that he contends "allowed the jury to convict
[him] of first and second degree murder without finding
that [he] had the same mens rea as the principal," id. at
38. This Court is authorized to entertain a claim of trial
court error or ineffective assistance of trial counsel only
in limited circumstances. See Williams v. Martinez,
586 F.3d 995, 999 (D.C. Cir. 2009). D.C. Code § 23-110
"entirely divest[s] the federal courts of jurisdiction to
hear habeas corpus petitions by prisoners who had a []
23-110 remedy available to them, unless the petitioner
could show that the [] 23-110 remedy was 'inadequate
or ineffective." Blair-Bey v. Quick, 151 F.3d 1036, 1042
(D.C. Cir. 1998) (citing D.C. Code § 23-110(g)); see
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41a
Reyes v. Rios, 432 F. Supp. 2d 1, 3 (D.D.C. 2006) (stating that D.C. Code § 23-110 "provided the petitioner
with a vehicle for challenging his conviction based on
the alleged ineffectiveness of his trial counsel"); Garmon v. United States, 684 A.2d 327, 329 n.3 (D.C. 1996)
("A motion to vacate sentence under [] 23-110 is the
standard means of raising a claim of ineffective assistance of trial counsel.").
Here, petitioner fails to demonstrate that the remedy available to him under § 23-110 was inadequate or
ineffective; he raised his concerns under § 23-110 twice,
and he had the assistance of counsel when he presented
them to the Superior Court the first time. So this
Court does not have jurisdiction to hear petitioner's
claim for ineffective assistance at the trial level.
B. Ineffective Assistance of Appellate Counsel
A claim of ineffective assistance of appellate counsel falls outside the scope of D.C. Code § 23-110. See
Williams, 586 F.3d at 998. "[B]ecause the Superior
Court lacks authority to entertain a [] 23-110 motion
challenging the effectiveness of appellate counsel, that
section is, by definition, inadequate to test the legality
of [petitioner's] detention." Id. But ordinarily, an ineffective assistance of counsel claim is litigated in the
District of Columbia Court of Appeals on a motion to
recall the mandate. See Watson v. United States, 536
A.2d 1056, 1060-61 (D.C. 1987) (en bane). This Court
may review a "federal habeas petition asserting ineffective assistance of appellate counsel," but only after a
petitioner has "moved to recall the mandate in the [District of Columbia] Court of Appeals." Williams, 586
F.3d at 999. This case comes before this Court after
such a motion was denied by the District of Columbia
Court of Appeals.
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42a
Petitioner contends that appellate counsel "failed to
raise
preserved issues" on appeal, including arguments regarding "the erroneous [aiding and abetting]
instruction." Pet. at 45. A claim of ineffective assistance of appellate counsel is evaluated under "the
standard set forth in 28 U.S.C. § 2254." Williams, 586
F.3d at 1002.
...
In relevant part, § 2254 provides:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court 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—
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
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). A federal court does not grant a
habeas petition unless it appears that:
the applicant has exhausted the remedies
available in the courts of the State; or
(i) there is an absence of available State
corrective process; or (ii) circumstances exist
that render such process ineffective to protect
the rights of the applicant.
Id. § 2254(b)(1).
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43a
An individual convicted in and sentenced by the
Superior Court of the District of Columbia is considered a state prisoner for purposes of § 2254. See Smith
v. United States, No. 00-5181, 2000 WL 1279276, at *1
(D.C. Cir. Aug. 23, 2000) (per curiam) (A "conviction in
the Superior Court of the District of Columbia is considered a state court conviction under federal habeas
law," and a challenge to a Superior Court conviction is
"properly brought under 28 U.S.C. § 2254.").
"Effective April 24, 1996, the Antiterrorism and
Effective Death Penalty Act (AEDPA)
impose[d] a
1-year period of limitation on motions brought under
[28 U.S.C. § 22551." United States v. Saro, 252 F.3d
449, 251 (D.C. Cir. 2001) (citation omitted). And
"[c]ourts have generally applied the same analysis to
the time limitations in § 2254 and § 2255." United
States v. Cicero, 214 F.3d 199, 203 n.* (D.C. Cir. 2000)
(citations omitted).
...
The limitation period for the filing of a petition under § 2254 is set forth in § 2244. See Wright v. Wilson,
930 F. Supp. 2d 7,9 (D.D.C. 2013). It runs from the latter of four possible dates:
the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review;
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;
the date on which the constitutional right
asserted was initially recognized by the Supreme Court, if the right has been newly rec-
General Page 45
44a
ognized 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.
28 U.S.C. § 2244(d)(1). The limitation period is tolled
while "a properly filed application for State postconviction or other collateral review with respect to the
pertinent judgment or claim is pending."
Id.
§ 2244(d)(2). Review is pending "until the application
has achieved final resolution through the State's postconviction procedures," Carey v. Saffold, 536 U.S. 214,
220 (2002), including any appeals in the state courts. A
criminal conviction becomes final when the Supreme
Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or
when the time for filing a certiorari petition expires."
Clay v. United States, 537 U.S. 522, 527 (2003); see S.
Ct. R. 13(1) (setting 90-day deadline for filing a petition
for writ of certiorari).
Petitioner's convictions became final on or about
January 20, 2005, or 90 days after the Court of Appeals
issued its mandate on October 21, 2004. The one-year
limitation period would have ended on or about January
20, 2006. Before the limitation period expired, however, petitioner filed his first § 23-110 motion in the Superior Court. Thus, the limitation period ran for approximately 136 days, from January 21, 2005 through June
6, 2005, when petitioner filed his first motion under §
23-110 in the Superior Court. At that point, approximately 229 days of the limitation period remained.
Proceedings with respect to petitioner's first § 23-110
General Page 46
45a
motion concluded on October 4, 2010, when the Supreme Court denied his petition for a writ of certiorari.
The limitation period began to run again on October 5,
2010, and expired 229 days later, on Saturday, May 21,
2011 (or the next business day, Monday, May 23, 2011).
For purposes of this discussion, the United States,
see Resp't's Mot. at 6 n.6, and the Court treat the petition as if it were filed on September 18, 2013, the date
on which petitioner "handed to prison officials, postage
prepaid, the instant § 2254 petition and attached appendix
for mailing to the United States District
Court [for the] District of Columbia," Pet. at 59 (Certificate of Mailing). Using that date, it is clear that the
instant petition was filed more than two years after the
limitation period expired, and therefore, the petition is
time-barred.'
...
Because the limitation period is not jurisdictional,
it "is subject to equitable tolling," Holland v. Florida,
560 U.S. 631, 645 (2010), where the movant demonstrates "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing," id. at 649
(citation and internal quotation marks omitted); see
Norman v. United States, 467 F.3d 773, 775 (D.C. Cir.
2006) (citing Irwin v. Dept of Veterans Affairs, 498
U.S. 89, 96 (1990)) (finding that equitable tolling is denied "where a [petitioner] 'failed to exercise due diligence in preserving his legal rights' or showed only 'a
garden variety claim of excusable neglect").
'The filing of petitioner's second § 23-110 motion did not
serve to toll the limitation period because it was filed on December
13, 2011, roughly 9 months after the limitation period already had
expired.
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46a
Here, petitioner contends that he has pursued his
rights diligently, see Petitioner's Reply to the Government's Motion to Dismiss Petitioner's Habeas Corpus
Petition Under 28 U.S.C. § 2254 [ECF No. 15] ("Reply") at 5, and he recounts his efforts to seek relief in
the District of Columbia courts under D.C. Code § 23110 and this district court under 28 U.S.C. § 2241.2 See
Reply at 6-7. He first notes that "neither the court of
appeals, nor appellate counsel for indigent appellants,
inform[ed]" him of his "right" to seek recall of the
Court of Appeals' mandate, which for him would have
been the first opportunity to litigate an ineffective assistance of appellate counsel claim. Id. at 2. Petitioner
also explains that, as a District of Columbia Code offender incarcerated in federal facilities, he lacked "the
benefit of trained legal assistance versed in D.C. law
and rules of the courts." Id. at 3. He further explains
that his efforts were hampered by his confinement in
segregated housing units, delays in sending and receiving mail, delays in acquiring transcripts, transfers
among correctional institutions, and limited access to
his legal papers and the law library. See id., App. K
(Motion to Recall Direct Appeal Mandate) at 1-2. While
petitioner may have been diligent, he has not demonstrated that extraordinary circumstances prevented
him from filing a petition within the one-year limitation
period.
...
2 Petitioner's petition for a writ of habeas corpus under 28
U.S.C. § 2241 was dismissed for lack of jurisdiction. "[T]his Court
provide[dJ no forum for the claim of ineffective assistance of appellate counsel because [Petitioner] ha[d] neither stated nor shown
that he moved in the District of Columbia Court of Appeals to recall the mandate and his request was denied." Blount v. Wilson,,
No. 11-0743, 2011 WL 1526945 (D.D.C. Apr. 19, 2011). Petitioner
since has filed a motion to recall the mandate, which the Court of
Appeals denied on October 11, 2012. See Resp't's Mot., Ex. F.
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47a
Neither petitioner's lack of access to a law library,
nor his inability to secure transcripts, nor his transfer
from one correctional facility to another is considered
to be an extraordinary circumstance. See, e.g., United
States v. Destine,
2014 WL
F. Supp. 2d
294500, at *5 (D.D.C. Jan. 28, 2014) (finding that petihis delay is that he
tioner whose "only explanation
"was in the special housing unit, with no access to a law
library to file a timely § 2255 [motion]," demonstrated
neither extraordinary circumstance nor diligent pursuit
of his rights to warrant equitable tolling). Petitioner's
placement in segregative detention without access to
his legal papers and to a law library is not an extraordinary circumstance either. See Cicero, 214 F.3d at 204
(finding that petitioner whose convictions became final
in 1994 failed to demonstrate extraordinary circumstances to warrant equitable tolling despite showing
that, during last six months of limitations period ending
on April 24, 1997, he "was separated from his legal papers during a transfer between prisons"). Nor is an untimely filing excused because of a petitioner's "ignorance of the law or unfamiliarity with the legal process." Id. at 203 (citing Fisher v. Johnson, 174 F.3d
710, 714 (5th Cir. 1999)).
-,
-
-,
...
Furthermore, even if petitioner had filed this petition on time, he has not demonstrated that his local
remedy for an ineffective assistance of appellate counsel claim was inadequate or ineffective. He had available to him the option of filing in the Court of Appeals a
motion to recall the mandate, a remedy he eventually
pursued in November 2011. "[T]he availability of such
a course precludes the finding of inadequacy or ineffectiveness required to maintain jurisdiction in this
Court." Hewitt v. Smith, No. 05-1861, 2006 WL
1722330, at *3 (D.D.C. June 20, 2006). And according to
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48a
petitioner, the Court of Appeals decided his motion to
recall the mandate on the merits rather than on procedural grounds. See Reply at 9-11. His lack of success
did not render the remedy inadequate or ineffective either. See Collier v. United States, No. 99- 5120, 1999
WL 1336229, at *1 (D.C. Cir. Dec. 15, 1999) (per curiam)
("Failure to prevail [on a motion to recall the Court of
Appeals' mandate] does not render his local remedies
inadequate or ineffective."), cert. denied, 529 U.S. 1118
(2000); see also Garris v. Lindsay, 794 F.2d 722, 727
(D.C. Cir. 1986) (per curiam) ("It is the inefficacy of the
remedy, not a personal inability to utilize it, that is determinative, and appellant's difficulty here is simply
that his circumstances preclude him from invoking it.").
III. CONCLUSION
The Court concludes that petitioner's petition for a
writ of habeas corpus is time-barred, and that he had
access to effective procedures for post-conviction relief
in the District of Columbia courts. The government's
motion to dismiss therefore will be granted. An Order
is issued separately.
Is'
AMY BERMAN JACKSON
United States District Judge
DATE: September 25, 2014
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49a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 13-1938 (ABJ)
CARLTON BLOUNT,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
Document 19
Filed January 7, 2015
MEMORANDUM OPINION AND ORDER
This matter is before the Court on petitioner's Pro
Se Motion for Reconsideration Pursuant to Fed. R. Civ.
P. 59(e) [ECF No. 18]. A motion under Rule 59(e) is
"disfavored and relief from judgment is granted only
when the moving party establishes extraordinary circumstances." Niedermeier v. Office of Max S. Baucus,
153 F. Supp. 2d 23, 28 (D.D.C. 2001) (citing Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. Cir.
not be granted unless the
1998)). Such a "motion
district court finds that there is an "intervening change
of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest
injustice." Firestone v. Firestone, 76 F.3d 1205, 1208
(D.C. Cir. 1996) (internal quotation marks and citation
omitted).
...
The Court granted respondent's motion to dismiss
petitioner's petition for a writ of habeas corpus as timebarred. See Blount v. United States -, F. Supp. 3d -'
General Page 51
50a
2014 WL 4916273 (D.D.C. Sept. 25, 2014). According to
petitioner, the one-year limitation period within which
to file his petition for a writ of habeas corpus began to
run on October 11, 2012, when the District of Columbia
Court of Appeals issued its ruling on his motion to recall the mandate. See Mot. for Recons. at 3. Under the
controlling statute, however, the limitation period began when petitioner's convictions became final in 2011.
The filing of his petition on September 18, 2013 therefore was untimely.
It is hereby
ORDERED that petitioner's Pro Se Motion for Reconsideration Pursuant to Fed. R. Civ. P. 59(e) [18] is
DENIED.
SO ORDERED.
Is!
AMY BERMAN JACKSON
United States District Judge
DATE: January 7, 2015
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51a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 13-1938 (ABJ)
CARLTON BLOUNT,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
Document 24
Filed March 13, 2015
MEMORANDUM OPINION AND ORDER
The Court granted respondent's motion to dismiss
petitioner's petition for a writ of habeas corpus as timebarred. See Blount v. United States, F. Supp. 3d, 2014
WL 4916273 (D.D.C. Sept. 25, 2014). Petitioner since
has filed a motion for reconsideration, ECF No. 18,
which the Court denied on January 7, 2015, ECF No.
19. On February 24, 2015, he filed a Pro Se Notice of
Appeal and a Pro Se Motion for a Certificate of Appealability, ECF Nos. 20-21. The United States Court of
Appeals for the District of Columbia Circuit has held
the appeal in abeyance pending this Court's resolution
of the motion for certificate of appealability.
The time period within which to file a petition under 28 U.S.C. § 2254 was one year from "the date on
which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking
such review." 28 U.S.C. § 2244(d)(1)(A) (emphasis added). This Court found that petitioner's convictions be-
General Page 53
52a
came final on or about January 20, 2005, or 90 days after the District of Columbia Court of Appeals issued its
mandate on October 21, 2004, having affirmed petitioner's convictions on direct appeal. Taking into account
the time proceedings with respect to petitioner's collateral attack by motion under D.C. Code § 23-110 were
pending, petitioner's one-year limitation period expired
on or about May 23, 2011. The filing of his habeas petition in federal district court on September 18, 2013,
therefore, was untimely.
A certificate of appealability may issue "only if the
applicant has made a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). Such a
showing may include a demonstration that "reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the issues presented were 'adequate
to deserve encouragement to proceed further." Slack
v. McDaniel, 529 U.S. 473,484 (2000) (quoting Barefoot
v. Estelle, 463 U.S. 880, 893 n.4 (1983)). The Court concludes that petitioner fails to make the requisite showing.
Petitioner contends that reasonable jurists could
debate whether the petition should have been resolved
differently based on the Supreme Court's ruling in
Jimenez v. Quarterman, 555 U.S. 113 (2009). See Pet'r's
Mot. at 4-5. The Jimenez "decision.. is a narrow one,"
Jimenez, 555 U.S. at 686, predicated on a Texas court
ruling expressly granting the petitioner "the right to
file an out-of-time appeal," id. at 683, because he previously had been "denied his right to a meaningful appeal." Id. In that limited circumstance, "where a state
court grants a criminal defendant the right to file an
out-of-time direct appeal during state collateral review,
but before [he] has first sought federal habeas relief,
.
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53a
his judgment is not yet 'final' for purposes of §
2244(d)(1)(A)[,]" and would not become "final [until] the
conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that appeal."
Id. at 686-87.
According to petitioner, the District of Columbia
Court of Appeals "reopened [his] direct criminal appeal
and first [collateral attack by motion under D.C. Code §
23-1101, and heard [his] motion to recall the mandate on
the merits," even though he filed the motion to recall
the mandate out of time. Pet'r's Mot. at 4. Because he
filed his § 2254 petition in this Court within one year of
the Court of Appeals' ruling on the motion to recall its
mandate, he asserts that the petition is timely. See id.
at 4-5. In petitioner's case, however, his direct appeal
not only commenced but also had become final years
before he filed the motion to recall of the Court of Appeals' mandate. Furthermore, the fact that the District
of Columbia Court of Appeals entertained his untimely
motion to recall its mandate does not amount to an express grant of a right to file a direct appeal out of time.
Petitioner's reliance on Jimenez is misplaced.
Accordingly, it is hereby
ORDERED that petitioner's Pro Se Motion for a
Certificate of Appealability [21] is DENIED.
SO ORDERED.
Is'
AMY BERMAN JACKSON
United States District Judge
DATE: March 13, 2015
General Page 55
54a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 15-5056
September Term, 2015
1:13-cv-0 1938-ABJ
CARLTON J. BLOUNT,
Appellant,
V.
UNITED STATES OF AMERICA
AND DISTRICT OF COLUMBIA,
Appellees.
Document #1599552
Filed February 18, 2016
ORDER
BEFORE:
Tatel, Griffith, and Millett, Circuit
Judges
Upon consideration of the motion for a certificate of
appealability, the response thereto, combined with a
motion to dismiss, and the opposition to the motion to
dismiss, it is
ORDERED that the motion for a certificate of appealability and the motion to dismiss be referred to the
merits panel to which this appeal is assigned. The parties are directed to address in their briefs the issues
presented in the motions rather than incorporate those
arguments by reference. It is
FURTHER ORDERED, on the court's own motion,
that
General Page 56
55a
David Lehn
WilmerHale
1875 Pennsylvania Avenue NW
Washington DC 20006
a member of the bar of this court, be appointed as amicus curiae to present arguments in favor of appellant.
Per Curiam
General Page 57
56a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 15-5056
September Term, 2017
1:13-cv-01938-ABJ
CARLTON J. BLOUNT,
Appellant,
V.
UNITED STATES OF AMERICA
AND DISTRICT OF COLUMBIA,
Appellees.
Document #1704321
Filed November 14, 2017
ORDER
BEFORE: Henderson and Griffith, Circuit Judges;
Williams*, Senior Circuit Judge
Upon consideration of appellant's petition for panel
rehearing filed on July 21, 2017, the brief for courtappointed amicus curiae in support of petition for rehearing and rehearing en bane, the response to the petition, and the reply, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
General Page 58
General Page 59
58a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 15-5056
September Term, 2017
1:13-cv-01938-ABJ
CARLTON J. BLOUNT,
Appellant,
V.
UNITED STATES OF AMERICA
AND DISTRICT OF COLUMBIA,
Appellees.
Document #1704324
Filed November 14, 2017
ORDER
BEFORE: Garland, Chief Judge; Henderson, Rogers, Tatel, Griffith, Kavanaugh, Srinivasan, Millett, Pilard, and Wilkins*, Circuit Judges
Appellant's petition for rehearing en bane, the brief
for court-appointed amicus curiae in support of the petition for rehearing en bane, the response to the petition, and the reply were circulated to the full court, and
a vote was requested. Thereafter, a majority of the
judges eligible to participate did not vote in favor of the
petition. Upon consideration of the foregoing, it is
ORDERED that the petition be denied.
FOR THE COURT:
Mark J. Langer, Clerk
General Page 60
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60a
DISTRICT OF COLUMBIA
COURT OF APPEALS
No. 01-CF-974
F983-00
CARLTON J. BLOUNT,
Appellant,
V.
UNITED STATES,
Appellee.
(Argued June 17, 2004
Decided June 29, 2004)
Filed June 29, 2004
Appeal from the Superior Court of the
District of Columbia
(Hon. Russell F. Canan, Trial Judge)
MEMORANDUM OPINION AND JUDGMENT
Before TERRY, REID and GLICKMAN, Associate
Judges.
Appellant Canton J. Blount was convicted of firstdegree murder while armed (premeditated) (of Natasha
Marsh), in violation of D.C. § Code 22-2401, -3202
(1996);' the lesser-included offense of second-degree
murder while armed (of Andre Wallace); possession of a
firearm during a crime of violence, in violation of § 223204 (b);2 conspiracy to assault with a dangerous weap'Recodified at D.C. Code § 22-2101,4502 (2001).
Recodified at D.C. Code § 22-4504 (2001).
2
General Page 62
61a
on, in violation of § 22-105a, -502;1 obstruction of justice,
in violation of § 22-722 (a)(2); and carrying a pistol
without a license, in violation of § 22-3204 (a).4 He noticed an appeal, challenging various aspects of his jury
trial. We affirm the trial court's judgment.
FACTUAL SUMMARY
The record before us shows that on February 8,
2000, the day of the murders of Natasha Marsh and
Andre Wallace, both students at Wilson High School,
Canton Blount, a former Wilson student, celebrated his
birthday. He spent the morning shopping with his
friends, Jermaine Johnson' and Julian Jones at the Annapolis Mall, and in Georgetown. Later that day,
around 7 p.m., Canton and Julian, joined by Jermaine,
and other friends, drank Moet champagne and Remy
Martin before going to a varsity basketball game at
Wilson High School in Jermaine's black Ford Expedition truck.
After their arrival at the game, a Fight erupted between Andre and Carlton. Julian "[r]an over" to assist
Carlton and hit Andre before school security pulled him
back. Canton was attempting to get away while Andre
was pursuing him, "still punching" him. After the
Fight had been broken up, Carlton stated to Andre:
Recodiiied at D.C. Code § 22-1805a, 402 (2001).
Recodified at D.C. Code § 4504 (a) (2001). The trial court
imposed a prison sentence in the aggregate of 64 years to life.
With respect to the murders of Andre Wallace and Natasha
Marsh, Jermaine Johnson entered a plea of guilty to two counts of
manslaughter while armed, and agreed to testify for the government, in exchange for the government's indication that it would
seek a sentence of ten to thirty years on each count; the counts
would run consecutively.
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62a
"I'm going to see you later, I'm going to get you." One
witness heard Canton say to Andre "two or three
times" in an angry and very loud voice: "Let me get
my hammer, let me get my hammer." Another witness
saw Canton coming out of the gym, in an "angry"
mood, with his "shirt.., ripped like he had just been in
a Fight," and heard him say: "I'm about to go get my
hammer." Both witnesses understood "hammer" to
mean "[a] gun."
Later, Canton and Jermaine departed the school
premises in Jermaine's truck. Jermaine described
Canton as "mad," and "hyper." Canton told Jermaine
"he was going to f
k the dude, Andre, up," a statement which he repeated "a lot of times." His voice was
"high pitched" and he also asserted: "[F]
k him up,
he punch me in my face, I'm going to f_ k him up." At
Canton's request, Jermaine drove to Carlton's mother's
apartment building. There Carlton got a gun from his
room, put it on his waist and covered it with a T- shirt.
Jermaine saw the bottom of the gun sticking out from
under Canton's T-shirt.
- -
...
-
-
-
-
When Carlton left his mother's house, he looked for
Andre and Natasha. He did not Find them at Wilson;
he used Jermaine's cell phone in an effort to locate
them. Eventually Jermaine drove Canton to 17th
Street, N.E. where Natasha lived. Carlton was still
"hyper" and after a while, Jermaine left him.
Later, Jermaine picked up Julian and drove to the
area of Natasha's house. Jermaine saw Carlton,
stopped, and Carlton got into the truck. Jermaine
parked about a block away from Natasha's house and
the three young men sat in the truck for about "Fifteen,
twenty minutes." Carlton again used Jermaine's cell
phone. He called Tia Harris "several times" in another
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63a
effort to locate Natasha and Andre. After one of the
conversations with Tia, Canton announced: "They at
the grocery store." Jermaine drove to a Giant grocery
store, but Natasha and Andre could not be found inside
the store; so he returned to the area of Natasha's home.
Canton was "mumbling to himself," and said: "Whenever I see him I'm going to f him up."
Jermaine began to watch the television that was
situated in the dashboard of his truck. About Fifteen
minutes later, Andre and Natasha drove up in her
mother's car. Canton exclaimed, "You see, there they
go right there." Carlton got out of the truck, and "r[a]n
down the sidewalk." Julian observed that Carlton, Natasha and Andre were "arguing" or "fussing" and directed Jermaine to IgIo around there." Jermaine
pulled his car around the corner. Canton fired at Andre and Natasha. Jermaine was in "shock." Andre and
Natasha fell to the ground. Jermaine watched as Carlton "walk[ed] over towards [Andre and Natasha]
[and] fired some more shots."' Jermaine drove away,
leaving Carlton at the scene of the crime. Julian "said,
'Stop, man, you can't leave him." Jermaine stopped his
truck and Carlton climbed in the back. When asked
why he shot Andre and Natasha, Carlton replied: "F
k that s J. They can't be playing with me like that."
Jermaine dropped Julian7 and Carlton near the Fort
Totten Metro station, and went to Tia's house, and later
to Canton's home.
-
-
6
Nakia Jackson, a school bus driver, who was visiting her
mother's home, which is next door to the Marsh home, heard a
loud argument outside and witnessed the murders from a thirdfloor window. She also saw' the black truck and described the
shooter.
7 Julian Jones was not charged in this case
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Ma
When Canton and Jermaine saw each other outside
Canton's home later that night, Jermaine informed
Canton that Andre and Natasha were dead. Canton
responded: "So, f
k that s_ _t, I do my time or
whatever, I ain't tripping off that." The next morning,
Jermaine drove Canton to a street near Providence
Hospital where Canton retrieved the gun used in the
murders from an alley. Jermaine drove to Haines Point
where he directed Canton to throw the gun in the water. When Carlton just stood there, Jermaine "took
[the gun] from him and [] threw it in the water."
-
-
...
The defense theory of the case was that Julian
Jones, rather than Canton Blount fired the gun that
killed Natasha and Andre, and that Julian had displayed guns on prior occasions. The defense attempted
to show that Julian had a motive to shoot Andre because Julian's girlfriend had been intimate with Andre,
and that Julian more closely fit the description of the
person who shot Andre and Natasha.
ANALYSIS
Mr. Blount raises several challenges to his convictions. We address only two of them in any detail and
summarily dispose of the others.
Mr. Blount contends that the trial court "erred and
infringed his [constitutional Sixth Amendment] rights
to effective counsel by publicly admonishing and leveling ethics charges against his defense counsel who had
acted in conformance with [the court's] earlier rulings."
He singles out the trial court's admonition during defense cross-examination of Mr. Jones about his prior
possession of a gun. He claims that "defense counsel
was denounced before the jury as a habitual wrongdoer" and that the denunciation "necessarily tainted Mr.
Blount."
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65a
Before cross-examination of Mr. Jones, defense
counsel proffered that a witness saw Mr. Jones with a
gun in 1999 and again "on New Year's Eve of 2000";
and that he had fired shots into the air in 1999 and 2000.
The prosecutor raised objections, and the trial court
declared:
[Assuming this proffer is accurate
that Mr.
Jones had a weapon, it seems to me that the
fact that the witness can't describe it goes
more to the weight of the testimony, not its
admissibility. However, I'm not inclined although I will hear you about it -1 am not inclined to hear any evidence that he actually
discharged the weapon, that seems to me irrelevant.
-
-
- -
-
Defense counsel responded: "That's fine, Your Honor."
On cross-examination, defense counsel established
Mr. Jones' possession of a 9mm automatic gun in the
winter of 1999, and eventually asked: "And that's not
the only time you possessed a gun in the winter of '99,
you had a gun that you pulled out to squash a beef that
you were having in a club one night in the winter of
'99?" Government counsel objected and the trial judge
called a bench conference. When the prosecutor as
serted that defense counsel's question was "outrageous," the trial court asked defense counsel to "explain
[her]self' because the court had allowed her to "get into possession of the gun but not the facts surrounding
its use." Defense counsel's explanation and the trial
court's reaction followed:
[DEFENSE COUNSEL]: Your Honor, my
understanding of the Court's ruling is that you
said we could ask about the prior possession of
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66a
the gun, we could not ask about him firing the
gun. That was my understanding.
THE COURT: That's an outrageous misrepresentation you just made, [defense counsel]. I'm
going to excuse the jury at this time.
The court then told the jury that defense counsel had
asked an inappropriate question; that it was not the
first time she had done so; and that the government's
objection was sustained.' After the jury had been excused, the trial court very sternly admonished defense
counsel for "flaunt[ing] the Court's orders," and indicated "there are at least five or six incidents where the
defense has just decided to march on either in direct
contravention of Court orders or knowing full well that
prejudicial information would be presented before the
jury." The trial judge revealed that if defense counsel
repeated the violation of a court order, it would "instruct [the] jury, because I believe that it's my responsibility to conduct a fair trial, a fair trial for Mr. Blount,
which is why I allowed this line of testimony over the
objection of the government, but that was not to allow
you to exploit that.
Later, co-defense counsel
moved for a mistrial, in essence because, in his view,
the trial court's admonition and inference that the de.
8
.
."
Specifically, the trial court told the jury:
Ladies and gentlemen, unfortunately not for the
first time counsel has asked a question that was inappropriate and should never have been asked. So I'm sustaining the objection to the question and going to instruct you specifically to disregard that last question.
It's like it never happened. The question was inappropriate. We had talked about it before. Counsel knew it
was inappropriate and asked the question anyway. I'm
sustaining the objection. You're to completely disregard
that question. It doesn't exist.
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67a
fense had acted unethically had compromised Mr.
Blount's right to a fair trial. The trial court denied the
motion, concluding that its remarks were "measured
and considerate," and that, essentially, it could not tolerate violations of the court's procedures and rulings.'
We recognize that an accused has a Sixth Amendment constitutional right to "representation that is free
from conflicts of interest." Thomas v. United States,
685 A.2d 745, 751 (D.C. 1996) (quoting Witherspoon v.
United States, 557 A.2d 587, 590 (DC. 1989) (quoting
Wood v. Georgia, 450 U.S. 261, 271(1981))). Where a
defendant establishes that his attorney has "an actual
conflict of interest [that] adversely affect[s] [the] lawyer's performance," we presume prejudice. Cuyler v.
Sullivan, 446 U.S. 335, 349-50 (1980). Prejudice is not
presumed, however, where the defendant shows only
In denying the defense motion for a mistrial, the trial judge
asserted:
I in fact have advised counsel at the bench that should I
perceive th[at] counsel is going to violate the Court's
procedures or previous rulings, that there had [to] be
some consequence... so that the defense could just not
continually violate Court orders and Court procedures.
Because it's unfair to the government to ask controversial, inflammatory questions knowing that the[y] are
controversial and inflammatory. Particularly when
knowing that they w[ere] subject to previous orders not
to go into those areas. And both sides in this case are
entitled to a fair trial. And in my view it's simply not
fair when one side chooses to go into controversial and
inflammatory' matters, particularly when those matters
• [have] been ruled upon, go into them nonetheless with
the obvious intent to prejudice the jury. And it seems to
me, quite frankly, my remarks were measured and considerate. Because I actually think counsel's questioning
along those lines was quite frankly outrageous under the
circumstances.
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that there is a potential conflict of interest, or the possibility that representation will be affected adversely
because of another interest of counsel, see Veny v.
United States, 738 A.2d 1185, 1193 (D.C. 1999), such as
avoidance of a referral to attorney disciplinary authorities, or where there is "competition between the client's interests and the counsel's own interests [which]
'corrupts the relationship," United States v. Logan, 302
U.S. App. D C. 390, 401, 998 F.2d 1025, 1036 (1993)
(Mikva, J., dissenting) (citation omitted). Furthermore,
while "it is essential that the defense attorney be free
of any conflict of interest which might dilute her loyalty
to her client," Chase v. United States, 656 A.2d 1151,
1153 (D.C. 1995) (citation omitted), "[a] trial judge has
an obligation to prevent improprieties during the trial,
and may rebuke counsel for improper conduct," id. at
1155 (citing United' States v. Logan, supra, 302 U.S.
App. D.C. at 394, 998 F.2d at 1029).
Here, the record is devoid of any showing of actual
conflict of interest, or even a potential conflict of interest requiring further inquiry. Moreover, the trial court
did not threaten defense counsel, in the presence of the
jury, with sanctions or referral to Bar Counsel for unethical behavior. Rather, the trial court informed the
jury that defense counsel had asked an inappropriate
question after being told not to do so. Although with
hindsight the rebuke may have appeared harsh, it was
not the first rebuke during cross-examination of Mr.
Jones)° The rebuke was well within the trial court's
10
Earlier in the cross-examination of Mr. Jones, defense
counsel asked three questions using a phrase that Julian had 'used
during direct examination, "jail material." One question was, "you
have spent time in jail, haven't you?" The trial court immediately
admonished defense counsel during a bench conference, saying in
part: "Clearly asking the witness if he spent time in jail is a very
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obligation to control the trial proceedings so that neither the prosecution nor the defense would suffer unfair prejudice. See Chase, supra; Logan, supra. Defense counsel was not cited for contempt, nor referred
to Bar Counsel. Furthermore, defense counsel already
had established, prior to the rebuke by the trial judge,
that Mr. Jones possessed a 9mm automatic gun in his
possession in the winter of 1999, and that "at some
point during the new year" (i.e., 2000) he had a gun.
Asking more questions foreseeably could have led to a
revelation that Mr. Jones fired the gun, but that would
have violated the court's direct order that counsel could
inquire as to whether Mr. Jones "had a weapon" on a
prior occasion but not that "he actually discharged the
weapon." In short, given the record before us, Mr.
Blount cannot prevail on his argument that the trial
court's admonition of defense counsel "infringed his
[Sixth Amendment] rights to effective counsel" and
"necessarily tainted [him]."
Mr. Blount also argues that the trial court's response to a juror's note, during trial, concerning Mr.
Blount's use of his left hand while his trial was in progress constituted error. At least one witness testified
that the shooter used his right hand. Neither the prosecution nor the defense pursued the question of which
hand the shooter used, nor whether Mr. Blount's dominant hand was the right one or the left oneJ' While the
potentially inflammatory statement." In the presence of the jury,
the trial judge said: "Ladies and gentleman, that last objection is
sustained. You are to disregard the question. That last question
is stricken from the record."
11 Had the defense addressed this question, the government
was prepared to show that Mr. Blount had used his right hand to
shoot a gun two years prior to his trial. While the trial court never
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70a
trial court did not respond immediately to the juror's
note, it did include an instruction, as part of its final
charge to the jury. The trial judge told the jury, in
part, to "only [1 consider the evidence that has been
admitted at trial," "how the defendant writes has not
been admitted into evidence"; and "the defendant is entitled to write notes during the course of the trial, and
there is nothing at all inappropriate or wrong about him
so doing." Defense counsel objected to this instruction.
On appeal, Mr. Blount contends that the jury
should have been allowed to use its common sense and
that the trial court's instruction was unresponsive to
the juror's note. We review this matter for abuse of
discretion. See Davis v. United States, 641 A.2d 484,
495 (D.C. 1994). And, we adhere to the legal principle
that "the jury may consider only matter that has been
received in evidence." Edwards v. United States, 785
A.2d 292, 294 (D.C. 2001) (citation omitted); Keys v.
United States, 767 A.2d 255, 259 n.4 (D.C. 2001) (citation omitted). Moreover, a comment upon the demeanor or appearance of a defendant in the courtroom is
deemed to be "the presentation of unsworn testimony";
hence, such comment is disallowed. Villacres v. United
States, 357 A.2d 423, 426 n.4 (D.C. 1976) (citation omitted). The trial court correctly applied the legal principles in this case since no evidence was introduced as to
whether Mr. Blount was dominant left or right-handed.
And, the court gave a balanced instruction that favored
neither the prosecution nor the defense.'2
ruled on the use of such evidence, it expressed the view that such
testimony might be prejudicial.
12
Mr. Blount maintains that the trial court erred by giving an
aiding and abetting instruction because he was charged only as a
principal. The decision to give an aiding and abetting instruction
is committed to the sound discretion of the trial court. See Haw-
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71a
Accordingly, for the foregoing reasons, we affirm
the judgment of the trial court.
So ordered.
FOR THE COURT:
Is!
GARLAND PINKSTON, JR.
Clerk of the Court
thorns v. United States, 829 A.2d 948,952 (D.C. 2003) (citation
omitted). Where "there is clear and convincing evidence that the
defendant was present and participating in the crime," an aiding
and abetting instruction is proper. Gayden v. United States, 584
A.2d 578, 582 (D.C. 1990) (citation omitted). The defense in this
case presented evidence, which if believed, could establish that
Julian Jones, not Canton Blount was the shooter, but there also
was ample evidence that Carlton Blount was present and participating in the crimes charged. Thus, the aiding and abetting instruction was proper.
We are unpersuaded by Mr. Blount's remaining arguments.
The trial court did not abuse its discretion when it allowed the
lead detective in this case to explain why he ruled out Mr. Jones as
the shooter. His explanation constituted "background" information concerning his investigation and was properly admitted.
See Perritt v. United States, 640 A.2d 702, 705 (D.C. 1994). Even
assuming it was not background information, there was substantial testimony prior to that of the detective which, if credited, established beyond a reasonable doubt that Mr. Blount was guilty of
the charges against him. Therefore, Mr. Blount was not substantially prejudiced. Finally, Mr. Blount's argument that statements
made by the prosecutor during rebuttal amounted to "inflammatory rhetoric" is unsupported by the record when the complained of
statements are viewed in context. See United States v. Young, 470
U.S. 1, 14(1985). But even assuming that the statements were
improper, they did not "rise to the level of substantial prejudice."
Diaz v. United States, 716 A.2d 173,181 (D.C. 1998).
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DISTRICT OF COLUMBIA
COURT OF APPEALS
No. 08-CO-959
F983-00
CARLTON J. BLOUNT,
Appellant,
V.
UNITED STATES,
Appellee.
(Submitted September 21, 2009
Decided November 10, 2009)
Filed November 10, 2009
Appeal from the Superior Court of the
District of Columbia, Criminal Division
(Hon. Russell F. Canan, Trial Judge)
MEMORANDUM OPINION AND JUDGMENT
Before: GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and STEADMAN, Senior Judge.
PER CURIAM: On collateral attack of his convictions at a jury trial for first-degree and second-degree
murder, appellant asserts that the trial court erred in
denying his § 23-110 motion based on a trial court instruction that was admittedly improper under our subsequent decision in Wilson-Bey v. United States, 903
A.2d 818 (D.C. 2006) (en bane).
The trial court denied the motion withou
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