A Defendant’s Own “Extraordinary Efforts” Help Establish Good Cause for Filing a Motion To Recall the Mandate Out of Time

Long v. United States, Nos. 98-CF-1088, 98-CF-1425 & 04-CO-1503 (decided October 24, 2013)

Players:  Glickman, Belson, Schwelb.  Opinion by Senior Judge Belson.  Sydney J. Hoffman for Mr. Long.  Trial judge:  Nan R. Shuker.

Facts:  This case concerns a motion to recall a mandate issued in 2006, and has a long procedural history.  Mr. Long was convicted in 1998 of first-degree premeditated murder and related charges.  According to proper procedures at the time, he was sentenced to life in prison without parole based on a finding by the trial judge that three aggravating factors existed:  1) that the murder was especially heinous, atrocious or cruel; 2) that the victim was especially vulnerable due to age; and 3) that the murder was committed after substantial planning.

Mr. Long appealed his conviction and also filed a 23-110 motion to vacate his conviction on grounds of ineffective assistance of counsel.  While his appeal was pending, sentencing law changed dramatically with a number of Supreme Court decisions beginning with Apprendi.  In light of these cases, the DCCA held that criminal defendants are entitled to a jury trial on the aggravating factors that determine eligibility for LWOP and reviewed pre-Apprendi LWOP sentences for plain error, Keels v. United States, 785 A.2d 672 (D.C. 2001), reversing and remanding several cases for resentencing.

Mr. Long began trying to invoke the Apprendi line of cases in 2001.  In April of 2001, he wrote to his attorney on direct appeal (Lawyer #1) and brought Apprendi to his attention, but the lawyer did not raise an Apprendi issue in the appeal.  In July of 2004, Mr. Long filed a pro se Rule 35(a) motion to correct his sentence, citing Apprendi.  The trial court denied the motion and no appeal was noticed.  In May of 2005, Lawyer #1 filed an appeal from the summary denial of Mr. Long’s 23-110 motion, again failing to cite either Apprendi or Keels.  That appeal was consolidated with Mr. Long’s direct appeal.  In November of 2006, the DCCA affirmed the convictions but remanded for a hearing on the 23-110 motion.  A new lawyer (Lawyer #2) was appointed for the remand.    

In April of 2008, Lawyer #2 filed a Renewed Motion for Correction of Sentence,” referring back to Mr. Long’s pro se Rule 35 filing, and cited Apprendi and related cases.  The filing stated that Lawyer #1 should have raised an Apprendi issue, but did not.  The government’s opposition in June of 2008 noted that any claim of ineffective assistance by appellate counsel should be litigated in a motion to recall the mandate.  Lawyer #2’s motion was denied by the trial court as procedurally barred.  A new lawyer (Lawyer #3) was appointed in January of 2009, and handled the appeal from the denial of the post-hearing 23-110.

In February of 2012, the DCCA affirmed the denial of the 23-110, stating that Mr. Long could have pursued his Apprendi claim on direct appeal.  The next month, in March of 2012, Lawyer #3 filed the motion to recall the mandate that is the subject of this appeal.  The motion argued that Mr. Long was denied effective assistance of counsel when Lawyer #1 failed to raise an Apprendi claim on direct appeal.  The motion to recall the mandate was filed more than 180 days after the mandate issued, the time period permitted by D.C. App. R. 41(f).   

Issue 1:  Did the appellant establish “good cause” for the DCCA to exercise its authority under D.C. App. R. 26(b) to extend the time prescribed by Rule 41(f) for filing a motion to recall the mandate?

Issue 2:  Did appellate counsel provide ineffective assistance by failing to raise an Apprendi claim?

Holding 1:  Yes.  Appellant’s own “extraordinary efforts” to bring an Apprendi claim warranted an exception to the time period set out in Rule 41(f) for motions to recall the mandate, where counsel’s failure to file a motion to recall the mandate at an earlier time was contrary to an “implicit duty.”

Holding 2:  Counsel on direct appeal (Lawyer #1) provided ineffective assistance by failing to raise an Apprendi challenge to the procedures used to sentence Mr. Long to LWOP.  Remand for resentencing was required because the DCCA could not determine that the jury would have reached the same decision as the trial judge on whether the murder was especially heinous, atrocious or cruel, one of the three aggravating factors that served as the basis for the LWOP sentence. 

Of Note:

• Noting that ordinarily counsel’s mistake of law or lack of due diligence “will not excuse a failure to comply with court rules,” the DCCA invokes an exception in this case “for exceptional cases where an attorney’s conduct was so plainly contrary to ‘his express instructions or his implicit duty to devote reasonable efforts in representing his client, provided that the client himself is diligent in pursuing the claim.’”  Slip op. at 13 (quoting Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d 515, 518 (D.C. 1985)).
• It also notes that the government failed to identify any prejudice as a result of the delay in filing the motion to recall the mandate.
• The court deviates from ordinary procedures by ruling on the merits of Mr. Long’s IAC    claim in the same opinion where it grants the motion to recall the mandate, explaining that this “streamlined approach” is appropriate because “a ruling on one is essentially a decision on the other.”  Slip op. at 16 note 13.
• In analyzing whether the jury would have found beyond a reasonable doubt that the murder was especially heinous, atrocious, or cruel if that aggravating factor had been properly submitted to it, the DCCA concluded that “reasonable minds could well have disagree about whether this murder was ‘especially heinous, atrocious, or cruel,’ a standard that requires a conclusion that this murder was worse than most first-degree premeditated murders.”  Slip op. at 21.  Surveying the evidence, the court observed that   the killing was “not committed at random against an unsuspecting member of the community, but rather in revenge against the perpetrator of an earlier crime who may have acted as though he was armed at the time of the shooting.”  Id. at 25.  It also was not “just for . . . fun” and did not involve torture or “gratuitous suffering.”  Id.
• In an extensive footnote, the DCCA comments on the trial court’s reliance at sentencing on Mr. Long’s suppressed confession, observing that although at the time of sentencing it was permissible for the judge to consider evidence suppressed at trial, “we are doubtful that the general inapplicability of the exclusionary rule at sentencing still holds when the sentencing hearing is actually being conducted to prove defendant’s guilt of what are, functionally, elements of a crime.”  Slip op. at 26-27 note 16.

How To Use: 

Long is useful primarily for its analysis in permitting Mr. Long to file his motion to recall the mandate out of time, as it shows that a defendant’s own actions in trying to bring an issue to counsel’s attention can go a long way towards establishing good cause for extending the time period prescribed by rule.  It may also offer some guidance about the applicability of the “especially heinous, atrocious, or cruel” aggravating factor, though it stops short of offering a more explicit definition of its scope.  MW.