When Petitioner Alleges “Classic” Ineffectiveness Trial Court has Little Discretion to Deny Evidentiary Hearing

Bellingerv. United States (Decided Nov. 25, 2015)

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Farrell. Opinion by Judge Glickman; concurrence by Judge Farrell. Michael J. Anstett and Douglas W. Baruch for Mr. Bellinger. Trial Judge: Russell F. Canan.

Facts: Mr. Bellinger was convicted, after two mistrials in which the jury hung, of assault with intent to kill against Lorraine Jackson. The government’s theory was that Mr. Bellinger had shot Ms. Jackson in retaliation for acting as a police informant. At trial, Mr. Bellinger had presented an alibi defense. After his first trial, counsel for Mr. Bellinger, the Public Defender Service (PDS), moved to withdraw based on a conflict of interest, and Phyllis Baron then represented Mr. Bellinger in the two subsequent trials.

Again, new counsel was appointed for sentencing, and that counsel filed a motion with the trial court alleging that the basis for PDS’s withdrawal was that the defense had learned that the gun used to assault Ms. Jackson matched a gun used a few weeks later in a murder with which another PDS client, Randall Mack, was charged. The trial court ordered that the ballistics evidence from the two incidents be provided to a defense expert, and after years of litigation, a defense expert reported that shell casings recovered in the Jackson shooting matched the gun seized from Mack.

Mr. Bellinger filed a motion for a new trial under D.C. Code §23-110 (five years after receiving the expert report), arguing that Ms. Barron had been ineffective for failing to investigate the ballistics match and use it to present a third-party-perpetrator defense. Mr. Bellinger stated in an affidavit that (1) prior to his second trial, Ms. Barron told him that she had information that a gun connected to the Mack case would be linked to his case; (2) that she would investigate the issue further; (3) that neither Barron nor her investigator pursued any investigation into the issue; and (4) that Barron falsely told him that the prosecutor had refused to turn over any ballistic evidence and the court had denied her requests for ballistics discovery.

Mr. Bellinger also argued that the government had violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn over information linking the ballistics in the two cases.

Issue 1: Did the trial court abuse its discretion in summarily denying Mr. Bellinger’s ineffective assistance of counsel claim without first holding an evidentiary hearing?

Holding: Yes. A trial court can only deny an evidentiary hearing where a petitioner’s claims are (1) palpably incredible; (2) vague or conclusory; or (3) would not entitle the petitioner to relief. Here, if true, the facts alleged by Mr. Bellinger would be a “classic form of constitutionally deficient performance.”

In so concluding, the DCCA made three important points: First, the trial court erred in finding that a delay of five years between the expert’s report of a match and Mr. Bellinger’s 23-110 filing undercut his credibility such as to render a hearing unnecessary. Second, the trial court erred in concluding that Ms. Barron’s otherwise capable representation in trial would negate a constitutionally deficient failure to investigate exculpatory information. Third, the fact that defense counsel, properly informed by a full investigation into the ballistics evidence, could have made a strategic decision not to present the evidence would not excuse failing to investigate at all.

Additionally, the trial court erred in concluding that because the government, in its proffer in opposition to Mr. Bellinger’s 23-110 claims, alluded to evidence that the gun recovered from Mack was “communal”—meaning others besides Mack had access to it—Mr. Bellinger could not show he was prejudiced by Ms. Barron’s failure to investigate. The DCCA found the record insufficient to support a conclusion of no prejudice. Specifically, the government failed to proffer what, if any, admissible evidence it might have had at the time of Mr. Bellinger’s trial to establish that the gun was “communal” and that Mr. Bellinger would have had access to it.

Issue 2: Did the trial court abuse its discretion in summarily denying Mr. Bellinger’s Brady claim without first holding an evidentiary hearing?

Holding: No, BUT, should Mr. Bellinger be able on remand to develop a proffer that the government in fact possessed exculpatory information about a weapons match, the trial court should revisit Mr. Bellinger’s request for an evidentiary hearing on his Brady claim.

The trial court was not required to hold an evidentiary hearing because Mr. Bellinger did not proffer any evidence that the government actually possessed information that the gun recovered from Mack matched the weapon used against Ms. Jackson. The DCCA rejected Mr. Bellinger’s claim that the government should have possessed this information, even if it, in fact, did not.

Issue 3: Did the trial court abuse its discretion, in denying Mr. Bellinger’s requests for discovery relating to his Brady claim?

Holding: No, BUT, should Mr. Bellinger make more targeted requests relating specifically to what information the Metropolitan Police Department (MPD) had in its possession about the weapons match, such a request should be granted, and may allow Mr. Bellinger to renew his request for an evidentiary hearing on his Brady claim. The DCCA highlighted that starkly missing from the government’s proffers in opposition to Mr. Bellinger’s Brady claim was any information about what was known to MPD, as opposed to the trial prosecutors themselves. CP

Read full opinion here.