Surur Fatumabahirtu v. United States (decided November 3, 2016).
Players: Associate
Judges Glickman and Beckwith, Senior Judge Ferren. Opinion by Judge Beckwith. Jeffrey Light for Ms. Surur (the case caption
incorrectly switches Ms. Surur’s given and family names). Trial Judge: Wendell P. Gardner.
Facts: Ms. Surur was convicted of
attempted possession of drug paraphernalia with intent to sell, which was
affirmed on appeal. See Fatumabahirtu v. United
States, 26 A.3d 322 (D.C. 2011). Ms. Surur was working as a clerk at a gas
station where she was alleged to have sold an ink pen along with a copper
scouring pad to an undercover officer. The officer testified that he only asked
for a pen, and that when the clerk sold him the pen along with the scouring
pad, she did so because the two items are often used together to make crack
pipes.
Ms. Surur filed a petition for writ of
error coram nobis, alleging
ineffective assistance of trial counsel. Ms. Surur particularly took issue with
the fact that counsel did not pursue a misidentification defense. Ms. Surur did not precisely fit the
description of the clerk that the officer provided, she had testified that she
had never seen the officer before, and had said that another clerk matched the
officer’s description more closely.
At the hearing, trial counsel
testified that he did not pursue a misidentification defense not for strategic
reasons, but because he “just went with a different defense.”
Issues: Was trial counsel ineffective
for not investigating a misidentification defense? And is a writ of error coram nobis the appropriate vehicle for
relief?
Holding: Yes and yes. Counsel’s
performance was deficient under the Strickland
ineffectiveness test. The Court acknowledged that there are “strategic and
tactical” reasons to pursue certain defenses to which the Court defers, but
here, “the issue in evaluating counsel’s performance is not the reasonableness
of the strategy counsel ultimately pursued,” “but the reasonableness of the
investigation said to support that strategy.” (quoting Cosio v. United States, 927 A.2d 1106, 1126 (D.C. 2007) (en banc)).
The Court reasoned that “deference to counsel’s strategic choices does not come
into play” because counsel “offered no strategic explanation for failing to
pursue these avenues of investigation.” A misidentification defense would not
have been inconsistent with the defense counsel chose, and counsel was on
notice of a misidentification defense when Ms. Surur testified that she had
never sold the ink pen and scouring pad yet counsel still did not ask “basic questions,” pursue “extrinsic
evidence,” or go over Ms. Surur’s testimony with her before trial—all steps
that likely would have uncovered the misidentification defense. Thus, the Court
held that counsel rendered constitutionally deficient performance by failing to
pursue a misidentification defense.
The Court held that Ms. Surur was
prejudiced by her counsel’s deficient performance because there is a reasonable
probability that the outcome of trial would have been different given (a) Ms.
Surur’s testimony that she does not own the clothing that the undercover
officer said the clerk was wearing; (b) the fact that Ms. Surur did not closely
match the height or weight that the officer gave of the alleged clerk who sold
him the paraphernalia; and (c) the other clerk who worked at the store was
Ethiopian, like Ms. Surur, and similarly complexioned.
The Court also ruled that a writ of
error coram nobis is the proper
vehicle to pursue and ineffective assistance of counsel claim when a person is
no longer in custody. To obtain coram
nobis relief, “a petitioner is required to demonstrate that: (1) the trial
court [was] unaware of the facts giving rise to the petition; (2) the omitted
information is such that it would have prevented the sentence or judgment; (3)
petitioner is able to justify the failure to provide the information; (4) the
error is extrinsic to the record; and (5) the error is of the
most fundamental character.” The Court held that all five factors were
satisfied here. DH
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