Apartment dweller’s sworn statement that government witness could not have seen murder from dweller’s apartment window requires evidentiary hearing in IAC case, despite lack of further detail

Bethea v. United States (decided Sept. 28, 2017)

Players: Associate Judges Glickman, Thompson, and Easterly. Opinion by Judge Easterly. Dissenting Opinion by Judge Thompson. Richard S. Stolker for the appellant. Trial Judge Craig Iscoe.

Facts: In February 2002, a jury convicted appellant of several counts related to a September 21, 1998 murder. The government’s case relied on a single, drug-addicted eyewitness, who testified (after being arrested on a material witness warrant) that while looking out of a certain Mr. Norwood’s apartment window, she saw appellant fire a gun into the driver’s side window of a car.

After appellant’s conviction, but before sentencing, the trial court appointed new counsel, and appellant filed a § 23-110 motion, alleging, inter alia, that trial counsel was ineffective for failing to call Norwood as a witness. Norwood’s affidavit attested that he had been away from his apartment between 7 am and 7 pm on the day of the murder and that there was “no way physically possible for [the eyewitness] to have been in [his] residence during the hours specified.” The trial court denied appellant’s motion as unripe because sentencing had not occurred. Counsel did not attempt to resurrect the motion after sentencing, and a different attorney was appointed for appeal.

In 2009, while appeal was still pending, appellate counsel successfully moved Judge Iscoe, to whom the case had been transferred, to “adopt” the previously dismissed § 23-110 motion and to stay the proceedings “pending further investigation and the possible filing of a supplement to the ineffective assistance motion.” Appellate counsel filed no motion to supplement or lift the stay, before Judge Iscoe reinstated appellant’s original post-trial attorney.

In August 2015, appellant’s original post-trial attorney filed a second § 23-110 motion, again alleging trial counsel’s ineffectiveness in failing to call Norwood as a witness.  Judge Iscoe denied this motion without a hearing, finding, based on Norwood’s affidavit, that Norwood’s testimony would be too lacking in detail about Norwood’s basis of knowledge to warrant relief.

Issue: Did the reviewing court abuse its discretion by denying appellant’s IAC claim without a hearing, based on the finding that Norwood’s proposed testimony was too lacking in detail to warrant relief?

Holding: Yes. Appellant was entitled to an evidentiary hearing, unless there was “no circumstance under which [he] could establish facts that warrant relief.” Although this exception is triggered by claims that, “even if true, do not entitle the movant to relief,” that conclusion is not warranted here.

Norwood’s affidavit was not devoid of detail. Assuming it covered the time period when the murder occurred, his statement that it was impossible for the eyewitness to have been in his apartment fairly implied that he left his apartment and locked the door and that the witness had no way of getting in, as far as he knew.

Moreover, the reviewing court failed to consider that Norwood could have expanded on the affidavit at a hearing. By assessing appellant’s underlying IAC claim in light of mere assumptions about Norwood’s testimony, the reviewing court conflated the procedural question of whether there was some reason to deny a hearing with the distinct merits question of whether the claim warranted relief (after any questions of fact were properly resolved).

Under the appropriate standard, appellant was entitled to a hearing because the record does not show his inability to “establish facts warranting relief.” Rather, Norwood’s affidavit “alleged specific facts that indicate that counsel provided ineffective assistance by failing to call a witness who could have testified that the government’s sole eyewitness to the murder could not have seen what she said she saw.”

Judge Thompson dissents.

Of Note: 

• In a footnote, the Court clarified that while a § 23-110 motion may also be denied without a hearing when it raises claims that “are vague and conclusory,” the trial court neither relied upon that ground to deny appellant’s motion, nor could have relied upon it, given that the motion “clearly state[d] the basis of his claim—[IAC]—and the manner in which [appellant] believes trial counsel provided that ineffective assistance.”

• Although appellant’s attorneys failed to supplement his IAC claim after his appellate attorney sought leave to do so, the Court was unwilling to infer that they thought doing so was necessary to obtain a hearing or that they had been, or would be, unable to do so. WC

Read the full opinion here.

The Lesser Known Writ of Error Coram Nobis Is The Proper Vehicle For Ineffective Assistance Of Counsel Claims If No Longer Detained

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

Read full opinion here.