SURUR FATUMABAHIRTU v. UNITED STATES , 148 A.3d 260 ( 2016 )

District of Columbia
Court of Appeals
No. 13-CO-273
NOV - 3 2016
SURUR FATUMABAHIRTU,
Appellant,
v. CMD-17041-07
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: GLICKMAN and BECKWITH, Associate Judges; and FERREN, Senior
Judge.
JUDGMENT
This case was submitted to the court on the transcript of record, the briefs
filed, and without presentation of oral argument. On consideration whereof, and for the
reasons set forth in the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that the judgment on appeal is reversed, and
the matter is remanded for further proceedings.
For the Court:
Dated: November 3, 2016.
Opinion by Associate Judge Corinne Beckwith.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
No. 13-CO-273
11/3/16
SURUR FATUMABAHIRTU, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CMD-17041-07)
(Hon. Wendell P. Gardner, Jr., Trial Judge)
(Submitted February 3, 2015 Decided November 3, 2016)
Jeffrey L. Light was on the brief for appellant.
Ronald C. Machen, United States Attorney at the time the brief was filed,
with whom Elizabeth Trosman, Elizabeth H. Danello, and Edward G. Burley,
Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and BECKWITH, Associate Judges, and FERREN, Senior
Judge.
BECKWITH, Associate Judge: Fatuma Bahiru Surur1 appeals the denial of her
petition for a writ of error coram nobis alleging ineffective assistance of trial
counsel and the denial of her motion under the Innocence Protection Act, D.C.
1
The case caption incorrectly switches Ms. Surur’s given and family names
and combines her first and middle names.
2
Code §§ 22-4131 to -4135 (2012 Repl.), to set aside her 2008 conviction for
attempted possession of drug paraphernalia with intent to sell, D.C. Code §§ 48-
1103 (b), 22-1803 (2012 Repl.). We conclude that Ms. Surur’s trial counsel
rendered constitutionally deficient performance when he failed to investigate a
mistaken-identification defense. Absent this failure, there is a reasonable
probability that a reasonable factfinder would have had a reasonable doubt as to
whether Ms. Surur was the gas station clerk who sold paraphernalia to an
undercover officer in this case on June 28, 2007, and that the factfinder would in
turn have had a reasonable doubt as to whether, more than a week later when
police executed a search warrant while Ms. Surur was present at the gas station,
she had the intent necessary to commit the crime of attempted possession of drug
paraphernalia with intent to sell. We therefore reverse the judgment of the
Superior Court.
The facts of this case are set out in Fatumabahirtu v. United States, 26 A.3d
322 (D.C. 2011), our prior opinion affirming Ms. Surur’s conviction on direct
appeal. Briefly, the government alleged that Ms. Surur was working as a clerk at a
gas station convenience store on June 28, 2007, when an undercover officer, Jose
Garcia, entered the store and asked to buy an “ink pen.” The clerk, whom the
officer identified at trial as Ms. Surur, responded by giving the officer an ink pen
and a copper scouring pad. Knowing that these items were commonly used to
3
make crack pipes, Officer Garcia concluded that the clerk intended to sell him drug
paraphernalia, and the Metropolitan Police Department applied for and received a
search warrant. Other MPD officers executed the warrant and seized several items
(including more glass pens and scouring pads) on July 6, 2007, while Ms. Surur
was working in the store. Ms. Surur and the store owner, Shahzad Aslam, were
charged with, and ultimately convicted of, attempted possession of drug
paraphernalia with intent to sell. The information charged that the offense
occurred on July 6, but it is unclear from the trial record whether the trial court
convicted Ms. Surur based on her conduct on this date or instead on her alleged
June 28 sale. In the present appeal, we will assume that the conviction was based
on the July 6 conduct, and that the trial court considered the alleged sale on June
28 to be circumstantial evidence of Ms. Surur’s mens rea on July 6.2
Ms. Surur’s direct appeal focused primarily on whether the government
presented sufficient evidence that Ms. Surur had the “specific intent to deliver or
sell drug paraphernalia” and that she “knew, or reasonably should have known,
that the buyer of the items would use them illegally to inject, ingest, or inhale a
controlled substance.” Fatumabahirtu, 26 A.3d at 325. This court held that the
2
Ultimately, it makes no difference in our analysis whether the offense
occurred on June 28 or July 6.
4
government’s evidence did establish intent, stating that
[t]he trial court credited Officer Garcia’s account of the
sale, that he asked for “an ink pen” and that Ms. [Surur]
gave him a glass ink pen and a metal scouring pad, even
though he did not request a metal scouring pad. The trial
court could reasonably infer that despite the fact that Ms.
[Surur] had recently arrived in the United States,
someone at the store trained her to give a buyer both a
glass ink pen and a copper scouring pad when the buyer
asked for an ink pen, and that she either knew or
reasonably should have known that the purchase was for
the purpose of taking illegal drugs.
Id. at 336.
Now seeking post-conviction relief, Ms. Surur alleges in her motion to
vacate her conviction under the Innocence Protection Act that she was not the store
clerk who sold Officer Garcia the pen and metal pad on June 28, 2007. Her
petition for a writ of error coram nobis contends, in relevant part, that her trial
counsel was constitutionally ineffective for failing to conduct a reasonable
investigation. The petition contends that such an investigation would have yielded
information to impeach Officer Garcia’s account of the sale, including (among
other things) his assertion that Ms. Surur was the clerk who sold him the pen and
scouring pad.
At the hearing on her motion and petition, Ms. Surur further alleged that
counsel was ineffective for failing to reasonably investigate whether she was the
store clerk who encountered Officer Garcia on June 28 and, accordingly, for failing
5
to raise a mistaken-identification defense at trial.3 In that regard, Ms. Surur’s trial
counsel testified that he did not investigate facts relevant to a misidentification
defense—he did not “undertak[e] anything specific in terms of trying to pinpoint
whether or not Miss Surur was at the gas station the date of the alleged sale,” for
example, or determine what clothes Ms. Surur wore to work or how her physical
characteristics compared to Officer Garcia’s description of the clerk he claimed
sold him the paraphernalia. Specifically, he did not ascertain that Ms. Surur was
5’3” and weighed 160 pounds (as compared to the woman the officer’s report
described as 5’6” and 170 pounds), or that Ms. Surur did not own black pants or a
blue and white headscarf, which are the clothes the officer described the clerk as
wearing on June 28. Forgoing a mistaken-identity defense was not a strategic
decision, counsel testified: He “just . . . went with a different defense”—namely, a
defense in which he attacked the government’s evidence that Ms. Surur knew or
had reason to know the items were drug paraphernalia. He testified that he did not
recall “[i]f it was a matter of sort of discarding other defenses or just going with
the one that immediately jumped out to me as being the best. I don’t recall how
that process worked. But I know that I did not pursue a mistaken ID defense.”
Counsel agreed that a mistaken-identification defense was not incompatible with
3
We disagree with the government that Ms. Surur raises this argument for
the first time on appeal. The trial court ruled on the argument at the hearing.
6
the defense he pursued at trial, and he testified that Ms. Surur’s height and clothing
might have been relevant where the person “the government is alleging was
arrested and [sic] somehow was not the same person,” but that that “was not our
defense.” Some attorneys, he noted, “would challenge every piece of testimony or
evidence that the government offers,” but he “tend[ed] typically to take a different
view of that and that you sort of focus on what the theory of your case is.”
Ms. Surur testified at the hearing that in June of 2007, she was working
approximately two days a week at the gas station, that she did not own black pants
and instead wore blue jeans to work, and that she did not own, or wear to work, a
blue and white headscarf. Her passport indicated that she was 5’3”.4 Hayat
Ousman, another employee of the gas station, testified that in June of 2007, she
worked at the station seven days a week, that she owned black pants and blue and
white headscarves, and that she sometimes wore them to work. The prosecutor
stipulated that Ms. Ousman was 5’7” and weighed 170 pounds in June of 2007.
Ms. Surur and Ms. Ousman were Ethiopian women who were related to each other
and who both described their complexions as medium.
At the conclusion of the hearing, the trial court denied relief, and Ms. Surur
4
Ms. Surur did not remember her weight at the hearing, but the police
department report from the day of her arrest listed her weight as 160 pounds.
7
timely appealed.
II.
We begin by addressing Ms. Surur’s ineffective assistance of counsel claim.
“To establish ineffective assistance of counsel, the defendant must show that
counsel’s performance was deficient and that this deficient performance prejudiced
the defendant.” Vaughn v. United States, 93 A.3d 1237, 1271 (D.C. 2014).
Turning to the first prong of ineffectiveness, Ms. Surur argues that trial
counsel’s failure to reasonably investigate whether she was the store clerk on June
28 constituted deficient performance. At the outset, the government argues that a
mistaken-identification defense—that is, evidence that Ms. Surur was not the clerk
who sold Officer Garcia paraphernalia on June 28—would have been irrelevant
and unsuccessful because Ms. Surur “readily admitted that she was present at the
time of the actual offense, July 6.” This was a key basis of the trial court’s ruling
as well. This argument overlooks the centrality of Officer Garcia’s testimony to
the government’s case. The only evidence the government presented that Ms.
Surur had the requisite mens rea—specific intent to sell drug paraphernalia with
knowledge or reason to know that it would be used to consume a controlled
substance—was that she sold a copper pad along with a glass ink pen despite not
having been asked to do so. See Fatumabahirtu, 26 A.3d at 336. If Ms. Surur was
8
not the clerk Officer Garcia encountered on June 28, 2007, there was not sufficient
evidence to convict her of attempted possession of drug paraphernalia with intent
to sell on July 6.
The government contends, alternatively, that trial counsel’s decision to
pursue only one defense—lack of intent—rather than also presenting a mistaken-
identity defense was “strategic and tactical.” And indeed, at the hearing on Ms.
Surur’s motion, trial counsel testified that he may have decided against exploring
any other defenses because “at some point you run the risk of confusing the fact
finder and even planting a seed with the fact finder consciously or not that neither
of your theories [is] particularly compelling so I’m going to try two.” But “the
issue in evaluating counsel’s performance is not the reasonableness of the strategy
counsel ultimately pursued at appellant’s trial, but ‘the reasonableness of the
investigation said to support that strategy.’” Cosio v. United States, 927 A.2d
1106, 1126 (D.C. 2007) (en banc) (quoting Wiggins v. Smith, 539 U.S. 510, 527
(2003)). Trial counsel testified that he did not question Ms. Surur about her
physical appearance to determine whether she matched Officer Garcia’s
description. He acknowledged that he did not search for time sheets or other
extrinsic evidence to determine whether Ms. Surur was working on June 28. Trial
counsel did not ask basic questions that would have uncovered the fact that the
store employed another female Ethiopian clerk with a similar skin complexion who
9
wore headscarves to work, who worked every day (in contrast to Ms. Surur’s two
days a week), and who incidentally was a closer match in height and weight to
Officer Garcia’s estimated description.
Trial counsel’s failure to investigate a misidentification defense was
particularly marked given that he was—or should have been—on notice of the
possibility of this defense. At trial, Ms. Surur testified that she had never seen
Officer Garcia before, that she did not remember ever selling an ink pen and a
copper scrubber to a customer, and that she “never” would “combine items to sell,
. . . if the [customer] just asked for one item.” Competent trial counsel would have
gone over Ms. Surur’s testimony with her prior to putting her on the witness stand
and thus would have been aware that she denied selling an ink pen and copper
scrubber to Officer Garcia. Unless Officer Garcia fabricated his entire story, the
better explanation was that someone other than Ms. Surur had sold the items to
him.
This court has stated that “deference” to counsel’s strategic choices “does
not come into play” when counsel “‘offered no strategic explanation for failing to
pursue these avenues’ of investigation.” Cosio, 927 A.2d at 1126 (quoting
Poindexter v. Mitchell, 454 F.3d 564, 579 (6th Cir. 2006)). In this case, trial
counsel provided no strategic explanation for failing to explore the possibility that
10
Ms. Surur was not the clerk on duty on the evening of June 28. That trial counsel
had not pursued that possibility became apparent when, after Ms. Surur denied
under oath that she had ever seen Officer Garcia and testified that she did not
remember ever selling an ink pen and copper scrubber to a customer, trial counsel
failed to further develop this testimony or present any corroborating evidence.
While counsel suggested at trial that Officer Garcia was lying about the entire sale
having occurred at all,5 counsel never explored the possibility that the sale did
occur but that Ms. Surur was not the clerk involved.6 “[C]ounsel’s investigative
omission ‘resulted from inattention, not reasoned strategic judgment,’” and “we
owe no deference in the present case to counsel’s ‘judgment’ as to the scope of his
investigation.” Id. at 1126–27 (quoting Wiggins, 539 U.S. at 526); see also Kigozi
v. United States, 55 A.3d 643, 651 (D.C. 2012) (“[C]ounsel’s arbitrary or ill-
considered decision to forgo relevant pre-trial investigation is constitutionally
5
That trial counsel attempted to show that Officer Garcia was lying
undermines counsel’s suggestion at the postconviction hearing that he was
reluctant to present multiple defense theories at trial.
6
It is also notable that Officer Garcia did not identify Ms. Surur as the
person who sold him the ink pen until the suppression hearing that immediately
preceded the bench trial, which was held months after the alleged sale. On cross-
examination, Officer Garcia testified that he had not seen Ms. Surur since the day
he purchased the ink pen and that he had reviewed a photograph of Ms. Surur from
police records prior to testifying. Under these suggestive circumstances, the
possibility of misidentification was very real.
11
deficient.”).
For these reasons, we conclude that trial counsel’s investigation in this case
was objectively unreasonable. Cosio, 927 A.2d at 1127 (“[T]he pertinent question
under the first prong of Strickland remains whether, after considering all the
circumstances of the case, the attorney’s representation was objectively
unreasonable.” (quoting Bullock v. Carver, 297 F.3d 1036, 1050–51 (10th Cir.
2002))). While trial counsel argued that “there’s nothing to suggest that Ms.
[Surur] knew, or should have known, . . . that the pens and scrubbers would be . . .
altered to convert them into a pipe,” the most powerful evidence that she lacked
this knowledge would have been evidence that she was not actually the clerk who
made the June 28 sale. And yet trial counsel did not take basic steps to determine
the viability of a mistaken-identification defense. As this court recognized in its
opinion on direct appeal, Fatumabahirtu, 26 A.3d at 336, the evidence that Ms.
Surur was present on June 28 was essential to the government’s case. Trial
counsel’s failure to perform any investigation to undermine the government’s
central premise was objectively unreasonable.
At the hearing on the coram nobis petition, the government attributed trial
counsel’s limited investigation to Ms. Surur’s failure to tell trial counsel that she
was not the sales clerk on June 28: “[I]f you’ve got an alibi, and you don’t tell
12
your defense attorney I wasn’t there, how is your defense attorney in the normal
course of business supposed to go figure out that you’ve got an alibi if you haven’t
mentioned it.” As we stated in Cosio, “[c]ounsel’s actions are usually based, quite
properly, . . . on information supplied by the defendant.” 927 A.2d at 1128 n.22
(quoting Strickland v. Washington, 466 U.S. 668, 691 (1984)). On the other hand,
“[a] client should not be expected to anticipate the best defense and then volunteer
every kind of information he or she has in support of it.” Id. (quoting Cosio v.
United States, 853 A.2d 166, 172–73 (D.C. 2004) (panel opinion vacated en
banc)); see also Cosio, 853 A.2d at 173 (“It is the lawyer’s job to ask the right
questions of the client . . . .”). Indeed, when trial counsel was asked at the hearing
whether “[i]n your professional experience . . . your clients always volunteer all of
the information you need without your prompting them,” he responded, “No.
Absolutely not.” This hazard was a real one in this case, as Ms. Surur was present
on July 6 when the officers executed the search warrant, and a reasonable
layperson—especially one new to the United States and not fluent in English—
could not be expected to understand the importance of her presence at (or absence
from) the store more than a week earlier on June 28.
Having concluded that trial counsel’s investigation was deficient, we turn to
whether Ms. Surur suffered prejudice as a result. Vaughn, 93 A.3d at 1271. To
establish prejudice, “a defendant need not show that counsel’s deficient conduct
13
more likely than not altered the outcome in the case.” Blakeney v. United States,
77 A.3d 328, 341 n.18 (D.C. 2013) (quoting Strickland, 466 U.S. at 693). “The
result of a proceeding can be rendered unreliable, and hence the proceeding itself
unfair, even if the errors of counsel cannot be shown by a preponderance of the
evidence to have determined the outcome.” Id. (quoting Strickland, 466 U.S. at
694). “[T]he question is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting guilt.” Cosio,
927 A.2d at 1132 (quoting Strickland, 466 U.S. at 695). More specifically, where,
as here, the case was tried not by a jury but instead by a judge in a bench trial, we
ask whether there is a reasonable probability that a “hypothetical judge
‘reasonably, conscientiously, and impartially applying the standards that govern
the decision’” would have had a reasonable doubt as to the defendant’s guilt.
United States v. Abney, 812 F.3d 1079, 1093 (D.C. Cir. 2016) (quoting Strickland,
466 U.S. at 694); see also Strickland, 466 U.S. at 694 (explaining that the prejudice
determination “should not depend on the idiosyncra[s]ies of the particular
decisionmaker”); Saranchak v. Beard, 616 F.3d 292, 309 (3d Cir. 2010); Ploof v.
State, 75 A.3d 840, 877 (Del. 2013).
That Ms. Surur sold Officer Garcia the items on June 28 was, as noted
above, the crucial evidence necessary to establish the mens rea for attempted
possession of drug paraphernalia with intent to sell. The evidence produced at the
14
hearing on Ms. Surur’s petition cast significant doubt upon the government’s
evidence in that regard. The evidence indicated that the height and weight of Ms.
Surur’s relative, Ms. Ousman, were a closer fit to Officer Garcia’s estimated
description than were Ms. Surur’s height and weight. Ms. Surur also testified that
she never wore black pants to work and that she did not own a blue and white
headscarf, which is how Officer Garcia described the store clerk’s clothing,
whereas Ms. Ousman did sometimes wear black pants and a blue and white
headscarf to work. And the court heard evidence that both women were Ethiopian
with a similar complexion. It is therefore at least plausible that it was Ms.
Ousman, and not Ms. Surur, who sold Officer Garcia the items in question on June
28, 2007. Ms. Ousman testified that she did not remember working on June 28 but
that she “used to work seven days [per week] so might be.”7
In denying Ms. Surur relief, however, the trial court emphasized that Ms.
Ousman did not testify that she was the clerk who interacted with Officer Garcia.
And Ms. Surur did not testify that she did not work on June 28—just that she
7
The trial court discounted this testimony by noting that Ms. Ousman also
testified that she took days off for the holiday of Eid. We take judicial notice that
in 2007, Eid al-Fitr was on October 12 and Eid al-Adha was on December 20,
neither of which is relevant here.
15
“didn’t recall” whether she did so.8 The court also made much of the fact that Ms.
Surur signed an affidavit stating that she did work on June 28, 2007. Furthermore,
the store owner, Mr. Aslam, testified that he “believe[d]” that Ms. Surur was the
person working at the store on June 28. And while Ms. Surur’s trial lawyer never
specifically challenged the reliability of Officer Garcia’s in-court identification of
her as the June 28 store clerk, he did go to some lengths to attack the accuracy of
Officer Garcia’s testimony and to impeach his credibility.
These facts do not convince us that trial counsel’s failures caused Ms.
Surur no prejudice. As an initial matter, it is incorrect to characterize Ms. Surur as
having conceded she was working on June 28. As Ms. Surur testified at the
hearing, the date in the affidavit was a mistake. The affidavit should have said she
worked on July 6, not June 28.9 Any other reading of the affidavit would defy
8
The prosecutor actually questioned Ms. Surur about working on June 27,
but he presumably intended to ask (and was likely understood to have asked) about
June 28.
9
Ms. Surur’s testimony was as follows:
Q. So when you were signing the declaration, it was
your intention that the date corresponded to the date you
were arrested [July 6], is that correct?
A. Yes.
Q. So if the declaration had the date of the alleged sale
instead of the date of the arrest, that was an oversight on
your part, is that correct?
(continued…)
16
logic and contradict Ms. Surur’s unswerving testimony—from her insistence at
trial that she had never seen Officer Garcia before to her hearing testimony that she
did not recall whether she worked on June 28—that she did not sell paraphernalia
to the officer on June 28. Second, Ms. Surur did not have to definitively establish
Ms. Ousman’s guilt of the offense in order to cast doubt upon her own guilt, and
the absence of an outright confession on Ms. Ousman’s part does not preclude us
from determining that there was a reasonable probability that, absent trial counsel’s
errors, a reasonable factfinder would have had a reasonable doubt respecting Ms.
Surur’s guilt. And finally, the vague and sometimes contradictory evidence in the
post-conviction hearing record appears to stem in large part from the passage of
time—and the fact that trial counsel did not investigate who was working at the
convenience store when the incident was fresh in everyone’s mind—coupled with
a significant language barrier between counsel and the witnesses.10
(…continued)
A. Yes, I only remember the date when I was arrested,
not when I was allegedly standing.
On cross-examination, Ms. Surur reiterated that she “d[id] not recall” whether she
was working on the day of the sale—only that she was working on the day she was
arrested.
10
Both Ms. Surur and Ms. Ousman testified through an interpreter,
suggesting that they lacked fluency in the English language. Not only does this
fact explain some of the difficulties in their testimony, but it makes it unlikely that
either Ms. Surur or Ms. Ousman wrote her own affidavit. As this court recently
explained, “the circumstances in which inconsistent statements were made, and the
(continued…)
17
Trial counsel’s deficient performance failed to uncover key evidence
regarding Ms. Ousman’s employment that, now presented, raises a reasonable
doubt that the government has prosecuted the right person for this crime. We
conclude that there is a reasonable probability that the trial outcome would have
been different had trial counsel performed an adequate investigation into whether
Ms. Surur was working on June 28, and that Ms. Surur has satisfied the prejudice
prong of the Strickland test. See Cosio, 927 A.2d at 1132.
III.
Having established that Ms. Surur’s trial counsel was constitutionally
ineffective, we next address whether she is entitled to relief on her petition for a
writ of error coram nobis. As the government points out, ineffectiveness claims
(…continued)
declarants’ explanations for the inconsistencies, must be taken into account.” See
Caston v. United States, No. 15-CO-36, 2016 WL 5827479, at *11 (D.C. Sept. 29,
2016). Here, the trial court questioned Ms. Surur’s and Ms. Ousman’s credibility,
but the extent to which the court considered the witnesses’ lack of English
fluency—particularly with respect to the trial court’s reliance upon the
contradiction in Ms. Surur’s affidavit—is not clear from the record. See id. at *10(explaining that the trial court should have conducted a “nuanced analysis of [a
witness’s] inconsistencies” where “the record makes clear that someone other than
[the witness] typed his affidavit and that [his] attention to language and detail was
wanting”). As noted above, even if Ms. Surur and Ms. Ousman were not entirely
credible, their hearing testimony was sufficient to create a reasonable probability
that a reasonable factfinder would have had reasonable doubt about Ms. Surur’s
guilt.
18
are most often raised in a D.C. Code § 23-110 motion for post-conviction relief,
but such an avenue is unavailable to Ms. Surur here because she is not in custody.
See Magnus v. United States, 11 A.3d 237, 245 (D.C. 2011). A motion for a writ
of error coram nobis is therefore the proper vehicle to advance her ineffectiveness
claim.
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.”11 Butler v. United States, 884 A.2d 1099, 1104–05 (D.C.
2005) (quoting United States v. Hamid, 531 A.2d 628, 634 (D.C. 1987)). Ms.
Surur’s successful claim of ineffective assistance of counsel satisfies all five
criteria. First, the trial court would have been unaware that trial counsel performed
ineffectively, as the alleged deficiency was a failure to reasonably investigate in
11
We note that in the District of Columbia, unlike in some other
jurisdictions, coram nobis relief is available for “the correction of fundamental
legal errors in addition to factual ones.” Magnus, 11 A.3d at 246.
19
order to discover additional information.12 Second, that Ms. Surur established
prejudice as a result of ineffective assistance of counsel is sufficient to show that
the judgment here would not have been entered absent the error.13 Third, her
failure to inform the judge of ineffective assistance during the trial was justified
because she would have been unaware that trial counsel was performing
ineffectively. Fourth, proving ineffective assistance of counsel “generally
require[s] that the record be supplemented with ‘extrinsic evidence that illuminates
the attorney’s errors,’” McCleese v. United States, 75 F.3d 1174, 1178 (7th Cir.
1996) (quoting Bond v. United States, 1 F.3d 631, 635 (7th Cir. 1993)), such as the
evidence here that another person may have been the store clerk on June 28 and
12
Thus, the “new fact” that Ms. Surur presented was not that “she did not
make the sale of paraphernalia on June 28” or that “someone else did so,” as the
government characterizes it. The new fact about which the court was previously
unaware was that her trial counsel did not reasonably investigate the circumstances
of the charged crime.
13
We see no reason a meritorious Strickland claim should not be sufficient
in itself to satisfy the second requirement for coram nobis relief. The D.C.
Superior Court’s authority to grant a writ of error coram nobis derives from the All
Writs Act, 28 U.S.C. § 1651 (a). See Magnus, 11 A.3d at 245–46 (D.C. 2011).
Federal courts, applying the same statute, have found it appropriate to grant coram
nobis relief for Strickland claims. See, e.g., Kovacs v. United States, 744 F.3d 44(2d Cir. 2014); United States v. Mett, 65 F.3d 1531, 1534 (9th Cir. 1995); United
States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994); Denedo v. United States, 66
M.J. 114, 126 (C.A.A.F. 2008), aff’d and remanded, 556 U.S. 904 (2009). More
generally, the Supreme Court has approved coram nobis relief for violation of a
defendant’s Sixth Amendment right to counsel. See United States v. Morgan, 346
U.S. 502 (1954).
20
that trial counsel did not ask questions to discover this information. And fifth,
federal courts have routinely held that ineffective assistance is an error “of the
most fundamental character.” United States v. Akinsade, 686 F.3d 248, 256 (4th
Cir. 2012); see also United States v. Castro, 26 F.3d 557, 559 & n.5 (5th Cir.
1994); United States v. Rad-O-Lite of Phila., Inc., 612 F.2d 740, 744 (3d Cir.
1979).
As a result, Ms. Surur’s meritorious ineffective assistance of counsel claim
entitles her to a new trial on a writ of error coram nobis.14 We reverse and remand
for further proceedings.
So ordered.
14
We therefore need not consider whether Ms. Surur is entitled to a new
trial under the Innocence Protection Act. D.C. Code § 22-4135 (g)(2). We do
conclude, however, for the reasons discussed on pages 14–15, that the evidence
presented at Ms. Surur’s post-conviction hearing does not establish clear and
convincing evidence of actual innocence such that we must “vacate the conviction
and dismiss the relevant count with prejudice.” D.C. Code § 22-4135 (g)(3).