Wright v. Stansberry ( 2010 )

  •                             UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA
    CHESTER WRIGHT,                        )
                Petitioner,                )
          v.                               )             Civil Action No. 09-2433 (CKK)
    PATRICIA STANSBERRY, Warden,           )
                Respondent.                )
                                      MEMORANDUM OPINION
           Petitioner Chester Wright is a prisoner under criminal sentence by the Superior Court for
    the District of Columbia. Confined at the Federal Correctional Complex in Petersburg, Virginia,
    Wright has filed a habeas petition asserting that his remedy under D.C. Code § 23-110 is
    ineffective and inadequate. The petition will be dismissed for lack of jurisdiction.
           Wright and several co-defendants were indicted on charges of premeditated murder,
    conspiracy to commit murder and related crimes. Pet. at 1; Wright v. United States, 
    979 A.2d 26
    28 (D.C. 2009). After some co-defendants were tried and convicted in a separate trial, Wright
    and one co-defendant were tried and convicted in 1997. Id. at 1, 4; Wright, 979 A.2d at 28.
    Through appellate counsel, Wright appealed his conviction and sentence, and also collaterally
    attacked them by motion under D.C. Code § 23-110 in June 2002, in which he alleged ineffective
    assistance of counsel and prosecutorial misconduct. Id. at 1-2; Wright, 979 A.2d at 29. The trial
    court denied relief on the § 23-110 motion. Id. at 2, Wright, 979 A.2d at 29. On direct criminal
    appeal, the Court of Appeals for the District of Columbia affirmed the conviction but remanded
    the case for re-sentencing, id.; Hammond v. United States, 
    880 A.2d 1066
     (D.C. 2005)), and
    Wright was re-sentenced on February 28, 2006. Id.
           On March 19, 2007, Wright filed a second motion under § 23-110, id., in which he
    alleged “that the prosecutor had withheld material, exculpatory evidence under Brady v.
    Maryland — specifically a transcript from the trial of Terry Pleasant (a co-defendant) and
    information relating to Michael Tinch,” Wright, 979 A.2d at 29.1 Although Wright raises alleged
    errors that date from his 1997 trial, he characterizes his second § 23-110 motion as an attack on
    “the ‘fresh’ judgment” imposed February 28, 2006. Pet. at 3. He also argues that the grounds for
    his motion were unknown to him until mid-2006. Wright contends that
           [t]he Superior Court denied relief because it was of the opinion that [Wright’s
           second § 23-110] motion was either second or successive or in any event
           procedurally barred. In reaching such a conclusion, the Superior Court contended
           that [Wright] had previously sought relief pursuant to D.C. Code § 23-110. On
           appeal the D.C. Court of Appeal affirmed the decision of the Superior Court. The
           findings by the two courts are clearly wrong and have made D.C. Code § 23-110
           inadequate or ineffective.
              In his petition here, Wright alleges that the prosecutor used a “fraudulent photo array”
    that included a 1993 photo of Pleasant, and that
           [t]his fraudulent photo [used in Pleasant’s trial] prejudiced [Wright] because at his
           trial, the fraudulent photo was alleged to be [Wright], even though the 1993 photo
           was never introduced into evidence. Kimberly Hays identified [Wright] only from
           that photo array; she was unable to identify him in court. Det[ective] Carl
           Gregory testified that he showed Kimberly Hayes the 1993 photo of Terry
           Pleasant in 1991. Det[ective] Carl Gregory also told a Superior court judge (in his
           affidavit in support of arrest warrant) that Kimberly Hayes selected Terry
           Pleasant’s photo of 1993 as the man who shot Ronald Richardson. Based on such
           information the Superior Court issued an arrest warrant, even though it was
           impossible for Ms. Hayes to have seen a 1993 photo in 1991. The foregoing
           information was never disclosed to [Wright] nor [sic] his attorney.
    Pet. at 5. The petition does not adequately explain what prejudice is involved in the alleged
    Id. at 3. Relying on Ferriera v. Sec’y for the Dep’t of Corrections, 
    494 F.3d 1286
     (11th Cir.
    2007), Wright argues that he is
            entitled to file a first § 23-110 motion against the new judgment and commitment
            order requesting relief. This was the only statutory remedy available to [Wright].
            Since the local courts effectively made § 23-110 inadequate or ineffective,
            [Wright] is entitled to request relief under 28 U.S.C. § 2254 [sic].
    Pet. at 3.
            Leaving aside the fatal flaws in Wright’s legal argument,2 Wright’s petition is based on
    false factual predicates. That is, the petition misrepresents the facts in multiple respects.
    Contrary to Wright’s assertion, see Pet. at 3, in fact, the Superior Court did not reject his second
    § 23-110 motion as successive, but denied it on the merits.
            The [trial] court denied the second motion without a hearing, ruling that appellant
            did not provide any factual support for his claims, and that he had failed to explain
            how the information which allegedly should have been disclosed was exculpatory
            or would undermine confidence in the jury's verdict.
    Wright, 979 A.2d at 29. Moreover, and again contrary to Wright’s assertion, see Pet. at 3, the
    Court of Appeals also rendered a decision on the merits. In its review of the trial court’s denial
    of Wright’s second § 23-110 motion, the Court of Appeals found
            no error in the [trial] court’s denial of [Wright’s] second § 23-110 motion, which
            alleged that the prosecutor “intentionally suppressed exculpatory and
            impeachment evidence,” in violation of Brady v. Maryland. In the first place, the
            motion was procedurally barred as an abuse of the writ because appellant failed to
            meet the well-established “cause and prejudice” standard. Although he asserts
            that he did not receive or review the transcripts from Terry Pleasant’s trial until
            2006, and thus could not have raised these claims earlier, the record establishes
            that appellant’s trial counsel received the transcripts during the trial. Moreover,
            appellant raised claims relating to the testimony of Michelle Watson and Michael
            Tinch in his direct appeal. Thus appellant knew or should have known of his
              Wright’s reliance on the case he cites is misguided. That case, and the decision in
    Burton v. Stewart, 
    549 U.S. 147
     (2007), cited and discussed therein, pertain specifically to the
    one-year limitation period in 28 U.S.C. § 2244(d)(1) as it relates to state prisoners seeking
    federal review under 28 U.S.C. § 2254. The provisions of 28 U.S.C. § 2244(d)(1) and§ 2254 do
    not apply to persons convicted and sentenced in the Superior Court for the District of Columbia.
           Brady claims at the time his direct appeal was filed, and certainly by the time of
           his first § 23-110 motion, and he has not shown cause for his failure to raise them
           earlier. See Washington v. United States, 
    834 A.2d 899
    , 904 (D.C. 2003) (the fact
           that defendant did not receive materials from counsel did not constitute “cause”
           when defendant was present during trial and would be aware of errors as they
                    Appellant also cannot show prejudice. None of the testimony from
           Pleasant’s trial exculpated appellant, who, at the very least, would still be
           implicated as part of the conspiracy. See Hammond [], 880 A.2d at 1106
           (evidence that appellant aided and abetted subjects him to liability). Thus the
           alleged Brady violations did not work to appellant’s actual disadvantage or infect
           his trial with error of constitutional dimensions. See Washington, 834 A.2d at
                    Even if the motion were not procedurally barred, the [trial] court did not
           err in denying it on the merits because no Brady violation occurred. To establish
           a Brady violation, the defendant must show (1) that there was evidence favorable
           to him, (2) that it was suppressed or concealed by the prosecution, and (3) that
           prejudice resulted. Strickler v. Greene, 
    527 U.S. 263
    , 281-282 . . . (1999). To
           satisfy the prejudice requirement, the withheld evidence must be material. Id.
           at 280 . . . .
                    In this case, the government did not suppress the materials or information
           on which appellant bases his claims. The transcripts from the Pleasant trial were
           supplied to defense counsel during appellant’s trial. Michelle Watson testified at
           the trial, so her testimony could not have been suppressed because appellant and
           his counsel were present, and counsel was able to cross-examine her about any
           inconsistencies in her testimony, or indeed about any subject at all that might have
           been relevant. Similarly, the government could not have suppressed Michael
           Tinch’s statement because it never possessed that document. “If the government
           does not possess the requested information, there can be no Brady violation.”
           Guest v. United States, 
    867 A.2d 208
    , 212 (D.C. 2005) (citations omitted).
           Furthermore, the court did not err in rejecting, for lack of factual support,
           appellant’s assertion that the government attempted to elicit false testimony
           because appellant proffered only an unsigned, undated “affidavit” purporting to be
           from Tinch. The court did not abuse its discretion when it found this document
           insufficient to prove that the prosecutor attempted to solicit perjury, nor was it an
           abuse of discretion to decline to hold a hearing on this issue. See Ready [v.
           United States], 620 A.2d [233,] 234 [(D.C. 1993)] (no hearing required for
           “palpably incredible” claims).
    Wright, 979 A.2d at 31-32. It could not be more clear that Wright’s second § 23-110 motion was
    entertained and decided on the merits in both the trial and appellate courts of the District of
    Columbia, despite the fact that the courts could have treated his motion as procedurally barred.
    In addition, it could not be more clear that the courts of the District of Columbia found Wright’s
    claims to be without merit.
           Denial of relief by the courts of the District of Columbia does not render inadequate or
    ineffective the remedy provided by D.C. Code § 23-110. Garris v. Lindsay, 
    794 F.2d 722
    , 727
    (D.C. Cir. 1986); Charles v. Chandler, 
    180 F.3d 753
    , 756-58 (6th Cir. 1999) (citing cases);
    Wilson v. Office of the Chairperson, 
    892 F. Supp. 277
    , 280 (D.D.C. 1995). As Wright has failed
    to show that his § 23-110 remedy was inadequate or ineffective, his petition will be dismissed for
    want of jurisdiction.
           A separate order accompanies this memorandum opinion.
                                                         COLLEEN KOLLAR-KOTELLY
    Date: January 7, 2010                                United States District Judge