Bunch v. United States

• Decision Date: 27 August 2021
• Docket Number: Civil Action 20-cv-02106 (BAH)
• Parties: VERNON L. BUNCH, Petitioner, v. UNITED STATES, Respondent.
• Court: U.S. District Court — District of Columbia

VERNON L. BUNCH, Petitioner, v. UNITED STATES, Respondent.

Civil Action No. 20-cv-02106 (BAH)

United States District Court, District of Columbia

August 27, 2021

MEMORANDUM OPINION

BERYL A. HOWELL Chief Judge

Petitioner Vernon L. Bunch, proceeding pro se, challenges, under 28 U.S.C. § 2254, his April 2012 D.C. Superior Court convictions for multiple felony offenses, including aggravated assault, robbery, and burglary. Following a jury trial, his convictions were affirmed on direct appeal, except for three vacated counts, and on collateral review in D.C Superior Court and the D.C. Court of Appeals (“DCCA”). He now seeks federal court review on grounds that he received ineffective assistance from both his trial and appellate counsel. See Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Pet.”), ECF No. 1. Since subject matter jurisdiction is lacking to review the claims asserted this petition must be dismissed.

I. BACKGROUND

Petitioner is currently incarcerated at the United States Penitentiary Hazelton in Bruceton Mills, West Virginia, see Pet. at 1, where he is serving a Superior Court sentence of 382 months' incarceration (almost 32 years) for two counts of aggravated assault while armed, three counts of assault with a deadly weapon, one count of assault, one count of first-degree burglary while armed, and one count of robbery while armed, see United States' Opp'n to Pet'r's 28 U.S.C. § 2254 Mot. (“Gov't's Opp'n”) at 3-4, ECF No. 7.^[1] The facts underlying these convictions are recounted as follows by the DCCA in an unpublished decision resolving petitioner's direct appeal:

[Petitioner] and Jermaine Jordan, his codefendant in this case, broke into Silas Jennings's apartment on Jasper Street in the early morning hours of March 20, 2011. Edward Marshall Newkirk and Patricia Moore, a common-law husband and wife, lived in the apartment with Jennings. At around 3 a.m., Jennings was woken up by banging on the front door. He went to the bedroom where Newkirk and Moore were sleeping and told them someone was trying to break into the apartment. While they were there, [petitioner] and Jordan broke down the apartment's front door and proceeded to kick in the door to the bedroom.

[Petitioner] was holding a black crowbar in one hand and a cloth in the other hand (with which he was trying, unsuccessfully, to cover his face). He confronted Newkirk, whom he called by his given name “Marshall, ” and demanded to know, “Where is it?” Newkirk said he didn't know what [petitioner] was looking for. [Petitioner] continued to ask where Newkirk was hiding “it, ” while punching Newkirk and hitting him with the crowbar in the head, across the back, and on the arm. Jennings and Moore tried to protect Newkirk, but [petitioner] hit each of them with the crowbar. Moore recognized [petitioner] as someone she had seen before, “on the streets.”

As this was happening, Jordan stood in front of the bedroom door, blocking the exit. Moore testified that, because she could not use the door to escape, she jumped out the window. She dropped approximately 15 to 20 feet and suffered significant injuries from the fall, including three fractures in her back and a fractured heel. She was hospitalized for several days. After Moore jumped, Jennings and Newkirk continued to struggle with [petitioner] until he and Jordan left the bedroom and began rummaging around the apartment. Newkirk took this chance to escape via the bedroom window as Moore had done. [Petitioner] returned to the bedroom and started swinging his crowbar at Jennings, asking if he knew “where it's at.” Eventually [petitioner] and Jordan left the apartment.

Later that morning, Jennings found [petitioner's] driver's license on the floor under a blanket in the bedroom where the assault took place. Jennings gave the license to Newkirk's son, Darnell Richardson who said he would turn it over to the police. That same day, Moore was visited in the hospital by her sister-in-law Minnie Allen. Allen showed Moore a text message from Richardson containing a photo of the driver's license. As Allen showed the photo to Moore, she said, “Look what the dumbass left behind.” Moore later testified that she recognized [petitioner] immediately. Two days later, on March 22, 2011, the police showed Moore a nine-photo array containing a different picture of [petitioner]. Moore identified [petitioner] as the burglar with the crowbar from that picture. Moore's photo-array identification of [petitioner] was in evidence at trial; she also made an in-court identification of him.

There was evidence at trial that Newkirk, Jennings, and Moore were all active narcotics users. The afternoon and evening before the break-in, Moore had been drinking beer, smoking crack, and snorting heroin. Witnesses also testified that they had seen Moore and Newkirk sell drugs out of the Jasper Street apartment on a regular basis.

Gov't's Opp'n, Ex. I (Bunch v. United States, Mem. Op. & Judg., 12-CF-852, at *1-3 (D.C. June 12, 2015)), at 1-3.^[2]

Before pursuing habeas relief in federal court, petitioner repeatedly exercised his right to challenge his conviction in the local District of Columbia courts. He first sought review from the DCCA, which vacated his conviction on three counts (two counts of obstruction of justice and a single count of first-degree burglary) due to an intervening change in D.C. law after petitioner's 2012 sentencing.^[3] Id. Petitioner's remaining convictions were affirmed. Id. The mandate for this direct appeal issued on July 9, 2015. See Gov't's Opp'n, Ex. III (DCCA Docket Report) at 3.

Petitioner then filed, on August 25, 2015, a motion to recall the mandate to seek en banc review by the appellate court, see Gov't's Opp'n, Ex. IV (Unopposed Mot. to Recall Mandate for Purposes of Filing Potential Pet. for Reh'g) at 1, which was granted, see id. at 7. His subsequent “Petition for Rehearing En Banc, ” see id. at 9-19, was denied on November 25, 2015, see id. at 21. Neither his motion to recall the mandate nor petition for en banc review asserted a claim for ineffective assistance of appellate counsel. See generally id. at 1-5, 9-19.

During the pendency of his direct appeal, petitioner also sought post-conviction relief in D.C. Superior Court. Specifically, on January 14, 2015, he filed a pro se motion, under D.C. Code § 23-110, alleging ineffective assistance of trial counsel because “his trial attorney was deficient in failing to object when the prosecutor, on cross-examination of a defense witness, referred to the fact that one of petitioner's prior attorneys suggested . . . petitioner should plead guilty.” Gov't's Opp'n at 4; see generally Pet. at 40-44. Almost four years later, on September 24, 2018, the Superior Court denied petitioner's § 23-110 motion in an 11-page decision. Pet. at 62. Although finding that trial counsel was deficient for failing to timely object to the disputed comments made by the prosecution, see Pet. at 68, the court nonetheless concluded that petitioner suffered no prejudice because “[t]he strength of the [g]overnment's case makes it highly improbable that the outcome at trial would have been different absent counsel's deficient performance, ” Pet. at 71. The DCCA summarily affirmed, on July 23, 2019, the Superior Court's denial of petitioner's § 23-110 motion. Pet. at 82-83.

Claiming ineffective assistance from both his trial and appellate counsel, petitioner filed the pending habeas petition on July 29, 2020, requesting that this Court direct the “D.C. Court of Appeals to address [his ineffective assistance of counsel] claims on [the] merits and/or grant [him] a fair trial in accordance with the 6th and 14th amendments.” Pet. at 15. According to petitioner, he attempted to file a second motion to recall the mandate in August 2019, but “[t]his motion was not processed by the [D.C.] Court of Appeals because . . . a mandate was issued and filed in 2015.” Pet. at 32. Petitioner suggests that he would have put forward an ineffective assistance of appellate counsel claim in this second motion to recall the mandate. Id. at 33. The DCCA has no record of the filing of any such motion in or after August 2019.^[4] See Gov't's Opp'n, Ex. III (DCCA Docket Report) at 3.

II. LEGAL STANDARD

“A conviction in the Superior Court of the District of Columbia is considered a state conviction under federal habeas law, and a challenge to a Superior Court conviction is properly brought under 28 U.S.C. § 2254.” Reed v. Thomas, 287 F.Supp.3d 6, 9 (D.D.C. 2018) (citations omitted). Unlike prisoners convicted in state courts or a United States district court, however, “a District of Columbia prisoner has no recourse to a federal judicial forum unless the local remedy is inadequate or ineffective to test the legality of his detention” under D.C. Code § 23-110. Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986) (citations omitted); see Byrd v. Henderson, 119 F.3d 34, 37 (D.C. Cir. 1997) (“[T]o collaterally attack his sentence in an Article III court[, ] a District of Columbia prisoner faces a hurdle that a federal prisoner does not.”). In enacting D.C. Code § 23-110, Congress “sought to vest the Superior Court with exclusive jurisdiction over most collateral challenges by prisoners sentenced in that court.” Williams v. Martinez, 586 F.3d 995, 1000 (D.C. Cir. 2009). Challenges to a Superior Court judgment of conviction must therefore initially be pursued in that court. See Blair-Bey v. Quick, 151 F.3d 1036, 1042-43 (D.C. Cir. 1998).

Section 23-110 allows a District of Columbia prisoner to move in Superior Court to challenge his sentence on grounds inter alia, that “(1) the sentence was imposed in violation of the Constitution . . . [and] (2) the court was without jurisdiction to impose...