Evans v. United States
| Decision Date | 15 June 2020 |
| Docket Number | No. 1:17-cv-01731 (KBJ),1:17-cv-01731 (KBJ) |
| Parties | JOSEPH EVANS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Columbia |
On January 28, 2010, pro se petitioner Joseph Evans was convicted in D.C. Superior Court of five state law robbery and firearms offenses. Evans is currently incarcerated at the United States Penitentiary in Lee County, Virginia, where he is serving a 360-month sentence for these crimes. Before this Court at present is a Petition for a Writ of Habeas Corpus that Evans has filed pursuant to 28 U.S.C. § 2254, and the government's opposition thereto. (See Pet., ECF No. 1; U.S.'s Opp'n to Pet'r's Pet. for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Opp'n"), ECF No. 42.) Evans maintains, inter alia, that his appellate counsel in the underlying Superior Court case was ineffective for failing to argue that the trial judge had violated the Sixth Amendment when the judge did not grant Evans additional time to retain trial counsel of his choosing and instead forced him to proceed to trial with a court-appointed lawyer. (See Pet. at 19-21, 25.)1 In its opposition brief, the United States argues both that Evans's petition must be dismissed because it was filed outside of the one-yearlimitations period contained in 28 U.S.C. § 2244(d)(1) (see id. at 1), and that Evans's petition fails on the merits because the Court must defer to the decision of the D.C. Court of Appeals, which previously rejected Evans's contention that his appellate counsel was ineffective for failing to raise the Sixth Amendment issue (see id.).
On June 1, 2020, this Court entered an Order DENYING Evans's habeas petition. (ECF No. 53.) This Memorandum Opinion explains the reasons for that Order. In short, the Court found that it has jurisdiction to hear Evans's claim of ineffective assistance of appellate counsel ("IAAC") and that Evans's petition for a writ of habeas corpus presenting this claim is timely, but that Evans did not exhaust his state-law remedies due to a factual error in the IAAC claim that he presented to the D.C. Court of Appeals. However, the Court reached the merits of his petition nevertheless, and concluded that Evans is not entitled to an extraordinary writ because the trial court did not violate his right to retain counsel of his choice and his appellate counsel adopted a reasonable strategy in not raising this issue on appeal.
Evans's underlying criminal case (referred to herein as "the robbery matter") was initiated in the District of Columbia Superior Court on March 8, 2008. See United States vs. Evans, No. 2008 CF3 5414 (D.C. Super. Ct. Mar. 8, 2008), Entry No. 1. A grand jury handed down the indictment on September 17, 2008, charging Evans with first degree burglary while armed (one count), armed robbery (one count), possession ofa firearm during a crime of violence or dangerous offense (two counts), and unlawful possession of ammunition (one count). See Evans, No. 2008 CF3 5414, Entry Nos. 65-70.
Court-appointed defense counsel, Eugene Ohm of the Public Defender Service for the District of Columbia ("PDS"), initially represented Evans with respect to these charges. See Evans, No. 2008 CF3 5414, Entry No. 16. However, at a status hearing held on September 18, 2009—over one and a half years into the representation—Ohm informed the Superior Court judge that Evans and his family had contacted a private criminal defense attorney, Thomas Key, about assuming representation of Evans in the robbery matter. (See Opp'n at 9.) Evans and Key were familiar with one another because Key had been representing Evans in an unrelated homicide matter since May 7, 2009. (See Opp'n at 8.) See also United States v. Evans, No. 2008 CF1 008163 (D.C. Super. Ct. Apr. 11, 2008), Entry No. 44. Although Key's retention was not final because Evans's family required additional time to obtain the necessary funds, Ohm asked to withdraw his appearance based on a conflict of interest. See Evans, No. 2008 CF3 5414, Entry Nos. 16, 108-10. At the time of this request, Evans's trial with respect to this robbery matter had been scheduled and postponed at least four times, often at the request of the defense. (See Opp'n at 9 & n.6 (citations omitted).) See also Evans, No. 2008 CF3 5414, Entry Nos. 88, 105, 115.
The Superior Court judge granted Ohm leave to withdraw his appearance, and appointed PDS attorney Kevin D. Irving to represent Evans, in order to ensure that Evans would not be without counsel while his family pursued retaining Key. (See Opp'n at 9; Pet'r's Resp. to Opp'n ("2d Reply"), ECF No. 49, at 9.) See also Evans,No. 2008 CF3 5414, Entry Nos. 108-110. The court set a further status hearing for October 30, 2009, and instructed Evans to retain Key before that date if he wanted Key to represent him at the trial that was scheduled for December 8, 2009. (See Opp'n at 9; 2d Reply at 9.) The court also warned Evans that if Key was not retained by that date, Irving would represent him at trial. (See Opp'n at 9; 2d Reply at 9.)
When the time came for the status hearing on October 30, 2009, Evans had not yet retained Key; therefore, Irving was still representing Evans. (See Opp'n at 9.) See also Evans, No. 2008 CF3 5414, Entry Nos. 111-16. During the hearing, Irving requested a continuance of the trial date because he had not received all of the necessary discovery from Ohm, and because there was also a possibility that Evans might still retain Key. (See Pet. at 24; Opp'n at 9.) The trial court granted a brief continuance to allow Irving to obtain and review the discovery, and rescheduled the start of trial for January 25, 2010. (See Opp'n at 9; Pet. at 23.) See also Evans, No. 2008 CF3 5414, Entry Nos. 113-16. However, the trial court also clarified that it was not postponing the trial date to allow Evans further opportunity to retain Key. (See Opp'n at 9-10.) In this regard, the judge unequivocally stated: (Id. (quotation marks and citation omitted).) Meanwhile, from January 10 through January 20, 2010, Evans proceeded to a trial by jury in the homicide matter with Key representing him, and he was ultimately acquitted. See Evans, No. 2008 CF1 008163, Entry Nos. 64-100.
The Superior Court held a plea hearing in the robbery matter on January 22, 2010, at which time Evans rejected the government's plea offer and opted to proceed to trial. During this hearing, there was no discussion of Evans possibly retaining Key for the trial. (See Opp'n at 9-10 (citations omitted).) Evans's jury trial in the robbery matter commenced on January 25, 2010, as scheduled, and he was convicted on all counts on January 28, 2010. (See Opp'n at 10; 2d Reply at 1.) See also Evans, No. 2008 CF3 5414, Entry Nos. 122-50. Evans was eventually sentenced to a total of 360 months in prison. (See Order, ECF No. 25, at 1-2.) See Evans, No. 2008 CF3 5414, Entry Nos. 176-85.
Evans filed a direct appeal of his convictions on January 7, 2011, and on March 20, 2014, the D.C. Court of Appeals affirmed the judgment. (See 2d Reply at 1; Opp'n at 2 (citations omitted).) Evans then filed a timely petition for certiorari with the United States Supreme Court. See Evans v. United States, 135 S. Ct. 145 (2014), No. 13-10610 (filed June 16, 2014). Then, on September 18, 2014, while his Supreme Court petition was pending, Evans filed a motion asking the D.C. Court of Appeals to recall its mandate. (See Mot. to Recall Mandate ("Recall Mot."), Ex. 2 to Opp'n, ECF No. 42-2.) Among other things, Evans's motion to recall the mandate contended that the trial court erred in refusing to allow him to retain his defense counsel of choice. (See id. at 2-4.) More specifically, Evans argued that, at the plea hearing held on January 22, 2010, the trial court improperly denied his request for an additional continuance to retain Key. (See id. at 7.)3 In his recall motion, Evans also set forth anIAAC claim, maintaining that his appellate defense counsel, Jenifer Wicks, had been ineffective for failing to raise the choice-of-counsel issue on direct appeal. (See id. at 4.)
Evans's recall motion was still pending when, on October 6, 2014, the Supreme Court denied Evans's cert petition. See Evans, 135 S. Ct. 145. Thereafter, on June 17, 2015, the D.C. Court of Appeals denied Evans's motion to recall the mandate and did so "on the merits" as to all claims. (United States v. Evans, No. 11-CF-15 (D.C. Ct. App. June 18, 2015) ("Recall Decision"), Ex. 3 to Opp'n, ECF No. 43-3, at 2.) With respect to Evans's choice-of-counsel claim, the D.C. Court of Appeals held that "[a]ppellant's contention that the trial court failed to afford him counsel of choice [was] unsupported by the record of the plea hearing that occurred on January 22, 2010." (Id. at 2-3.)
On October 16, 2015, Evans filed a motion with the Superior Court, invoking D.C. Code § 23-110 and seeking to vacate his convictions. (See Ex. 4 to Opp'n, ECF No. 42-4, at 6.) Evans raised the same choice-of-counsel claims in this section 23-110 motion as he had included in his prior motion to recall the mandate; that is, he argued that the trial court erred in denying him his choice of counsel, and that Wicks was ineffective for not raising this issue on appeal. (See id. at 5.)4 The Superior Court denied Evans's section 23-110 motion on June 10, 2016, and Evans appealed this decision to the D.C. Court of Appeals on June 24, 2016. See Evans, No. 2008 CF3 5414, Entry Nos. 199-200.
On August 12, 2016, while the section 23-110 appeal was still pending in the D.C. Court of Appeals, Evans filed the instant habeas petition in the United States District Court for the Western District of Virginia ("WD-VA"), initially seeking to proceed...
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