Johnson v. Wilson

• Decision Date: 29 May 2020
• Docket Number: No. 18-5350,18-5350
• Citation: 960 F.3d 648
• Parties: Duane Joseph JOHNSON, Appellant v. E. D. WILSON, Warden, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

960 F.3d 648

Duane Joseph JOHNSON, Appellant

v.E. D. WILSON, Warden, Appellee

No. 18-5350

United States Court of Appeals, District of Columbia Circuit.

Argued October 25, 2019

Decided May 29, 2020

Amanda J. Sterling argued the cause for appellant. On the briefs were Alex Young K. Oh and Michelle Parikh, Washington, DC.

Sharon A. Sprague, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman and Chrisellen R. Kolb, Assistant U.S. Attorneys. Lauren R. Bates and R. Craig Lawrence, Assistant U.S. Attorneys, entered appearances.

Before: Millett and Katsas, Circuit Judges, and Sentelle, Senior Circuit Judge.

Katsas, Circuit Judge:

In this federal habeas action, Duane Johnson contends that he received ineffective assistance of counsel during the direct appeal of his murder conviction in D.C. Superior Court. Among other things, Johnson argues that his appellate counsel labored under two conflicts of interest and failed to argue that the government withheld exculpatory evidence. We reject all of Johnson’s contentions.

I

A

Around 4 a.m. on April 26, 1994, Keith Nash was shot twice and killed. His sister, Sharon Nash, was shot once but survived. Duane Johnson, who was then in a parked car with the Nashes and three other people, was charged with murder and other offenses in the Superior Court of the District of Columbia. At trial, the prosecution and the defense told conflicting stories about Johnson’s role in the shootings.

According to the prosecution, Johnson shot the Nashes as part of an attempted robbery. That evening, Keith, Sharon, Victor Williams, and LaTina Gary piled into Keith’s sedan and went out looking for cocaine. The group tried to buy from Johnson, who had previously supplied Williams, but his price was too high. Johnson, who was with Damitra Rowel, nonetheless asked for a ride. Keith agreed, and the pair crammed into the back seat of his car. At that time, Keith was driving, Sharon was seated in the front passenger seat, and the four others were in the back seat, with Johnson at the far left and Williams at the far right. When they reached an alley, Johnson ordered Keith to shut off the engine, put a gun to his head, and demanded money. When Keith refused, Johnson fired three shots, hitting Keith twice in the neck and Sharon once in her left side. Johnson and Rowel ran away. Williams grabbed Keith’s gun and fired shots after Johnson. Then Williams and Gary called 911 to report the shootings.

In Johnson’s rendition, Keith and Sharon were shot accidentally as Johnson resisted Williams’s attempt to rob him. Williams asked Johnson to get in the car to go make a drug sale to nearby buyers. Skeptical, the unarmed Johnson asked Rowel to come with him. Keith drove to the alley and turned off the engine. Then Williams pulled a gun on Johnson and tried to rob him. Johnson tussled with Williams, whose gun went off several times. Johnson and Rowel escaped from the car and ran away, with Williams firing after Johnson.

The jury believed the prosecution. It found Johnson guilty of first-degree felony murder while armed, second-degree murder while armed, and various lesser charges. The Superior Court sentenced Johnson to 51 years to life in prison.

At trial and on direct appeal, Johnson was represented by appointed counsel Frederick Sullivan. On appeal, Sullivan argued that the evidence was insufficient to convict Johnson and that the Superior Court had erred by not instructing the jury on manslaughter. The D.C. Court of Appeals rejected both arguments but remanded for vacatur of the duplicative counts of conviction. On remand, the Superior Court resentenced Johnson to 46 years to life in prison.

B

Since his resentencing, Johnson has raised various collateral attacks on his conviction. Convictions in the D.C. Superior Court are subject to a unique regime of collateral review. A prisoner in custody under a Superior Court sentence "may move the court to vacate, set aside, or correct the sentence." D.C. Code § 23-110(a). To the extent this remedy is available, it is exclusive. See id. § 23-110(g). Thus, federal courts cannot consider habeas petitions filed by prisoners who have adequate and effective section 23-110 remedies available to them. See Blair-Bey v. Quick , 151 F.3d 1036, 1042 (D.C. Cir. 1998). From 1998 to 2006, Johnson filed four section 23-110 motions, variously alleging ineffective assistance of counsel and violations of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). His first three motions were denied or withdrawn.

In 2007, Johnson discovered that Sullivan, between 1985 and 1987, had represented Williams on charges of first-degree burglary and armed robbery. Williams had testified for the prosecution at Johnson’s trial. Johnson moved to amend his fourth section 23-110 motion to allege that Sullivan had provided ineffective assistance at trial while laboring under a conflict of interest from his prior representation of Williams. Johnson also sought to raise a claim that Sullivan had provided ineffective assistance in his direct appeal while laboring under the same conflict. In the D.C. court system, a prisoner can raise claims for ineffective assistance of appellate counsel only through a motion to the D.C. Court of Appeals to recall its mandate, not through a motion to the Superior Court under section 23-110. See Watson v. United States , 536 A.2d 1056, 1060 (D.C. 1987) (en banc). Johnson claimed ineffective assistance of appellate counsel in a motion to recall the Court of Appeals’ mandate. The Court of Appeals denied the motion without prejudice to the Superior Court’s consideration of conflict issues in the pending section 23-110 motion.

In 2008, the D.C. Superior Court rejected Johnson’s claims of ineffective trial counsel and Brady violations. Johnson appealed. He also filed another motion to recall the D.C. Court of Appeals’ mandate. The Court of Appeals denied the motion on the ground that the conflict issue was already before it in the appeal from the Superior Court’s decision. A few months later, the Court of Appeals affirmed that decision but did not mention Johnson’s claim of ineffective assistance of appellate counsel.

In 2010, Johnson filed a federal habeas action under 28 U.S.C. § 2254. The district court held that D.C. Code § 23-110(g) barred review of all claims other than ineffective assistance of appellate counsel. It further held that Johnson was barred from claiming ineffective assistance of appellate counsel because he had neither moved to recall the mandate nor claimed that doing so would have failed to protect his rights. Johnson v. Stansberry , No. 10-cv-178, 2010 WL 358521 (D.D.C. Jan. 29, 2010). We reversed that determination because Johnson had, in fact, moved to recall the mandate. Johnson v. Stansberry , No. 10-5346 (D.C. Cir. May 11, 2011). After further skirmishing, Johnson v. Stansberry , No. 10-cv-178 (D.D.C. June 30, 2011); Johnson v. Wilson , No. 10-5346 (D.C. Cir. Jan. 2, 2013), the district court referred to a magistrate judge the claim that Johnson’s appellate counsel had been ineffective.

At an evidentiary hearing, the magistrate judge heard testimony from both Johnson and Sullivan. The magistrate judge credited Sullivan’s testimony that, when Sullivan represented Johnson, he had forgotten his prior representation of Williams. The magistrate judge concluded that Sullivan had not been ineffective in the appeal, and he recommended rejecting Johnson’s claim. The district court adopted the recommendation, denied the habeas petition, and issued a certificate of appealability. Johnson v. Wilson , No. 10-cv-178, 2018 WL 5297811 (D.D.C. Oct. 25, 2018) ; Minute Order, Johnson v. Wilson , No. 10-cv-178 (D.D.C. Dec. 4, 2018).

In 2020, while this appeal was pending, Johnson moved in Superior Court for a reduction of his sentence under D.C. Code § 24-403.03, which applies to certain sentences for crimes committed by minors. The Superior Court granted Johnson’s motion and ordered him released from custody. United States v. Johnson , No. 1994 FEL 004696 (D.C. Super. Ct. Feb. 7, 2020). Because Johnson remains on probation and subject to registration requirements because of his conviction, this appeal is not moot. See Spencer v. Kemna , 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

II

A

Under 28 U.S.C. § 2254(a), a person in custody under the judgment of a D.C. court may petition for a writ of habeas corpus on the ground that he is being held "in violation of the Constitution or laws or treaties of the United States." Id. ; see Waters v. Lockett , 896 F.3d 559, 566 (D.C. Cir. 2018). Johnson’s petition alleges that he was held in violation of his Sixth Amendment right to the effective assistance of appellate counsel.

Johnson raises two theories. First, under Cuyler v. Sullivan , 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), he contends that Sullivan’s performance on appeal was adversely affected by two conflicts of interest. Second, under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Johnson argues that Sullivan was ineffective on appeal based on his failure to raise Brady claims and his failure to argue that he had been ineffective at trial.

In habeas appeals, we review the district court’s legal determinations de novo and its factual findings for clear error. See Waters , 896 F.3d at 566. It is unclear whether the Superior Court or the D.C. Court of Appeals resolved the claims before us on the merits, which would trigger deferential review of their decisions. See 28 U.S.C. § 2254(d). We may assume that this rule of deference does not apply here, because Johnson’s claims fail even without it.

B

We begin with Johnson’s Cuyler claims. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." It encompasses the right to "effective assistance of counsel,"...