Shepard v. United States, 85-606.

• Decision Date: 02 December 1987
• Docket Number: No. 85-606.,85-606.
• Citation: 533 A.2d 1278
• Parties: Rufus SHEPARD, Jr., a/k/a Shep, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

533 A.2d 1278

Rufus SHEPARD, Jr., a/k/a Shep, Appellant, v. UNITED STATES, Appellee.

No. 85-606.

District of Columbia Court of Appeals.

Argued January 7, 1987.

Decided December 2, 1987.

William T. Morrison, Washington, D.C., appointed by this court, for appellant.

Patricia A. Riley, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Helen M. Bollwerk, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before BELSON and ROGERS, Associate Judges, and NEBEKER, Associate Judge, Retired.^*

BELSON, Associate Judge:

Appellant Rufus Shepard contends on appeal that the trial court erred in denying, without a hearing, his motion to vacate his sentence, D.C. Code § 23-110 (1981), on the ground that he was denied his sixth amendment right to the effective assistance of counsel at trial. We find appellant's contentions unpersuasive, and therefore affirm the trial court's denial of his motion.

Following a 1979 jury trial in which appellant was tried with four codefendants for offenses arising out of the armed robbery of a laundromat, appellant was convicted of three counts of armed robbery, D.C. Code §§ 22-2901, -3202 (1981) (amended 1983), and was acquitted on two counts of assault with a dangerous weapon, D.C. Code § 22-502 (1981). On direct appeal, newly appointed counsel for appellant contended that the trial court had erred in denying his motion during trial to compel a physical and mental examination of Rosetta Ross,¹ an accomplice of appellant who had been the principal witness for the government. This court rejected that claim and affirmed appellant's conviction. Hilton, supra note 1, 435 A.2d at 388, 392. Appellant thereafter filed two motions for reduction of sentence, the second of which was granted by the trial judge, who reduced appellant's minimum term from ten years to nine years.

In 1983, appellant filed a motion to vacate and set aside judgment of conviction and for a new trial, pursuant to D.C.Code § 23-110 (1981). Appellant based his motion on alleged ineffective assistance of counsel in two respects. The first was trial counsel's failure to move before trial for a competency evaluation of Rosetta Ross, the primary witness against appellant at trial. The second was counsel's failure to move to sever appellant's trial from that of his codefendants. The trial court denied appellant's § 23-110 motion without a hearing. This appeal followed.

The government contends that appellant's ineffective assistance of counsel claims are barred because appellant has shown no cause for his failure to raise them at the time of his direct appeal and no prejudice resulting from his trial counsel's alleged ineffectiveness. Cf. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982) (requiring showing of both cause and prejudice for collateral attack when petitioner failed to raise claim on direct appeal); Head v. United States, 489 A.2d 450, 451 (D.C. 1985) (same).

On several occasions, this court has suggested that an appellant who is aware of a basis for alleging ineffective assistance of trial counsel should file, during the pendency of direct appeal, a § 23-110 motion that adequately sets forth the grounds for the claim of ineffectiveness.² See Proctor v. United States, 381 A.2d 249, 252 (D.C. 1977); Coleman v. United States, 379 A.2d 710, 713 (D.C. 1977); Angarano v. United States, 329 A.2d 453, 457-58 (D.C. 1974) (en banc); see also YOUNG LAWYERS' SECTION OF THE BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA BAR ASSOCIATION, APPELLATE PRACTICE MANUAL FOR THE DISTRICT OF COLUMBIA COURT OF APPEALS 72-73 (1985). Where it is appropriate, that motion can furnish appellant a means of making a record regarding matters relevant to the ineffectiveness claim that do not appear in the record of the case on direct appeal. Gibson v. United States, 388 A.2d 1214, 1216 (D.C. 1978) (per curiam). See also United States v. DeCoster, 159 U.S.App.D. C. 326, 487 F.2d 1197 (1973). When such a motion has been filed during the pendency of the direct appeal, this court has routinely granted requests for stay of the direct appeal so that, if the § 23-110 motion is denied, the appeal from its denial can be consolidated with the direct appeal. We have never before mandated that such a procedure be employed. We do so now, but only prospectively and only in those cases, like the instant case, in which appellant during the pendency of his direct appeal demonstrably knew or should have known of the grounds for alleging his attorney's ineffectiveness.

We now hold that, if an appellant does not raise a claim of ineffective assistance of counsel during the pendency of the direct appeal, when at that time appellant demonstrably knew or should have known of the grounds for alleging counsel's ineffectiveness, that procedural default will be a barrier to this court's consideration of appellant's claim.

Here, appellant's knowledge is demonstrable because the mistakes that appellant asserts his counsel made at trial related to the issues raised by appellant and his co-appellants in their direct appeals. Specifically, appellant's direct appeal raised the issue of the trial court's failure to grant a mid-trial motion for physical and mental examination of Rosetta Ross; his collateral attack raises his counsel's failure to move before trial for that examination. Appellant was necessarily aware of that omission during the pendency of his direct appeal, and there is no indication that, subsequent to the direct appeal, he learned anything that added significantly to the considerable information regarding Ross' mental condition that was spread throughout the record at trial. Similarly, appellant's knowledge of the grounds for seeking a severance was complete during the pendency of the direct appeal. Under circumstances such as these, there appears no reason why an appellant should not be required to make his arguments concerning the ineffectiveness of his counsel during the pendency of his direct appeal.

We turn now to the question of how an appellant may surmount the barrier created by the procedural default of failing to press an available claim of ineffectiveness concurrently with a direct appeal. We must conduct our inquiry mindful of the constitutional basis of one's right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). The most obvious candidate for employment as a standard for measuring a proffered justification for a belated claim is the "cause and prejudice" standard.³

The Supreme Court has applied that test to federal court review under 28 U.S.C. § 2254 of constitutionally-based collateral attacks on state convictions in instances of appellate procedural default. Reed v. Ross, 468 U.S. 1, 11, 104 S.Ct. 2901, 2907, 82 L.Ed.2d 1 (1984). Furthermore, at least one federal circuit has held that the "cause and prejudice" test applies to federal habeas corpus review pursuant to 28 U.S.C. § 2255 of constitutional attacks on federal court convictions as well, a review closely analogous to this court's review of Superior Court actions upon application under D.C.Code § 23-110. See Norris v. United States, 687 F.2d 899, 902-04 (7th Cir. 1982).

We cited Norris, supra, with approval in Head v. United States, 489 A.2d 450 (D.C. 1985), where we stated:

Relief under § 23-110 is appropriate only for serious defects in the trial which were not correctible on direct appeal or which appellant was prevented by exceptional circumstances from raising on direct appeal. Atkinson v. United States, 366 A.2d 450, 452 (D.C. 1976) (citations omitted). Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure. Frady, 456 U.S. at 167-68, 102 S.Ct. at 1594; see Norris v. United States, 687 F.2d 899 (7th Cir. 1982) (applying Frady "cause and prejudice" standard to issue raised in § 2255 motion); cf. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (same standard held applicable to motions under 28 U.S.C. § 2254 (1982)).

Id. at 451. In Head, we did not make any distinction between constitutional and nonconstitutional claims. There, the appellant belatedly claimed that the trial court had erred in refusing to allow the defense to impeach a government witness with two assertedly inconsistent prior statements. While we did not discuss whether the claim was constitutional, a strong argument that it was such arises from our more recent decision in Bassil v. United States, 517 A.2d 7:14 (D.C. 1986). There we held that the trial court's erroneous refusal to permit the defense to use for impeachment purposes extrinsic evidence of a government witness' bad reputation for truthfulness must be tested for harmlessness under the standard applicable to constitutional error set out in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Considering together the holdings in Reed, Norris, and Head, we conclude that the cause and prejudice standard is appropriate for testing efforts to surmount the barrier created by the particular type of procedural default involved here.⁴

Our holding that a showing of cause and prejudice is a prerequisite to this court's review of an appellant's claim where there has been such a procedural default, however, is prospective. See United States v. Foster, 251 U.S.App.D.C. 267, 271, 783 F.2d 1082, 1086 (1986). Accordingly, we reject in this appeal the government's contention that appellant's ineffectiveness claim is barred unless appellant establishes cause and prejudice. We therefore proceed to decide whether the trial court erred in denying, without a hearing, appellant's § 23-110 motion.

The test for the ground for relief appellant presses, ineffective assistance of coun...