Simon v. Gov't of the V.I.

• Decision Date: 29 July 2015
• Docket Number: D.C. Civ. App. No. 2003/024
• Citation: 116 F.Supp.3d 529
• Parties: Carl SIMON, Appellant, v. GOVERNMENT OF the VIRGIN ISLANDS, Appellee.
• Court: U.S. District Court — Virgin Islands

116 F.Supp.3d 529

Carl SIMON, Appellant,

v.GOVERNMENT OF the VIRGIN ISLANDS, Appellee.

D.C. Civ. App. No. 2003/024

District Court of the Virgin Islands, Division of St. Thomas and St. John, Appellate Division.

Considered: April 22, 2014

Filed: July 29, 2015

Joseph A. DiRuzzo, III, Esq., Miami, FL, For the Appellant, Carl Simon

Bernard M. VanSluytman, Esq., St. Thomas, VI, For the Appellee, Government of the Virgin Islands

BEFORE: WILMA A. LEWIS, Chief Judge of the District Court of the Virgin Islands; CURTIS V. GÓMEZ, Judge of the District Court of the Virgin Islands; and DOUGLAS A. BRADY, Judge of the Superior Court of the Virgin Islands, sitting by designation.

MEMORANDUM OPINION

Per Curiam

In this appeal, Carl Simon("Simon") challenges on numerous grounds the July 18, 2002 Order of the Superior Court of the Virgin Islands dismissing his February 2000amended petition for a writ of habeas corpus filed pursuant to 5 V.I.C. § 1314.Joint Appendix ("JA") 4.For the reasons that follow, Simon's appeal will be dismissed in part and remanded in part.It will be remanded to the Superior Court for a development of the factual record underlying Simon's claim that Michael Joseph, Esq. rendered ineffective assistance of counsel in failing to appeal this Court's August 20, 1997 Opinion affirming Simon's conviction to the United States Court of Appeals for the Third Circuit.Simon's appeal of his habeas petition will be dismissed in all other respects.

I.BACKGROUND AND PROCEDURAL HISTORY

In September 1993, Simon, James Roach("Roach"), and another individual burglarized a house on St. John, U.S. Virgin Islands.Elroy Connor("Connor"), who lived in the house, and his friend Daniel Ezekiel("Ezekiel"), arrived during the burglary.An altercation ensued and Ezekiel was shot dead.Simon, Roach, and the third person fled the scene with money and other valuables.Simon and Roach were later separately apprehended.

Roach was charged with first-degree murder, a local charge, and unlawful flight to avoid prosecution, a federal charge.On May 5, 1994, after a two-day trial, he was convicted of both charges in the District Court of the Virgin Islands and was sentenced to life imprisonment on the murder charge.JA 7.Roach filed a Notice of Appeal to the Third Circuit on May 11, 1994.¹He moved to dismiss his appeal on March 20, 1995.

Shortly after Simon's arrest in May 1994, the Government of the Virgin Islands (the "Government") filed an Information in the Superior Court of the Virgin Islands² charging him with two local charges: premeditated murder, in violation of 14 V.I.C. §§ 921 and 922(a)(1)(Count I), and third-degree burglary, in violation of 14 V.I.C. § 444(1)(Count II).JA 67.The Virgin Islands Public Defender's Office was appointed to represent Simon.JA 38.During a January 10, 1995 pretrial conference, the Government stated that it intended to amend the Information to add a count of robbery.JA 87.The judge directed the Government to file a written motion and to give Simon, represented by his trial counsel, Augustin Ayala, Esq.("Ayala"), an opportunity to respond.Id.³

On January 13, 1995, the Government provided Simon with a copy of an Amended Information containing four counts.JA 96.Count I charged felony murder, based on the predicate felony of robbery, in violation of 14 V.I.C. §§ 11(a), 921, and 922(a)(1); Count II charged robbery, in violation of 14 V.I.C. §§ 11(a) and 1862(2); Count III charged conspiracy to commit robbery, in violation of 14 V.I.C. § 551(1); and Count IV charged burglary, in violation of 14 V.I.C. § 444(1).Id.At the January 13, 1995 hearing, Simon opposed the proposed amendment because it added new counts.JA 121.

The Government filed its motion to amend the Information on January 18, 1995("First Amended Information").JA 130.At a pretrial conference prior to jury selection on January 23rd, the Government responded to the Court's observation that the First Amended Information was defective by stating that it would not present the conspiracy count.JA 141–42.Simon again opposed the "last minute"amendment.JA 144.After a colloquy, the trial judge granted the Government's motion to amend the proposed First Amended Information—to remove the conspiracy count; change the language in the murder count to reflect the elements of felony murder; and delete some text from the burglary count.JA 144–52, 158.The judge further stated that the robbery charge was unobjectionable because the amended Count I provided that the killing was allegedly perpetrated during the robbery, and that while the revised Information added a new count of robbery, he did not view it as prejudicing the Defendant.JA 148.On January 25, 1995, the Government filed the Second Amended Information that reflected the changes resulting from the January 23rd pretrial colloquy.JA 750–52.

Simon's trial was held on January 24–25, 1995.During the trial, Roach appeared on behalf of the Government, and testified that Simon shot Ezekiel.JA 318–20.

Ayala vigorously cross-examined Roach.He elicited testimony that Roach was angry "in a way" that, although subpoenaed, Simon had not testified on Roach's behalf during Roach's trial.Ayala argued that, as a result, Roach had a motive to testify against Simon at Simon's trial.JA 337–38.Roach also expressed anger at Simon because Simon was the person who "shot the man, and here I am, in trial, for something I didn't do.Carl Simon is who shot the man."Id. at 338.Further, Ayala caused Roach to admit that certain statements Roach made at his trial—i.e., that he did not know Simon, JA 341–44, and that he went by his girlfriend's house on the night of the crime and thus was not at the scene of the crime, JA 365–69, 373, see also JA 297—were lies.Roach also admitted that he lied to the judge and jury in his case, JA 373, as well as to a police detective who took a statement from him after the crime, JA 381–82, 399, and a Deputy Marshal investigating the crime when he stated that he did not know Simon.JA 344.

Roach further testified that he received "protection" from the Government.⁴When asked by Ayala, "[d]o you know which Government gave the protection?Was it the Federal Government or the Local Government?"Roach's response was, "I can't—the Local."JA 374–75.

During redirect examination, the Government attorney asked Roach to explain what he received from the Government in exchange for testifying at Simon's trial:

Q: Mr. Roach, will you state to the Court and the Ladies and Gentlemen of the Jury, whether or not the Government has made any promises to you for your testifying here today, in terms of reducing or having to do anything with your case?

A: I ask for protection.

Q: And?

A: So that Carl Simon and he[sic]brother and they couldn't get to me.

The Court: Are there any other promises that were made to you by the Government?

A: No, Sir.

JA 390.

Another eyewitness, Elroy Connor, whose house had been broken into, identified Roach as one of the perpetrators.He testified that Roach was accompanied by a shorter man who wore a stocking that covered his face, and that he struggled with Roach.JA 468, 470–71, 473–74.The record reflected that Simon was shorter than Roach.JA 673.Another witness testified that he saw Roach and Simon together around 10:45 p.m. on the night of the crime, JA 551–52, and observed that Simon was acting nervous that evening.JA 556–60.

Simon called no witnesses.In his closing argument, Ayala pointed out that no one, and no physical evidence, corroborated Roach's testimony implicating Simon.JA 655.He stressed that Roach was a liar, JA 647–53, 658–59, and that Roach had "every reason to come here and tell you that Mr. Simon was involved."JA 657.

The jury found Simon guilty of felony murder, first-degree robbery, and third-degree burglary.JA 753–54.The trial judge sentenced Simon to life in prison without the possibility of parole.Id.

Ayala and Simon filed separate Notices of Appeal to this Court(the Appellate Division of the District Court) in February 1995.JA 755, 757.The then Territorial Chief Public DefenderHarold Willocks, Esq.("Willocks") was substituted for Ayala on direct appeal.In August 1995, Willocks filed a Motion to be Relieved as Counsel, asserting that Simon was dissatisfied with Ayala's representation, which "has risen to the level of innuendos and accusations of ineffective counsel," and that there may be a conflict if the Territorial Public Defender's Office continued to represent Simon.JA 758–59.Subsequently, in February 1996, Willocks filed an Affirmation in which he stated that his office could find no basis for an appeal of Simon's conviction.JA 762–63.He also stated that Simon had communicated that he believed he had received "inadequate assistance" of trial counsel; that Willocks and a former law professor had reviewed the trial transcript and could find no indication of ineffective assistance; and that Willocks had written Simon asking what Simon viewed as reversible error but had received no response.Id.

Willocks and Michael Joseph, Esq.("Joseph") signed a Stipulation that was approved by this Court on August 8, 1996 that substituted Joseph as counsel on Simon's direct appeal.JA 813–14.Joseph filed a brief arguing that the Superior Court erred in allowing the Government to amend the Information.JA 815–18.Finding no prejudice to Simon from the amendment, this Court affirmed his conviction on August 20, 1997.JA 819–27.

In response to a telephone message from Simon on September 9, 1997, Joseph wrote Simon a letter dated September 10, 1997 stating, inter alia, that he would not file an appeal to the Third Circuit in Simon's case because such an appeal would be "frivolous and without merit."JA 828.⁵Simon drafted a notice of appeal the next day.JA 829.The appeal was dismissed on December 17, 1997 by the Third Circuit as untimely.JA 831.

Meanwhile, on September 1, 1995, seven months after testifying for the Government at Simon's trial,...