Watson v. U.S., No. 13796.

Docket NºNo. 13815.
Citation536 A.2d 1056
Case DateDecember 10, 1987
CourtCourt of Appeals of Columbia District
536 A.2d 1056
Curtis Lee WATSON, Appellant,
v.
UNITED STATES, Appellee.
No. 13796.
No. 13815.
No. 83-996.
No. 83-1136.
No. 83-1150.
District of Columbia Court of Appeals.
Argued November 6, 1986.
Decided December 10, 1987.*

James Klein, Public Defender Service, with whom Elizabeth G. Taylor and David Reiser, Public Defender Service, were on the brief, for appellant.

Michael W. Farrell, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Judith Hetherton and Thomas J. Tourish, Jr., Asst. U.S. Attys., were on the brief, for appellee.

Page 1057

Before PRYOR, Chief Judge, MACK, NEWMAN, FERREN, BELSON, ROGERS, and STEADMAN, Associate Judges, GALLAGHER, Senior Judge, and NEBEKER,** Associate Judge, Retired.

GALLAGHER, Senior Judge:


This case is before us en banc on a claim by appellant of ineffective assistance of counsel on his previous direct appeal from his conviction. It was heard previously before a division of this court, (Watson v. United States, 508 A.2d 75 (D.C.), reh'g granted, judgment vacated, 514 A.2d 800 (D.C. 1986)), and when the court decided to hear the case en banc, the opinion of the hearing division was automatically vacated in accordance with our usual procedures.1 Also involved are appeals from trial court orders dealing with issues of ineffectiveness of trial counsel and denying collateral relief from prior judgments of conviction.

I

In this appeal, appellant preserves all the issues he previously raised before the hearing division of this court on the appeal based upon ineffective assistance of counsel.2 But appellant's focus is now explicitly on the issue of misjoinder of offenses (the "consolidation issue") as it relates to the claim of "ineffectiveness of counsel" on appeal. Consequently, the thrust of this opinion will be on the "misjoinder" question as it relates to the claim of ineffective assistance of appellate counsel in presenting the misjoinder issue on his direct appeal from his conviction. Procedurally, the ineffectiveness of appellate counsel issue is raised before us by a motion to recall our mandate in this case.

In a case involving a claim of ineffective assistance of counsel on appeal, there are two principal manifestations of appellate representation: (a) the brief and (b) oral argument. The brief and oral argument are illuminated by the record in the case, including the court's opinion. Due to the passage of time, however, we have no access to the tape of oral argument on direct appeal, which took place some seven years ago, because the tape has been routinely erased.3 We therefore are confined primarily to appellant's brief on the direct appeal, and the record (including our opinion) for our present review on the ineffective assistance of counsel issue.

It is important to realize at the outset exactly what the claim, as now refined, is in this case. Appellant contends that he was denied the effective assistance of counsel on his direct appeal from his conviction because his retained appellate counsel4 failed to present adequately on appeal a prejudicial consolidation of offenses at his trial (misjoinder of offenses). It should be recognized that appellant does not contend his first appellate counsel failed to raise

Page 1058

the misjoinder issue. Rather, he claims he did not raise the misjoinder issue "adequately." Relatively speaking, this is something of an intellectual refinement of the usual theme in "ineffectiveness" cases, as the charged blunder is usually much more flagrant. See, e.g., Hollis v. United States, 687 F.2d 257 (8th Cir. 1982) (counsel's failure to file appeal); Mylar v. Alabama, 671 F.2d 1299 (11th Cir. 1982) (counsel's failure to file brief with appeal); Passmore v. Estelle, 607 F.2d 662 (5th Cir. 1979) (counsel's submission of one-sentence appellate brief on behalf of one whose conviction had resulted in a life sentence); Meyer v. Florida, 415 So.2d 70 (Fla.Dist.Ct.App. 1982) (counsel's failure to file timely notice of appeal).

Appellant related to the court at the outset of oral argument in measured terms precisely what he contends is this court's task in this case. He said:

Watson's claim, in essence, is that he was denied his constitutionally guaranteed champion on appeal. To prevail, we must convince the court that it should lack confidence in its own opinion. An opinion that I fully recognize was authored by a division of two of the judges here today. That is an extraordinarily high standard. But in fact, we would submit that Watson has done more. With remarkably little opposition from the government, Watson has made what we think is a convincing claim, that the opinion which came out in November of 1979 was wrong, through no fault of the court; something which will not happen very often, for I'm sure this court has confidence in the integrity in its own opinions, as we do. It was wrong we submit, and let me just be crystal clear, that unless we prevail on this claim, we are out of court on our claim of ineffective assistance of appellate counsel. But that opinion was wrong, we submit, because the court was misinformed. It believed, when it tried to determine whether Watson's trial was fair, which was its sworn duty, that the argument for consolidation, as the court called it, was strong enough to find the trial fair.

(Emphasis added.)

In other words, appellant is putting it up to this court (a) to reexamine its previous opinion on the direct appeal, and (b) to decide that its prior decision was wrong "through no fault of the court" but, rather, due to appellate counsel's inadequacy in the consolidation (misjoinder) contention, and hence, (c) counsel was constitutionally "ineffective."

We, of course, intend to address our concept of the law on ineffective assistance of counsel on appeal, as that is the issue in this case. But, so there will be no mistake about it, we wish to make it quite plain at the outset that we do not intend to accept appellant's invitation to focus primarily on our division's opinion. If we were to wander into that precedential quicksand, we would be signalling that unsuccessful criminal appellants can obtain a second appeal on the merits, if they base it on the ground that the court's opinion on the first appeal was wrong.5 The argument is that it would not have been wrong but for the ineffective assistance of counsel on the first appeal for inadequately raising an important issue. While we will not take this precarious approach to the issue, we will nevertheless keep the avenue always open for a claim of ineffective assistance of counsel by the use of proper standards.

We are going to examine the presentation to the court by appellant's first counsel, as distinguished from placing the primary focus on our division's prior opinion. We are not going to look at his performance in order to determine whether his presentation left something to be desired, or whether counsel put the court to an unnecessary degree of work in its review. We will determine whether counsel's performance deprived appellant of his substantive due process right to counsel stemming from application of the Sixth Amendment. Our decision is not simply based on whether counsel can be faulted on some scores. Ours is a constitutional review, not a grading exercise. See Strickland v. Washington,

Page 1059

466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984).

One final thought while laying the groundwork for our discussion: appellant must realize that when a claim of ineffectiveness of appellate counsel is raised in this court, an appellant is arguing in territory at the outermost limits of the constitutional guarantee to the right to counsel.6 There is no doubt about the well-known and oft repeated historical truism on the crucial importance of counsel to a criminal defendant (or any litigant) every step of the way. Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938); Powell v. Alabama, 287 U.S. 45, 68-71, 53 S.Ct. 55, 63-65, 77 L.Ed. 158 (1932); see McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); Grosjean v. American Press Co., 297 U.S. 233, 243-44, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936). Of this there can be no doubt; and incidentally, the abler counsel's performance, the lighter the burden for the decision-maker.7 These are realities which are indisputable and have long been widely accepted by bench and bar, so we need not elaborate on them further. Well-litigated cases by able and prepared counsel are something the bar should continually strive toward, with judicial encouragement and assistance.

We have observed that the issue here is at the outermost constitutional limits because the reality is that (a) appellant has previously received a judgment of conviction, and (b) has already received an appellate review which affirmed the conviction. Consequently, an appellant has "no easy row to hoe" in the constitutional attack. The court must be particularly circumspect in our review or else we will inadvertently encourage a routine of unwarranted second appeals by unsuccessful appellants in criminal cases. At the same time, we certainly do not intend to discourage a genuine claim on ineffective assistance of appellate counsel.

II

Recognizing that Evitts v. Lucey, supra note 4, establishes a due process right to effective assistance of counsel, whether retained or appointed, on a "first appeal" as of right, appellant contends that we should either remand for resentencing or reopen his appeal.8 This would necessarily require that we first recall the mandate affirming his convictions.

Before reaching the merits of appellant's due process claim, we must dispose of the procedural matter of how one may challenge previous counsel's effectiveness on appeal. The approach taken by appellant, filing with this court a motion to recall the mandate, is a proper one. D.C.App.R. 41(c), which became effective on January 1, 1985, provides:

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82 practice notes
  • Tuckson v. United States, No. 11–CF–552.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 3, 2013
    ...task is to “consider[ ] the briefs and the oral argument, and [to] test[ ] them against the record and the law.” Watson v. United States, 536 A.2d 1056, 1068 (D.C.1987) (en banc). “[I]n the final analysis the court must satisfy itself ... on the decision to reach, with the reasons supportin......
  • Johnson v. Sullivan, Civil Action No. 09–2056 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 29, 2010
    ...his remedy would have been through a motion in the District of Columbia Court of Appeals to recall the mandate. Watson v. United States, 536 A.2d 1056, 1060 (D.C.1987) (instructing that a motion to recall the mandate is the proper procedure for presenting a claim of ineffective assistance o......
  • Jones v. United States, No. 15-CF-322.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 21, 2017
    ...is to "consider[ ] the briefs and the oral argument, and [to] test[ ] them against the record and the law," Watson v. United States , 536 A.2d 1056, 1068 (D.C. 1987) (en banc), not merely to choose the better or best of the arguments presented in support of a claim. Our responsibility as an......
  • BROOKS v. U.S., No. 94-SP-346
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 12, 1996
    ...of counsel); Evitts v. Lucey, 469 U.S. 387, 393-94, 105 S.Ct. 830, 834-35, 83 L.Ed.2d 821 (1985), cited in Watson v. United States, 536 A.2d 1056, 1957 n. 4, 1059-61 (D.C. 1987) (en banc), cert. denied, 486 U.S. 1010, 108 S.Ct. 1740, 100 L.Ed.2d 203 (1988); see also Super. Ct.Crim. R. 32(c)......
  • Request a trial to view additional results
82 cases
  • Tuckson v. United States, No. 11–CF–552.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 3, 2013
    ...task is to “consider[ ] the briefs and the oral argument, and [to] test[ ] them against the record and the law.” Watson v. United States, 536 A.2d 1056, 1068 (D.C.1987) (en banc). “[I]n the final analysis the court must satisfy itself ... on the decision to reach, with the reasons supportin......
  • Johnson v. Sullivan, Civil Action No. 09–2056 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 29, 2010
    ...his remedy would have been through a motion in the District of Columbia Court of Appeals to recall the mandate. Watson v. United States, 536 A.2d 1056, 1060 (D.C.1987) (instructing that a motion to recall the mandate is the proper procedure for presenting a claim of ineffective assistance o......
  • Jones v. United States, No. 15-CF-322.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 21, 2017
    ...is to "consider[ ] the briefs and the oral argument, and [to] test[ ] them against the record and the law," Watson v. United States , 536 A.2d 1056, 1068 (D.C. 1987) (en banc), not merely to choose the better or best of the arguments presented in support of a claim. Our responsibility as an......
  • BROOKS v. U.S., No. 94-SP-346
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 12, 1996
    ...of counsel); Evitts v. Lucey, 469 U.S. 387, 393-94, 105 S.Ct. 830, 834-35, 83 L.Ed.2d 821 (1985), cited in Watson v. United States, 536 A.2d 1056, 1957 n. 4, 1059-61 (D.C. 1987) (en banc), cert. denied, 486 U.S. 1010, 108 S.Ct. 1740, 100 L.Ed.2d 203 (1988); see also Super. Ct.Crim. R. 32(c)......
  • Request a trial to view additional results

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