UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
RONNIE PAYNE, ) ) Petitioner, ) ) v. ) Civ. Action No. 10-0617 (RMC) ) PATRICIA STANSBERRY, ) ) Respondent. )
MEMORANDUM OPINION
Petitioner Ronnie Payne seeks issuance of a writ of habeas corpus under 28
U.S.C. § 2254. He claims that his custody, based on a judgment of conviction entered by the
Superior Court of the District of Columbia, violates the Fifth and Sixth amendments to the
United States Constitution. The Respondent, Warden Patricia Stansberry, moves to dismiss on
the grounds (1) that the petition is time-barred; (2) that claims arising from alleged errors during
the trial proceedings are foreclosed by local remedy D.C. Code § 23-110; and (3) that appellate
counsel was not constitutionally ineffective. Upon consideration of the parties’ submissions and
the entire record, the Court will grant Warden Stansberry’s motion to dismiss.
I. BACKGROUND
Following a jury trial before Associate Judge George W. Mitchell, Mr. Payne and
co-defendant Ronald E. Garris were convicted of two counts of premeditated first degree murder
while armed, two counts of assault with intent to kill while armed, one count of carrying a pistol
without a license, and one count of possession of a firearm during a crime of violence. Mr.
Payne was sentenced to consecutive sentences ranging from two years to life imprisonment. Payne v. U.S., 697 A.2d 1229, 1230 & n.1 (D.C. 1997). The underlying facts as recounted by the
District of Columbia Court of Appeals on Messrs. Payne and Garris’ direct appeal are as follows:
Terence Woodfork, Hezekiah Vaughn, Kenyetta Jeter and Maurice Carey, all good friends, were seated in a Nissan Pulsar automobile, outside the Breezes Metro Club on Channing Street and Bladensburg Road, N.E., on the night and in the early morning hours of March 12 and 13, 1992. While they were sitting and drinking beer in the Nissan Pulsar, they spotted a blue or gray car carrying a white female and a black male, later identified as Christine Terry and Preston Coe, approach and park. Terry and Coe got out of the car and walked toward the Metro Club. Soon another car drove up, occupied by two black males. The two black males emerged from their car and eventually stood in front of the Nissan Pulsar and opened fire, killing Vaughn and Jeter, and injuring Carey in the back and arm. At the time the shots were fired, neither Woodfork nor Carey saw anyone else on the street. Later, the police showed Woodfork a photo array and he picked out Garris and Payne as the assailants. He also made an in-court identification of both men. When Carey was shown the photo array by the police, he initially picked out only Coe, the black male who was with the white female. He did not identify Garris and Payne until his testimony during their trial. However, Carey testified that after the shots were fired, he saw both the car carrying the two black males and the one bearing the white female and the black male leave the area. The car carrying the black male and white female departed first. At the time of the shootings, Officer Stacey Davis was on duty in the Metro Club area. He “heard . . . gunshots, stepped to the corner and observed the gunshots.” As he ran up Channing Street, he saw a vehicle containing a black man and a white woman moving on the street. He also “observed two black males firing into or onto a vehicle.” One was dark in complexion and had on a blue jean outfit, and the other was light-complected and had on an orange muscle sweat shirt with blue jeans. When the men saw the officer, they got into a car and drove away. Officer Davis identified Payne in court as one of the men he had seen shooting into the Nissan Pulsar. Christine Terry testified at trial that she had known Garris for about nine to ten months prior to March 13, 1992, and Payne for about six months prior to that time. She met both through her then boyfriend, Preston Coe. Earlier on the night of the shooting incident, she saw Garris and Payne sitting in a car. Garris had a 45 millimeter gun in his lap, but she did not see Payne with a weapon. After Terry arrived in the area of the Metro Club, she overheard Coe tell Garris and Payne to put their guns in the trunk of the car before they went into the club. Payne “said no, that the boys in the occupied car [Vaughn, Jeter, Woodfork and Carey] might see where they're putting their guns.” She heard Garris say, “we'll try our shootouts on these young niggers behind us. . . We'll smoke these young niggers behind us.” Coe and Terry left the area. As Coe and Terry were leaving the area, Terry said she “[saw] Ronald Garris in front of the . . . blue car . . . shooting into it.” She did not see Payne
2 with any gun. About half an hour after Coe and Terry reached their apartment, they received a telephone call, and about fifteen minutes after the call Payne and Garris arrived. Garris went into Coe's bedroom with Coe, where the two men remained for about twenty-five to thirty minutes. Garris and Payne were arrested approximately one month after they killed Vaughn and Jeter.
Id. at 1230-32 (footnotes omitted) (alterations in original). On direct appeal, Mr. Payne argued
that the trial court erred in denying his motion for a new trial based on newly discovered
evidence, namely a 9mm. Calico Model M-950 pistol, id. at 1233, and “when it admitted the
eyewitness identification by Officer Stacey Davis and visited the [crime] scene and then affirmed
its ruling on the identification testimony.” Id. at 1234-35 (alterations in original). He also
argued that the trial court erred in giving an aiding and abetting jury instruction and that he was
convicted on insufficient evidence. See Gov’t’s Ex. 14B [Dkt. # 14-16] (Brief for Appellant at
29-34). In its decision issued on July 24, 1997, the D.C. Court of Appeals affirmed Mr. Payne’s
convictions, noting that his arguments “that the evidence was insufficient to convict [him]” and
“that the trial court erred in giving an aiding and abetting instruction” were “without merit.”
Payne, 697 A.2d at 1235 n.12.
On October 10, 1997, Mr. Payne moved in the D.C. Court of Appeals to recall the
mandate “or alternatively to set aside the panel division judgment.” That court construed the
motion as a petition for rehearing and, on October 13, 1997, denied it. Pet’r Ex. A (Docket Sheet
of Appellate Case No. 93-CF-001643); Gov’t’s Ex. 1.
On October 28, 1998, the Superior Court received Mr. Payne’s “Motion to Vacate
Sentence and Set Aside Conviction Ineffective Assistance of Trial Counsel and Appellate
Counsel” brought pursuant to D.C. Code § 16-1901 and § 23-110, which was dated August 25,
1998. Gov’t’s Ex. 2. By Order of March 6, 2000, Judge Mitchell summarily denied Mr. Payne’s
3 Ҥ 23-110 motion to set aside his conviction because of ineffective assistance of counsel and
[his] motion to have counsel appointed to represent him at a hearing on this matter . . . .” Gov’t’s
Ex. 5.
On March 25, 2005, Mr. Payne filed in Superior Court a “Motion to Amended
[sic] Original § 23-110(g) Pleading Pursuant [to] Rule 15(a)(c)(1)(2),” in which he challenged
the aiding and abetting jury instruction. Gov’t’s Ex. 7. By Order of March 16, 2006, Associate
Judge Geoffrey M. Alprin denied the motion without first obtaining a response from the
government “because the motion and files and records of the case conclusively show that
defendant is not entitled to relief.” Gov’t’s Ex. 8. Judge Alprin determined that the jury
instructions “on the principles of aiding and abetting and on first degree murder . . . were given in
accordance with the standard ‘red-book’ instructions . . . .” Id. at 1. He also found that Mr.
Payne’s consecutive sentences were proper because he was convicted of two murders and two
assaults. Id. On September 11, 2006, Judge Alprin denied Mr. Payne’s motion for re-entry of
judgment, noting that his appeal time “had lapsed.” See Gov’t’s Ex. 11 at 2. On December 11,
2006, Mr. Payne filed in Superior Court yet another Motion to Vacate Sentence and Set Aside
Conviction for Ineffective Assistance of Counsel. Id.
On November 24, 2008, Mr. Payne filed a Motion to Vacate Judgment, in which
he sought to vacate the order of September 11, 2006. Id. at 3. By Order of January 19, 2010,
Judge Alprin denied Mr. Payne’s motion for new trial “as successive,” id. at 2, and denied Mr.
Payne’s motion to vacate judgment upon finding that the Superior Court’s rules did not support
Mr. Payne’s claim. Id.
4 Meanwhile, on August 14, 2008, Mr. Payne moved in the D.C. Court of Appeals
to recall the mandate. On August 22, 2008, the Court of Appeals, noting that the mandate had
issued on August 15, 1997, denied Mr. Payne’s motion as “untimely filed but without prejudice
to the filing of an appropriate motion in the trial court.” Gov’t’s Ex. 1 at 7. On September 17,
2008, Mr. Payne filed a motion for reconsideration, Gov’t’s Ex. 10, which Warden Stansberry
represents was “rejected.” Resp’t’s Mot. to Dismiss the Pet. for Writ of Habeas Corpus, Filed by
Pet’r Ronnie Payne Pursuant to 28 U.S.C. § 2254, and Mem. in Opp’n to the Pet. (“Gov’t’s
Mem.”) [Dkt. # 14] at 17.1
On April 19, 2010, Mr. Payne filed the instant habeas action seeking relief under
28 U.S.C. § 2254. He argues that his appellate counsel, Joseph Conte, was ineffective because
he had also represented him at trial and, therefore, had a conflict of interest. Pet. at 11-12. Mr.
Payne contends that “[s]uch representation was objectionable and clearly violated [his] right to
the assistance of counsel under the Sixth Amendment.” Id. at 12. “Because of the obvious
conflict of interest,” Mr. Payne asserts, Mr. Conte failed “to investigate facts relevant [to] a § 23-
110 motion; construct the § 23-110 motion; file the § 23-110 motion; and move the court to
appoint counsel to raise claims regarding ineffective assistance of counsel (at trial), in the § 23-
110 motion.” Id. & Ex. B (Affidavit of Ronnie Payne) (“Payne Aff.”). In addition, Mr. Payne
states in his affidavit that Mr. Conte “did not discuss the appellate process with me in order to
ascertain what issues that I wanted to present in my appellate brief . . . .” Payne Aff. ¶ 7. Mr.
Payne contends that but for Mr. Conte’s conflict, he “would have argued on direct appeal and in
1 Warden Stansberry cites Gov’t Ex. 1, which does not contain a ruling on Mr. Payne’s motion for reconsideration.
5 a § 23-110 motion that attorney Conte was ineffective during the trial process when he failed to
object to the trial court giving the jury an aiding and abetting instruction.” Pet. at 12. He
suggests that the evidence did not support such an instruction and contends that “[t]rial counsel
should have argued that the indictment only presented facts accusing Petitioner of being the
‘principal’ assailant and not an aider and abettor of the crimes,” id., and that he was denied due
process “since he was not given any notice that the jury [could] consider convicting him under a
different government theory.” Id. at 13.
Mr. Payne contends further that “[t]he trial court told the jury that it was obligated
to find Petitioner guilty notwithstanding the fact that the government failed to carry its burden.”
Pet. at 14. He asserts that “[b]y instructing the jury that it ‘must’ find the defendant guilty if the
Government has failed to prove any element of the offense, beyond a reasonable doubt, the court
gave the jury the clearly unlawful option of convicting on a lower standard of proof.” Id. at 15.
Mr. Payne attaches to the petition Mr. Conte’s response to his inquiry as to why he did not
challenge the jury instruction on reasonable doubt, Pet’r Ex. C, in which Mr. Conte stated that he
“overlooked the faulty jury instruction” and stated that “under the circumstances your best option
is pursuing the ineffective option which, of course, I cannot help you with.” Pet’r Ex. D. Mr.
Payne asserts that in addition to the foregoing errors, he “would have presented a claim against
trial counsel for his failure to object to the trial judge’s visit to the crime scene by himself.” Pet.
at 14.
II. LEGAL STANDARD
“A . . . judge entertaining an application for a writ of habeas corpus shall
forthwith award the writ [or issue a show cause order], unless it appears from the application that
6 the applicant . . . is not entitled thereto.” 28 U.S.C. § 2243. In addition, a hearing on an
application is not required if the application and the government’s return “present only issues of
law.” Id.
As a general rule, District of Columbia prisoners, such as Mr. Payne, are
foreclosed from federal court review of their convictions by D.C. Code § 23-110, which provides
a post-conviction remedy for D.C. prisoners that “is comparable to” the remedy under 28 U.S.C.
§ 2255 for federal prisoners. Swain v. Pressley, 430 U.S. 372, 375 (1977). The exception is
where the local remedy is shown to be inadequate or ineffective. The District of Columbia
Circuit has determined that § 23–110 does not bar a habeas petition challenging the effectiveness
of appellate counsel “because the Superior Court lacks authority to entertain a section 23–110
motion challenging the effectiveness of appellate counsel.” Williams v. Martinez, 586 F.3d 995,
999 (D.C. Cir. 2009). Thus, “D.C. prisoners who challenge the effectiveness of appellate counsel
through a motion to recall the mandate in the D.C. Court of Appeals will get a second bite at the
apple in federal court.” Id. at 1000. Mr. Payne has satisfied the exhaustion requirement and,
thus, may pursue his claim of ineffective assistance of appellate counsel under “the standard set
forth in 28 U.S.C. § 2254.” Id. at 1002.
Pursuant to § 2254,
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an
7 unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
§ 2254(d). The state courts’ factual determinations are “presumed to be correct. The applicant
[has] the burden of rebutting the presumption of correctness by clear and convincing evidence.”
§ 2254(e)(1). Finally, “the ineffectiveness or incompetence of counsel during Federal or State
collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising
under section 2254.” § 2254(i).
III. ANALYSIS
Warden Stansberry seeks dismissal of the petition on the grounds that (1) it is
time-barred, (2) it is barred in part by D.C. Code § 23-110, and (3) it fails to state a claim of
ineffective assistance of appellate counsel.
1. The Statute of Limitations
Warden Stansberry argues that Mr. Payne’s habeas petition is barred by the one-
year limitations period of 28 U.S.C. § 2244(d)(1), which begins to run from (a) the date a
judgment becomes final; (b) “the date on which the impediment to filing an application created
by State action . . . is removed . . .”; (c) the date on which the Supreme Court recognized a new
constitutional right and made it retroactive to cases on collateral review; or (d) the date “on
which the factual predicate of the claim . . . presented could have been discovered through the
exercise of due diligence.” § 2244(d)(1). She calculates that at the latest, Mr. Payne had until
September 20, 2001, to file this action. See Gov’t’s Mem. at 21-25.
The limitations period under § 2244 is not jurisdictional and, thus, “is subject to
equitable tolling in appropriate cases.” Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). In
8 Williams, the D.C. Circuit announced a new circumstance when the local remedy provided by
§ 23-110 is inadequate, thereby opening the door to federal court review of a D.C. prisoner’s
claim of ineffective assistance of appellate counsel (“IAAC”). Williams was finally decided on
December 23, 2009 (reh’g den.), and arguably only then was the impediment to Mr. Payne’s
filing of a § 2254 petition removed. See Williams, 586 F.3d at 1000 (“[W]e have already
recognized some exceptions under section 23-110(g), and today we recognize another.”)
(Emphasis added.) Mr. Payne filed the instant petition four months later, on April 19, 2010.
Applying either the statutory date of when the impediment was removed or principles of
equitable tolling, the Court will deny Warden Stansberry’s motion to dismiss the petition as time-
barred.
2. The Local Remedy Bar
It is established that challenges to a Superior Court judgment of conviction must
be pursued in that court under D.C. Code § 23-110. Blair-Bey v. Quick, 151 F.3d 1036, 1042-43
(D.C. Cir. 1998); Byrd v. Henderson, 119 F.3d 34, 36-37 (D.C. Cir. 1997). Absent a showing of
an inadequate or ineffective local remedy, “a District of Columbia prisoner has no recourse to a
federal judicial forum.” Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986), cert. denied, 479
U.S. 993 (1986) (internal footnote omitted). Under District of Columbia law,
[an] application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section shall not be entertained by . . . any Federal . . . court if it appears . . . that the Superior Court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
D.C. Code §23-110(g). Warden Stansberry argues correctly that Mr. Payne’s claims based on
errors that occurred at his criminal trial are not subject to review by this Court because Mr. Payne
9 has not shown that his local remedy was inadequate to address those errors. The fact that Mr.
Payne was unsuccessful in his multiple attempts for relief under § 23-110 does not alone render
the local remedy inadequate or ineffective. Richardson v. Stephens, 730 F. Supp. 2d 70, 72
(D.D.C. 2010) (citing cases). Therefore, the Court, lacking jurisdiction over any claims based on
trial court error, will grant Warden Stansberry’s motion to dismiss such claims.
3. Ineffective Assistance of Appellate Counsel
Performance of appellate counsel is measured by the same standards that apply to
trial counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). The Supreme Court has articulated
two separate standards for evaluating the effectiveness of counsel in a criminal case. Under
United States v. Cronic, 466 U.S. 648 (1984), courts will presume a per se violation of the Sixth
Amendment right to counsel only “ ‘if counsel entirely fails to subject the prosecution's case to
meaningful adversarial testing.’ ” Bell v. Cone, 535 U.S. 685, 697 (2002) (quoting Cronic, 466
U.S. at 659) (emphasis in original). Mr. Payne has made no showing in support of a claim under
Cronic.
Except in those rare circumstances where Cronic applies, courts evaluate claims
of ineffective assistance of counsel under the standard enunciated in Strickland v. Washington,
466 U.S. 668 (1984), which requires (1) showing that counsel's representation fell below an
objective standard of reasonableness; and (2) demonstrating that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different. United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir. 2008) (quoting Strickland, 466
U.S. at 687–88, 694) (quotation marks omitted). The burden of proof rests on Mr. Payne to show
first “that [Mr. Conte] was objectively unreasonable . . . in failing to find arguable issues to
10 appeal,” and only if he “succeeds in such a showing, he then has the burden of demonstrating
prejudice. That is, . . . but for [Mr. Conte’s] unreasonable failure . . . he would have prevailed on
his appeal.” Smith, 528 U.S. at 285-86. “Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466
U.S. at 700.
A court's evaluation of an attorney's performance should be highly deferential, i.e.,
there is a strong presumption that an attorney's conduct fell within the wide range of reasonable
professional assistance. United States v. Toms, 396 F.3d 427, 432 (D.C. Cir. 2005) (quoting
Strickland, 466 U.S. at 689). The fact that a particular litigation strategy failed does not mean
that it had no chance of success or that counsel was ineffective by employing it. “It is all too
tempting for a defendant to second-guess counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”
Strickland, 466 U.S. at 689.
Because § 2254(i) explicitly precludes a claim predicated on the inadequate
representation of counsel during a collateral proceeding, such as that authorized by D.C. Code
§ 23-110, Mr. Payne has failed to state a habeas claim based on Mr. Conte’s failure to
investigate, construct, and file a motion under § 23-110. See Wright v. Stansberry, No. 11-5046,
2011 WL 2618210 (D.C. Cir., June 24, 2011) (“Appellant's claim that his appellate counsel was
ineffective in litigating a motion pursuant to D.C. Code § 23–110 was properly dismissed
because ‘defendants lack a constitutional entitlement to effective assistance of counsel in state
11 collateral proceedings’. ”) (quoting Williams, 586 F.3d at 1001) (other citations omitted); accord
Wright v. Stansberry, 759 F. Supp. 2d 49, 51-52 (D.D.C. 2011).
What remains of Mr. Payne’s IAAC claim independent of Mr. Conte’s failure to
represent him in the collateral proceeding is sketchy, but the Court will accept Warden
Stansberry’s undisputed characterization of the claim as based on Mr. Conte’s failure to (1)
challenge the aiding and abetting instruction; (2) object to the trial judge’s visit to the crime
scene alone; and (3) object to the reasonable doubt instruction. Gov’t’s Mem. at 32-33 (citing
Pet. at 12-14); see Pet’r Ronnie Payne’s Opp’n to Resp’t’s Mot. to Dismiss the Pet. for Writ of
Habeas Corpus, Filed by Pet’r Ronnie Payne Under 28 U.S.C. § 2254, and Mem. in Opp’n to the
Pet. [Dkt. # 16] at 3-4.
The first two alleged omissions are belied by the record establishing the opposite.
See generally Gov’t’s Ex. 14B (Brief of Appellant).2 In rejecting Mr. Payne’s argument of error
stemming from the trial judge’s behavior, the appellate court stated:
Clearly, the trial judge should not have visited the scene of the crime alone. However, neither Payne nor Garris preserved an objection to the trial judge's visit. Significantly, the record shows that prior to visiting the scene of the crime, the trial judge had already ruled that Officer Davis was a credible witness. Thus, he did not rely on his visit to make factual findings regarding the officer's credibility or the reliability of the eyewitness identification. Moreover, although Officer Davis's testimony contained some inconsistencies regarding the night of the murders and what he saw, he identified both Payne and Garris in court as the men he observed shooting into the Nissan Pulsar that night. Therefore, we cannot say that Payne was prejudiced by the trial judge's solo visit to the crime scene.
2 In ruling on a Rule 12(b)(6) motion to dismiss, the Court may consider "any documents either attached to or incorporated in the complaint and matters of which the court may take judicial notice[,] [e.g.,] matters of a general public nature, such as court records, without converting the motion to dismiss into one for summary judgment.” Baker v. Henderson, 150 F. Supp.2d 13, 15 (D.D.C. 2001) (citations omitted).
12 Payne, 697 A.2d at 1235. As to the claimed error based on the jury instruction, the appellate
court, while also rejecting Mr. Payne’s argument that he was convicted on insufficient evidence,
stated that “Payne’s contention that the trial court erred in giving an aiding and abetting
instruction is equally without merit [because] [t]here was sufficient evidence to convict Payne
either as a principal or as an aider and abettor, and the jury could properly return a general verdict
against Payne without specifying whether he was a principal or an aider and abettor.” Id. at 1235
n.12 (citation omitted). Hence, Mr. Payne’s IAAC claim based on two of Mr. Conte’s alleged
omissions rests on a false premise. Because Mr. Conte raised the foregoing issues on direct
appeal, Mr. Payne has not shown that Mr. Conte’s performance as to those issues was objectively
unreasonable.
Mr. Payne faults Mr. Conte for failing to present as error the following instruction
on reasonable doubt:
Now, the burden is on the Government to prove the defendants’ guilt, beyond a reasonable doubt. This burden of proof never shifts throughout the trial. The law does not require a defendant to prove his innocence or to produce any evidence. If you find that the Government has proved, beyond a reasonable doubt, every element of the offense with which these defendants, or this defendant is charged, it’s your duty to find that defendant guilty. On the other hand, if you find that the Government has failed to prove any element of the offense, beyond a reasonable doubt, you must find that defendant guilty. (Emphasis added.)
Pet’r Ex. D; Gov’t’s Ex. 15 [Dkt. # 14-17] (certified transcript at 94). Mr. Conte did not object
to the instruction at trial. See Gov’t’s Ex. 15 at 114 (Mr. Conte’s stating satisfaction with Judge
Mitchell’s instructions).
Although Judge Mitchell’s omission of “not” from the final clause constituted
error, it is not a “reasonable probability” that the outcome of Mr. Payne’s appeal would have
13 been any different had the issue been raised. In determining whether a jury instruction is
constitutionally infirm, the D.C. Court of Appeals applies the test of “whether there is a
‘reasonable likelihood that the jurors who determined . . . guilt applied the instructions in a way
that violated the Constitution[.]” Blaine v. U.S., 18 A.3d 766, 774 (D.C. 2011). “[I]n reviewing
a challenge to a reasonable doubt instruction, the court must determine ‘whether there is a
reasonable likelihood that the jury understood the instructions to allow conviction based on proof
insufficient to meet the Winship standard.’ ” Id., n.30 (quoting Victor v. Nebraska, 511 U.S. 1,
22–23 (1994) (citing In re Winship, 397 U.S. 358 (1970)) (other citation omitted). However,
when, as here, no objection to a defective instruction is made at trial, the D.C. Court of Appeals
inquires as to “whether the alleged defect was ‘plain error’ [by] [asking] first, whether the error
was ‘obvious or readily apparent’ . . . and second, whether the error complained of was ‘so
clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the
trial.’ ” Foreman v. U.S., 633 A.2d 792, 795 (D.C. 1993) (citing Super. Ct. Crim. R. 52(b))
(other citations omitted).
In hindsight, the omitted word seems so obvious an error that it is surprising that
neither Mr. Conte nor Mr. Garris’ attorney objected to the instruction.3 But see id. at 795-96
(“Finally, the judge made clear to the jury that the government had the burden of proof on each
element of the offense. Taking these instructions as a whole, it simply is not ‘obvious or readily
apparent’ that the judge's reformulation lessened the standard of proof for conviction.”). Even if
3 Warden Stansberry speculates that the omission was “a transcription error,” Gov’t’s Mem. at 45, but absent the court reporter’s affidavit confirming such to be the case, the record speaks for itself.
14 the omission were obvious and readily apparent, Mr. Payne’s IAAC claim would fail because it is
not reasonably likely that the D.C. Court of Appeals would have found, after reviewing the
instructions in their entirety, that the fairness and integrity of the trial were compromised. See
Victor, 511 U.S. at 22 (concluding that “taken as a whole, the [reasonable doubt] instructions
correctly conveyed the concept . . . to the jury.”) (citation and internal quotation marks omitted).
In his lengthy charge to the jury, Judge Mitchell told the jury to consider the
instructions as a whole, to “not take and disregard any instruction, and give more weight to
another, and less weight to another,” and to not “give any special attention to any one instruction
. . . .” Gov’t’s Ex. 15 at 90. He informed the jury several times about the presumption of
innocence and the government’s burden to prove the defendants’ guilt beyond a reasonable doubt
generally, see id at 89-90, 94-95, and as to each offense, see id. at 101-11. In addition, the D.C.
Court of Appeals found from its own examination of “the [eyewitness] testimony of Woodfork,
Carey, Terry and Officer Davis . . . ample evidence upon which reasonable jurors could find the
appellants guilty beyond a reasonable doubt.”4 Payne, 697 A.2d at 1235 n.12.
The D.C. Court of Appeals’ decision in Foreman, decided nearly four years before
Mr. Payne’s appeal, is also telling. In concluding that no plain error had occurred “in the trial
4 In upholding the trial court’s denial of Mr. Payne’s motion for a new trial, and specifically addressing the prejudice prong of the analysis, the D.C. Court of Appeals observed that “Payne and Garris were identified by Woodfork and Carey as the men who were standing in front of the Nissan Pulsar just before they heard multiple shots. Moreover, Officer Davis saw two persons, not one person, firing a gun. None of the witnesses saw Coe with a gun on the night of the murders, and, given the other evidence in this case, the fact that the gun was later found in one of his bags alone ‘would [not] probably produce an acquittal.’ ” Payne, 697 A.2d at 1234 (citation omitted).
15 judge’s single reformulation of the reasonable doubt instruction,” Foreman, 633 A.2d at 797, the
court explained that:
[t]he reasonable doubt instruction did not eliminate any essential elements of the charged offenses. It did not serve to direct a verdict of guilty. It did not omit to mention reasonable doubt altogether . . . . Moreover, this was not a complex case nor one at all close on the evidence. The government presented strong proof of assault with a dangerous weapon . . . . Under all of the circumstances, the judge's single change in the instruction, doubtfully significant as affecting the jury's understanding of the government's burden, does not disturb our confidence in the fairness and integrity of the trial.
Id. at 796 (alteration in original) (internal quotation marks and citation omitted); see Blaine, 18
A.3d at 775 nn.35, 36 (citing cases affirming convictions despite erroneous instruction based on
strength of the government’s case). Given the similarities between Mr. Payne’s situation and that
of Mr. Foreman, the reasonable likelihood that the D.C. Court of Appeals would have departed
from the Foreman rationale in addressing Mr. Payne’s challenge to the reasonable doubt
instruction is nil. See Foreman, 633 A.2d at 797 (“The plain error rule reflects a ‘careful
balancing of our need to encourage all trial participants to seek a fair and accurate trial the first
time around against our insistence that obvious injustice be promptly redressed.’ ”) (quoting
United States v. Frady, 456 U.S. 152, 163 (1982)). Hence, Mr. Payne has not shown that he was
prejudiced by Mr. Conte’s deficient performance.
IV. CONCLUSION
For the foregoing reasons, the Court finds that Mr. Payne has not shown his
entitlement to a writ of habeas corpus under 28 U.S.C. § 2254. It therefore will grant Warden
Stansberry’s motion to dismiss. A memorializing order accompanies this Memorandum
Opinion.
/s/ ROSEMARY M. COLLYER Date: August 5, 2011 United States District Judge