Roseboro v. Rickard

• Court: District Court, District of Columbia
• Decided: September 29, 2023
• Docket: Civil Action No. 2019-2355
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RAYMOND R. ROSEBORO,

Petitioner,

v. Civ. Action No. 19-2355 (EGS) BARBARA RICKARD,

Respondent.

MEMORANDUM OPINION

I. Introduction

Mr. Raymond Roseboro (“Mr. Roseboro” or “Petitioner”)

brings this petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 (the “Petition”). See Pet’r’s Pro Se Mot. Habeas

Corpus Relief Pursuant to 28 U.S.C. § 2254 (“Pet.”), ECF No. 3. 1

He challenges his 2013 conviction by a jury in the Superior

Court of the District of Columbia (“Superior Court”) on murder

and firearms offenses. See id. at 6. Specifically, he alleges an

ineffective-assistance-of-appellate-counsel (“IAAC”) claim. See

id. at 9-13.

1 When citing electronic filings throughout this Opinion, the Court refers to the ECF header page numbers, not the page numbers of the filed documents. 1 Pending before the Court are Mr. Roseboro’s Pro Se Motion

for Habeas Corpus Relief Pursuant to 28 U.S.C. § 2254, see ECF

No. 3, supplemented by Petitioner’s Supplemental Brief in

Support of Petition for Habeas Corpus, see ECF No. 34; and Mr.

Roseboro’s Motion Expand the Record and for an Evidentiary

Hearing, see ECF No. 33. Upon careful consideration of the

parties’ submissions, the applicable law, and the entire record

herein, the Court DENIES Mr. Roseboro’s Petition, see ECF No. 3;

and DENIES Mr. Roseboro’s Motion to Expand the Record and for an

Evidentiary Hearing, see ECF No. 33.

II. Background

A. Factual

The Court reviews each stage of the proceedings in Mr.

Roseboro’s case below.

1. The Trial Proceedings

On September 7, 2011, Mr. Roseboro was charged by

indictment in Superior Court on five counts in connection with

the 2010 death of Prince Okorie: (1) murder in the first degree

while armed (D.C. Code §§ 22-2101, 22-4502); (2) possession of a

firearm during a crime of violence or dangerous offense (D.C.

Code § 22-4504(b)); (3) carrying a pistol without a license

(outside home or place of business) (D.C. Code § 22-4504(a)(2));

(4) possession of an unregistered firearm (D.C. Code § 7-

2 2502.01); and (5) unlawful possession of ammunition (D.C. Code §

7-2506.01(3)). See App., ECF No. 34-1 at 1601-03.

The Government tried Mr. Roseboro three times on these

charges. At all three trials, he was represented by counsel. See

id. at 3. The first two trials resulted in deadlocked juries,

and the court declared a mistrial each time. See id. at 23, 35.

The Government obtained a conviction in a third trial. Id. at

43. On February 6, 2013, the jury returned a guilty verdict on

all counts, and he was sentenced to 40 years of incarceration

and five years of supervised release, on April 10, 2013. Id. at

43, 45-46.

2. The Appellate Proceedings

Mr. Roseboro timely appealed his conviction. Id. at 1711-

15. New counsel was appointed to represent him on this direct

appeal. See id. at 1445. Mr. Roseboro, through counsel, raised a

single claim: that the Superior Court “[e]rred by [t]aking [n]o

[a]ction” to respond to reports from the trial attorneys that

Juror 5 had fallen asleep during parts of the third trial. Id.

at 1463.

On May 29, 2015, the District of Columbia Court of Appeals

(“D.C. Court of Appeals”) affirmed Mr. Roseboro’s conviction.

Id. at 1529-30. The court rejected Mr. Roseboro’s claim in a

single-sentence per curiam opinion. Id. The mandate issued on

June 22, 2015. Id. at 49.

3 3. The Post-Conviction Proceedings

On April 1, 2016, Mr. Roseboro filed a pro se motion for an

extension of time to file a motion to recall the mandate. 2 Id.

The D.C. Court of Appeals granted the motion and provided him

with an additional 45 days to file his motion to recall the

mandate. Id.

Mr. Roseboro filed his pro se motion to recall the mandate

on May 6, 2016. Id. at 1531. In this motion, he raised a new

claim: ineffective assistance of appellate counsel for failure

to raise the issue of ineffective assistance of trial counsel

based on the latter attorney’s handling of Juror 5’s misconduct.

See id. at 1531-40. On October 19, 2016, the D.C. Court of

Appeals denied Mr. Roseboro’s motion to recall the mandate in a

single-sentence per curiam order. Id. at 1543.

Mr. Roseboro thereafter filed this Petition in the District

Court for the Southern District of West Virginia. See ECF No. 1.

In the Petition, he alleges an IAAC claim for relief. Id.; Pet.,

ECF No. 3. The Government moved to dismiss the Petition on

November 9, 2018. See Resp’t’s Mot., ECF No. 13. The court

referred the motion to Magistrate Judge Cheryl A. Eifert for

resolution. See Docket for Civ. Action No. 19-2355. On February

2 A motion to recall the mandate is the required mechanism for raising an IAAC claim in the D.C. Courts. See Williams v. Martinez, 586 F.3d 995, 997 (D.C. Cir. 2009). 4 15, 2019, Magistrate Judge Eifert recommended that the court

transfer the action to the District Court for the District of

Columbia and deny the Government’s Motion to Dismiss as moot.

See Proposed Findings & Recommendations, ECF No. 15 at 29. Judge

John T. Copenhaver adopted the first recommendation and

transferred the case to the District Court for the District of

Columbia. See Mem. Op. & Order, ECF No. 17; J. Order, ECF No.

18.

B. Procedural

Upon transfer to this Court, counsel for Mr. Roseboro

entered her appearance. See Notice, ECF No. 22. On February 14,

2020, the Court entered the briefing schedule proposed by the

parties. See Minute Order (Feb. 14, 2020). Thereafter, on May

25, 2021, Mr. Roseboro submitted a supplemental brief in support

of his Petition. See Pet’r’s Suppl. Br. in Supp. of Pet. Habeas

Corpus (“Pet’r’s Suppl. Br.”), ECF No. 34. That same day, he

also filed a motion to expand the record and for an evidentiary

hearing. See Pet’r’s Mot. Expand Record & For Evidentiary

Hearing (“Pet’r’s Mot.”), ECF No. 33. The Government submitted

its response on February 14, 2022, see Resp’t’s Opp’n Pet’r’s

Pet. Writ Habeas Corpus Pursuant 28 U.S.C. § 2254, & Pet’r’s

Mot. Expand Record & Evidentiary Hearing (“Resp’t’s Opp’n”), ECF

No. 39; and Mr. Roseboro replied on August 15, 2022, see Pet’r’s

5 Reply Br. in Supp. of Pet. Habeas Corpus (“Pet’r’s Reply”), ECF

No. 43. The motions are now ripe and ready for adjudication.

III. Legal Standard

A. Petition for Writ of Habeas Corpus

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2244, governs Mr. Roseboro’s Petition for

Writ of Habeas Corpus, see ECF Nos. 1, 3. Section 2254, as

amended by AEDPA, provides that “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.’” Johnson

v. Wilson, 960 F.3d 648, 652 (D.C. Cir. 2020) (quoting 28 U.S.C.

§ 2254(a)). If a state court has adjudicated a particular claim

on the merits, a federal court may grant habeas relief only if

the state court’s adjudication

(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 unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A federal court must use this highly deferential standard

only when the state court has adjudicated the merits of a

petitioner’s habeas claim—when the state court has issued a

6 judgment upon “hear[ing] and evaluat[ing] the evidence and the

parties' substantive arguments.” Johnson v. Williams, 568 U.S.

289, 302 (2013) (emphasis omitted) (quoting Black’s Law

Dictionary 1199 (9th ed. 2009)). If the state court has not

adjudicated the claim on the merits, the federal court reviews

the habeas petition de novo, and the principles that ordinarily

animate AEDPA deference to a state court’s judgment—comity,

finality, and federalism—dissipate. See Winston v. Kelly, 592

F.3d 535, 555 (4th Cir. 2010).

B. Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are governed by

the standard set forth in Strickland v. Washington, 466 U.S. 668

(1984). To succeed on an ineffective assistance claim, a

defendant must show both deficient performance by his attorney

and prejudice. Strickland, 466 U.S. at 687. Strickland requires

a party claiming ineffective assistance of trial counsel to

show: (1) that “counsel’s representation fell below an objective

standard of reasonableness . . . [measured] under prevailing

professional norms,” (the performance prong); and (2) that the

“deficiencies in counsel’s performance . . . [were] prejudicial

to the defense” (the prejudice prong). Id. at 668, 687-88, 692.

To establish deficient performance, the moving party must show

“specific errors by trial counsel.” United States v. Cronic, 466

U.S. 648, 666 (1984). To establish prejudice, the moving party

7 must demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. “Judicial scrutiny of

counsel’s performance must be highly deferential,” and defendant

must overcome “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”

Id. at 689.

The standard for evaluating claims of ineffective

assistance of appellate counsel is the same as that for

evaluating claims of ineffective assistance of trial counsel.

See Smith v. Robbins, 528 U.S. 259, 285 (2000); United States v.

Agramonte, 366 F. Supp. 2d 83, 86 (D.D.C. 2005). “[A]ppellate

counsel who files a merits brief need not (and should not) raise

every nonfrivolous claim, but rather may select from among them

in order to maximize the likelihood of success on appeal.”

Robbins, 528 U.S. at 288; see also Agramonte, 366 F. Supp. 2d at

86 (“It is settled that a criminal defendant has no

constitutional right to have appellate counsel raise every

nonfrivolous issue that the defendant requests.”). Although it

is “possible” to bring a Strickland claim “based on counsel’s

failure to raise a particular claim” on appeal, “it is difficult

to demonstrate that counsel was incompetent” on that ground.

Robbins, 528 U.S. at 288.

8 IV. Analysis

A. The Petition is Not Time-Barred

A petition for writ of habeas corpus under Section 2254 is

subject to a one-year statute of limitations. Wright v. Wilson,

930 F. Supp. 2d 7, 10 (D.D.C. 2013) (citing 28 U.S.C. §

2244(d)(1)). The Government argues that the Petition is untimely

by at least 41 days. Resp’t’s Opp’n, ECF No. 39 at 21. Mr.

Roseboro challenges this calculation, see Pet’r’s Reply, ECF No.

43 at 13 n.4; but does not clearly argue that he filed the

Petition within the statutory timeframe, see generally id. at 5-

15. Instead, he contends that: (1) the Government “forfeited

[any] timeliness defense” by not raising it in any earlier

filing, id. at 9; and (2) he is entitled to equitable tolling,

see id. at 10-15. For the reasons that follow, the Court

concludes that the Petition is not time-barred.

1. The Court Will Consider the Government’s Timeliness Defense

The parties first dispute whether the Court may entertain

the Government’s argument that Mr. Roseboro’s Petition is

untimely. See Resp’t’s Opp’n, ECF No. 39 at 19 n.16.

The parties agree that the Government did not intentionally

waive its timeliness defense. See id. at 20 n.16; Pet’r’s Reply,

ECF No. 43 at 8. Nevertheless, Mr. Roseboro asserts that the

Government “forfeited” the defense by not raising the issue in

9 its Motion to Dismiss. Pet’r’s Reply, ECF No. 43 at 8 (emphasis

omitted). He argues that a timeliness defense is “ordinarily”

forfeited “‘in civil litigation . . . if not raised in a

defendant’s answer or in an amendment thereto.’” Id. at 7-8

(quoting Day v. McDonough, 547 U.S. 198, 202 (2006)). Here, he

contends, Magistrate Judge Eifert directed the Government to

include any defense in its response to the Petition. See id. at

6. Specifically, that order directed the Government to “show[]

cause . . . why the relief sought by [Mr. Roseboro] should not

be granted”; “respond to the issues raised”; and “include any

available court or other records that would facilitate

determination of the issues” in its response to the Petition.

Id. (emphasis omitted) (quoting Order, ECF No. 11 at 1). Mr.

Roseboro argues that, despite this directive, the Government

addressed only the merits of the Petition; “did not make any

argument that [his] petition was untimely”; and “did not file

any of [his] state court filings—which would have been necessary

for the court to assess the timeliness of his petition.” Id.

(citing Resp’t’s Mot., ECF No. 13 at 4-10; Proposed Findings &

Recommendations, ECF No. 15 at 6).

“Ordinarily in civil litigation, a statutory time

limitation is forfeited if not raised in a defendant’s answer or

in an amendment thereto.” Day, 547 U.S. at 202 (citing Fed. R.

Civ. P. 8(c), 12(b), 15(a)). This forfeiture rule is not

10 inconsistent with the Rules Governing Section 2254 Cases. Wood

v. Milyard, 566 U.S. 463, 475 (2012); cf. Rules Governing

Section 2254 Cases in the United States District Courts, R. 12.

Nevertheless, binding precedent makes clear that district courts

may consider the timeliness of a habeas petition under certain

circumstances despite the government’s failure to raise the

issue in the first instance.

In Day, the Supreme Court considered whether a federal

district court may dismiss a habeas petition as untimely in

cases where the government fails to raise a timeliness defense

or erroneously concedes that the petition is timely. See Day,

547 U.S. at 205. In that case, the magistrate judge recognized

that the government had miscalculated the tolling time, ordered

the petitioner to show cause why his petition should not be

dismissed as untimely, and recommended dismissal on this ground—

a recommendation the district court adopted. See id. at 204. The

Supreme Court ultimately held that “district courts are

permitted, but not obliged, to consider, sua sponte, the

timeliness of a state prisoner’s habeas petition.” Id. at 209.

In so holding, the Court imposed two conditions on a federal

court’s ability to consider the timeliness of a habeas petition

sua sponte. See id. at 210-11. First, the Court mandated that

federal courts provide “fair notice and opportunity” for both

parties “to present their positions.” Id. at 210 (citing Acosta

11 v. Artuz, 221 F.3d 117, 124-25; (2d Cir. 2000); McMillan v.

Jarvis, 332 F.3d 244, 250 (4th Cir. 2003). Second, the Court

required that federal courts raising the timeliness issue sua

sponte “assure [themselves] that the petitioner is not

significantly prejudiced by the delayed focus on the limitation

issue, and ‘determine whether the interests of justice would be

better served’ by addressing the merits or by dismissing the

petition as time barred.” Id. (quoting Granberry v. Greer, 481

U.S. 129 (1987)).

Several years later, in Wood, the Supreme Court restated

that its “precedent establishes that a court may consider a

statute of limitations or other threshold bar the State failed

to raise in answering a habeas petition.” Wood, 566 U.S. at 466

(citing Granberry, 481 U.S. at 134; Day, 547 U.S. at 202). In

that case, the district court asked the government twice if it

planned to raise a timeliness defense, and the government twice

responded “that it [would] not challenge, but [was] not

conceding, the timeliness of [the] habeas petition.” Id. at 463

(citation and internal quotation marks omitted). The Court first

concluded that “courts of appeals, like district courts, have

the authority—though not the obligation—to raise a forfeited

timeliness defense on their own initiative,” but “should reserve

that authority for use in exceptional cases” and exercise

“restraint” for “an issue the parties did not air below, and

12 therefore would not have anticipated in developing their

arguments on appeal.” Id. at 473. Holding that the appellate

court had abused its discretion in considering the timeliness of

the petition, see id. at 474; the Court explained that “a

district court [may] consider the defense on its own initiative

and determine whether the interests of justice would be better

served by addressing the merits or by dismissing the petition as

time barred”—but “[o]nly where the State does not strategically

withh[o]ld the [limitations] defense or cho[o]se to relinquish

it, and where the petitioner is accorded a fair opportunity to

present his position,” id. at 472 (internal quotation marks

omitted) (quoting Day, 547 U.S. at 210–11 (quoting Granberry,

481 U.S. at 136)).

Given this caselaw, the Court may consider the Government’s

timeliness defense here so long as such consideration better

serves the interests of justice. 3 The Government does not

explain how the interests of justice would be served here. See

generally Resp’t’s Opp’n, ECF No. 39. 4 In his reply brief, Mr.

3 The Government did not deliberately waive this defense, see supra; and Mr. Roseboro has had a fair opportunity to present his position in his supplemental reply brief, see Pet’r’s Reply, ECF No. 43 at 5-15. 4 The Government contends that the Court may not dismiss the

Petition as time-barred “unless the government affirmatively indicates a knowing decision to ‘strategically withhold the limitations defense or choose to relinquish it,’ and thus expressly makes a “deliberate waiver of a limitations defense.” Resp’t’s Opp’n, ECF No. 39 at 19 n.16 (quoting Wood, 566 U.S. at 13 Roseboro argues that “[i]t is not in the interests of justice”

to bar the Petition because: (1) the parties already briefed the

merits of the case “on the assumption that the petition was

timely filed”; (2) he was delayed in filing for “reasons outside

[his] control”; and (3) the circumstances supporting equitable

tolling also counsel against dismissing the Petition as time-

barred. Pet’r’s Reply, ECF No. 43 at 9-10. This argument is not

persuasive. The caselaw makes clear that the timeliness defense

“‘implicat[e] values beyond the concerns of the parties.’” Id.

at 205-06 (quoting Acosta, 221 F.3d at 123 (“The AEDPA statute

of limitation promotes judicial efficiency and conservation of

judicial resources, safeguards the accuracy of state court

judgments by requiring resolution of constitutional questions

while the record is fresh, and lends finality to state court

judgments within a reasonable time.”)).

Moreover, the Court concludes that these other

institutional values counsel in favor of permitting the

timeliness defense. First, consideration here accords with “the

principle of party presentation basic to our adversary system.”

Wood, 566 U.S. at 472 (citing Greenlaw v. United States, 554

U.S. 237, 243–44 (2008)). The Government failed to raise the

472-73 (alterations and internal quotation marks omitted)). As explained supra, the caselaw is not so rigid and instead permits courts to consider timeliness under other circumstances as well. 14 issue in its Motion to Dismiss. See Resp’t’s Mot., ECF No. 13.

This Court permitted both parties to submit supplemental briefs

after the case was transferred and did not limit arguments to

the merits of the case, see Minute Order (Feb. 14, 2020);

despite Mr. Roseboro’s assumptions otherwise, see Pet’r’s Reply,

ECF No. 43 at 9. In this way, the instant case adheres more

closely to the principle of party presentation than did Day,

where the magistrate judge specifically ordered the habeas

petitioner to show cause why his petition should not be

dismissed as untimely. See Day, 547 U.S. at 202.

Second, the Court may consider the defense without

discounting the judicial resources expended by another court.

Magistrate Judge Eifert made two recommendations in her Proposed

Findings and Recommendations: (1) that the court transfer the

action to the District Court for the District of Columbia; and

(2) that the court deny the Government’s Motion to Dismiss as

moot. See Proposed Findings & Recommendations, ECF No. 15 at 29.

Judge Copenhaver adopted only the first recommendation and left

to this Court the determination of the Motion to Dismiss. See

Mem. Op. & Order, ECF No. 17; J. Order, ECF No. 18. This Court

is, of course, not bound by Magistrate Judge Eifert’s

recommendations.

Third, judicial economy is better promoted by the Court

considering the Government’s timeliness defense now. The Supreme

15 Court has clearly established that federal courts—including

federal appellate courts—may raise the issue of timeliness sua

sponte. If timeliness is indeed an issue that bars further

consideration of Mr. Roseboro’s Petition, then judicial

resources are better conserved by the Court addressing the issue

now rather than waiting for another court to weigh in at a later

date.

Accordingly, the Court concludes that it may consider the

Government’s timeliness defense.

2. Mr. Roseboro Filed the Petition Too Late

The Government argues that the Petition is untimely by at

least 41 days. Resp’t’s Opp’n, ECF No. 39 at 21. Mr. Roseboro

appears to dispute 5 this point in his supplemental reply brief.

See Pet’r’s Reply, ECF No. 43 at 13 n.4.

Habeas petitions under Section 2254 are subject to a one-

year statute of limitations. Wright, 930 F. Supp. 2d at 10

(citing 28 U.S.C. § 2244(d)(1)). The limitations period begins

to run “from the latest of”: (1) the date a judgment becomes

final “by the conclusion of direct review or the expiration of

the time for seeking such review”; (2) the date when “the

impediment to filing an application . . . is removed, if the

5 Mr. Roseboro originally argued that his Petition is timely. See Pet’r’s Pro Se Mot. Habeas Corpus Relief Pursuant 28 U.S.C. § 2254, ECF No. 3 at 4. He has since abandoned that argument. See generally Pet’r’s Reply, ECF No. 39. 16 applicant was prevented from filing by such State action”; (3)

the date when “the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively

applicable to cases on collateral review”; or (4) the date when

“the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.” 28

U.S.C. § 2244(d)(1). Although AEDPA imposes a “tight time line,”

Mayle v. Felix, 545 U.S. 644, 662 (2005); “[s]tatutory tolling

pauses the clock while ‘a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending,’” Blount v. United

States, 860 F.3d 732, 737 (D.C. Cir. 2017) (quoting 28 U.S.C. §

2244(d)(2)).

The parties do not dispute the date on which the

limitations period began to run: August 27, 2015. The D.C. Court

of Appeals affirmed Mr. Roseboro’s conviction on direct appeal

on May 29, 2015. App., ECF No. 34-1 at 1529-30. Mr. Roseboro

then had 90 days to file a petition for a writ of certiorari.

See Sup. Ct. R. 13 (providing that the time for petitioning for

a writ of certiorari expires ninety days after the denial of

rehearing). Because that time expired without Mr. Roseboro

filing such a petition, the judgment became final on August 27,

2015. See Clay v. United States, 537 U.S. 522, 527 (2003)

17 (“Finality attaches when this Court affirms a conviction on the

merits on direct review or denies a petition for a writ of

certiorari, or when the time for filing a certiorari petition

expires.”); Blount, 860 F.3d at 737 (explaining that the

“limitations period began to run . . . when time expired for

seeking Supreme Court review in the direct appeal of his

conviction”). 6

It is also undisputed that statutory tolling paused the

clock before the limitations period concluded. “[A] motion to

recall the mandate raising an IAAC claim is a form of local

‘post-conviction or other collateral review.’” Blount, 860 F.3d

at 740 n.4 (quoting 28 U.S.C. § 2244(d)(2)). As a result, the

clock stops when the petitioner files a motion to recall the

mandate with the D.C. Court of Appeals. See Evans v. United

States, No. 1:17-CV-01731 (KBJ), 2020 WL 3250730, at *6 (D.D.C.

June 15, 2020). Here, Mr. Roseboro filed his pro se motion to

recall the mandate on May 6, 2016. See App., ECF No. 34-1 at

1531. 7 The clock therefore stopped on that date. Mr. Roseboro

6 The D.C. Court of Appeals’ denial of Mr. Roseboro’s motion to recall the mandate did not change the date on which the judgment became final. See Blount, 860 F.3d at 737, 740. 7 The Court agrees with the Government’s assessment that Mr.

Roseboro’s motion constitutes a “properly filed application” under 28 U.S.C. § 2244(d)(2). See Freeman v. Page, 208 F.3d 572, 576 (7th Cir. 2000) (“Whether a collateral attack is ‘properly filed’ can be determined in a straightforward way by looking at how the state courts treated it. If they considered the claim on 18 disputes this conclusion, arguing that the prisoner-mailbox rule

requires that tolling began on the date that he deposited his

motion in the prison mail system. See Pet’r’s Reply, ECF No. 43

at 13 n.4. The Court agrees that the prisoner-mailbox rule

generally applies to the pro se filings in this case. See

Houston v. Lack, 487 U.S. 266, 276 (1988). However, nothing in

the record indicates when Mr. Roseboro filed the motion to

recall the mandate, so the Court must rely on the date that the

D.C. Court of Appeals received the motion.

The parties appear to agree that statutory tolling

concluded on October 19, 2016 because the D.C. Court of Appeals

denied Mr. Roseboro’s motion to recall the mandate on that date.

See Blount, 860 F.3d at 737; Evans, 2020 WL 3250730, at *6.

Given this timeline, Mr. Roseboro was required to file his

habeas petition no later than February 9, 2017. He did not

submit the Petition until March 22, 2017—41 days after the

limitations period expired. Because Mr. Roseboro did not file

the Petition until March 22, 2017, 8 see Mr. Roseboro’s Petition

the merits, it was properly filed; if they dismissed it for procedural flaws . . . then it was not properly filed.”). 8 The Petition was not docketed until March 28, 2017, but Mr.

Roseboro signed and dated it on March 22, 2017. See Mr. Roseboro’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, ECF No. 1. The Court considers March 22, 2017 to be the filing date because of Mr. Roseboro’s incarceration and pro se status at the time of filing. See Lack, 487 U.S. at 276. 19 for Writ of Habeas Corpus under 28 U.S.C. § 2254, ECF No. 1; the

Petition is untimely.

3. Equitable Tolling is Appropriate

Notwithstanding the above calculation, Mr. Roseboro next

argues that equitable tolling is warranted here. See Pet’r’s

Reply, ECF No. 43 at 10-15.

The limitations period is not jurisdictional, so it “is

subject to equitable tolling.” Holland v. Florida, 560 U.S. 631,

649 (2010). This remedy is available where the habeas petitioner

shows: “(1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way and

prevented timely filing.” Id. (citation and internal quotation

marks omitted). Given this standard, equitable tolling should

“be employed ‘only sparingly,’” United States v. Cicero, 214

F.3d 199, 203 (D.C. Cir. 2000) (citing Irwin v. Dep’t of

Veterans Affs., 498 U.S. 89, 96 (1990)); and therefore “has been

applied in the context of the AEDPA only if ‘extraordinary

circumstances beyond a prisoner’s control ma[d]e it impossible

to file a petition on time,’” id. (quoting Calderon v. U.S.

Dist. Ct., 128 F.3d 1283, 1288 (9th Cir. 1997)).

The parties first dispute whether attorney misconduct can

be an extraordinary circumstance. Mr. Roseboro contends that

“‘[p]rofessional misconduct’ can rise to ‘egregious behavior and

create an extraordinary circumstance that warrants equitable

20 tolling.’” Pet’r’s Reply, ECF No. 43 at 10 (quoting Holland, 560

U.S. at 651). The Government rejects the notion that even gross

or egregious attorney negligence may qualify as an extraordinary

circumstance. See Resp’t’s Opp’n, ECF No. 39 at 26 (quoting

Clemons v. Commissioner, 967 F.3d 1231, 1242 (11th Cir. 2020)).

Instead, the Government asserts that “a petitioner must show

complete ‘abandonment’ by counsel or another equally

‘extraordinary circumstance’ such as ‘bad faith, dishonesty,

divided loyalty, [or] mental impairment.’” Id. (quoting Cadet v.

Fla. Dep’t of Corrs., 853 F.3d 1216, 1236 (11th Cir. 2017)).

The caselaw on this point is unclear. In Holland, the

Supreme Court rejected as “too rigid” a standard that “attorney

conduct that is grossly negligent can never warrant tolling

absent bad faith, dishonesty, divided loyalty, mental impairment

or so forth on the lawyer’s part.” Holland, 560 U.S. at 649.

Instead, it held that, “at least sometimes, professional

misconduct that fails to meet [that] standard could nonetheless

amount to egregious behavior and create an extraordinary

circumstance that warrants equitable tolling.” Id. at 651.

Although the Court declined to announce a rule to govern cases

involving attorney misconduct, it emphasized that the “exercise

of a court’s equity powers . . . must be made on a case-by-case

basis,” id. at 649-50 (quoting Baggett v. Bullitt, 377 U.S. 360,

375 (1964)); and that courts must be flexible while “avoiding

21 ‘mechanical rules,’” id. (quoting Holmberg v. Armbrecht, 327

U.S. 392, 396 (1946)).

The Court therefore must review the parties’ arguments, the

record in the case, and the allegations Mr. Roseboro raises in

the declaration attached to his supplemental brief. See id. at

654. Mr. Roseboro argues that his appellate attorney “repeatedly

promis[ed]” to inform him when the D.C. Court of Appeals issued

its decision on his appeal. Pet’r’s Reply, ECF No. 43 at 11

(citing ECF No. 43 at 30, 31, 34). He claims that his attorney

“affirmatively misled” him when, “[n]early two months after

[his] appeal had been denied, [his attorney] falsely informed

[him] that [the D.C. Court of Appeals] had not yet issued its

decision.” Id. (emphasis omitted). He also claims that his

attorney did not inform him that the D.C. Court of Appeals had

denied his appeal until February 2016—eight months after the

court had issued its decision. Id.

The question, then, is whether the delay in communication

and the affirmative mischaracterization give rise to an

extraordinary circumstance. Following the Supreme Court’s

example, the Court reviews the precedents cited by the parties

here to “guide [its] judgment[].” Holland, 560 U.S. at 651. The

Government points to several cases where the court held that

equitable tolling was not warranted despite an attorney’s

failure to promptly inform the petitioner of a state court

22 decision. See Resp’t’s Opp’n, ECF No. 39 at 27-28 (citing

Robinson v. State Attorney for Fla., 808 F. App’x 894 (11th Cir.

2020); Schlager v. Superintendent Fayette SCI, 789 F. App’x 938

(3d Cir. 2019); Coulter v. Kelley, 871 F.3d 612 (8th Cir. 2017),

judgment vacated, appeal dismissed, 876 F.3d 1112 (8th Cir.

2017); Samo v. Keyser, 305 F. Supp. 3d 551 (S.D.N.Y. 2018),

report and recommendation adopted, No. 17-CV-5043(RJS), 2018 WL

4565143 (S.D.N.Y. Sept. 21, 2018)). The Court reviews the

caselaw briefly. 9

In Robinson, the Court of Appeals for the Eleventh Circuit

held that the petitioner’s attorney’s misconduct was not an

extraordinary circumstance. Robinson, 808 F. App’x at 898. The

court acknowledged that the attorney’s misconduct “arguably was

negligent on several occasions, such as when he did not

immediately notify [the petitioner] that his state habeas

petition had been denied.” Id. As Mr. Roseboro explains, though,

this case is inapposite. See Pet’r’s Reply, ECF No. 43 at 14.

The record in Robinson established that the attorney “frequently

communicated with [the petitioner] and filed necessary pleadings

on his behalf throughout his representation.” Id. at 897

(citation and internal quotation marks omitted). Mr. Roseboro

represents here that his appellate attorney did not communicate

9 The Court omits Coulter as the decision has been vacated. See Coulter v. Kelly, 876 F.3d 1112 (8th Cir. 2017). 23 a key decision for eight months and further, counsel

affirmatively mischaracterized the proceedings. See ECF No. 43

at 30, 31, 34. Robinson is thus not instructive here.

The decision by the Court of Appeals for the Third Circuit

in Schlager is more helpful. There, the petitioner sought to

toll two different periods: (1) the 86 days between the date

that the Supreme Court denied his petition for certiorari and

the date his attorney informed him of the denial, and (2) the 10

months between the date that his state habeas petition became

final and the date that the state supreme court informed him of

its decision. Schlager, 789 F. App’x at 941. As to the first

period, the court held that “counsel’s 86-day silence [wa]s

merely garden-variety delay” since the petitioner still had

ample time to file and the attorney did not affirmatively

mislead him. Id. As to the second period, the court held that

the attorney’s misconduct was an extraordinary circumstance

because the petitioner “was effectively abandoned by his

counsel.” Id. at 942. During that period, the petitioner and his

father “repeatedly” called, wrote, and tried to meet with the

attorney, but the attorney’s employees and partner informed

petitioner “that they had received no word from the court and

would advise him when they did.” Id. at 941. The Court explained

that, “[w]here, as here, a client is ‘stymied by [an attorney’s]

misleading statements on matters that should have been within

24 [the attorney’s] knowledge’ and by the attorney’s

‘unresponsiveness and neglect of the case,’ then ‘extraordinary

circumstances stood in the way of’ the client’s ability to

file.” Id. at 941-42 (quoting Ross v. Varano, 712 F.3d 784, 803

(3d Cir. 2013)).

The Government compares Mr. Roseboro’s situation to the

first potential tolling period in Schlager, but the Court

concludes that the second tolling period is more analogous. As

in that circumstance, Mr. Roseboro here was “stymied” by his

attorney’s neglect of the case—namely, his attorney’s failure to

check and communicate the status of Mr. Roseboro’s appeal. See

ECF No. 43 at 30, 31, 34. He was further “stymied” by his

attorney’s misleading statements—namely, his attorney falsely

informing him that his appeal had not been decided two months

after the D.C. Court of Appeals issued its denial and not

correcting that communication for an additional six months. See

ECF No. 43 at 31, 34.

The Court is mindful of the numerous decisions holding that

“an attorney[’s] fail[ure] to inform a client that an event has

occurred triggering a limitations period . . . does not meet the

threshold showing of ‘extraordinary circumstances.’” Samo, 305

F. Supp. 3d at 559–60 (collecting cases from various courts in

which attorneys failed to inform their clients of denials

triggering the limitations period). However, even the Samo court

25 noted the caselaw concluding that an extraordinary circumstance

exists where an attorney “affirmatively and knowingly

mislead[s]” his client. Id. at 560 (quoting Dillon v. Conway,

642 F.3d 358, 362 (2d Cir. 2011) (per curiam)).

The Court also disposes of the Government’s argument that

the misconduct by Mr. Roseboro’s appellate attorney did not

prevent Mr. Roseboro from filing a timely habeas petition. See

Resp’t’s Opp’n, ECF No. 39 at 27. The Government reasons that,

because Mr. Roseboro’s attorney informed him of the denial of

his appeal on February 4, 2016, Mr. Roseboro had 371 days—more

than one year—from the time his attorney informed him of the

appeal decision to file his habeas petition. Id. at 26-27. The

Government further argues that Mr. Roseboro’s pro se motion for

an extension of time to move to recall the mandate and his

motion to recall the mandate demonstrate his awareness of the

time limits to seek additional relief and his ability to file

motions pro se. Id. at 27.

This argument is unpersuasive. As he asserts in his reply

brief, Mr. Roseboro did not have more than one year to file his

habeas petition. See Pet’r’s Reply, ECF No. 43 at 12-13. Once he

received his attorney’s letter, he needed to draft and file his

motion to recall the mandate (along with a motion for an

extension of time given his attorney’s delay). He then needed to

wait for the D.C. Court of Appeals to issue a decision on his

26 motion so that he could respond to the reasons the court

provided in its decision. See 28 U.S.C. § 2254(c), (d). Stated

differently, the time involved with Mr. Roseboro’s motion to

recall the mandate in no way increased the number of days that

he had to prepare and file his habeas petition. The Court

therefore concludes that there existed an extraordinary

circumstance during the period in which Mr. Roseboro’s appellate

attorney affirmatively misled him about the status of his direct

appeal, though not during the period in which the attorney

merely failed to inform Mr. Roseboro of the decision.

The equitable tolling inquiry does not end here. Mr.

Roseboro must also show “that he has been pursuing his rights

diligently.” Holland, 560 U.S. at 649. Mr. Roseboro argues that

he meets this standard. See Pet’r’s Reply, ECF No. 43 at 14-15.

He explains that “he regularly communicated with the [appellate]

attorney about his case” to learn about the status of his appeal

and request various legal materials related to his case. Id. at

14 (citing ECF No. 43 at 29, 32, 33). He also cites his “prompt”

filings: (1) he filed for an extension of time to move to recall

the mandate when he was finally informed that the D.C. Court of

Appeals had denied his direct appeal, id. (citing ECF No. 43 at

35-39); (2) he filed his motion to recall the mandate within one

month and two weeks before the deadline, id.; and (3) he filed

the Petition here within five months, id. at 14-15. The

27 Government does not contest that Mr. Roseboro acted with

reasonable diligence. See generally Resp’t’s Opp’n, ECF No. 39

at 25-28. The Court agrees with Mr. Roseboro that he pursued his

rights diligently. See Holland, 560 U.S. at 653 (“The diligence

required for equitable tolling purposes is ‘reasonable

diligence,’ not ‘maximum feasible diligence.’” (citations and

internal quotation marks omitted)).

Accordingly, the Court will toll the period between July

25, 2015—when Mr. Roseboro’s appellate attorney falsely informed

him that the D.C. Court of Appeals had not yet decided his

appeal—and February 6, 2016—when his attorney informed him of

the decision. See Pet’r’s Reply, ECF No. 34 at 31, 34, 36. Mr.

Roseboro’s petition is therefore timely.

B. Section 2254(d) Deference Applies to Mr. Roseboro’s Claim

Section 2254(d) “demands that state-court decisions be

given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S.

170, 181 (2011). To that end, the statute “sets forth a highly

deferential standard of review” for collateral challenges to

state court judgments. Waters v. Lockett, 896 F.3d 559, 566

(D.C. Cir. 2018) (citing 28 U.S.C. § 2254(d)). This deference

“applies only when a claim is ‘adjudicated on the merits in

State court proceedings.’” 28 U.S.C. § 2254(d). When a state

court does not reach the merits of a claim, the court reviews

28 the claim de novo. Waters, 896 F.3d at 566 (citing Cone v. Bell,

556 U.S. 449, 472 (2009)). As a result, “very few habeas

petitions are granted on the merits.” Evans v. United States,

No. 1:17-CV-01731 (KBJ), 2020 WL 3250730, at *5 (D.D.C. June 15,

2020).

Mr. Roseboro argues that he is entitled to de novo review

because the D.C. Court of Appeals did not adjudicate his IAAC

claim on the merits. See id. at 26-28. He contends that the D.C.

Court of Appeals will not entertain an IAAC claim on the merits

until it has first recalled the mandate. See id. at 26 (citing

Watson v. United States, 536 A.2d 1056, 1060 (D.C. 1987) (en

banc)). He further contends that the D.C. Court of Appeals will

recall the mandate only if the movant satisfies a state-law

requirement to “provide detailed factual support for his claim—

not just ‘conclusory’ factual assertions, but ‘chapter and

verse.’” Id. (quoting Watson, 536 A.2d at 1060). Here, he

continues, the D.C. Court of Appeals did not adjudicate his IAAC

claim on the merits because it concluded that he failed to meet

a technical, state-law requirement without considering the

federal constitutional standard for IAAC claims or “the

intrinsic rights and wrongs” of the case. Id. (quoting Johnson,

568 U.S. at 302).

By contrast, the Government asserts that the D.C. Court of

Appeals’ decision is a summary denial and that such a denial is

29 entitled to Section 2254(d) deference. See Resp’t’s Opp’n, ECF

No. 39 at 32 (citing Harrington v. Richter, 562 U.S. 86, 98

(2011)). The Court agrees with this assessment. The D.C. Court

of Appeals’ decision is a summary decision—that is, it is a

single-sentence order “unaccompanied by an opinion explaining

the reasons relief has been denied.” Richter, 562 U.S. at 98.

Where, as here, a state court has denied relief on a federal

claim in a summary order, “it may be presumed that the state

court adjudicated the claim on the merits in the absence of any

indication or state-law procedural principles to the contrary.”

Id. at 99 (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).

Despite Mr. Roseboro’s suggestions otherwise, the citation

to Watson in the D.C. Court of Appeals’ decision is insufficient

to overcome this presumption. It is well established that a

state court must be “explicit in its reliance on a procedural

default,” Harris, 489 U.S. at 264; and a citation to a case is

not an explicit statement. Moreover, the caselaw supports the

Government’s position that Watson provides a merits-based

standard. See Blount, 860 F.3d at 738 (“When a movant raises an

IAAC claim through a motion to recall the mandate, the D.C.

Court of Appeals first determines whether the motion has ‘on

[its] face sufficient merit’ to justify disturbing the

judgment.” (quoting Watson, 536 A.2d at 1060)). Indeed, as the

Government states, see Resp’t’s Opp’n, ECF No. 39 at 35; courts

30 in this district regularly apply Section 2254(d) deference to

their review of orders citing Watson. See Evans, 2020 WL

3250730, at *3; ECF No. 39-1 at 2 (order by the D.C. Court of

Appeals in Evans).

In his reply briefing, Mr. Roseboro argues that Watson

provides a “state-law rule about the heightened factual showing

a party must make in order to justify recalling the mandate” and

that this rule “is not part of the federal constitutional

standard governing IAAC claims.” Pet’r’s Reply, ECF No. 43 at

24. The Court is not persuaded by this argument because it

ignores Richter. The D.C. Court of Appeals did not indicate that

it denied Mr. Roseboro’s motion based on a state-law pleading

requirement. See App., ECF No. 34-1 at 1543. Accordingly, the

Court concludes that the D.C. Court of Appeals decision was an

adjudication on the merits and considers Mr. Roseboro’s claim

under Section 2254(d)’s deferential standard of review.

C. Mr. Roseboro Has Not Shown That He is Entitled to Relief

Mr. Roseboro contends that the D.C. Court of Appeals’

decision to deny his motion to recall the mandate was an

unreasonable application of clearly established federal law

because he “is plainly entitled to relief on his IAAC claim.”

Pet’r’s Suppl. Br., ECF No. 34 at 28-29. He asserts that his

appellate counsel provided ineffective assistance because that

31 attorney did not argue that his trial counsel was

constitutionally ineffective for failing “to investigate and

address the situation with the juror who slept through large

portions of [his] trial.” See Pet’r’s Suppl. Br., ECF No. 34 at

11. He contends that: (1) his appellate counsel’s decision was

“objectively unreasonable”; (2) there is a “reasonable

probability” that he would have prevailed if his appellate

counsel argued his trial counsel was constitutionally

ineffective; (3) there is a “reasonable probability” that he

would not have been convicted if his trial counsel had addressed

the issue of the sleeping juror; and (4) his trial was

“fundamentally unfair.” Id.

The Court reviews Mr. Roseboro’s IAAC claim under a

“standard of review approaching triple deference.” Jones v.

Holt, 893 F. Supp. 2d 185, 196 (D.D.C. 2012) (petitioner “must

show that enough information was available to appellate counsel

suggesting trial counsel’s prejudicial deficiency (under

Strickland’s highly deferential standards) that appellate

counsel’s failure to pursue an ineffectiveness claim was itself

prejudicially deficient (again under Strickland’s deferential

standards), and that the D.C. Court of Appeals’ determination to

the contrary was not merely wrong but ‘objectively

unreasonable.’” (quoting Lockyer v. Andrade, 538 U.S. 63, 75

(2003))). To prevail, Mr. Roseboro must demonstrate that: (1)

32 his appellate counsel’s performance was deficient; and (2) his

counsel’s deficient performance prejudiced his appeal.

Strickland, 466 U.S. at 687. For the reasons that follow, the

Court DENIES Mr. Roseboro’s Petition.

1. Mr. Roseboro Has Not Shown That His Appellate Counsel’s Performance Was Deficient

Mr. Roseboro argues that his appellate counsel “performed

deficiently” because he “raised only a single claim[] that the

trial court failed to appropriately handle the sleeping juror”

even though that claim “was an obvious loser.” Pet’r’s Suppl.

Br., ECF No. 34 at 12. He first contends that it was

unreasonable to raise this claim on appeal because his trial

counsel waived the issue. Id. at 12-14. He explains that the

D.C. Court of Appeals “‘normally . . . spurn[s]’” any

“‘[q]uestions not properly raised and preserved,’” id. at 12-13

(quoting D.D. v. M.T., 550 A.2d 37, 48 (D.C. 1988)) (citing

Hunter v. United States, 606 A.2d 139, 144 (D.C. 1992)); and

that “in virtually identical circumstances,” the D.C. Court of

Appeals held that the “‘appellant . . . waived any claim that

the judge abused his discretion,’” id. at 13 (quoting Hankins v.

United States, 3 A.3d 356, 358 n.1 (D.C. 2010)).

The Government counters that this issue of waiver does not

show that Mr. Roseboro’s appellate counsel performed

deficiently. See Resp’t’s Opp’n, ECF No. 39 at 45. The Court

33 agrees with this assessment. As the Government points out in its

opposition briefing, id.; appellate counsel argued that trial

counsel preserved the claim of trial error by raising the issue

of Juror 5 sleeping during bench conferences, App., ECF No. 34-1

at 1469. In other words, appellate counsel argued that the issue

had not been waived. See id. The D.C. Court of Appeals’

determination that trial counsel waived the issue does not

render appellate counsel’s performance deficient. See

Strickland, 466 U.S. at 689 (“A fair assessment of attorney

performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate

the conduct from counsel’s perspective at the time.”).

Mr. Roseboro next contends that it was unreasonable for his

appellate counsel to argue that the trial court mishandled Juror

5 sleeping during trial because appellate counsel could have

argued a “plainly stronger” issue that had not been waived: his

trial counsel’s mishandling of the sleeping juror. Pet’r’s

Suppl. Br., ECF No. 34 at 14. He asserts that this failure was

“‘oversight, not deliberate strategy’” because “the factual

heart of the IAC [claim] . . . was the same as [that of] the

claim that appellate counsel did raise.” Id. (quoting Payne v.

Stansberry, 760 F.3d 10, 12 (D.C. Cir. 2014)).

34 The Government argues that the trial record “strongly

supports the presumption” that Mr. Roseboro’s trial counsel

“made a tactical decision” to keep Juror 5 on the jury and also

shows “a reasonable basis” for that decision. Id. The Government

further argues that the caselaw supports that “a defense

counsel’s choice not to seek the removal of a purportedly

sleeping juror falls firmly within the realm of legitimate

strategic decisions.” Id. at 42 (citing Ciaprazi v. Senkowski,

151 F. App’x 62, 63 (2d Cir. 2005); Guinyard v. Keane, 56 F.

App’x 44, 46 (2d Cir. 2003); Fuller v. Hill, 292 F. App’x 545,

546 (9th Cir. 2008); State v. Yant, 376 N.W.2d 487, 492 (Minn.

App. 1985)).

In general, “only when ignored issues are clearly stronger

than those presented[] will the presumption of effective

assistance of counsel be overcome.” Robbins, 528 U.S. at 288

(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).

Given the parties’ arguments and the trial record, the Court is

not persuaded that an ineffective assistance of counsel claim

was “clearly stronger.” First, the trial record does not show

that trial counsel should have pressed the issue of juror

misconduct. Both parties agree and the trial record confirms

that defense counsel, the prosecutor, and the trial judge knew

that Juror 5 had fallen asleep when the prosecutor was

presenting his case. See Pet’r’s Suppl. Br., ECF No. 34 at 13;

35 Resp’t’s Opp’n, ECF No. 39 at 43; App., ECF No. 34-1 at 753.

Nevertheless, no person identified specific instances of the

juror sleeping, so it is impossible to tell “how attentive [the

juror] [wa]s” during this testimony. App., ECF No. 34-1 at 753.

And because there were no reports of Juror 5 sleeping during the

defense’s case or the government’s rebuttal, there is no

evidence in the record that Juror 5 falling asleep constituted

“severe and pervasive” misconduct. Pet’r’s Suppl. Br., ECF No.

34 at 11.

Second, the trial record strongly suggests that trial

counsel made a tactical decision to not seek a hearing about

Juror 5. “[S]trategic and tactical decisions,” such as whether

to object during trial, “are the exclusive province of the

defense counsel.” Jones v. Barnes, 463 U.S. 745, 753 n.6 (1983).

Mr. Roseboro claims that trial counsel could not have made a

tactical decision because the first-chair defense counsel could

not see Juror 5 sleeping. See Pet’r’s Reply, ECF No. 43 at 17;

see also App., ECF No. 34-1 at 754 (trial counsel stated to the

trial judge that he “ha[dn’t] noticed it, . . . probably because

. . . [his] view of [Juror 5] [wa]s blocked by the lectern”).

Even so, trial counsel was plainly aware that Juror 5 had fallen

asleep while the prosecution made its case, see, e.g., App., ECF

No. 34-1 at 754; and that Juror 5 had not fallen asleep while he

presented Mr. Roseboro’s case. Mr. Roseboro also argues that

36 this could not have been a tactical decision because the second-

chair defense counsel reported on Juror 5 twice. See Pet’r’s

Reply, ECF No. 43 at 19; see also App., ECF No. 34-1 at 754,

797. But despite these reports, defense counsel still asked the

trial judge to postpone any action regarding Juror 5. See App.,

ECF No. 34-1 at 798. The timing of the reports and the request

strongly suggest that trial counsel did not find it

objectionable that Juror 5 fell asleep during the prosecution’s

case because the juror was awake during testimony about Mr.

Roseboro’s alibi defense. Moreover, it is not clear from the

record that trial counsel should have raised an objection, as

the caselaw suggests that this sort of unsupported objection is

regularly and appropriately overruled. See, e.g., United States

v. Freitag, 230 F.3d 1019, 1023-24 (7th Cir. 2000).

The trial record does not contain sufficient evidence of

juror misconduct, and trial counsel reasonably could have

decided to not take further action regarding Juror 5. As such,

an ineffective assistance of counsel claim is not “clearly

stronger” than the claim Mr. Roseboro’s counsel did raise.

Because it was not unreasonable for Mr. Roseboro’s appellate

counsel to decline to make an ineffective assistance of counsel

claim on appeal, Mr. Roseboro has not shown deficient

performance under Strickland.

37 2. The Court Need Not Decide Whether Appellate Counsel’s Performance Was Prejudicial

Mr. Roseboro next argues that appellate counsel’s

performance prejudiced Mr. Roseboro. See Pet’r’s Suppl. Br., ECF

No. 34 at 14-20. Under Strickland, he must show that his

appellate “counsel’s ineffectiveness was prejudicial, i.e., that

‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.’” Payne, 760 F.3d at 13 (quoting Strickland, 466

U.S. at 687-88). However, because the Court has concluded that

Mr. Roseboro has not shown deficient performance, it need not

reach the question of whether his appellate counsel’s

performance was prejudicial.

Mr. Roseboro has not met his burden to show that his

appellate counsel performed deficiently under Strickland.

Therefore, under the highly deferential standard set forth in

Section 2254(d), he has failed to show that the D.C. Court of

Appeals’ decision denying his motion to recall the mandate was

an unreasonable application of clearly established federal law.

38 D. The Court Will Not Consider Mr. Roseboro’s Declaration or Hold an Evidentiary Hearing

Mr. Roseboro moves the Court to expand the record in this

case to include a new declaration and to hold an evidentiary

hearing. See Pet’r’s Mot., ECF No. 33; see also Ex. A (“Roseboro

Decl.”), ECF No. 33-1. For the reasons below, the Court DENIES

the motion.

Rule 7 of the Rules Governing Section 2254 Cases provides

that “the judge may direct the parties to expand the record by

submitting additional materials relating to the petition.” Rules

Governing Section 2254 Cases in the United States District

Courts, R. 7. The Rule permits the parties to submit affidavits

for consideration as part of the record, id.; including unsworn

declarations, see 28 U.S.C. § 1746 (providing that an “unsworn

declaration” may be submitted instead of an “affidavit”). Here,

Mr. Roseboro seeks to submit an unsworn declaration describing

juror misconduct at his third trial and additional information

about his first two trials. See Pet’r’s Mot., ECF No. 33 at 1.

He argues that this declaration goes to “the heart of his

ineffective-assistance-of-appellate counsel (‘IAAC’) claim.” Id.

Rule 8 of the Rules Governing Section 2254 Cases provides

that the judge may order an evidentiary hearing after

“review[ing] the answer, any transcripts and records of state-

court proceedings, and any materials submitted under Rule 7.”

39 Rules Governing Section 2254 Cases in the United States District

Courts, R. 8. Here, Mr. Roseboro seeks an evidentiary hearing to

develop the factual basis of his IAAC claim. See Pet’r’s Mot.,

ECF No. 33 at 2.

Mr. Roseboro argues that the Court must hold an evidentiary

hearing because he did “all he could” to develop his IAAC claim

in state court but did not receive an evidentiary hearing there.

Id. However, because the Court has concluded that it may not

grant Mr. Roseboro’s petition, the Court DENIES Mr. Roseboro’s

Motion to Expand the Record and for an Evidentiary Hearing.

V. Conclusion

For the foregoing reasons, the Court DENIES Mr. Roseboro’s

Petition, see ECF No. 3; and DENIES Mr. Roseboro’s Motion to

Expand the Record and for an Evidentiary Hearing, see ECF No.

33. 10

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 29, 2023

10In view of the denial of the Petition based on the parties’ supplemental briefing materials, the Motion to Dismiss, ECF No. 13, is found as moot. 40