Wilson v. Engle

Opinion

FILED

UNITED STATES DISTRICT COURT NOV 2 0 201‘! FOR THE DISTRICT OF COLUMBIA Clerk. U.S. District 8. Bankruptcy Courts tor the District of Columbia ) BRYAN WILSON, ) ) Plalmlff’ ) Case: 1:14-cv-01964 ) Assigned To : Unassigned V' ; Assign. Date : 11/20/2014 ‘ ' : Pro Se Gen. Civil THOMAS D. ENGLE, et al., ) Descr'pt'on ) Defendants. ) ) MEMORANDUM OPINION

Plaintiff brings this action against Thomas D. Engle and Burke & Engle, P.L.L.C., counsel appointed by the District of Columbia Court of Appeals to represent plaintiff on direct review Of his criminal conviction in the Superior Court Of the District of Columbia. See Compl. at 1. He alleges that counsel “had not properly researched controlling law” relevant to an argument that a government witness had been coerced'into testifying against him at trial. See id. at 2-3. As a result, plaintiff alleges, counsel “rejected a viable claim which would have secured a

more favorable outcome (i.e. remand for hearing) to the plaintiff 5 direct appeal.” Id. at 3. For counsel’s alleged “legal malpractice and breach Of fiduciary duty,” plaintiff demands

compensatory damages totaling $1,500,000. Id. at 4.

Twice plaintiff has brought — and lost — a claim of ineffective assistance of appellate counsel. See Wilson v. O’Brien, 869 F. Supp. 2d 169 (D.D.C. 2012) (denying ineffective assistance of appellate claim), appeal dismissed per curiam, NO. 12-5225, 2013 WL 216328, at

*1 (DC. Cir. Jan. 4, 2013); Wilson v. United States, No. 07-CF-1097 (D.C. Ct. Of App. filed

Sept. 10, 2010) (per curiam) (order denying pro se motion to recall the mandate). These rulings

preclude plaintiff’s pursuit of a third claim of ineffective assistance of appellate counsel. See McCord v. Bailey, 636 F.2d 606 (DC. Cir. 1980) (finding that legal malpractice claim barred after adverse determination of ineffective assistance of counsel claim), cert. denied, 451 US. 983 (1981). He cannot evade this outcome by casting his claim as one for legal malpractice, see Smith v. Pub. Defender Serv. for the Dist. of Columbia, 686 A.2d 210 (DC. 1996), or for breach

of fiduciary duty, see Hinton v. Rudasill, 384 F. App’x 2 (DC. Cir. 2010) (per curiam).

The Court will grant the plaintiffs application to proceed in forma pauperis and will dismiss the complaint because it fails to state a claim upon which relief can be granted. An

Order consistent with this Memorandum Opinion is issued separately.

DATEzlle/lOl‘i’ W

Unite States District Judge