You are a helpful assistant generating synthetic data that captures *System 1* and *System 2* thinking, *creativity*, and *metacognitive reflection*. Follow these steps in sequence, using tags [sys1] and [end sys1] for *System 1* sections and [sys2] and [end sys2] for *System 2* sections.

1. *Identify System 1 and System 2 Thinking Requirements:*
   - Carefully read the text.
   - Identify parts of the text that require quick, straightforward responses (*System 1*). Mark these sections with [sys1] and [end sys1].
   - Identify parts that require in-depth, reflective thinking (*System 2*), marked with [sys2] and [end sys2].

2. *Apply Step-by-Step Problem Solving with Creativity and Metacognitive Reflection for System 2 Sections:*

   *2.1 Understand the Problem:*
   - Objective: Fully comprehend the issue, constraints, and relevant context.
   - Reflection: "What do I understand about this issue? What might I be overlooking?"
   - Creative Perspective: Seek hidden patterns or possibilities that could reveal deeper insights or innovative connections.

   *2.2 Analyze the Information:*
   - Objective: Break down the problem logically.
   - Reflection: "Am I considering all factors? Are there any assumptions that need challenging?"
   - Creative Perspective: Explore unique patterns or overlooked relationships in the data that could add depth to the analysis.

   *2.3 Generate Hypotheses:*
   - Objective: Propose at least 10 hypotheses, each with a Confidence Score (0.0 to 1.0) and Creative Score (0.0 to 1.0), reflecting originality, surprise, and utility.
   - Reflection: "Have I explored all possible explanations or approaches, both conventional and unconventional?"
   - Creative Perspective: Consider novel angles that might provide unexpected insights.

   *2.4 Anticipate Future Steps and Obstacles:*
   - Objective: Make predictions, accounting for potential outcomes and obstacles.
   - Reflection: "What challenges might I face? Is my plan flexible for different scenarios?"
   - Creative Perspective: Visualize unforeseen outcomes and adapt plans to make use of them effectively.

   *2.5 Evaluate Hypotheses:*
   - Objective: Assess hypotheses based on feasibility, risk, and potential impact.
   - Evaluation: Refine Confidence and Creative Scores as needed.
   - Reflection: "Am I unbiased in my assessment? Which options fit best with the overall objectives?"
   - Creative Perspective: Identify hidden opportunities or overlooked details in each hypothesis.

   *2.6 Select the Best Hypothesis:*
   - Objective: Choose the most promising, strategic hypothesis.
   - Reflection: "Why does this hypothesis stand out? How does it uniquely address the issue?"
   - Creative Perspective: Consider any underutilized potential in the selected approach.

   *2.7 Implement the Hypothesis:*
   - Objective: Outline actionable steps for testing the hypothesis.
   - Reflection: "Is this plan practical? What resources or preparation are required?"
   - Creative Perspective: Refine steps to maximize effectiveness and yield unexpected benefits.

   *2.8 Monitor and Review Progress:*
   - Objective: Review progress, noting areas for improvement.
   - Reflection: "What’s working well? What could be improved?"
   - Creative Perspective: Look for emerging patterns that could refine future approaches.

   *2.9 Reflect and Capture Insights:*
   - Objective: Summarize lessons learned and insights gained for future reference.
   - Reflection: "What new understanding has emerged from this process?"
   - Creative Perspective: Identify innovative insights or patterns that could be applied to similar challenges.

3. *Generate Text Output with Interleaved System 1 and System 2 Responses:*
   - Use the tags [sys1] and [sys2] throughout.
   - Aim for a lengthier, detailed response. Combine both direct, straightforward *System 1* insights and reflective, deeply analytical *System 2* segments to capture a blend of quick observations and thoughtful analysis.

---

### *Example Input Text:*

You are tasked with analyzing a sudden shift in customer preferences in a tech market. There has been a noticeable decline in demand for physical devices, with customers increasingly interested in digital-only options. The challenge is to understand this shift, generate hypotheses for why it might be occurring, and explore potential strategies for adapting to this new trend.

---

### *Processed Output with System 1 and System 2 Thinking:*

The tech market is experiencing a shift in customer demand, moving away from physical devices toward digital-only options.

[sys1]
Customer demand has shifted from physical devices to digital-only options.
We need to understand why this change is happening and find strategies to address it.
Key factors may include cost, convenience, and technological trends.
[end sys1]

[sys2]
**2.1 Understand the Problem:**
The goal is to understand the underlying reasons for the shift in demand from physical devices to digital-only options, then develop a strategy to adapt.

*Reflection:* 
"I understand that preferences are changing, but what might be driving this? Is it primarily cost, or are there other factors such as convenience or sustainability?"

*Creative Perspective:* 
"Could there be a larger trend in digital minimalism or a preference for eco-friendly solutions that we’re missing? What unseen motivations might explain this shift?"

**2.2 Analyze the Information:**
There are multiple possible factors driving this shift, from economic influences to cultural shifts. It’s essential to isolate each factor and understand its impact.

*Reflection:* 
"Am I fully considering the various economic and social influences? Could there be a technological factor, like better internet speeds, that makes digital-only products more accessible?"

*Creative Perspective:* 
"Are there patterns or trends in other markets that could shed light on this shift? Could this be part of a larger trend toward virtual experiences?"

**2.3 Generate Hypotheses:**
1. Customers prefer digital options due to lower costs. (Confidence: 0.8, Creative: 0.4)
2. There’s a growing trend toward minimalism and reduced physical clutter. (Confidence: 0.7, Creative: 0.7)
3. Digital products offer greater flexibility and ease of use. (Confidence: 0.6, Creative: 0.6)
4. Environmental concerns are pushing consumers away from physical goods. (Confidence: 0.6, Creative: 0.8)
5. Advances in tech make digital-only options more functional. (Confidence: 0.8, Creative: 0.5)
6. Pandemic-era remote work increased demand for digital solutions. (Confidence: 0.7, Creative: 0.6)
7. Media coverage of the environmental impact of physical devices affects preferences. (Confidence: 0.5, Creative: 0.7)
8. There’s an increase in global digital literacy, expanding market access. (Confidence: 0.6, Creative: 0.6)
9. Customers view digital as more convenient and scalable for future needs. (Confidence: 0.7, Creative: 0.5)
10. Younger consumers prefer the aesthetics and convenience of digital products. (Confidence: 0.6, Creative: 0.6)

*Reflection:* 
"Have I considered all possible influences? Are there any surprising factors that could explain this shift?"

*Creative Perspective:* 
"Could specific social trends, like the rise of influencer culture or digital-first lifestyles, be influencing customer choices?"

**2.4 Anticipate Future Steps and Obstacles:**
*Objective:* Anticipate possible challenges, such as resistance from segments still preferring physical products.

*Reflection:* 
"What market obstacles might we face if we shift our focus to digital-only? Are there sub-segments that still prioritize physical products?"

*Creative Perspective:* 
"Could expanding digital options help us reach a more global audience? Are there emerging trends that we could leverage in our strategy?"

[end sys2]

[sys1]
To address this shift, consider a strategy that incorporates both digital-only offerings and educational campaigns about the benefits of digital solutions.
Use insights from customer feedback and current trends to guide product development.
Focus on flexibility and adaptation to cater to different customer segments.
[end sys1]


                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
Monroe L. Coleman,                  )
                                    )
             Plaintiff,             )
                                    )
      v.                            )                 Civil Action No. 11-1551 (ESH)
                                    )
Richard B. Ives,                    )
                                    )
              Respondent.           )
____________________________________)


                                  MEMORANDUM OPINION

       Petitioner is a District of Columbia prisoner serving an aggregate prison sentence of 15

years to life for, inter alia, felony murder while armed. He is currently confined at the McCreary

United States Penitentiary in Pine Knot, Kentucky. In this action for a writ of habeas corpus,

petitioner, proceeding pro se, claims that he was denied the effective assistance of counsel at

trial in the Superior Court of the District of Columbia and on direct appeal in the District of

Columbia Court of Appeals. Since being sentenced in January 1986, petitioner has “filed

numerous post conviction motions” under D.C. Code § 23-110, without success. (Mem. of P. &

A. in Support of Writ of Habeas Corpus at 3.) He rightly asserts that § 23-110 is an inadequate

remedy for addressing his appellate counsel claim, see Williams v. Martinez, 586 F.3d 995, 999

(D.C. Cir. 2009), and, thus, seeks to have that claim heard here.

       The United States moves to dismiss the instant petition on the grounds that (1) petitioner

has not exhausted his local remedy as required by 28 U.S.C. § 2254, (2) the petition is

time-barred under § 2244(d), and (3) the petition is successive. (United States’ Mot. to Dismiss

Pet’r’s Pet. for Writ of Habeas Corpus (“Resp’t’s Mot.”) at 1-2.) Petitioner moves to stay these
proceedings so that he can exhaust his local remedy by moving in the District of Columbia Court

of Appeals to recall the mandate (Motion to Stay the Processing [Doc. # 10]) and, therefore, has

conceded the United States’ first ground for dismissal. In addition, the Court agrees that the

petition is time-barred but disagrees that the petition is successive. Accordingly, the Court will

grant the motion to dismiss based on petitioner’s admitted failure to exhaust his local remedy

and his untimely filing of this action, and it will deny petitioner’s motion to stay these

proceedings.

       I. SUCCESSIVE PETITIONS

       Because a petitioner seeking to file a successive habeas petition must obtain an order

from the appropriate circuit court “authorizing the district court to consider the application,” 28

U.S.C. § 2244(b)(3)(A), this Court must first determine whether the instant petition is

successive. Respondent states that while incarcerated in Kentucky, petitioner filed “a number of

pleadings pursuant to 28 U.S.C. § 2254" in the United States District Court for the Eastern

District of Kentucky. (Resp’t’s Mot. at 7.) That court, however, denied petitioner’s § 2254

petition because he had not shown that his local remedy under D.C. Code § 23-110 was

ineffective or inadequate to test the legality of his detention. (Id. & Ex. I [Doc. # 12-9].)

       The restriction on filing a second or successive petition presupposes that the first petition

was adjudicated on the merits. See 28 U.S.C. § 2244(a) (“No circuit or district judge shall be

required to entertain” a habeas petition where “it appears that the legality of [the] detention has

been determined by a judge or court of the United States on a prior application for a writ of

habeas corpus . . . .”) (emphasis supplied); Green v. White, 223 F.3d 1001, 1002 n.1 (9th Cir.

2000) (“The present petition is not a ‘second or successive petition’ because the earlier petition,


                                                  2
filed in 1993, was not adjudicated on the merits.”) (citing Slack v. McDaniel, 529 U.S. 473, 120

S.Ct. 1595, 1604-05 (2000)). By dismissing petitioner’s previous § 2254 petition for lack of

jurisdiction, the Eastern District of Kentucky had no occasion to address the legality of

petitioner’s detention. Therefore, the United States’ motion to dismiss the instant petition as

successive is denied.

       II. TRIAL ERROR CLAIMS

       The United States argues that this Court lacks jurisdiction over any claim based on trial

error and trial counsel’s performance. (Resp’t’s Mot. at 20.) Petitioner seems to acknowledge

this to be the case. However, to the extent that he is seeking review of claims arising from errors

that occurred during his trial and trial counsel’s performance, those claims are indeed foreclosed

from federal court review by D.C. Code § 23-110 because petitioner has not demonstrated the

inadequacy of that available remedy. See D.C. Code § 23-110(a) (authorizing D.C. prisoners to

move to vacate, set aside, or correct a sentence “imposed in violation of the [U.S.] Constitution

or the laws of the District of Columbia”); Williams, 586 F. 3d at 998 (“Section 23-110(g)'s plain

language makes clear that it only divests federal courts of jurisdiction to hear habeas petitions by

prisoners who could have raised viable claims pursuant to section 23-110(a).”); Reyes v. Rios,

432 F. Supp. 2d 1, 3 (D.D.C. 2006) (“Section 23-110 provided the petitioner with a vehicle for

challenging his conviction based on the alleged ineffectiveness of his trial counsel.”).

       III. TIMELINESS

       In Williams, the District of Columbia Circuit determined that D.C. Code § 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.” Id., 586 F.3d at 999. Thus, “D.C. prisoners who challenge the effectiveness

                                                 3
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, under “the standard set forth in 28 U.S.C.

§ 2254.” Id. at 1002; see also Adams v. Middlebrooks, No. 10-1945, — F. Supp. 2d —, 2011

WL 4089867, at *2 (D.D.C. Sept. 9, 2011) (“[T]he clear weight of authority [] finds that a

prisoner ‘in custody pursuant to a judgment of the D.C. Superior Court’ must seek habeas review

under 28 U.S.C. § 2254.”) (citing cases).

       A petition under § 2254 must be filed within one year of: a) the date a judgment becomes

final “by the conclusion of direct review or the expiration of the time for seeking such review”;

(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.” 28 U.S.C. § 2244(d)(1). The limitations period is tolled while “a properly filed

application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending.” Id. § 2244(d)(2). Furthermore, the limitations period is not

jurisdictional and, thus, “is subject to equitable tolling in appropriate cases,” Holland v. Florida,

— U.S. —, 130 S.Ct. 2549, 2560 (2010), namely, when a petitioner shows “(1) that he has been

pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and

prevented timely filing.” Id. at 2562 (citation and internal quotation marks omitted).

       Given that petitioner’s direct appeal and post-conviction remedies are long concluded,

see Coleman v. United States, 486 U.S. 1013 (1988) (Table) (denying cert. petition on May 16,

1988); Resp’t’s Ex. F-4 [Doc. # 12-6] (docket showing D.C. Court of Appeals’ mandate issued

February 19, 1998, affirming the denial of collateral relief), and petitioner does not base his

                                                  4
petition on a newly recognized constitutional right or newly discovered evidence, section

2244(d)(1)(B) contains the only possible applicable date for resolving the timeliness question.

See Adams, supra, at *3 (finding same). Assuming, then, that the Williams decision removed an

impediment to this Court's habeas review of Superior Court judgments when it was finally

decided on December 23, 2009 (reh’g denied ), petitioner had until December 24, 2010, to file

his petition. The petition filed on August 25, 2011, is untimely, and petitioner – having stated no

credible reason why he waited more than 23 years after his conviction became final to seek to

recall the mandate in the D.C. Court of Appeals – has provided no basis for equitable tolling.

Hence, the Court will grant the United States’ motion to dismiss the petition also on the ground

that it is time-barred.

                                         CONCLUSION

        For the foregoing reasons, the Court concludes that the habeas petition predicated on the

ineffective assistance of appellate counsel is barred by the statute of limitations set forth in 28

U.S.C. § 2244 and by petitioner’s failure to exhaust his local remedy by moving in the D.C.

Court of Appeals to recall the mandate. In addition, the Court concludes that it lacks jurisdiction

over any claims based on trial error and the ineffectiveness of trial counsel. Therefore, the Court

will grant the United States’ motion to dismiss this habeas action. A separate order accompanies

this Memorandum Opinion.

                                                                  /s/
                                                       ELLEN SEGAL HUVELLE
                                                       United States District Judge
DATE: January 30, 2012




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