UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) DAVI D EARL

J ONES, ) ) Petitioner, ) v. ) Civil Action No. 10-1086 ( PL F) ) RONNI E HOL T, ) ) Respondent. ) ____________________________________)
OPI NI ON David Ea rl J ones, a pr isoner who wa s convicted of first degree murder a

nd other crimes in the Super ior Court of the District of Columbia, has filed a pr o se petition for a wr it of habea s corpus c halleng ing his imprisonment under 28 U .S.C. § 2254. Mr . J ones also moved f or an evide ntiary

hear ing, a

reque st that the Court denied upon conc luding that he was ba rre d from obtaining a

such a he aringby

28 U.S.C. § 2254(e)(2) . See Memora ndum Opinion, J ones v . Holt (Sept. 30, 201 1) [Dkt. No. 9] . Presently befor e the Court is a motion by Mr. J ones to rec onsider the denial of

his request for

an evide ntiary

hear ing, a s well as a motion by the re spondent to dismiss Mr. J ones’ ha

beas pe tition. For the re asons stated be low, the Court will deny Mr. J ones’ motion to reconsider a

nd g rant the r espondent’s motion to dismis s. 1

The pa pers f iled in connec tion with thi s matter include: pe titioner’s petition for a 1 writ of habe as cor

pus (“Pet.”) [Dkt. No. 1] ; respondent’ s motion t o dismiss the petition (“Mot.”) [Dkt. No. 4] ; respondent’ s memorandum in support of his motion to dis miss and in opposit ion to the petition (“Mem.” ) [Dkt. No. 4-2]; petit ioner’s r esponse ( “Resp.”) [Dkt. No. 5] ; petitioner’s motion for an evide ntiary hear ing ( “Mot. Ev.”) [Dkt. No. 6] ; petitioner’s motion for rec onsideration (“ Mot. Recons.”) [Dkt. No. 11]; and petitioner’s supplement to his motion for rec onsideration (“ Supp.”) [Dkt. No. 12]
.I . BA CKGROUND Mr. J ones wa s convicted in the Super ior Court of the District of Columbia in 2001 of first deg ree murder while arme d (D.C. Code §§ 22-2101, 22- 4502), sec ond deg ree murder while ar med (D.C. Code § 22-2103) , two counts of possession of a firea rm duringa cr ime of violence ( D.C. Code § 22-4504(b) ), and r elated w eapons of fense s. See Mem. Att. F at 1; Mem. Att. G at 1. His conviction and se ntence wer e upheld on dire ct appe al by the District of Columbi a Court of Appe als in J une 2007. See Me m. Att. F . Whil e his direc t appea l was pending , Mr. J ones initiated collater al proc eeding s under D.C. Code § 23- 1 10 to vacate and se t aside the judg ment due to inef fec tive assistance of trial counse l. Mem. Att. A at 3. The 2 Superior Court denied Mr . J ones’ Sec tion 23-1 10 motion in S eptember 2008, see Me m. Att. C, and this denial wa s af

firmed by the D.C. Court of Appea ls in November 2009. See Mem. Att. G
. I n April 2010, Mr. J ones filed a motion in t he D.C. Court of Appe als to rec all the mandate in his direc t appea l, alleg ing ine f fec tive assistance of appe llate counse l. See Mem. Att. H. The c ourt of appe als denied the motion in a one-sentenc e per curiam order w ithout reque sting a

response from the g overnme nt. See Mem. Att. Iat 8; Orde r, J ones v . United S tates, No. 01-CF- 1 186 (D.C. May 26, 2010). Shortly afte r the de nial of his motion to recall the manda te, Mr. J ones filed a petition for a wr it of habea s corpus in this Court, advancingthe same c laims of inef fec tive assistance of appe llate counse l that he pursued in his motion to reca ll the mandate. See Pet. Acc ording to Mr. J ones, his counsel on dire ct appe al re ndere d inef fec tive assistance by

not D.C. Code § 23-110 establishes a reme dy analog ous to 28 U.S.C. § 2255 t hroug h 2 which prisoner s sentence d in D.C. Superior Court may challeng e their c onvictions or sentenc es. See B lair-B ey

v. Quick, 151 F .3d 1036, 1042 (D.C. Cir. 1998). 2developingand pre senting claims that Mr. J ones’ tria l counsel wa s inef fec tive for f

ailing to a rg ue (1) f or an intoxi cation def

ense, a nd (2) that only

one cha rg e of posse ssion of a fire arm duringa crime of violence c ould arise f

rom the two murder s of which Mr . J ones wa s convicted. I d. at 5A-5B
.
I I . DI SCUS SI ON A. Evidentiary H

earing Mr. J ones has moved the Court to reconsider its decision denying his motion for an evide ntiary

hear ing. See Mot. Recons. Mr . J ones pre viously

ar g ued that an e videntiary hear ing w as nec essar

y to investigate one of

his two claims: that his appellate counse l was inef fec tive for f

ailing to r aise on dire ct appe al the purpor ted inef fec tiveness of his trial counse l’s failure to pursue an intoxication defense . See Mot. Evid. at 2.
1. The Court’s Ea

rlier De cision The Court denie d Mr. J ones’ motion upon concludingthat 28 U.S.C. § 2254(e)(2) barr ed the Court fr om conductingsuch a he aring . That sec tion provides that if a ha beas petitioner “ha s failed to deve lop the fac tual basis of a c laim in S tate cour t proce eding s, the court shall not hold an evidentiary hear ing on the claim,” unless one of two cr iteria is met. 28 U.S.C. § 2254(e) (2)( A). The Court conc luded that Mr . J ones had f

ailed to deve lop the fac tual basis of 3
The c laim must rely

on “a ne w rule of

constitutional law, made re troac tive to 3 case s on collatera l reviewby the Supreme Court, that wa s previously unavailable ,” or on “ a fac tual predic ate that c ould not have bee n previously discovere d throug h the exercise of due diligenc e.” 28 U .S.C. §§ 2254(e)(2) (A). T he statute fur ther re quires that, eve n wher e one of these two c riteria a

re me t, “the fa cts underly ing the claim [must ] be sufficient to establish by clea r and c onvincing evidenc e that but for c onstitut ional err or, no re asonable fac tfinder would 3his claim in the District of Columbia courts and that this Court theref ore w as prohibited by Section 2254(e) (2) f

rom conduc ting a

n evidentiar

y hear ing on the matter. The Court re asoned a s follows: Mr. J ones had the opportunity to pursue his inef fec tiveness of a

ppellate c ounsel claim by filing a motion to recall the c ourt of appe als’ mandate. See Rey es v . Rios, 432 F . Supp. 2d 1, 3 (D.D.C. 2006) (“ I n the District of Columbia, challeng es to the ef

fec tiveness of a

ppellate c ounsel are proper ly raised thr oug h a motion to reca ll the Court of Appe als’ mandate.”) (citing W atson v . United S tates, 536 A.2d 1056, 1060 (D .C. 1987)); Ha

rdy v . United S tates, 988 A.2d 950, 961 (D .C. 2010) (stating that claims of inef fec tive assistance of appe llate counse l “must be litigate d as an inde pendent c laim, which re quires a r eca ll of the mandate of the dire ct appe al”) . “Any motion to recall the mandate,” howe ver, “must be filed within 180 day s from the issuanc e of the mandate.” D.C. A P P . R. 41(f). Althoug h Mr
. J ones attempted to develop the f actua l basis of his claim in the District of Columbia courts by filing a motion to recall the mandate adva ncingthat claim, he did not do so until nearly three y ear s after

the mandate issued. See Mem. Att. H at 2; Mem. Att. Iat 8. The c ourt of appe als summarily

denied his motion five wee ks after it was filed in a one -sentenc e per curia m order
. See Mem. Att. I

at 8. 4 I n view of the se fa cts, this Court wrote, “Mr . J ones’ motion was a

ppare ntly denied beca use it was proc edura lly

time-barr ed.” Me morandum Opinion, J ones v . Holt (Sept. 30, 201 1), at 3. Throug h this appare nt proce dural de fault, Mr. J ones for feited his opportunity to develop a
have f ound the applica

nt guilty of the unde rlying of

fense .” 28 U.S.C. § 2254(e) (2)( B)
. The orde r states in full: “On c onsideration of a ppellant’s motion to reca ll the 4 mandate, it is ORDERED that the motion is denied.” Or der, Jones v. United States, No. 01-CF1186 (D.C. May

26, 2010). 4fac tual rec ord in the District of Columbia courts on his claim. “H ad he timely raised the issue befor e the District of

Columbi a Court of Appe als and ha d that court found it unable to resolve the issue without a fa ctual re cord, it pre sumably would have r emande d the ca se to the Superior Court to develop one.” I d. at 5; see W atson v . United S tates, 536 A.2d at 1061 (“[I ]n som e
case s, the rec ord may

be re manded to the tria l court under appropr iate instructions and time constraints for

a hea ring and fa ctual finding s, with this court retainingjurisdiction pending the trial court’ s findings a

nd a re turn of the r ecor d.”). Ahabea s petitioner has “ failed” to develop the fac tual basis of a c laim in state court proc eeding s when a “lac k of dilige nce . . . attributable to the prisoner or

the prisoner ’s counse l” was r esponsible for the claim not havingbeen de veloped in the state c ourts. Williams v . T aylor, 529 U.S. 420, 432 (2000). “ Dilige nce w ill require in the usual ca se that the prisone r, at a minimum, seek an e videntiary hear ing in state court in the
manner presc ribed by

state law .” I d. at 437. B eca use Mr. J ones, throug h his ex treme untimeliness, did not “seek an e videntiary hear ing in state court in the manne r pre scribed by state law ,” and thus did not exhibi t the “minimum” level of dilig ence require d to develop a f actua l
rec ord on his claim, id., this Court found its elf pre cluded f rom holding a

n evidentiar

y hear ing on that claim, bec ause ne ither exception to this rule provided in Section 2254(e )(2) (A) a pplied. Memorandum Opinion, Jones v . Holt (Sept. 30, 201 1), at 5.

2. Procedur al Def

ault or Mer its Determination? Seeking rec onsideration of this Court’s dec ision, Mr. J ones conte nds that he did not proce durally

defa ult on his claim before the D.C. Court of Appea ls, and that the orde r of that court de nying his motion to reca ll the mandate wa s a dec ision on the merits. Mot. R econs. at
51-2. Mr. J ones points out that when he f iled his moti on to rec all the mandate he included w ith it a “Motion for

Enlar g ement of T ime to File Motion to Recall Manda te.” I d.; see Mem. Att. H a t 6-10. He also notes that the rule s of the cour t of appe als provide: “F or g ood cause , the cour t may extend the time prescr ibed by these rule s to perfor

m any act, or may permit an a ct to be done afte r that time expires.” D.C. A P P . R. 26. Mr. J ones asse rts that the cour t of appe als “did not deny the petitioner’s motion for a n enlar g ement of time to file his motion to reca ll the mandate. I n fac t, the Court of Appea ls went direc tly to the merits of the motion and simply denied it, without ex pressingan opinion.” Mot. Recons. a t 2. I t is true that the cour

t of appe als did not deny

Mr. J ones’ motion for a

n enlar g ement of time to file, but neither did the court g rant the motion, docke t it, or acknowle dg e it in any way . See Mem. Att. I

at 8. Fur thermore , the cour

t of appe als has spec ifically reje cted the claim that “a

ny denial of a

motion to recall the mandate is on the merits,” a nd has made clea

r that it employ s one-se ntence , unexplained orders — like that with which it denied Mr. J ones’ motion — for both proce dure- based a nd merits-base d denials. Ha rdy v . United S tates, 988 A.2d 950, 961 (D.C. 2010). The rec ord does not def initively reve al, there fore , whether the cour t of appea ls denied Mr. J ones’ motion based on a proce dural ba

r or on the me rits, a question with implications not onl y

for the pr esent inquiry

but also for whe ther this Court may even e ntertain Mr. J ones’ c laims on habea s review
.

When a state c ourt dec lines to address a prisoner’ s fede ral c laims beca use the prisoner ha d failed to mee t a state proc edura l require ment, that judgme nt rests on independe nt and ade quate state g rounds, and f eder al habe as re view of the prisoner’ s claim ordinar ily is prec luded. Coleman v . Thompson, 501 U.S. 722, 729-30 (1991); see also Cone v . Be ll, 556 U.S.
6449, 465 (2009). On the other ha nd, a fe dera l court pre sented with a ha beas pe tition from a state prisoner w hose cla im has been de nied in the state c ourts should “presume that there is no independe nt and ade quate state g round for a state c ourt dec ision when the dec ision ‘fairly appea rs to rest primar ily

on fede ral law

, or to be interw oven with the fe dera l law, and whe n the adequa cy and indepe ndence of any possible state law g round is not clear from the f

ace of the opinion.’” Coleman v . Thompson, 501 U.S. at 734-35 (quoting Michig an v . L ong , 463 U.S. 1032, 1040-41 (1983) ). A state c ourt judg ment “fa irly appea rs” to re st primarily

on fede ral law or is interwove n with fede ral law“in those ca ses wher e a f eder al cour

t has g ood rea son to question whether

there is an independe nt and ade quate state g round for the dec ision.” I d. at 739. A fe dera l court consider ing a habea s petition should presume that the dec ision constitut ed a merits deter

mination unless the state is “explicit i n its reliance on a proc edura l defa ult.” Har ris v
. Reed, 489 U.S. 255, 264 (1989) ; see id. at 263 (pr ocedur al def ault bars f eder al re view only

if state cour t “clea rly and expressly ” states that its judg ment rests on state pr ocedur al bar); see a lso J imenez v . W

alker , 458 F .3d 130, 137 (2d Cir. 2006) (e x plaining that for the pr esumption of a merits deter

mination based on fe dera l law to apply , “a f eder al habe as cour

t must have ‘g ood
rea son’ to doubt that the decision re sts on an independe nt and ade quate state g round”) (citing Coleman v . Thompson, 501 U.S. at 739).

Her e, notwithstanding the 180-da y deadline f

or motions to reca ll the mandate se t forth in D.C. Court of Appea ls Rule 41(f), this Court has “g ood rea son” to question whether Mr
. J ones’ motion was de nied on the basis of that proce dural rule . First, the 180- day deadline is not jurisdictional but, like other rules of the court, may be excused for

g ood cause , D.C. A P P . R. 26(b), whic h Mr. J ones attempted to de monstrate. See Me m. Att. H at 6-10. Second, the court
7of appe als has sug g ested that it g rants lenienc y to pr o se movants with respec t to this deadline. See He ad v . United S tates, 626 A.2d 1382, 1384 n.3 (D .C. 1993) (citing Pettaway v . United S tates, 390 A.2d 981, 984 (D .C. 1978)). Third, the c ourt of appe als’ method for addre ssing motions t o rec all the mandate includes an initial step in which motions deemed la ckingin merit
are denied without furthe r re view , which sug g ests that the prompt and summary denial of Mr

. J ones’ motion does not nec essar ily indicate pr ocedur al def

ault. T og ether , these c onsiderations 5 sug g est that the cour

t of appe als, as likely

as not, overlooke d the untimeliness of Mr. J ones’ motion and simpl y

deter mined that his claims lacked me rit. At a minimum, t his Court has “g ood
rea son” to question whether the alter native wa s the ca se. Cf. Coleman v . Thompson, 501 U.S. at 740 (holding that wher e state pr ocedur al rule w as “ma ndatory” and “ unwaivable ,” and where g overnme nt filed motion to di smiss habeas petition based solely on noncompliance with this proce dural rule , which state c ourt g rante d without ex planation, dec ision appear ed to re st primarily on state law) ; J imenez v . W alker , 458 F .3d at138-39 (de scribingexamination of the “state c ourt’s pra ctice when fa ced w ith such a [procedur al] bar” a s part of the inquiry into whether a par ticular de cision was proc edura l or merits-base d). The c ourt of appe als provided no indication that it denied Mr. J ones’ motion based on Rule 41( f); only the mere exis tence of that rule c reates such an inf ere nce. T he Ha

rris
Upon submission of a motion to recall the mandate, “a motions di vision must 5 decide whether

or not to g rant the motion on the basis that the c laim initi ally has bee n found by the cour t to have suff

icient merit.” H ardy

v. United States, 988 A.2d at 961 (quotingHea d v. United States, 626 A.2d at 1382). O nly if the movant satisfies this “hea vy initial burden,” whic h require s “set[ting] forth in detail a per suasive ca se for rec all of the mandate,” Watson v. United States, 536 A.2d at 1060, will the court r eca ll the mandate a nd proce ed to deter

mine whether

the appellant wa s denied the e ffe ctive assistanc e of a ppellate c ounsel. Har dy

v. United States, 988 A.2d at 961. 8and Coleman pre sumption i s not overcome , there fore , and this Court concludes that the c ourt of

appea ls likely

denied Mr

. J ones’ motion to rec all the mandate — and its fede ral c laims — on the merits. Since this Court determines that Mr. J ones’ motion to rec all the mandate was not dismiss ed on proc edura l gr ounds, it cannot conc lude that Mr. J ones “f ailed to deve lop the fac tual basis” of his cla ims withi n the meaningof 28 U.S.C. § 2254(e)( 2), bec ause the absenc e of a state court re cord is not due to a la ck of dilig ence on Mr. J ones’ pa rt. See W illiams v . T

ay lor, 529 U.S. at 430-34, 437. Section 2254(e )(2) there fore does not bar Mr . J ones fr om obtaining a

n evidentiar y hear ing. 3. Evidentiary Hea ring Unfortunately

for Mr . J ones, howe ver, his request for an evide ntiary

hear ing
never theless is barr ed by

a dif fer ent provision of the ha beas statute, 28 U .S.C. § 2254(d). That section imposes sharp limits on a fede ral c ourt’s powe r to g rant ha beas r elief “ with respec t to any claim that was a djudicated on the me rits in S tate cour t proce eding s.” B eca

use Mr . J ones’ motion to rec all the mandate — which adva nced the same inef

fec tive assistance claims upon which his habea s petition is based — was denie d by the cour t of appe als “on the me rits,” see supra at 7-9, fede ral re view of the court of a ppeals’ de cision “is limit ed to the re cord that was bef ore the state court that a djudicated the c laim on the merits.” Cullen v . Pinhols ter, 131 S. Ct. 1388, 1398 (201 1). As the Supre me Court has explained, the “ba ckwa rd-looking ” languag e of Sec tion 2254(d) “ require s an examination of the state-c ourt dec ision at the time it was made. I t follows that the re cord unde r re view is limit ed to the re cord in e x istence at that same time i.e. , the re cord
9befor e the state court.” I d

. This Court’s habea s review there fore is lim ited to the materia ls available to the court of a ppeals at the time it denied Mr. J ones’ motion to rec all the mandate , and, the Supre me Court has dete rmined, this Court may not conduct an e videntiary hear ing to expand the rec ord. I d

. at 1401. 6

I t may seem unfa ir to Mr. J ones that he is denie d an evide ntiary hear ing both if the court of a ppeals dismissed his moti on on proce dural g rounds and if the court de nied it on the merits. That re sult, however, is a function of Cong ress’ e f forts to curta il feder al habe as re view of state cour t decisions, in part throug h a statutory scheme “designed to strong ly discourag e” the prese ntation of new e vidence in fede ral c ourt. Cullen v . Pinhols ter, 131 S. Ct. at 1401. This statutory scheme does per

mit evidentiary

hear ings in some limited circ umstances — just not those in Mr. J ones’ c ase. F or example, if the cour t of appe als had dismissed Mr. J ones’ motion to rec all the mandate on proce dural g rounds for f ailure to c omply

with the 180-day

deadline, but if he late r bec ame a

war e of “ a fa ctual pre dicate that could not have be en pre viously discovere d throug h the exercise of

due dilige nce” or “a

new r ule of c onstitut ional law

, made r etroa ctive to
case s on collatera l review ,” 28 U.S.C. §§ 2254(e) (2)( A)(i) , (ii), then neither Section 2254(d) nor Section 2254(e) (2) would pr event this Court from conduc ting a n evidentiar

y hear ing. See Cullen
v . Pinhols ter, 131 S. Ct. at 1401. Or if, base d on the exist ing r ecor d, this Court concluded that the denial of

Mr. J ones’ motion to rec all the mandate was “ contra ry to, or involved an
unrea sonable a

pplication of, cle arly

established fe dera l law

,” 28 U.S.C. § 2254(d)(1) , then this Court could conduct a

n evidentiar

y hear ing to e x pand the r ecor d befor e g rantingrelief . See id. at
This limi ting r

ule applies e ven whe re, a s here , the state c ourt summarily denied 6 the prisoner ’s claims. Cullen v. Pinhols ter, 131 S. Ct. at 1402 (citing Har ring ton v. Richter, 131 S. Ct . 770, 786 (2011))
. 101412 (B rey er, J., concurr ing in pa rt and dissenting in part). The combined ef fec t of Sections 2254(d) a nd (e) (2) is that prisoner s must dil ige ntly prese nt their claims in the state c ourts and, when se eking fede ral c ourt revie w of a n adver se dete rmination by those courts, they

may rely only on the re cord that was pre sented to the state. For the fore g oing r easons, the Court will deny Mr. J ones’ motion to rec onsider the de nial of his reque st for an e videntiary hear ing.

B. Motion to Dismiss 1. L eg al S tandar d The re spondent has filed a motion to di smiss Mr . J ones’ pe tition “for fa ilure to state a c laim[ .]” Mot. at 1. Although the motion and its acc ompanying me morandum fa il to cite any applicable rules or le g al standar ds g overningmotions t o dismiss , the motion clear ly rests on Rule 12(b)(6) of the F eder al Rules of Civil P roce dure, a nd the stated ba sis for the motion — that Mr. J ones’ c laims are “ vague and c onclusory ,” Mem. at 13 — invokes the familiar standa rds established in B ell Atlantic Corp. v . T wombly , 550 U.S. 544 (2007), and A shcrof t v . I qbal, 556 U.S. 662 (2009), for

evaluating the f

actua l adequa cy

of a c omplaint. Rule 12(b)(6) allows dismissal of a complaint if a plaintif f fa ils “to state a cla im upon which re lief ca

n be g rante d.” F E D . R. C I V . P . 12(b)( 6). “F eder al Rule of Civil P roce dure 8(a) (2) r equire s only

‘a shor t and plain statement of the claim showing that the pleade r is entitled to relief,’ in order to ‘ g ive the def endant f air notice of what the . . . claim is and the g rounds upon which it rests[.] ’” B ell Atlantic Corp. v . T wombly , 550 U.S. at 555 (quoting Conley v . Gibson, 355 U.S. 41, 47 (1957)). A lthough “ detailed f actua l alleg ations” ar e not nec essar y to withstand a
1 1Rule 12(b)(6) motion to di smiss, i d., the complaint “must contain suf ficient fa ctual matter

, acc epted a s true, to ‘state a claim to relief

that is plausible on its face.’ ” Ashc roft v . I qbal, 556 U.S. at 678 (quotations omitted). The Court “must ac cept a s true all of the fac tual alleg ations contained in the c omplaint.” Erickson v . Pardus, 551 U.S. 89, 94 (2007); see also Be ll Atlantic Corp. v . T wombly , 550 U.S. at 555. The c omplaint “is construed libera lly in the [pl aintif

f’s] favor , and [the Court should] g rant [the plaintif f] the benef

it of all infere nces that can be derive d from the f acts a lleg ed.” K owal v . MCICommc’ns Corp., 16 F .3d 1271, 1276 (D.C. Cir. 1994). Neve rtheless, the Court ne ed not ac cept infe renc es dra wn by the plaintif

f if those infe renc es ar e unsupported by

fac ts alleg ed in the complaint, nor must the Court ac cept the pla intif f’s leg al conclusions. See id.; B rowningv . Clint on, 292 F .3d 235, 242 (D.C. Cir. 2002). Althoug h the Court will “rea d a pr

o seplaintif

f’s c omplaint liberally

,” the pr o se complaint never

theless must prese nt a claim on which the Court can g rant re lief. Chandler v . Roche , 215 F . Supp. 2d 166, 168 (D.D.C. 2002) ( citing Crisa fi v . Holland, 655 F .2d 1305, 1308 (D.C. Cir. 1981)).

I n decidinga motion to dism iss under Rule 12(b)( 6), the Court “ma y consider the fac ts alleg ed in the complaint, docume nts attache d to the complaint as exhibit s or incorpor ated by ref ere nce, a nd matters about whic h the [C] ourt may take judicial notice .” Cole v . Boe ing Co., 845 F . Supp. 2d 277, 283 (D.D.C. 2012) (c iting Abhe & Svoboda, I nc. v . Chao, 508 F .3d 1052, 1059 (D.C. Cir. 2007)). A c ourt may take judicial notice of public re cords f rom other proce eding s. Covad Comms. C o. v . Be ll Atlantic Corp., 407 F .3d 1220, 1222 (D.C. Cir. 2005). 7

Respondent’s memora

ndum free ly

cites transc ripts from Mr. Jones’ trial, e.g ., 7 Mem. at 5-7, 15, 17, sometimes to support key fac tual predic ates a

bout the crime, but fur

nishes the Court with none of these transcr ipts, stating only that they “will be provide d to the Court upon reque st.” Mem. at 2. The Court will not rely on any of these tr anscr ipt citations or unsupported fa ctual asse rtions made by the re spondent, but only

on the publicly

available rec ord 122. Fe dera l Habea s Corpus Review of Inef fec tive Assistance Claims Where a state cour

t has reje cted a

prisoner’ s claim “on the me rits,” fe dera l habea s corpus r eview of

that claim is ext reme ly

limit ed. 28 U.S.C. § 2254(d). The inquiry into whether a state c ourt has denie d a cla im “on the merits” f or purpose s of Section 2254(d) is the sa me as the inquiry

into whether a

state cour

t has denied a

claim on substantive or proc edura l gr ounds under the “indepe ndent and a dequate ” doctr ine of Ha rris v . Reed a

nd Coleman v . Thompson. See Ji menez v . W

alker , 458 F .3d at 145. This Court has deter mined that the District of Columbi a Court of Appe als denied Mr . J ones’ motion to rec all the mandate — and the f eder al claims adva

nced in that motion — on the merits rather than on state law proc edura l gr ounds. See supra at 7-9. That dete rmination means that Mr . J ones may

obtain fede ral re view of his cla ims, see Cone v . Be ll, 556 U.S. at 465, 467-69, but only within the restrictive c onfines of Sec tion 2254(d). Under

Section 2254(d), ha

beas c orpus re lief may

be grante d only

if the state court’s a djudication of the prisone r’s c laim resulted in a de cision that was “c ontrary to, or involved an unre asonable application of, c lear ly established F eder al law

, as dete rmined by

the Supreme Court of the United S tates,” or was “ based on a

n unrea sonable de termination of the fac ts[ .]” 28 U.S.C. §§ 2254(d)(1), (2) ; see Know les v . Mirzay ance , 556 U.S. 1 1 1, 121 (2009). “This is a ‘dif

ficult to meet,’ a

nd ‘hig hly

defe rential standa

rd for evaluating state -cour

t rulings, which dema

nds that state-c ourt dec isions be give n the bene fit of the doubt.’” Cullen v
. Pinhols ter, 131 S. Ct. at 1391 (quoting H arr ington v . Richter, 131 S. Ct. at 786, and W oodford v
.
of Mr. Jones’ case as set for th in the decisions, order s, and docke t sheets of the D istrict of Columbi a cour

ts. 13V

isciotti, 537 U.S . 19, 24 (2002)) . The pe titioner car ries the bur den of pr oof. I d. “The ‘unre asonable application’ c lause re quires the state court de cision to be more than inc orre ct or
err oneous. The state cour t’s application of c lear ly

established law must be obje ctively
unrea sonable.” L ocky er v . Andra de, 538 U.S. 63, 75 (2003) ( citation omitted).

The same is true eve n wher e the state court doe s not provide its reasons f or denying the prisoner’ s claims, beca use “de termining whether a state c ourt’s dec ision resulted from an unr easona

ble leg al or fa ctual conc lusion does not require that there be an opinion from the state c ourt explaining the state c ourt’s re asoning .” Ha rring ton v . Richter, 131 S. Ct. at 784. “Where a state c ourt’s dec ision is unaccompanied by an explanation, the habe as petitioner’ s burden still must be met by showing there was no re asonable basis for the state cour t to deny relief .” I d. The fe dera l court “must deter mine what ar

g uments or theorie s . . . could have supporte[d] the state c ourt’s dec ision; and then it must ask whe ther it is possible fairminded jurists could disagr ee that those ar g uments or theorie s are inconsistent with the holding in a pr ior decision of th[e Supreme] Court.” I d. at 786. T o succe ed in his habea s petition, therefor e, Mr
. J ones’ da unting task is to show that there was “ no rea sonable ba sis” for the c ourt of appe als to reje ct his claims by

denying his motion to reca ll the mandate, a nd that “fa irminded jurists” could not possibly

agree that the cour

t of appe als’ dec ision is consist ent with Supreme Court pre cede nt. Mr. J ones’ task is made even mor e dauntingby the fa ct that his claims are for inef fec tive assistance of counse l under S trickland v . W ashing ton, 466 U.S. 668 (1984). I n order to preva il on such claims, “a de fenda nt must show two thi ng s: (1) ‘that c ounsel’s perf ormanc e wa s deficie nt,’ and (2) ‘that the de ficient pe rfor mance prejudice d the def ense.’ ” United S tates v . Shabban, 612 F .3d 693, 697 (D.C. Cir. 2010) (quotingS trickland v . W ashing ton,
14466 U.S. at 687). “D efic ient” mea ns that “counse l’s repr esentation fell below an obje ctive standard of

rea sonablene ss,” and “ prejudice ” mea ns that “there is a rea sonable proba bility that, but for counse l’s . . . err ors, the re sult of the proce edingwould have be en dif fer ent.” United S tates v . Rodrigue z, 676 F .3d 183, 189 (D.C. Cir. 2012) (inter nal quotations omitt ed). Succ ess require s showing that counsel “ma de er rors so ser ious that counsel was not func tioning as the ‘counse l’ g uara

nteed the de fenda

nt by the Six th Amendment.” United S tates v . Moore, 394 F .3d 925, 931 (D.C. Cir. 2005) (quotingS trickland v . W ashing ton, 466 U.S. at 687). “‘Judicial scrutiny of counse l’s perf

ormanc e must be hig hly

defe rential,’ a

nd ‘a c ourt must indulge a strong presumption that counsel’s c onduct fa lls withi n the wide r ang e of r easona ble profe ssional assistance .’” K

nowles v . Mirzay ance , 556 U.S. at 124 (quoting S trickland v . W ashing ton, 466 U.S. at 689). “It is up to t he def endant to over come this presumption and show that the challeng ed ac tion was not the result of sound strateg y .” United S tates v . Ag ramonte, 366 F
. Supp. 2d 83, 86 (D.D.C. 2005) (c iting S trickland v . W ashing ton, 466 U.S. at 689-90). A “doubly

defe rential” standard of

judicial revie w applies “ to a S trickland c laim evaluated under

the § 2254(d)( 1) standar d.” Knowle s v . Mirzay ance , 556 U.S. at 123; see Cullen
v . Pinhols ter, 131 S. Ct. at 1410 (emphasizing this “important ‘doubly defe rential’ sta

ndard” ). The pivotal ques t i o n is whether the state court’s application of the S trickland standard was unrea sonable. This is dif fer ent from asking whether defe nse counsel’s p er formanc e fell below S trickland’s standard. For purposes of § 2254(d)( 1), “a n unr easonable application of fede ral law is dif fer ent from an incorr

ect application of fede ral law .” A state court must be g rante d a d ef er en ce an d latitude that are not in operation when the ca se involves re view under the S trickland standa

rd itself. Har ring ton v . Richter, 131 S. Ct. 770, 785 (201 1) (quotingWilliams v . T aylor, 529 U.S. 362, 410 (2000))
.
15Mr. J ones’ task is more dif ficult still — wit h this Court’s standard of r eview approa ching triple defe renc e — bec ause he bring s claims of inef fec tive assistance of appellate counsel, pre mised on that counsel’s f ailure to pursue claims of inef fec tive assistance of trial counsel. “ The a

naly sis by which cour

ts determine whe ther a

ppellate c ounsel provided inef fec tive assistance is the same as that for trial c ounsel.” United S tates v . Ag ramonte, 366 F . Supp. 2d at 86 (citing Smit h v . Robbins, 528 U.S. 259, 289 (2000)). Appellate counsel “ need not ( and should not) raise e very

nonfrivolous claim,” but ra ther “ may selec t from amongthem in order to maxi miz e the likelihood of succ ess on appe al.” Smith v . Robbins, 528 U.S. 259, 288 (2000) (citing J ones v . Ba

rnes, 463 U.S. 745 (1983) ). T o preva il, Mr . J ones must show that enough information was a

vailable to appe llate counse l sugg esting trial counsel’ s prejudicial de ficienc y (under S trickland’s highly

defe rential standa

rds) that a ppellate c ounsel’s fa ilure to pursue a n inef fec tiveness claim wa s itself prejudicially defic ient (ag ain under

S trickland’s de fer ential standards) , and that the D.C. Court of Appe als’ dete rmination to the contrar y was not mere ly wrongbut “objectively

unrea sonable.” L ocky er v . Andra de, 538 U.S. at 75. Rare indeed will be the claim that ca

n surmount such hurdles. Mr . J ones’ c laims, by

contra st, do not survive a motion to di smiss even without refe renc e to the extra lay er of defe renc e re quired on fe dera l habea s review
.
3. J ones’ Inef fec tive Assistance of

Counsel Claims a. F actua l Ba ckg round The District of Columbia Court of Appe als has summarized the eve nts surroundingMr. J ones’ c onviction as follows:
16The trial evidenc e leading to appellant’ s conviction arose out of events occur

ring in the ear ly morning hours of November 14, 1999 in an apar tment building at 329 Rhode I sland A venue, N.E., in the District of Columbi a. A number of people, including Andre w Evere tte, Geor

g e J ones, Kevin J ef

fcoat, and J ulian Ogburn, were i n the lobby of the building when appellant and Kelly Winstead enter ed. Carrie Carter

, who was standing outside of the building, noticed that appellant was ca rr ying what appea red to be a black gun. When he enter ed the lobby

, appellant brandished a g un, repe atedly cocking it. Appellant asked V

ernon Dammons, who enter ed t h e building afte r appellant, whether his g un was “pre tty .” Although Dammons ag ree d that it was, appellant place d the g un ag ains t Da mmons’ head, at which p o i n t Winstead stepped betwee n Dammons and appellant, urg ing appell an t t o “cool it.” Geor g e J ones then told appellant to “chill,” an d appellant shot him. Appellant then shot Kevin J ef fcoat. Both victims died as a re sult of their g unshot wounds. I mmediately afte r the shootings, Carter saw appellant and Winstead exit the building and observe d appellant stuf f a g un into his waistband. Ang el Adams also saw appellant and another man exit the building afte r the shootings. The two men enter ed a c ar a nd drove a

way . Mem. Att. G at 2.
b. I ntox ication Def ense Mr. J ones conte nds that his appellate c ounsel rende red ine f fec tive assistance by failing to pursue a c laim that his trial counsel was inef fec tive for not adva

ncingan intox ication defe nse. He has not alleg ed any fac ts, however

, that sug g est inef

fec tiveness on the par

t of his trial counsel, much le ss that appellate c ounsel’s fa ilure to pursue suc h a cla im was itself inef fec tive. The only

supporting f

act a lleg ed in Mr. J ones’ pe tition t o support trial counsel’ s alleg ed inef

fec tiveness is that “there was e vidence in the rec ord that the pe titioner and the victims had bee n smoking PCP prior to the shooting.” Pet. at 5A. Mr. J ones provides no de tails of any kind about this purported evide nce — the source and conte nt of which a re a complete my stery

. Mr. J ones there fore does not alleg e fa cts supporting an infe renc e that trial c ounsel was
17inef

fec tive for not pursuingan intox ication def ense; still less does he alleg e fa cts that, if true, would mean that his appe llate counse l was inef fec tive for not pursuingthis li ne of attack on appea l. A pleadingthat “tende rs ‘naked asse rtion[s ]’ devoid of ‘fur ther fa ctual enha

nceme nt’” does not survive a

motion to di smiss. Ashcroft v . I qbal, 556 U.S. at 678 (quoting Be ll Atlantic Corp. v . T wombly , 550 U.S. at 557). After the re spondent hig hlighted this def iciency in its m otion to dis miss, putt ing Mr. J ones on notice that the vagueness of his alleg ations might lea d to the dismiss al of his petition, see Mem. at 8, 13- 15, Mr. J ones’ r esponse still failed to alleg e eve n a shre d of conc rete fac tual support for his bar e alleg ation that evidenc e of some still-unspec ified kind in the rec ord indicated his PCP us e bef ore the shooting. While Mr. J ones of fer s citations to the transcr ipts of his trial, purportedly

supporting “ the fa ct that the par ties prese nt at the cr ime scene had bee n smoking PCP

,” Resp. at 4, he mere ly

repr oduces ve rbatim transc ript citations from the responde nt’s motion to di smiss, which were cited as instanc es whe re de fense counsel at trial “attempted to impea ch the c redibility of g overnme nt witnesses by using pr ior inconsistent statements and showingcontempora neous druguse.” Me m. at 7 n.6. Reproducingthese citations without elaboration fa ils to add the nece ssary fac tual specific ity

. Mr. J ones also attac hed an a f fidavit to his response in an attempt to bols ter the fac tual underpinning s of his claim. The infor mation in this af

fidavit was not bef

ore the District of Columbia Court of Appea ls when it denied Mr . J ones’ c laim, see Mem. Att. H, a nd such information should not be consider ed by this Court on habeas re view of that denial. See supra at 9-1 1. Given Mr

. J ones’ pr

o se status, however

, and the f act that the sta

ndard f orm Section 2254 habea s corpus pe tition t hat he c ompleted direc ted him to “[s] ummarize briefly ” the f acts 18supporting e ach ground for relief , Pet. at 4 (empha sis in original), the Court will reg ard the content of this af

fidavit as enc ompassed within his origina l petition. The af fidavit still of

fer s him no relief , howeve r. I n it, Mr. J ones attests that he “ used the drugPCP duringthe ea rly morning hours” on the date of the shooting , that he “ha [s] no rec ollection of shooting” either vic tim, that “[n] either [his] trial or appe llate counse l asked [him] about [his] PCP use” on that date, and that he “w as neve r interview ed by [hi s] appellate counse l reg ardingthe potential ar eas of inef fec tive assistance of [trial] counsel that c ould have be en explored duringthe pende ncy of the dire ct appea l.” Resp. at 5. Eve n taking these a lleg ations into consideration, Mr. J ones has a lleg ed no fac ts sugg esting that trial counsel wa s on notice of the pote ntial viability of an intoxi cation defe nse. Other

than the utterly

conclusory

asser tion that evidence of some sort indicate d that Mr
. J ones wa s smoking PCP

, he has state d no fac ts supporting a n infere nce that trial counsel had g ood rea son, or any

rea son, to consider a

n intox ication def

ense. Mr . J ones does not cla im that he or anyone else ever

told trial counsel about his alleg ed PCP use, nor does he e x plain any concr ete
rea son that trial counsel other wise should have be en aw are of it. Even if ther e we re some indications available to trial counse l that Mr. J ones had used PCP before the shooting s — and ag ain, Mr. J ones has a lleg ed no fa cts to support such a conclusion — Mr. J ones has not alleg ed fa cts that could support a f inding that tria l counsel’s failure to pursue an intoxication defense constituted inef fec tive assistance , as opposed to “sound trial strateg y

.” S trickland v . W

ashing ton, 466 U.S. at 689. I n the District of Columbia, evidenc e of use of alcohol or dr

ug s by itself is not enoug h to support an intox ication def ense. The evidenc e re quired to obtain an intoxi cation def ense instruc tion “must revea l such a de g ree of complete dr

unkenness that a

person is inca

pable of formingthe nec essar

y intent essential to the
19commission of the crime c har g ed.” B ell v . United S tates, 950 A.2d 56, 65 (D .C. 2008). “The re must be evidenc e that the de fenda nt ‘has re ache d a point of inca pacitatingintox ication.’” I d. (quoting Smit h v . United S tates, 309 A.2d 58, 59 (D .C. 1973)). “Conclusory statements” a

bout the use of a

controlled substanc e ar e insuf ficient: “Rathe r, there must be evidenc e of the ty pe and quantity of [the substance] consumed, the leng th of time during which it was c onsumed, and the specific manner

in which the consumption made the defe ndant incapa ble of a cting with specific intent.” W

ashing ton v . United S tates, 689 A.2d 568, 574 (D .C. 1997). Presenting evidenc e about the ty pe and qua

ntity of PCP t hat Mr. J ones smoked, the leng th of time during which it was c onsumed, and the e f fec t it had upon him, li kely would have r equire d testimony

from Mr . J ones and/or K elly

Winstead, with whom Mr. J ones ar rived at the sce ne of the crime. See id.; Mem. Att. C at 3-6; Mem. Att. G at 2. The per ils of putting a criminal def

endant on the sta

nd are well known. As for Mr. Winstead, the Superior Court has explained that he would have been “ an unre liable witness who could have dama g ed def endant’ s
case ,” Mem. Att. C at 9, due to his multipl e and se lf-contr adictory acc ounts about his knowledg e of the shooting s, his where abouts at the time, and Mr . J ones’ guilt, id. at 7-9, not to m ention his admission to a detective a nd later to a

g rand jury

that even if

Mr. J ones committed a c rime in his prese nce Mr

. Winstead would not reve al it. I d. at 9. I n light of the se consider ations, it would hardly be unre asonable as a matter of strateg y for c ounsel to fore g o pursuing an intox ication def ense if it re quired potentially crippling Mr. J ones’ c ase by

putting him or Mr. Winstead on the stand to re count their re collections of the night of the shootings — e specia lly g iven that such a

defe nse, at most, could have reduc ed Mr
.

20J ones’ c onviction for first de g ree murder to se cond degree murder
. And re g ardle ss of what 8 evidenc e may

have suppor

ted an intoxi cation def

ense, the pursuit of such a de fense would have been inhe rently

risky , beca use adoptingsuch a strateg y would implicitl y

conce de that Mr

. J ones shot the two victims.

Courts “must indulge a

strong presumption that counsel’s c onduct fa lls withi n the wide ra ng e of r easona

ble profe ssional assistance; that is, the def endant must overc ome the presumption that, under the circ umstances, the c halleng ed ac tion might be conside red sound tria l strateg y .” S trickland v . W

ashing ton, 466 U.S. at 689 (internal quotation omitted). Even if all of Mr. J ones’ a lleg ations are true, they would not overc ome this presumption. Mr. J ones ca nnot possibly hope, ther efor e, to re but the presumption that appellate counsel’s de cision not to pursue an inef fec tiveness claim wa s the result of sound strateg y . His pleadingthere fore fails to state a claim on which r elief c an be g rante d. This result obtains whether or not the Court takes into
acc ount the heig htened showingthat Mr. J ones ultimately must make to preva il in his petition under the fede ral ha

beas statutes. 9
See Wheeler

v. United States, 832 A.2d 1271, 1273 (D.C. 2003) ( “[V]ol untary 8 intox ication ‘may

neg ative the a

bility of the de fenda

nt to form the spec ific intent to kill, or the deliberation and preme ditation necessa ry to constitute first deg ree murder, in whic h event ther e is a re duction to second de g ree murder,’ ” but “it ‘may not reduc e murde r to voluntary manslaug hter, nor pe rmit an ac quittal of murder.’ ”) ( quoting B ishop v. United States, 107 F.2d 297, 302 (1939)) ; acc ord Washington v. United States, 689 A .2d at 573.

I n support of his habea s petition, Mr. J ones also has submitted an a ffidavit fr om 9 Mr. Winst ead. See Docke t No. 10. The Court ca nnot consider this aff

idavit on habea s review , as it was not befor e the District of Columbi a Court of Appe als, see supr a at 9- 11, but the fac ts alleg ed ther ein would not help Mr. Jones in any event. Mr. Winstead attests that he smoked PCP with Mr. J ones into the morning hours on the day of the shooting s, that he later was intervie wed by Mr. J ones’ c ounsel, that counsel ne ver a sked him “about PCP use,” and that “ [a] ll [ he] was asked is what did [ he] know about the ca se Mr. Jones was locked up f or.” I d. at 1. Mr. Winstead continues: “I

say ag ain as I

did before Inever

saw Mr. Jones do any

thing that ha d any

thing to do 21c. Mer g er of Fire arm Char

g es Along with first and sec ond deg ree murder, Mr. J ones wa s convicted of two counts of possession of a

firea rm duringa cr ime of violence (“PF CV”). The second ground for relief in his habeas c orpus petition is that his appellate counse l should have broug ht claims that his trial counsel wa s inef

fec tive “for

failing to ar

g ue that only

one possession of a

firea rm during
a cr ime of violence char

g e may result from shooting multipl e victims during a sing le cr iminal episode[.] ” Pet. at 5A; see id. at 5B. I n support, Mr. J ones cites Nixon v . United S tates, 730 A.2d 145 (D.C. 1999), in whic h the District of Columbia Court of Appea ls held that the rule of lenity , “under the circ umstances pr esente d in [ that] case,” r equire d that multipl e PFCV c har g es be mer g ed whe re the defe ndant “f ir[ed] simult aneously

at seve ral victims” by

shooting into a c ar containing four pe ople. I d. at 153.

I n S tevenson v . United S tates, 760 A.2d 1034 (D .C. 2000), howeve r, the cour t of appea ls ex pounded on the mea ning of Nix on and empha siz ed its limi ted re ach. T he cour t first reiter ated the “ g ener al rule” that “whe re two pr edicate ar med of fense s do not merg e, a de fenda nt may be convic ted of sepa

rate counts of PFCV re lating to e ach of fense .” I d. at 1035. I t then descr ibed the “limited exception to this approach” fashioned in Nixon, but ex plained why that
with guns.” I d. These a

ttestations do not offer f

acts that sug g est trial counse l’s ineffe ctiveness; there fore they

provide no fa ctual basis for such a f inding with re spect to appe llate counse l. Mr. Wins tead state s that trial counsel a sked him what he kne w about the shooting , and — like Mr. J ones — he pointedly

does not claim that he told trial counse l any thing a bout Mr. J ones smoking PCP or beingintox icated. I nstead, he mere ly

states that counse l never

asked him about PCP. But ne ither his aff

idavit nor any

of Mr. Jones’ own alleg ations supply any rea son for trial c ounsel to have made such an inquiry . Nor c an Mr. Winstead’s a ffidavit help Mr. Jones overc ome the presumption that both trial and appe llate counse l’s choice s were the re sult of sound trial strateg y . 22“nar

row holding ,” involving “ a ‘sing le violent act’ with ‘simultaneous’ ac tion . . . does not encompa ss the mer

g er of PFCV cha

rg es ar ising out of . . . distinct ac ts, even whe n they involve the same f

irea rm.” I d. at 1036 (quoting Nix on v . United S tates, 730 A.2d at 153). The c ourt
acc ording ly

sustained two sepa

rate PFCV convictions pre dicated on bur g lary and robbe ry of fense s committed by

the def endant whe re some time pa ssed betwe en the two c rimes. I d. at 1037-38. This holding r epre sented a n application of the “fr esh impulse” or “ fork in the r oad” test, “whe re a

defe ndant has a

n opportunity

to rec onsider his ac tion before proce edingonwar d.” I d. at 1037. Such sce narios, the c ourt explained, are “quite distinct from the kind of simult aneous violent a ct involved in the Nixon hol ding.” I d. at 1038.

Her e, all the e vidence indicates that Mr . J ones’ shootingof Ge org e Jones and Kevin Jef fcoat were distinct rather tha n simult aneous a cts, and Mr . J ones alleg es no fa cts to the contra ry . I n other wor ds, the undisputed evidenc e shows that Mr . J ones did not fire at both men simult aneously

, as in Nix on, but rather

that he aimed a

nd fired at eac h man sepa rate ly and sequentially

. The e vidence prese nted at trial wa s that Mr . J ones shot Geor

g e Jones after he told Mr. J ones to “c hill,” and that Mr. J ones “the n” shot Mr. J ef fcoat. Mem. Att. F at 2; Mem. Att. G at 2. That these two shootings re prese nted entire ly distinct acts is confirmed by the fa ct that Mr
. J ones wa s convicted of

first deg ree murder f

or one of the shootings but only

second de g ree murder f or the other

. Mem. Att. F at 1. Mr. J ones, there fore , was not “f iring simult aneously

at
sever al victims,” Nix on v . United S tates, 730 A.2d at 153, and Nixon’s “narrow holding” does not apply to his case. I

n the wake of S tevenson, whic h was de cided we ll before Mr. J ones’ tria l, see Me m. Att. A at 7, it was rea sonable for Mr. J ones’ tria l counsel to conc lude that any mer g er
ar g ument would be fr

uitless and that ef

forts we re be tter devote d to other tac tics. Mr. J ones’
23alleg ations provide nothing to overc ome the “strongpresumption” that counse l’s action

constituted “sound trial strate g y .” S trickland v . W

ashing ton, 466 U.S. at 689. Be cause there is absolutely no basis upon which to believe that Mr. J ones’ tria l counsel wa s inef

fec tive by not pursuing a

mer g er a rg ument, the fa cts alleg ed by Mr. J ones do not support a findingthat his appellate c ounsel was de ficient for failing to pursue an ine f

fec tiveness claim ar ising fr om that omissi on. Fur thermore , in view of the discussion in S tevenson a nd the fac ts presente d at Mr. J ones’ tria l — which show that a me rg er a rgument would almost certa inly have f ailed — Mr

. J ones ca nnot possibly

demonstrate a

“re asonable probability

that, but for counsel’s [alleg ed] error s, the result of the pr ocee ding w ould have be en dif fer ent” on a

ppeal. S trickland v . W

ashing ton, 466 U.S. at 694. He ther efor e fa ils both prongs of S trickland’s te st for inef fec tive assistance . Once ag ain, this determination ca n be made even w ithout considering the defe renc e owe d to the District of Columbia Court of Appea ls on feder al habe as re view
.
I I I . CONCL USI ON For the fore g oing r easons, the Court will deny Mr. J ones’ motion to rec onsider and will g rant the r espondent’s motion to dismis s. An Orde r consistent with this Opinion will be issued this same day

. SO ORDERED. /s/____________________________ P AUL L . FRI EDMAN DA TE: September 28, 2012 United S tates District Judge

24