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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-CO-803

GEORGE FADERO, APPELLANT,

V. 

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CF3-3523-11)

(Hon. Ronna Lee Beck, Trial Judge)

(Submitted January 30, 2018 Decided March 22, 2018)

George Fadero, pro se.

Channing D. Phillips, United States Attorney at the time the brief was filed, 

and Elizabeth Trosman, Chrisellen R. Kolb, and O. Andrea Coronado, Assistant 

United States Attorneys, were on the brief for appellee.

Before GLICKMAN, FISHER, and THOMPSON, Associate Judges.

FISHER, Associate Judge: Appellant George Fadero challenges the trial 

court‘s denial of his D.C. Code § 23-110 (2012 Repl.) motion for post-conviction 

relief. We affirm. 

03/22/2018
2

I.

This case reaches us for the third time. We summarized the facts in Fadero 

v. United States, 59 A.3d 1239, 1242–44 (D.C. 2013) (Fadero I), and do so only 

briefly here. On February 12, 2011, a Metropolitan Police Department Officer 

stopped appellant for a traffic violation. As the officer was walking away from 

appellant, he turned around to see appellant‘s van slowly moving toward him in 

reverse. The van hit the officer, knocking him to the ground, and causing him 

injuries. It then sped away from the scene. 

The government charged appellant with several offenses based on this 

conduct, including felony assault on a police officer while armed (―APOWA‖). 

A jury convicted appellant of four of the charged offenses, including APOWA. 

We affirmed all convictions, except one, which we held merged with the APOWA 

count. While that appeal was pending, appellant collaterally attacked the 

conviction through a § 23-110 motion, claiming ineffective assistance of trial 

counsel. Fadero v. United States, No. 13-CO-479, Mem. Op. & J. at 1 (D.C. 

Apr. 23, 2014) (Fadero II). The trial court denied the motion without a hearing, 

and we affirmed that decision, too. Id. at 4, 6. Appellant filed this second § 23-
3

110 motion pro se. The trial court denied it without a hearing and this appeal 

followed. 

II.

This appeal focuses on appellant‘s APOWA conviction, an offense that 

derives from two statutory provisions. See Fadero I, 59 A.3d at 1242 n.1 (defining 

the elements of APOWA). The first is felony assault on a police officer, D.C. 

Code § 22-405 (c), which makes it illegal to (1) assault a person when the 

defendant (2) ―knew or should have known that the victim was a [law 

enforcement] officer‖ and (3) ―caused a  ̳significant bodily injury to the law 

enforcement officer,‘ or committed  ̳a violent act that create[d] a grave risk of 

causing significant bodily injury to the officer.‘‖ Id. (quoting § 22-405 (c)) 

(alterations in original). The second predicate is D.C. Code § 22-4502, which 

provides that defendants may face additional punishment if they commit ―a crime 

of violence . . . when armed with or having readily available . . . [a] dangerous or 

deadly weapon.‖ 
4

III.

Appellant principally argues that the phrase ―grave risk of causing 

significant bodily injury,‖ incorporated in § 22-405 (c), is unconstitutionally vague 

in light of Johnson v. United States, 135 S. Ct. 2551 (2015). In that case, the 

Supreme Court considered a provision of the Armed Career Criminal Act (ACCA) 

that defined a ―violent felony,‖ in relevant part, as ―any crime punishable by 

imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or 

extortion, involves use of explosives, or otherwise involves conduct that presents a 

serious potential risk of physical injury to another.‖ 135 S. Ct. at 2555–56 

(quoting 18 U.S.C. § 924 (e)(2)(B) (2012)) (first alteration in original). The Court 

referred to the italicized language as the ―residual clause‖ and held it void for 

vagueness. Id. at 2556, 2557. Appellant analogizes the ―grave risk‖ language in 

§ 22-405 (c) to the ―serious potential risk of physical injury‖ language in the 

ACCA and contends that if the latter phrase offends due process, the former must 

as well. 

We disagree. The holding in Johnson turned on the manner in which that 

sentencing enhancement provision operated. Whether the residual clause applied 

depended on whether the given offense created a sufficiently high risk of injury to 
5

others. See 18 U.S.C. § 924 (e)(2)(B)(ii). Yet, the Supreme Court had held that 

the relevant ACCA provision, 18 U.S.C. § 924 (e)(2)(B)(ii), required a ―categorical 

approach.‖ Taylor v. United States, 495 U.S. 575, 600 (1990). In other words, 

judges were barred from assessing an offense‘s potential for harm based on the 

way a defendant committed it. Johnson, 135 S. Ct. at 2557. Instead, § 924 

(e)(2)(B)(ii) required judges to ―imagine how the idealized ordinary case of the 

crime subsequently play[ed] out‖ and evaluate ―whether that abstraction 

present[ed] a serious potential risk of physical injury.‖ Id. at 2557–58. Defining 

the ―ordinary‖ way a crime unfolded was a highly subjective exercise—as the 

Court noted, ―the ordinary instance of witness tampering [could] involve offering a 

witness a bribe . . . [o]r threatening a witness with violence‖— and as a result, 

courts measured risk from a ―speculative‖ starting point. Id. In holding the 

residual clause unconstitutionally vague, the Court emphasized this peculiar 

context. Id.

Section 22-405 (c) does not pose the same concerns. Whether a defendant 

―commit[ted] a violent act that create[d] a grave risk of causing significant bodily 

injury to the officer‖ is a question of fact. See, e.g., Mobley v. United States, 101 

A.3d 406, 421 (D.C. 2014) (holding trial judge committed plain error by ―not 

instruct[ing] the jury that to return a guilty verdict on the APOWA offenses, it 
6

must find‖ that the defendant caused a significant bodily injury or created a grave 

risk thereof (emphasis added)). It turns on the fact-finder‘s assessment of the 

defendant‘s actual conduct and does not require judges to measure the risk posed 

by reference to abstractions. See id. Demonstrating this point, on appellant‘s 

direct appeal, we approved the judge‘s jury instruction on APOWA‘s ―significant 

bodily injury‖ element, Fadero I, 59 A.3d at 1248, a holding we could only have 

reached if we assumed that element posed a jury question—that is, one resolved by 

―apply[ing] the law to th[e] facts.‖ United States v. Gaudin, 515 U.S. 506, 514 

(1995). Similarly, when we held the evidence sufficient to establish that appellant 

created a ―grave risk‖ of harm to the officer, we based our holding on the risks 

posed by appellant‘s behavior rather than the potential for harm inherent in the 

―ordinary‖ APOWA incident. Fadero I, 59 A.3d at 1252. As appellant‘s own case 

illustrates, § 22-405 (c) does not share the constitutional defects the Supreme Court 

perceived in the residual clause. 

Moreover, § 22-405 (c) is precisely the type of statute the Johnson Court 

assumed its decision would not affect. The Court stated that ―[a]s a general matter, 

we do not doubt the constitutionality of laws that call for the application of a 

qualitative standard such as  ̳substantial risk‘ to real world conduct.‖ Johnson, 135 

S. Ct. at 2561. Section 22-405 (c)‘s grave risk language fits comfortably in this 
7

category—indeed, the Court specifically highlighted the phrase ―grave risk‖ as one 

it did not view as inherently vague. Id. Because § 22-405 (c)‘s grave risk standard 

differs from the residual clause in ways the Court deemed ―[c]ritical[],‖ appellant‘s 

Johnson challenge fails. Id. at 2557. 

IV. 

We address appellant‘s remaining arguments summarily. First, appellant 

challenges the sufficiency of the evidence supporting his convictions for APOWA, 

Fleeing from Scene of Accident after Causing Personal Injury (D.C. Code § 50-

2201.05 (a)(1) (2001)),1and Fleeing from a Law Enforcement Officer in a Motor 

Vehicle (D.C. Code § 50-2201.05b (b)(2) (2001)). On direct appeal, appellant 

already challenged the sufficiency of the evidence supporting the first two 

convictions and lost. Fadero I, 59 A.3d at 1251–52. ―It is well-settled that where 

an appellate court has disposed of an issue on appeal, it will not be considered 

afresh on collateral attack in a trial court of the same judicial system, absent special 

circumstances.‖ Doepel v. United States, 510 A.2d 1044, 1045–46 (D.C. 1986). 

Appellant has identified no such special circumstances; accordingly, the trial court 

 

1 After appellant lost on direct appeal, the Council of the District of 

Columbia repealed, amended, and recodified this provision as § 50-2201.05 (c) 

(2014 Repl.). 
8

properly held that the sufficiency challenges to the first two convictions were 

procedurally barred. 

With respect to the third conviction, appellant did not raise a sufficiency 

challenge on direct appeal even though the argument was available to him. See 

Fadero I, 59 A.3d at 1251–52. Consequently, he may only assert the claim in this 

§ 23-110 proceeding if he can establish cause for and prejudice from his failure to 

make the argument previously. (Charles) Thomas v. United States, 772 A.2d 818, 

824 (D.C. 2001). Appellant has not attempted such a showing, and, as a result, the 

trial court did not err in rejecting the third sufficiency challenge on procedural 

grounds.2 

Next, appellant argues that § 22-405 (c) does not qualify as a ―crime of 

violence‖ under § 22-4502 because crimes of violence require intentional conduct 

and, he asserts, § 22-405 (c) does not. Appellant relies primarily on federal cases 

for the supposed rule that whether an offense qualifies as a crime of violence 

depends on its intent element; however, the United States and the District of 

 

2

 Moreover, appellant did not explain why the evidence at trial was 

insufficient, making his argument too ―perfunctory‖ for our review. See Comford 

v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (quoting United States v. 

Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). 
9

Columbia define ―crime of violence‖ in ―very different‖ ways. Colter v. United 

States, 37 A.3d 282, 283 (D.C. 2012). While the United States Code defines such 

crimes by their ―characteristics,‖ see 18 U.S.C. § 16, the D.C. Code identifies them 

―by reference to a list of the offenses so designated.‖ Id. (describing the 

relationship between § 22-4502 and § 23-1331 (4), the provision that enumerates 

―crimes of violence‖). ―[A]ssault on a police officer (felony)‖—D.C. Code § 22-

405 (c)—appears on that list. D.C. Code § 22-1331 (4). Therefore, it qualifies as a 

crime of violence regardless of whether it would satisfy the federal definition.3 

Finally, appellant argues that the government violated article I, § 1 of the 

United States Constitution (―All legislative Powers herein granted shall be vested 

in a Congress of the United States. . . .‖) by charging him with APOWA, an 

offense appellant contends the legislature never established. Appellant did not 

raise this challenge to the indictment before trial. That makes the contention 

 

3

 The trial court held this claim procedurally barred, and the government 

urges that we do the same. We do not address the procedural arguments because 

we choose to reject the claim on the merits. In doing so, we exercise our authority 

to affirm the trial court‘s judgment on ―alternative ground[s].‖ James v. United 

States, 718 A.2d 1083, 1089 (D.C. 1998) (affirming trial court‘s denial of § 23-110 

motion on different rationale than trial court invoked). Resolving appellant‘s claim 

in this way is not procedurally unfair to him. The government made the dispositive 

argument in its brief. Appellant could have responded to it but choose not to file a 

reply brief. Cf. District of Columbia v. Patterson, 667 A.2d 1338, 1347 (D.C. 

1995) (disposing of claim based on argument raised in defendant‘s brief to which 

plaintiff failed to respond in its reply brief). 
10

untimely, see Super. Ct. Crim. R. 12 (b)(3)(B)(v), and appellant has not attempted 

to excuse his delay by showing ―good cause,‖ see id. at 12 (c)(3). Accordingly, the 

trial court did not err in holding the argument procedurally barred. Cf. Ko v. 

United States, 722 A.2d 830, 836 n.17 (D.C. 1998) (―By failing to assert the claim 

of duplicity [in the indictment] at trial, Ko waived it.‖). 

Even if appellant had followed proper procedures, his claim would still fail. 

In essence, appellant contends that the legislature did not intend prosecutors to 

combine D.C. Code §§ 22-405 (c) and -4502 (a)(1) into a single, chargeable 

offense. To the contrary, by enacting § 22-4502, the legislature authorized 

increased punishment for a broad category of offenses committed in an aggravated 

manner. It did so by ―add[ing] an additional element, i.e., while armed with or 

having readily available a dangerous weapon, to certain underlying offenses.‖ 

(Michael) Thomas v. United States, 602 A.2d 647, 653 n.18 (D.C. 1992). Thus, it 

was the legislature, not the executive branch, that established aggravated offenses 

such as APOWA, murder while armed, and armed robbery. Consistent with that 

plain reading, this court treats such offenses no differently from any others. See, 

e.g., Robinson v. United States, 100 A.3d 95, 105 (D.C. 2014) (applying traditional 

aiding and abetting liability principles to ―while armed‖ offenses); Pope v. 

United States, 739 A.2d 819, 821 (D.C. 1999) (discussing ―the offense of assault 
11

with intent to kill while armed (AWIKWA), [a] violation of D.C. Code §§ 22-503, 

-3202 [the predecessor of -4502]‖ (emphasis added)). Accordingly, we reject 

appellant‘s premise: APOWA is an offense created by the legislature and, 

therefore, the prosecutor could not contravene legislative will—let alone usurp 

legislative powers—by charging him with it.4

V. 

Appellant‘s arguments have no merit. Thus, we affirm the trial court‘s 

denial of his § 23-110 motion.

So ordered. 

 

4

 Appellant‘s argument suffers an additional defect: in relying on U.S. 

Const. art I, § 1, it assumes that Congress retains exclusive power to legislate for 

the District of Columbia. This is not so. Under the Home Rule Act, Congress 

delegated significant legislative authority to the Council of the District of 

Columbia, including the power ―to enact new criminal statutes.‖ In re Perrow, 172 

A.3d 894, 898 (D.C. 2017); see also D.C. Code § 1-203.02 (2012 Repl.).