UNITED STAT ES DIS TRICT COURT F OR THE D ISTRIC T OF CO LU M BIA

_______________________________________) CH ESTER

WRIG HT, ) ) P etitioner , ) ) v. ) Ci vi l A cti on No. 09 -24 33 (CKK) ) P AT RI CI A ST AN SBERRY , W ar de n, ) ) Respondent. ) _______________________________________)

MEMORANDUM OPI

NI ON Petitioner Chester Wrig ht is a prisoner unde r cr iminal sentence by the Superior Court for the District of Columbia. Confined at the F eder al Corre ctional Complex in Petersburg , Virg inia, Wri g ht h a s f

ile d a ha be a s p e tit ion

a sse rt ingthat hi s r e me dy un de r D .C. Cod e § 2 3- 11 0 is ineffe ctive and ina dequate . The pe tition wil l be dismissed for lac k of jurisdiction. Wright and se vera l co-de fenda nts were indicted on cha

rg es of pr emeditated mur der,

c on sp ir a c y

to c omm it mur de r a

nd re late d c ri me s. Pe t. at 1; W right v. United States, 979 A.2d 26, 28 (D.C. 2009). Af

ter some c o-def

endants we re trie d and convic ted in a sepa rate trial, Wright and one c o-def

endant we re trie d and convic ted in 1997. Id. at 1, 4; W right, 979 A.2d at 28. Thro ugh a

pp e llate c ouns e l, Wr ig ht a pp e a le d h is c onvic tio n a

nd se nte nc e , a

nd a lso c oll ate ra lly attacke d them by

motion under D.C. Code § 23-110 in J une 2002, in which he alleg ed inef fec tive assistance of counse l and prosec utorial misconduct. Id. at 1- 2; W right, 979 A.2d at 29. The trial court de nied re lief on the § 23-110 motion. Id. at 2, W right, 979 A.2d at 29. On dire ct cr iminal appea l, the Court of Appea ls for the District of Columbia af firmed the c onviction but remande dIn h i s p e t i t i o nh e r e , W r i g h ta l l e g e s th atth e p r o s e c ut o r u s e d a “ f r a u d u l e n tp h o t o ar

r ay” 1 that included a 1993 photo of Pleasant, and that [t]his fr a ud ule nt p ho to [u se d in

Ple a sa nt’ s tr ia l] pr e

jud ic e d [Wr ight] b e c a

us e at hi s tr ia l, t he fr a ud ule nt p ho to w a s a lle g e d to be [Wright], e ve n th ou g h th e 19 93 ph oto was ne ver introduc ed into evidenc e. Kimber ly Hay s identified [W rig ht] only from that photo arra

y ; she was una

ble to identify

him in court. Det[ective] Carl Gre g ory testified that he showe d Kimberly Hayes the 1993 photo of Te rry Ple a sant i n 1 99 1. De t[e c tiv e ] Carl Gr e g or y a lso tol d a

Sup e ri or c ourt jud g e (i n h is aff idavit in support of arr est war rant) that Kimberly

Hayes selec ted Ter

ry Pleasant’s photo of 1993 a s the man who shot Ronald Richardson. B ased on suc h information the Superior Court issued a n arr est war

rant, e ven thoug h it was impossibl e for

Ms. Hayes to have seen a 1993 photo in 1991. The fore g oing information was ne ver disclose d to [ Wright] nor [s ic] his attorney

. Pet. at 5. The pe tition does not adequately explain what prejudice is involved in the alleg ed mis c on du c t. - 2 - the ca se for

re- sentenc ing, id. ; Hammond v . United States , 880 A.2d 1066 (D.C. 2005)) , and Wright wa s re- sentenc ed on F ebrua ry 28, 2006. Id. On Marc h 19, 2007, Wright filed a second motion under § 23- 110, id. , in which he alleg ed “that the prosec utor had withheld mate rial, exculpatory evidenc e under Brady v. Maryland — specific ally a tra nscript from the tr ial of Ter ry Pleasant (a

co-de fenda

nt) and information re lating to Micha el Tinch,” W right, 979 A.2d at 29. Although Wright raises a lleg ed 1

err ors that date f

rom his 1997 trial, he cha rac terizes his second § 23-110 motion as an attack on “the ‘ fre sh’ judg ment” imposed F ebrua ry 28, 2006. Pet. at 3. He a lso argues that the grounds for his mot ion

we re unkn own to him

until mid -2 00 6. Wri g ht c onte nd s th at [t ]he Superior Court denied re lief bec ause it wa s of the opinion that [W rig ht’s second § 23- 110] m otion was either se cond or suc cessive or in any event proce durally

barr ed. In rea chingsuch a c onclusion, the Superior Court conte nded that [W rig ht] had pre viously soug ht relief pur suant to D.C. Code § 23-110. On appea l the D.C. Court of Appea l affir med the dec ision of the Superior Court. The finding s by

the two cour

ts are c lear ly

wrongand have made D.C. Code § 23- 110 inadequate or inef

fec tive.Wri g ht’ s r e lia nc e on the c a se he c ite s is mis guid e d. Th at c a se , a nd the de c isi on

in 2 Burton v. Stewart, 549 U.S. 147 (2007), cited a nd discussed there in, pertain spec ifically to the one-year limit ation period in 28 U.S.C. § 2244(d)(1) as it relate s to state prisoners se eking fede ral re view under

28 U.S.C. § 2254. The provisions of 28 U.S.C. § 2244(d)(1) a nd§ 2254 do not apply to persons convic ted and se ntence d in the Superior Court for the District of Columbia. - 3 - Id. at 3. Relying on Ferriera v. Se c’y for the Dep’t of Corrections, 494 F.3d 1286 ( 11th Cir. 20 07 ), Wri g ht a

rgue s th at he is entitled to file a fir st § 23-110 motion aga inst the new judg ment and commitment order reque sting re lief. This was the only statutory reme dy available to [ Wright]. Since the loca l courts ef

fec tively made § 23- 110 inadequate or inef fec tive, [Wr igh t] is e n ti tl e d

to r e qu e s t r e li e f

un d e r 2 8 U

. S. C. § 2 2 5 4 [s ic ]. Pet. at 3. L eavingaside the f

atal fla ws in Wright’s leg al ar gument, Wright’s pe tition i s based on 2 false f actua l predicates. That is, the petition misreprese nts the fac ts in mul tiple respec ts. Contrary to Wright’s asse rtion, see Pet. at 3, in fac t, the Superior Court did not rejec t his second § 23-110 motion as succe ssive, but denied it on the merits. The [trial] court denied the sec ond motion withouta hea ring , rulingthat appellant did no t pr ov ide any

fa c tua l su

pp or t f or his c la ims , a

nd that he ha d f

a ile d to e xpla in how the information which alleg edly should have be en disclosed wa s exculpatory or wo uld un de rm ine c on fi de nc e in t he jur y ' s v e rd ic t. W right, 979 A.2d at 29. More over, a nd ag ain contra

ry to Wright’s asse rtion, see Pet. at 3, the Court of Appea ls also rende red a decision on the mer its. I n its review of the trial cour

t’s denial of Wright’ s second § 23- 110 motion, the Court of Appeals found

no err or in the [trial] court’s de nial of [W right’s] second § 23-110 motion, which alleg ed that the pr osecutor “ intentionally suppressed e x culpatory

and impeachme nt evidence ,” in violation of Brady v. M aryland. In the first plac e, the mot ion wa s p ro c e dura lly

ba rr e d a s a n a bu se of the wr it b e c a

us e a pp e lla nt f a ile d to me e t th e we ll- e sta

bli sh e d “ c a

us e and pr e jud ic e ” sta

nd ard . A lth ou gh h e a sse rt s that he did

no t r e c e ive or

re vie w the tr ans c ri pts fr om T e rr y Ple a sa nt’ s tr ia l until 2006, and thus could not have raised the se cla ims earlier , the re cord e stablishes that appellant’ s trial counsel re ceive d the transc ripts duringthe trial. More over, appellant r aised c laims relatingto the testimony of Michelle Watson and Micha el Ti nc h in his dir e c t a

pp e a l. T hu s a

pp e lla nt k ne w o r s ho uld

have kn own o f h is- 4 -

Brady claims at the time his direc t appea l was filed, a nd cer tainly by the time of his first § 23-110 motion, and he has not shown c ause f or his failure to raise them ear lier. See W

ashington v. United States, 834 A.2d 899, 904 (D.C. 2003) ( the fa ct that defe ndant did not rec eive mate rials from c ounsel did not constitute “cause ” when de fenda

nt was pre sent duringtrial and would be awa re of err ors as they occur red)

. Appellant also c annot show pre judice. None of the testimony from Pleasant’s trial e x culpated a ppellant, who, at the ve ry least, would still be implicated as pa

rt of the c onspiracy

. See H ammond [] , 880 A.2d at 1106 (evide nce that appellant aide d and abe tted subjects him to liabili ty). Thus the alleg ed Brady violations did notwork to appe llant’s actua l disadvantag e or infe ct his trial with error

of constitutional dimensions. See W ashington, 834 A.2d at 902. Even if the motion wer e not proc edura lly barr ed, the [trial] court did not err in denying it on the mer its because no Brady vio latio n o c c ur re d. To e sta

bli sh a Brady vio latio n, the de fe nd ant m us t sh ow (1 ) t hat th e re wa s e vid e nc e fa vo ra ble to him, (2) that it was suppresse d or conc eale d by the prosec ution, and (3) that prejudice resulted. Strickler v. Greene , 527 U.S. 263, 281-282 . . . (1999). To satisfy the pre judice re quirement, the w ithheld evidence must be material. Id. at 280 . . . . In this case, the g overnme nt did not suppress the materia ls or information on which appe llant bases his claims. The tra nscripts from the Plea sant trial wer e supplied to defense counsel duringappellant’ s trial. Michelle Watson testified at the trial, so her

testimony

could not have be en suppre ssed bec ause a ppellant and his counsel wer e pre sent, and c ounsel was a ble to cross-e x amine her

about any inconsistencies in her

testimony , or indee d about any subject at a ll that might have been r eleva

nt. Sim ilarly , the g overnme nt could not have suppre ssed Michae l Tinch’s stateme nt beca

use it never

possessed that docume nt. “I f the g overnme nt does not possess the re quested infor mation, there c an be no Brady violation.” Guest v. U

nited States, 867 A.2d 208, 212 (D.C. 2005) ( citations omitt ed). F ur the rm or e , th e c ourt

did no t e rr in r e je c tin g , f or la c k o f f a c tua l su pp or t, appellant’ s assertion that the g overnme nt attempted to elicit false te stimony beca use appe llant proffe red only an unsig ned, undate d “af fidavit” purpor

ting to be from Tinch. The court did not abuse its discre tion when it found this document insufficient to prove that the prosec utor attempted to solicit perjury , nor wa s it an abuse of discretion to dec line to hold a hear ing on this issue. See R eady [v

. United States] , 620 A.2d [233,] 234 [(D.C. 1993)] (no hea ringrequire d for “palpa bly incre dible” cla ims). W right, 979 A.2d at 31-32. It could not be more c lear that Wright’s sec ond § 23-110 motion was enter tained and de cided on the me rits in both the trial and appe llate cour ts of the District of Columbi a, despite the fac t that the courts could have tre ated his motion as proce durally barr ed.- 5 -

In addition, it could not be more cle ar that the courts of the District of Columbia found Wright’s claims to be without merit. Denial of relief by the cour ts of the District of Columbia does not rende r inade quate or ineffe ctive the r emedy

provided by

D.C. Code § 23-110. Garris v. Lindsay, 794 F.2d 722, 727 (D .C. Cir . 1 98 6) ; Charles v. Chandler, 180 F.3d 753, 756- 58 (6th Cir. 1999) (c iting ca ses); W ilson v. Office of the Chairperson, 892 F. Supp. 277, 280 (D.D .C. 1995). As Wright has f ailed to show that his § 23-110 remedy was inade quate or

ineffe ctive, his petition will be dismi ssed for want of jurisdiction. A sepa rate order acc ompanies this memorandum opinion.

/ s / C O LLE EN K O LLA R

- K O T E LLY Da t e: J an u ary

7 , 2 0 1 0 Un i t edS t at es Di s tri ctJ u d ge