UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA
RONNIE P AYNE, ) ) P etitioner , ) ) v. ) Civ. Ac tion No. 10-0617 (RM C) ) P ATRICIA STANSBE RRY, ) ) Respondent. )

MEMORAN DUM OP INION The United States Court of A ppeals for the District of Columbia Circuit has
rema nded this habea s action in part f or this Court to address: [1] whether a COA should be g rante d in li gh t o f appellant’ s claim that appellate counsel had an actual conflict of i ntere st beca use h e served as both trial and appellate counsel and that appellant’ s claim conce rning his appellate repr esentation should there fore be evaluated under Cuyler v. Sullivan , 446 U.S. 335 (1980), and [2] his claim that he was denied his rig ht to appellate counsel when appellate counsel failed to argue on appea l that as trial counsel he had rende red de ficient pe rfor

mance in failing to object to the indictment. Orde r, No. 11-5300 ( Mar. 2, 2012) [Dkt. # 36] . A ce rtificate of appe alability (“COA” ) may

issue only if the petitioner “ has made a substantial showingof the de nial of a c onstitut ional rig ht.” 28 U.S.C. § 2253(c)(2) . This is accomplished by “showingthat rea sonable jurists could debate whether (or, f or that matter, a g ree that) the pe tition s hould have be en re solved in a diffe rent
manner or that the issues pre sented we re ‘ adequate to deser ve enc ourag ement to proc eed further .’” Slack v . McD aniel , 529 U.S. 473, 483-84 (2000) ( quoting Barefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983)) . Where the pe tition has been denie d in the district court on the mer its, the petitioner “must demonstrate that rea sonable jurists would find the district court' s assessment ofthe constitutional claims debatable or wrong ." Id. at 484. In g rantinga COA, the Court must

specify which issues ra ise a substantial showingof the de nial of a c onstitut ional rig ht. United States v. Mitche ll , 216 F.3d 1126, 1130 ( D.C. Cir. 2000); United States v. W eave r , 195 F.3d 52, 53 (D.C. Cir. 1999).

1. Mr. Pay

ne’s Conflict of I

ntere st Claim In Cuyler v. Sullivan, the United States Supreme Court a ddresse d when a criminal defe nse attorne y ’s re prese ntation of co-de fenda nts at trial violates the Six th Amendment rig ht to the ef fec tive assistance of counse l. The Court held “that the possibili ty of conf lict is insufficient to impugn a c riminal conviction. In order to demonstrate a

violation of his Si x th Amendment rig hts, a defe ndant [who raised no objec tion to counsel’s multipl e re prese ntation at trial] mus t establish that an ac tual conflict of inter est adve rsely aff ecte d his lawy er’ s perf

ormanc e.” 446 U.S. at 350. I f an a ctual conf lict is shown, “a def

endant avoids the more string ent two-pa rt test for inef fec tive assistance set forth in Strickland v. W ashington , 466 U.S. 668 (1984) . . . .” United States. v. Gantt , 140 F.3d 249, 254 ( D.C. Cir. 1998).

The District of Columbia Circuit has dete rmined that “[a] defense attorney has an ‘ac tual conflict’ when he is ‘r equire d to make a c hoice a dvancing[another client' s] i ntere sts to the detriment of his c lient's inter est.’ ” Id . (quoting United States v. Bruc e , 89 F.3d 886, 893 (D.C. Cir. 1996)) ( other c itation omit ted) (a lteration in orig inal). This Court does not discern how re asonable jurists could debate the inapplicability of Cuyler

to Mr. Pay

ne’s c laim predicated on his counsel’s re prese ntation solely of him and the a

pplicability

of Strickland

to his ineffec tive assistance claim. See M

icke ns v. Taylor , 535 U.S. 162, 174-75 (2002) ( reje cting courts’ “unblinking[]” application of Cuyler to “all kinds of alleg ed attorne y ethical c onflicts,” and
2confirmingthat “[u] ntil . . . a defe ndant shows that his counsel actively represe nted conflicting interests, he ha s not established the constitutional predicate for his c laim of ineff ective assistance ” under Cuyler .) (e mphasis in origina l) (citations and inter nal quotation marks omitted). 2. The Alleg ed F aulty Indictment Mr. Pay ne asse rts that this Court failed to addre ss his claim that appellate c ounsel “re ndere d defic ient perf

ormanc e” in f

ailing to r aise on a

ppeal his ineff

ectivene ss at trial by

“not object[ing] to the indictment on the gr ound that it failed to cha rg e Petitioner as a

n ‘aide r and abettor’ in order to g ive Petitioner notice that he could have been c onvicted under an alter native theory .” Pet. for Ce rtificate of Appe alability [ Dkt. # 25] at 4. Althoug h the jury was instructe d on aiding and abe tting, which a ppellate c ounsel had a

rgued as a

point of err or on direc t appea l, it convicted Mr . Pay

ne as a principal. See ge nerally Paynev. United States , 697 A.2d 1229 (D.C. 1997). The D istrict of Columbia Court of Appeals noted that Mr. Pay ne’s a rgument on the aiding instruction was “w ithout merit” beca use “[t] here was suff

icient evidenc e to convict Pay ne either a s a principa l or as an a ider a nd abettor, a

nd the jury

could prope rly

return a g ener al ver dict ag ainst Pay

ne without specify

ing whether

he wa s a principa l or an a ider a nd abettor.” Payne , 697 A.2d at 1235 n.12 (c iting Gree r v. United States , 600 A.2d 1086, 1088 n.4 (D.C. 1991))
.

Even if a ppellate c ounsel had spec ifically argued his ineff

ectivene ss as Mr. Pay

ne sug g ests, no rea sonable jurists applying the Strickland standard c ould debate his inability to establish a Six th Amendment violation since it is highly improbable that the D .C. Court of Appea ls would have de cided the dir ect a ppeal a ny differ ently
. See Strick

land , 466 U.S. at 692 (“A n err or by

counsel, e ven if prof

essionally unrea sonable, doe s not warr ant setting aside the
3judgme nt of a c riminal proce edingif the er ror ha d no eff

ect on the judg ment.”); id at 694 (In establishing pr ejudice, “ [t ]he defenda nt must show that there is a re asonable probability that, but for c ounsel' s unprofe ssional error s, the result of the pr ocee ding w ould have be en diffe rent. A
rea sonable proba

bility is a probability

sufficie nt to undermine conf idence in the outcome.”)
. For the fore g oing r easons, the Court f inds no gr ounds for issuing a COA ba sed on the re manded c laims. The Clerk is direc ted to transmit this Memorandum Opinion imm ediately to the appellate court.

Date: April 2, 2012 _________/s/_____________ ROSEMARY M. COL L YER United States District J udg e

4