United States Court of Appeals, District of Columbia Circuit
Carlton J. Blount, Appellant
United States of America and District of Columbia, Appellees
November 17, 2016
from the United States District Court for the District of
Columbia (No. 1:13-cv-01938)
M. Lehn, appointed by the court, argued the cause as amicus
curiae in support of appellant. With him on the briefs were
Seth P. Waxman and Arpit K. Garg.
Carlton J. Blount, pro se, filed the briefs for appellant.
Katherine M. Kelly, Assistant U.S. Attorney, argued the cause
for appellee. On the brief were Elizabeth Trosman, Chrisellen
R. Kolb, T. Anthony Quinn, and Ann K. H. Simon, Assistant
U.S. Attorneys. Suzanne Grealy Curt, Assistant U.S. Attorney,
entered an appearance.
Before: Henderson and Griffith, Circuit Judges, and Williams,
Senior Circuit Judge.
Griffith, Circuit Judge
Blount is a prisoner convicted of two murders who filed a
habeas petition under 28 U.S.C. § 2254. The district
court dismissed the petition as time-barred, a decision that
Blount now seeks to appeal. But the federal habeas statute
restricts such appeals. Blount's "appeal may not be
taken to the court of appeals" unless he obtains a
certificate of appealability (COA). 28 U.S.C. §
2253(c)(1). To do so, Blount must make a sufficient initial
showing to a judge or circuit justice. Id. §
2253(c)(1)-(2). Blount requests a COA from us, but because he
has not made the necessary showing, we must deny his request.
night of February 8, 2000, Carlton Blount and two friends
attended a basketball game at Blount's former high
school. There, Blount and one of his friends got into a fight
with a student at the school, Andre Wallace. After onlookers
broke up the fight, Blount and his friends left the school
and went looking for Wallace. They eventually drove to the
home of Wallace's girlfriend, Natasha Marsh, and the
couple arrived shortly afterwards. An argument erupted,
gunshots ensued, and Wallace and Marsh were killed.
was charged in D.C. Superior Court with several counts,
including the murders of Wallace and Marsh. At trial, the
government's primary theory was that Blount alone shot
the victims. Blount's defense was that one of his friends
pulled the trigger. The judge instructed the jury that even
if a friend was the shooter, Blount could be convicted under
the doctrine of accomplice liability. The judge's
instructions included the following statements:
It is not necessary that [Blount] have had the same intent
that [the] principal offender had when the crime was
committed, or that he had intended to commit the particular
crime committed by the principal offender.
An aider and abetter is legally responsible for the acts of
other persons that are the natural and probable consequences
of the crime in which he intentionally participates.
121-22. The defense objected that making Blount responsible
for the "natural and probable consequences of the
crime" allowed him to be convicted even if he lacked the
necessary mens rea. Under the judge's
instruction, an accomplice could be convicted of first-degree
murder without proof that he acted with premeditation and
deliberation. That, the defense argued, eliminated the
mens rea element of the offense, violating the Sixth
Amendment's guarantee of a jury verdict on every element.
The judge overruled the objection, and in February 2001, the
jury convicted Blount of first-degree murder of Marsh,
second-degree murder of Wallace, and several related counts.
Blount was sentenced to prison for sixty-four years to life.
appeal, Blount was represented by new counsel, who failed to
renew the constitutional challenge to the jury instruction.
The D.C. Court of Appeals affirmed Blount's convictions
and sentence. It denied his motion for rehearing on October
13, 2004, and formally ended the appeal by issuing a mandate
on October 21, 2004. Blount did not petition the U.S. Supreme
Court for review.
two years later, in an unrelated case, the D.C. Court of
Appeals held unconstitutional the same jury instruction used
in Blount's case, on the very grounds that Blount had
raised at trial. See Wilson-Bey v. United States,
903 A.2d 818, 826, 829-44 (D.C. 2006) (en banc). But because
Blount's conviction had already been affirmed on direct
review, the decision had no immediate effect on him.
Blount had begun a series of unsuccessful pro se
collateral challenges to his conviction. On November 16,
2005-over a year after the D.C. Court of Appeals denied his
motion for rehearing, the last decision in his direct appeal-
Blount signed and mailed from prison to the court a motion
for collateral review under D.C. Code §
23-110. The motion included a
challenge to the accomplice-liability instruction, but the
trial court held the claim procedurally defaulted because
Blount had failed to raise it on direct appeal. The court
denied Blount's motion and the D.C. Court of Appeals
affirmed, issuing its mandate on December 2, 2009.
next collateral challenge was a federal habeas petition,
which he signed on March 17, 2011. Among other arguments, Blount claimed for
the first time that he received ineffective assistance of
appellate counsel (IAAC) during his direct appeal because his
appellate lawyer had failed to challenge the
constitutionality of the now-discredited jury instruction.
The district court dismissed the petition, holding that
Blount had not yet exhausted his local remedies on the IAAC
claim, and that the court lacked jurisdiction over his other
claims. Blount v. Wilson, No. 11-0743, 2011 WL
1526945 (D.D.C. Apr. 19, 2011). Both the district court and
this court denied Blount's request for a COA. Blount
v. Wilson, No. 11-7060 (D.C. Cir. Sept. 27, 2011).
then returned to the D.C. Court of Appeals to raise his IAAC
claim through the proper local mechanism: a motion to recall
the mandate that the court had issued in his direct appeal.
See Watson v. United States, 536 A.2d 1056, 1060
(D.C. 1987) (en banc) (establishing the motion to recall the
mandate as the D.C. procedure for raising an IAAC claim).
Although Blount's motion, filed by mail on October 28,
2011, was untimely, the D.C. Court of Appeals excused that
flaw and ordered the government to respond on the merits. The
court ultimately denied Blount's motion in late 2012,
holding that "based upon the entire record, any error
was harmless, " and therefore Blount had "not met
the high standard necessary to recall the mandate."
Blount v. United States, No. 01-CF-974, at 1 (D.C.
Oct. 11, 2012).
the same time as Blount made that motion to recall the
mandate, he filed a second motion for collateral review under
D.C. Code § 23-110, raising claims not directly at issue
here. The trial court denied the motion and the D.C. Court of
Appeals affirmed in May 2013.
brings us to Blount's present federal habeas petition,
filed under 28 U.S.C. § 2254 on September 18, 2013. The
rules for habeas petitions challenging state-court judgments
govern Blount's habeas petition, because the federal
habeas statute "recognizes that 'a court of the
District [of Columbia] is a state court.'" Head
v. Wilson, 792 F.3d 102, 106 n.3 (D.C. Cir. 2015)
(quoting Madley v. U.S. Parole Comm'n, 278 F.3d
1306, 1308 (D.C. Cir. 2002)). The district court granted the
government's motion to dismiss, holding in relevant part
that Blount's habeas petition was filed outside the
one-year limitations period imposed by 28 U.S.C. §
2244(d)(1), enacted as part of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, § 101, 110 Stat. 1214, 1217. Blount filed a
motion for reconsideration under Federal Rule of Civil
Procedure 59(e), which the district court denied, holding
again that his petition was time-barred.
timely filed a notice of appeal but failed to obtain a COA
from the district court. He now requests one from us. We have
jurisdiction over that request under 28 U.S.C. §
2253(c), and we appointed amicus curiae to argue in
support of Blount.
procedural history of this case is knotted, and the creative
theories raised in Blount's favor only compound that
complexity. But the case is complicated, not close. When the
knots are untangled and the arguments unpacked, there is no
reasonable dispute: Blount's habeas petition was
untimely. The answer is thus clear even under the
"limited" inquiry we conduct when considering a
request for a COA. Buck v. Davis, 137 S.Ct. 759, 774
obtain a COA, the applicant must make "a substantial
showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). A "substantial showing"
is a demonstration "that reasonable jurists could debate
whether . . . the petition should have been resolved in a
different manner or that the issues presented were
'adequate to deserve encouragement to proceed
further.'" Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)). Where, as here, "the district
court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim,
" the successful COA applicant must show us that
"jurists of reason would find . . . debatable" not
only "whether the petition states a valid claim of the
denial of a constitutional right, " but also
"whether the district court was correct in its
procedural ruling." Id. at 478.
a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable
jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner
should be allowed to proceed further." Id. at
484. Because Blount's petition was plainly time-barred
and no jurist of reason could take issue with that procedural
ruling by the district court, we deny his request for a COA
without having to reach his constitutional
habeas petition is subject to a one-year limitations period.
See 28 U.S.C. § 2244(d)(1). All agree that
Blount's one-year clock runs from the date when his
judgment of conviction "became final by the conclusion
of direct review or the expiration of time for seeking such
review." Id. § 2244(d)(1)(A). Statutory
tolling pauses the clock 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). In some
circumstances, equitable tolling can also apply. See
Holland v. Florida, 560 U.S. 631, 634 (2010).
limitations period began to run on January 11, 2005, when
time expired for seeking Supreme Court review in the direct
appeal of his conviction. See J.A. 203 (showing that
the D.C. Court of Appeals denied rehearing on October 13,
2004); Sup. Ct. R. 13 (providing that the time for
petitioning for a writ of certiorari expires ninety days
after the denial of rehearing). Three hundred nine days of
the one-year limitations period then elapsed before Blount
filed a local post-conviction motion under D.C. Code §
23-110 on November 16, 2005, starting statutory tolling. That
tolling ended on December 2, 2009, when the D.C. Court of
Appeals issued its mandate in the section 23-110 proceedings,
cf. Holland, 560 U.S. at 638 (ending statutory
tolling when ...