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Blount v. United States

United States Court of Appeals, District of Columbia Circuit

June 27, 2017

Carlton J. Blount, Appellant
v.
United States of America and District of Columbia, Appellees

          Argued November 17, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-01938)

          David 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.

          OPINION

          Griffith, Circuit Judge

         Carlton 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.

         I

         On the 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.

         Blount 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.

         J.A. 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.

         On 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.

         About 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.

         Meanwhile, 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.[1] 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.

         Blount's next collateral challenge was a federal habeas petition, which he signed on March 17, 2011.[2] 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).

         Blount 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).

         Around 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.

         Which 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.

         Blount 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.

         II

         The 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 (2017).

         To 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.

         "Where 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 claim.[3]

         A

         Blount's 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).

         Blount's 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 ...


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