Gorbey v. United States

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MICHAEL S. GORBEY,

Petitioner,
v. Civil Action No. 13-2019 (JEB)
UNITED STATES OF AMERICA, et al.,

Respondents.

MEMORANDUM OPINION

On the afternoon of January 18, 2008, Michael Gorbey approached a woman near the

U.S. Capitol and asked for directions to the Supreme Court. See Gorbey v. United States, 54

A.3d 668, 675 (D.C. 2012). He carried a shotgun in his hand, a sword on his back, a bulletproof

vest across his chest, and several shotgun shells and hunting knives in his backpack. See id.

Gorbey explained that he was on his way to a meeting with Chief Justice John Roberts. See id.

The woman reported Gorbey to the police, who arrested him. See id. They searched his

truck, parked illegally nearby, where they found hundreds of rounds of ammunition, a rifle

scope, and a homemade bomb. See id. at 676. Gorbey was subsequently charged and convicted

on multiple weapons-related counts in D.C. Superior Court. See id. He is currently serving a

twenty-year prison sentence.

Gorbey has since filed several appeals and numerous post-conviction motions

challenging those proceedings. The filing that brings him to this Court is a pro se Petition for a

Writ of Habeas Corpus, which alleges that his conviction and sentence were unlawful because he

received ineffective legal representation on his appeal to the D.C. Court of Appeals and on

remand therefrom. Gorbey lists a series of actions that, he says, his appointed lawyers failed to

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take, rendering them constitutionally inadequate. Because Gorbey’s lawyers did in fact take

many of the actions he mentions in his Petition, and because their decisions not to take the others

did not make them ineffective, the Court will deny his Petition.

I. Background

On May 16, 2008, after a trial in District of Columbia Superior Court in which Gorbey

acted as his own attorney, a jury convicted him of fourteen separate offenses in connection with

the events described above: Unlawful possession of a firearm by a convicted felon; two counts of

carrying a dangerous weapon outside the home or business; possession of an unregistered

firearm; eight counts of unlawful possession of ammunition; manufacture, transfer, use,

possession, or transportation of explosives for an unlawful purpose; and attempted manufacture

or possession of a weapon of mass destruction. See Gorbey, 54 A.3d at 676. He was sentenced

to 264 months in prison and five years of supervised release. See Resp., Exh. A (Sup. Ct.

Docket) at 12-14.

Gorbey thereafter became quite an active litigant. In addition to several appeals, he has

filed numerous post-conviction motions in Superior Court and in multiple federal district courts

around the country, mostly in a pro se capacity. For purposes of this case, however, the Court

will focus only on the procedural history that is relevant to the arguments at hand.

Shortly after he was sentenced, Gorbey filed a notice of direct appeal. See id. at 12. He

also filed two pro se motions under D.C. Code § 23-110 seeking a new trial and the vacatur of

his conviction and sentence, which his new attorney supplemented. See id. The trial court

denied those motions, leading Gorbey to appeal that decision as well. See id. at 11. The

D.C.C.A. subsequently consolidated Gorbey’s direct appeal with the appeal from the denial of

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his § 23-110 motions. See Gorbey, 54 A.3d at 677. Throughout the appeals process, Gorbey

was represented by appointed counsel, Preston Burton. See Sup. Ct. Docket at 11.

In a lengthy and detailed opinion, the D.C.C.A. rejected Gorbey’s challenges to his

convictions, but found that the trial court had erred at sentencing by failing to inquire into his

decision to waive an insanity defense under Frendak v. United States, 408 A.2d 364 (D.C. 1979).

The Court remanded the matter for that inquiry and for resentencing based on the merger of

certain convictions. See Gorbey, 54 A.3d at 697-98, 705. Gorbey then filed a motion to recall

the D.C.C.A.’s mandate, arguing, inter alia, that Burton had provided ineffective representation

by failing to raise certain issues on appeal. See Resp., Exh. D (Motion to Recall the Mandate) at

6-8. In a written order, the Court of Appeals denied that motion, explaining:

Most of the issues appellant claims appellate counsel omitted are
issues that were raised in appellant’s direct and collateral appeals.
This Division has already rejected the majority of those issues in
its opinion and the full court has denied appellant’s petition for
rehearing en banc. The remainder of appellant’s arguments are
cursory claims that do not provide the court with any basis to find
error.

Id., Exh. E (July 30, 2013, Order).

On remand, Attorney Jenifer Wicks was appointed to represent Gorbey, but she withdrew

as his lawyer after just four months. See Sup. Ct. Docket at 8-9. For the remainder of the

remand proceedings, Gorbey was represented by attorney Nathan Silver. See id. at 7. The trial

court then conducted the required Frendak inquiry and found that Gorbey had validly waived the

insanity defense. See id. It therefore resentenced him to 254 months in prison. See id. at 2-5.

Meanwhile, Gorbey filed several more pro se § 23-110 motions to vacate his convictions

and sentence, arguing, inter alia, that Burton and Wicks had been constitutionally ineffective

counsels on appeal and on remand. See id. at 6-7. The trial court denied those motions. See id.

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at 6. Gorbey noted an appeal from that decision, see id., but it does not appear that the Court of

Appeals has yet ruled on the challenge.

On December 19, 2013, Gorbey filed a Petition for a Writ of Habeas Corpus, pursuant to

28 U.S.C. § 2254, in this Court. He challenges his conviction and sentence on two grounds: first,

that his appellate counsel Burton rendered ineffective assistance on his direct appeal and on

appeal of his denied § 23-110 motions, and second, that his remand counsel Wicks rendered

ineffective assistance by failing to file a motion to recall the mandate. The Government has

conceded that Gorbey’s Petition satisfies the applicable statute of limitations and that, although it

is not his first such filing, it does not violate the restrictions on successive petitions for habeas

relief. See Response at 30 n.29 & 33-35. The Court may thus turn to the merits of the case.

II. Analysis

A. The Basics

Section 2254 gives the district courts jurisdiction to issue writs of habeas corpus on

behalf of a person detained pursuant to a state-court judgment “on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2254. D.C. local courts are treated as “state” courts for purposes of federal habeas-corpus

jurisdiction. See Milhouse v. Levi, 548 F.2d 357, 360 n.6 (D.C. Cir. 1976).

For prisoners in the District of Columbia, however, habeas relief is especially hard to

come by. Section 23-110 of the D.C. Code provides:

An application for a writ of habeas corpus [o]n behalf of a prisoner
. . . shall not be entertained by the Superior Court or by any
Federal or State court if it appears that the applicant has failed to
make a motion for relief under this section or that the Superior
Court has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality of his
detention.

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D.C. Code § 23-110(g) (emphasis added). This provision “vest[s] the Superior Court with

exclusive jurisdiction over most collateral challenges by prisoners sentenced in that Court.”

Williams v. Martinez, 586 F.3d 995, 1000 (D.C. Cir. 2009); see also Swain v. Pressley, 430 U.S.

372, 377-78 (1977) (finding parallel between changes introduced to federal habeas process by 28

U.S.C. § 2255 and new postconviction procedure envisaged by Congress when it implemented §

23-110). As a result, “the District Court lacks jurisdiction to entertain a habeas corpus petition

attacking the constitutional validity of a Superior Court sentence even after the local remedy, if

adequate and effective, has been pursued unsuccessfully.” Garris v. Lindsay, 794 F.2d 722, 726

(D.C. Cir. 1986) (citing Swain, 430 U.S. at 377-78). “[A]lthough prisoners sentenced by state

courts may resort to federal habeas corpus after exhaustion of their state remedies, a District of

Columbia prisoner has no recourse to a federal judicial forum unless the local remedy is

‘inadequate or ineffective to test the legality of his detention.’” Id. (citing D.C. Code § 23-

110(g)).

Assuming a D.C. prisoner clears this unique bar, the ordinary habeas standard applies:

The petitioner must first either exhaust his state-court remedies or show that such remedies are

unavailable or ineffective. See 28 U.S.C. § 2254(b)(1)(A) & (B). Collateral review of state

proceedings, furthermore, “afford[s] considerable deference to state courts’ legal and factual

determinations.” Palmer v. Hendricks, 592 F.3d 386, 391-92 (3d Cir. 2010). The Court,

therefore, may grant Gorbey relief here only if the D.C. court’s adjudication of his claim

“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.” Schriro v.

Landrigan, 550 U.S. 465, 473 (2007) (quoting 28 U.S.C. § 2254(d)(1) & (2)).

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 B. Effectiveness of Gorbey’s Counsel on Appeal

Gorbey’s first claim – that his appellate counsel Burton was ineffective – falls into a

narrow exception to § 23-110(g)’s bar on habeas petitions. “[B]ecause the D.C. Court of

Appeals prohibits prisoners from bringing challenges to the effectiveness of appellate counsel

under section 23-110 – they may be raised only through a motion to recall the mandate – [the]

remedy [for such claims] under section 23-110 is ‘inadequate or ineffective.’” Williams, 586

F.3d at 998 (emphasis added). Section 23-110(g), in other words, does not bar habeas petitions

brought in federal court based on claims of ineffective assistance of appellate counsel. See id.

In addition, Gorbey previously raised this ineffective-assistance claim in his Motion to Recall the

Mandate, see Motion to Recall the Mandate at 6-8, which the D.C.C.A. rejected, see July 30,

2013, Order, so he has exhausted his state remedies. The government, accordingly, concedes

that this Court has jurisdiction to hear Gorbey’s claim. See Response at 32.

As to the merits of Petitioner’s argument, he alleges that Burton’s performance was

constitutionally deficient based on his failure to take eleven specific actions:

1. Have psychologist Dr. Arium Mack, whom Burton used as an expert witness,
personally interview Gorbey regarding certain “real life events” – an alleged
decade-long government conspiracy to harass and persecute him – which caused
him “phobias” that prevented him from effectively representing himself at trial;

2. Argue the unconstitutionality – on grounds, it seems, of vagueness – of the
weapon-of-mass-destruction charge, the carrying-a-dangerous-weapon charge, the
possession-of-unregistered-ammunition charge, and the Molotov-cocktail charge;

3. Investigate and argue that Gorbey was denied a fair trial by an impartial jury;

4. Argue that the government failed to prove the first and third elements of
constructive possession with respect to the explosives found in his truck;

5. Argue that he was denied his Sixth Amendment right to compulsory process for
calling several material witnesses or that the prosecution violated Brady v.
Maryland, 373 U.S. 83 (1963), by having a key witness favorable to his case
recant;

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 6. Argue that his Presentence Report was “majorly wrong”; for example, it listed
misdemeanors as felonies and included several charges that were not his;

7. Argue that the Superior Court erred by failing to impose concurrent sentences in
accordance with D.C. Voluntary Sentencing Guideline § 6.2;

8. Argue that the police were derelict in their duties by failing to conduct an
inventory search of his truck immediately upon impounding the vehicle, resulting
in prejudice to his case;

9. Argue that his prosecution violated the District of Columbia Court Reform and
Criminal Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 579, since “the
Superior Court has no jurisdiction over D.C. parks, park police, U.S. Capitol
Police, or the U.S. Capitol Service Area”;

10. Argue that the “D.C. Reit Act of 1997,” which “allow[s] D.C. Code offenders to
be sent to federal prison,” violates the Constitution’s Commerce Clause and
Interstate Extradition Clause;

11. Argue that his sentencing counsel, Donald Dworsky, was constitutionally
ineffective in failing to address the faulty Presentence Report or the Superior
Court’s denial of concurrent sentences.

Petition at 5-36.

Even without the highly deferential standard applied on federal habeas review, the Court

would have no trouble upholding the D.C.C.A.’s rejection of Gorbey’s ineffectiveness claim. To

prevail, Gorbey had to show, first, “that his counsel was objectively unreasonable . . . that is, that

counsel unreasonably failed to discover non[-]frivolous issues and to file a merits brief raising

them,” and second, that he suffered prejudice as a result, “[t]hat is, . . . a reasonable probability

that, but for his counsel’s unreasonable failure . . . he would have prevailed on his appeal.”

Smith v. Robbins, 528 U.S. 259, 285 (2000). In its Order, the Court of Appeals noted that most

of the arguments Gorbey faulted his attorney for ignoring had in fact been made in his

consolidated direct and collateral appeals, and that they had not been deemed viable. See July

30, 2013, Order. Indeed, a review of the D.C.C.A.’s earlier Opinion rejecting Gorbey’s appeal

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shows that it specifically addressed and rejected at least eight of the eleven arguments Gorbey

claims Burton should have pursued. See Gorbey, 54 A.3d at 700 (number 4); id. at 703 (number

3); id. at 706 (numbers 9, 5, and 10); id. at 707 (numbers 6, 7, and 8). To the extent Gorbey

bases his ineffective-assistance claim on Burton’s failure to make these arguments, then, he fails

the first part of the inquiry. To the extent that Gorbey argues that Burton was ineffective for

failing to take certain actions in relation to his prior § 23-110 motions – for example, arguing on

appeal that his sentencing counsel was inadequate – such claims are expressly barred by § 2254,

which does not permit habeas relief for ineffective counsel during collateral post-conviction

proceedings. See 28 U.S.C. § 2254(i); see also Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012);

Graham v. Bledsoe, 841 F. Supp. 2d 134, 137 (D.D.C. 2012).

As for the remainder of the actions Gorbey wishes his appellate counsel had taken,

Burton was not ineffective for declining to do so. For good reason, the Constitution does not

require appellate counsel to pursue every possible non-frivolous argument. “Experienced

advocates since time beyond memory have emphasized the importance of winnowing out weaker

arguments on appeal and focusing on one central issue if possible, or at most on a few key

issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). The Supreme Court has therefore held

“that appellate counsel who files a merits brief need not (and should not) raise every non[-]

frivolous claim, but rather may select from among them in order to maximize the likelihood of

success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000). Or, as Frederick the Great put

it, a bit more succinctly, “He who defends everything defends nothing.” Clearly, Burton

advanced several compelling arguments on Gorbey’s behalf – as mentioned earlier, the D.C.

Court of Appeals issued an in-depth opinion considering, and even accepting, a few of them –

and Gorbey has not shown that Burton missed any remotely promising points. The D.C. Court

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of Appeals, in sum, did not err by rejecting Gorbey’s ineffective-assistance-of-appellate-counsel

claim.

C. Effectiveness of Gorbey’s Counsel on Remand

Gorbey’s second claim – that his remand counsel Wicks was also ineffective – is a bit

more complicated procedurally, though not substantively. According to Gorbey, Wicks’s

representation was constitutionally deficient because she refused to file a motion to recall the

mandate, leaving Gorbey to file a pro se pleading on his own, which was denied. If he had had

Wicks’s help drafting the document, Petitioner suggests, he might have prevailed on that motion.

As an initial matter, while § 23-110(g) does not bar federal habeas petitions for

ineffective assistance of counsel on appeal, it is not clear whether the same exception would

apply to claims of ineffective assistance of counsel on remand. The answer turns on whether a

defendant in D.C. court would seek relief for such a claim via a § 23-110 motion or, instead,

through some other procedural vehicle. Cf. Williams, 586 F.3d at 998. The issue is complicated

even further in this case, where Gorbey’s claim relates to action that his remand counsel

supposedly failed to take in the Court of Appeals. This Court is not aware of any D.C. or federal

precedent on the matter, although the Government suggests that Gorbey should have raised this

claim in his amended Motion to Recall the Mandate – as opposed to in a § 23-110 motion –

which would mean that this Court does have jurisdiction to adjudicate the issue. See Response at

43 n.36.

In any event, even if Gorbey’s claim regarding his remand counsel does qualify for

federal habeas relief, it has not been exhausted. As mentioned earlier, in order to file a habeas

petition in federal court, the petitioner must first either exhaust his state-court remedies or show

that such remedies are unavailable or ineffective. See 28 U.S.C. § 2254(b)(1)(A) & (B). “In

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other words, the state prisoner must give the state courts an opportunity to act on his claims

before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel,

526 U.S. 838, 842 (1999). Here, Gorbey did not include a claim for ineffective assistance of

remand counsel in his Motion to Recall the Mandate, and though he subsequently made such a

claim via a § 23-110 motion, the D.C. Court of Appeals has not yet ruled on the matter.

Gorbey’s claim of ineffective assistance of remand counsel is therefore not exhausted and not

eligible for habeas review.

Even if the claim were exhausted, moreover, it would very likely fail. As this Court has

already explained, the D.C. Court of Appeals was correct to reject Gorbey’s claim for ineffective

assistance of appellate counsel, contained in his Motion to Recall the Mandate, on the merits of

his position. On that point, then, Wicks’s assistance in drafting the pleading could not have

saved it, and Gorbey was therefore not prejudiced by her refusal to do so. To the extent that

Gorbey’s Motion to Recall the Mandate advanced additional, unrelated arguments, they seem

more appropriately brought via a motion for reconsideration or for rehearing en banc, or,

alternatively, a § 23-110 collateral attack on his conviction and sentence. Wicks would therefore

not have been ineffective for failing to draft a Motion containing those points.

III. Conclusion

For the reasons articulated herein, the Court will issue a contemporaneous Order

dismissing this case.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 17, 2014

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