United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 2, 2018 Decided July 24, 2018
No. 13-5275
LEWIS WATERS,
APPELLANT
v.
CHARLES L. LOCKETT, WARDEN,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00049)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman, Assistant U.S. Attorney.
Suzanne Grealy Curt, Assistant U.S. Attorney, entered an
appearance.
Before: TATEL, GRIFFITH, and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Lewis Waters was convicted of
roughly two dozen criminal charges in the District of Columbia
arising out of events that occurred in 2005. Waters challenged
his convictions in the D.C. Court of Appeals (DCCA), which
affirmed his sentence. Failing to find relief in the DCCA,
Waters later filed a pro se petition for a writ of habeas corpus
in the district court under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254. Waters
argued that his appellate counsel before the DCCA provided
ineffective assistance by failing to appeal one of Waters’s
convictions for insufficient evidence. The district court
dismissed Waters’s petition. We affirm.
I
A
At Waters’s trial, the government presented the following
evidence: In 2005, Waters worked as an assistant to his cousin
Aaron Hargrove, who was enjoying a successful career buying
and selling residential real estate. While working for him,
Waters learned that many of Hargrove’s transactions were in
cash and that he kept a large amount of cash on hand.
Eventually, their relationship soured and on May 15, 2005,
Hargrove fired Waters.
Ten days later, as Hargrove returned home, he noticed
Waters and two other men standing outside. Hargrove
recognized one man as Devonne Randolph, whom he had met
several times before, and noticed Randolph’s car parked across
the street. Hargrove did not recognize the other man (“John
Doe” or “Doe”). Waters approached Hargrove and asked
whether he and his friends could use Hargrove’s bathrooms.
Hargrove assented and the three men entered his house.
3
Randolph went upstairs to use the bathroom on the second
floor. Doe went to another bathroom in the basement. Because
Doe was a stranger, Hargrove followed him. While Doe and
Hargrove were downstairs, Waters came down and knocked on
the bathroom door. Doe exited with a gun drawn and pointed it
at Hargrove’s face. Waters announced that the men were
robbing Hargrove and commanded him to get on the ground.
Hargrove complied and Waters told Doe to watch Hargrove
carefully. Waters also directed Doe to kill Hargrove if he
caused any trouble.
As Hargrove was lying on the ground, Waters asked him
where he kept his cash. Hargrove said the money was in his car
and that Waters could take whatever he wanted. Waters went
upstairs while Doe kept watch over Hargrove in the basement.
Approximately ten minutes later, Waters returned and
repeatedly suggested that the men should “just kill” Hargrove.
Believing that he was going to die but preferring to die “on [his]
feet like a man,” Hargrove charged Doe to get the gun. Doe
passed the gun to Waters who shot at Hargrove until he emptied
the chamber, striking Hargrove once in his hand, once in his
arm, twice in his face, and once in the back of his head.
Injured but enraged, Hargrove chased Waters into a utility
room next to the basement, grabbed him, and threw him to the
ground. The two men wrestled until Hargrove began to beat
Waters’s head against a gas line in the hopes of blowing up the
house and killing his three assailants along with himself. As
Waters and Hargrove fought, Waters yelled for Randolph and
Doe to stab him. They did, approximately twenty-seven times.
Doe also repeatedly struck Hargrove with a blunt object.
Miraculously, Hargrove did not die, but played possum until
his attackers left. Then he struggled to the house next door, and
his neighbor called the police.
4
When the police arrived, Hargrove was lying on the
ground in front of his neighbor’s house covered in blood. As
paramedics worked to save him, Hargrove explained that
Waters had shot him. Local television stations began to
broadcast news of the Hargrove attack later that day.
When police searched Hargrove’s car, they found the
center console open. And after searching Hargrove’s house, the
police also found an empty money wrapper on Hargrove’s
night stand indicating that it once held $2,000. Police later
seized Randolph’s car and recovered a letter written by
Randolph describing his recent need to “make a couple of
money moves” including one that had recently “pop[p]ed up
on [the] news.”
B
Waters and Randolph were both indicted in March 2006
on twenty-six criminal charges, mostly dealing with various
forms of assault, kidnapping, burglary, armed robbery, theft,
and the unlawful possession of firearms. Following a ten-day
jury trial, Waters and Randolph were convicted of most counts
and Waters was sentenced to prison terms totaling eighty-one
years. Waters now challenges only two of those assault-related
convictions—assault with intent to kill using a knife (the
“intentional knife charge”) and aggravated assault with a knife
(the “aggravated knife charge”). For his conviction on the
intentional knife charge, Waters was sentenced to seventeen
years in prison. And for his conviction on the aggravated knife
charge, Waters received a twelve-year sentence.
Waters and Randolph appealed several of their convictions
to the DCCA, which vacated some because they had “merged”
with others, but otherwise affirmed the defendants’ convictions
and their sentences, including those resulting from the
5
intentional knife and aggravated knife charges. Waters and
Randolph petitioned the DCCA for rehearing and rehearing en
banc and Waters petitioned the U.S. Supreme Court for a writ
of certiorari, all of which were denied.
Following the DCCA’s denial of the rehearing petitions,
Waters moved pro se to recall the DCCA’s mandate. In his
motion, Waters argued, among other things, that his appellate
counsel had been ineffective for failing “to appeal Waters’
conviction of Ass[a]ult with intent to kill while armed with a
knife on the grounds of insufficient evidence.” The DCCA
denied this motion without explanation.
Waters then filed a pro se petition for a writ of habeas
corpus in district court pursuant to 28 U.S.C. § 2254. Among
other issues, Waters again challenged his conviction on the
ground he received ineffective counsel because his “appellate
counsel refused to appeal [his] conviction for ass[a]ult with
intent to kill on the grounds of insufficient evidence.”
The district court denied Waters’s petition and his ensuing
motion for reconsideration. The district court reasoned that
even if Waters’s appellate counsel mistakenly failed to
challenge the sufficiency of the evidence supporting conviction
on the intentional knife charge, Waters had provided no basis
for finding that the outcome of his appeal would have been any
different. See Waters v. Lockett, 956 F. Supp. 2d 109, 114-15
(D.D.C. 2013).
Waters timely filed his notice of appeal in our court.
We held Waters’s appeal in abeyance until the district
court decided whether to grant Waters a certificate of
appealability (COA). The district court ultimately denied the
COA, and the government moved to dismiss Waters’s appeal
6
because of that. We appointed Waters counsel and granted him
a COA “with regard to the issue whether [Waters] was deprived
of his right to effective assistance of appellate counsel by his
appellate counsel’s failure to challenge his conviction of
assault with intent to kill with a knife by arguing that he
withdrew from the conflict and was acting in self-defense.”
Order, Waters v. Lockett, No. 13-5275 (D.C. Cir. Sept. 16,
2014).
In his opening brief, Waters also asserts that his habeas
petition’s challenge to the intentional knife charge “applies
equally” to the aggravated knife charge. Waters Br. 2 n.1. And
in a pro se supplemental brief Waters claims that the district
court violated his Fifth Amendment right to a grand jury
indictment when it denied his habeas petition. Specifically,
Waters argues that the district court added a “new crime” to
Waters’s conviction when it stated that Waters and his co-
conspirators “robbed” Hargrove of cash, even though Waters
was never indicted for robbing Hargrove. Suppl. Br. 1; see also
Waters, 956 F. Supp. 2d at 111.
II
The district court had jurisdiction over Waters’s habeas
petition pursuant to 28 U.S.C. § 2254(a). Because we issued a
COA on Waters’s ineffective-assistance-of-appellate-counsel
claim, we have jurisdiction over Waters’s appeal on that claim
pursuant to 28 U.S.C. §§ 1291, 2253(a), (c)(1)(A).
When reviewing a district court’s denial of a writ of habeas
corpus, we review questions of law de novo and factual
findings for clear error. Payne v. Stansberry, 760 F.3d 10, 13
(D.C. Cir. 2014).
7
III
AEDPA provides our standard for reviewing Waters’s
underlying habeas petition. AEDPA sets forth a highly
deferential standard of review if a petitioner directs his
collateral challenge at a state-court judgment. See 28 U.S.C.
§ 2254(d). Waters filed his petition in the district court to
challenge the DCCA’s rejection of his ineffective-assistance
claim when the DCCA denied his motion to recall the mandate.
We therefore treat Waters’s petition as a collateral challenge to
a state-court judgment because AEDPA “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)).
As such, for any matter “adjudicated on the merits in
[D.C.] court,”* Waters must show that the DCCA’s decision
*
AEDPA’s deferential standard applies only when a claim is
“adjudicated on the merits in State court proceedings.” 28 U.S.C.
§ 2254(d). When a state court does not reach the merits of a claim,
we review de novo. See Cone v. Bell, 556 U.S. 449, 472 (2009).
Although the DCCA’s summary order denying Waters’s motion to
recall the mandate is silent as to whether the court actually
adjudicated the merits of Waters’s ineffective-assistance claim, we
presume it did “in the absence of any indication or state-law
procedural principles to the contrary.” Harrington v. Richter, 562
U.S. 86, 99 (2011). We see no indication why this presumption
would not apply here. Waters raised his claim in his motion to recall
the mandate, filed directly with the DCCA. The DCCA has
previously held that a motion to recall the mandate is “the
appropriate vehicle for mounting a challenge to the effectiveness of
appellate counsel.” Williams v. Martinez, 586 F.3d 995, 999 (D.C.
Cir. 2009) (citing Streater v. Jackson, 691 F.2d 1026, 1028 (D.C.
Cir. 1982), and Watson v. United States, 536 A.2d 1056, 1060-61
8
“was contrary to, or involved an unreasonable application of,
clearly established Federal law as determined by the Supreme
Court of the United States,” or “was based on an unreasonable
determination of the facts in light of the evidence presented in
the . . . proceeding.” 28 U.S.C. § 2254(d)(1), (2). And because
the DCCA rejected Waters’s ineffective-assistance claim
“unaccompanied by an explanation,” Waters’s burden under
AEDPA “must be met by showing there was no reasonable
basis for the [D.C.] court to deny relief.” Harrington v. Richter,
562 U.S. 86, 98 (2011).
A state-court decision has a reasonable basis so long as
“fairminded jurists could disagree” over its correctness.
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). And “even
a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Richter, 562 U.S. at 102. If this
standard seems difficult to meet, “that is because it was meant
to be.” Id.
With respect to ineffective-assistance claims, our
touchstone is the Court’s two-prong test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). To establish ineffective
assistance under Strickland, a defendant must demonstrate that
(1) his counsel’s performance “fell below an objective standard
of reasonableness” and (2) that counsel’s ineffectiveness was
(D.C. 1987)). As the DCCA has explained, it will recall the mandate
and reopen an appeal for ineffective-assistance-of-appellate-counsel
claims if “they have on their face sufficient merit” and “set forth in
detail a persuasive case.” Watson, 536 A.2d at 1060. Therefore, no
“state-law procedural principles” prevented the DCCA from
addressing the merits of Waters’s ineffective-assistance claim when
he moved to recall the mandate. Richter, 562 U.S. at 99. Because we
presume the DCCA decided Waters’s ineffective-assistance claim on
the merits, AEDPA’s deferential standard applies.
9
prejudicial, i.e., that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Payne, 760 F.3d at 13 (quoting
Strickland, 466 U.S. at 687-88, 694). Moreover, there is a
“strong presumption” that counsel’s performance fell within
the “wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689.
To be clear, however, our review of an ineffective-
assistance claim under AEDPA is not the same as it would be
on direct appeal. In that latter case, we would simply decide
whether the counsel’s performance was ineffective under
Strickland itself. Meanwhile, under AEDPA a petitioner must
prove that the state court’s application of the Strickland
standard was unreasonable, not simply that he should prevail
under Strickland. See Richter, 562 U.S. at 101; see also
Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n
unreasonable application of federal law is different from an
incorrect application of federal law.”). Therefore, a “state court
must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland
standard itself.” Richter, 562 U.S. at 101; see also Cullen v.
Pinholster, 563 U.S. 170, 190 (2011) (describing review of
state-court ineffective-assistance determinations under § 2254
as “doubly deferential”). Even though “[s]urmounting
Strickland’s high bar is never an easy task,” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010), “[e]stablishing that a state
court’s application of Strickland was unreasonable under
§ 2254(d) is all the more difficult,” Richter, 562 U.S. at 105.
To summarize, Waters’s AEDPA claim requires him to
show that no fairminded jurist could defend the DCCA’s
rejection of his ineffective-assistance claim under Strickland.
And as part of his claim, Waters must overcome Strickland’s
10
“strong presumption” that counsel acts within the bounds of
reasonable assistance. This is a tall order.
If this “doubly deferential” standard were not challenging
enough, Waters’s Strickland claim rests on a legal argument
that is also stacked heavily against him. Waters contends that
his appellate counsel before the DCCA failed to raise a
challenge to the sufficiency of the evidence presented in
support of his conviction for the intentional knife charge. To
have succeeded on that challenge, Waters would have had to
prove that, after reviewing the evidence in the light most
favorable to the government, no rational trier of fact could have
found beyond a reasonable doubt the essential elements
supporting Waters’s conviction. See Jackson v. Virginia, 443
U.S. 307, 319 (1979). Because this standard “seeks to preserve
the jury’s role as fact-finder,” a defendant “faces a high
threshold and bears a heavy burden when seeking to overturn a
guilty verdict on this ground.” United States v. Borda, 848 F.3d
1044, 1053-54 (D.C. Cir.) (internal quotation marks omitted),
cert. denied, 137 S. Ct. 2315 (2017).
All told, for Waters to succeed on his habeas petition he
must overcome three overlapping burdens against him: one
under AEDPA, one under Strickland, and one under the
standard for all sufficiency challenges. Keeping in mind this
trio of thumbs on the scale against Waters, we now turn to the
merits of his ineffective-assistance claim.
IV
A
Under the first prong of Strickland, we ask here whether
Waters’s appellate counsel performed deficiently. Given our
standard of review under AEDPA, we must deny Waters’s
11
petition if fairminded jurists could disagree about whether
Waters failed to overcome the “strong presumption” that his
appellate counsel’s conduct met the “objective standard of
reasonableness.” Strickland, 466 U.S. at 688, 689.
1
The objective standard of reasonableness for appellate
counsel does not require counsel to pursue every possible
argument on behalf of a criminal defendant. Indeed, appellate
counsel “need not (and should not) raise every nonfrivolous
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) (citing Jones v. Barnes, 463
U.S. 745 (1983)). When a defendant argues appellate counsel
failed to raise a particular claim, “it is difficult to demonstrate
that counsel was incompetent,” id., because generally “only
when ignored issues are clearly stronger than those presented,
will the presumption of effective assistance of counsel be
overcome,” id. (quoting Gray v. Greer, 800 F.2d 644, 646 (7th
Cir. 1986)); see also Burger v. Kemp, 483 U.S. 776, 784 (1987)
(finding no ineffective assistance of counsel when the decision
to raise a particular issue had “a sound strategic basis”).
Building off these principles, we have held that “counsel
does not perform deficiently by declining to pursue a losing
argument.” United States v. Watson, 717 F.3d 196, 198 (D.C.
Cir. 2013); see also United States v. Kelly, 552 F.3d 824, 831
(D.C. Cir. 2009) (explaining that an ineffective-assistance
claim “plainly fails inasmuch as [the defendant’s] counsel was
not obliged to raise a meritless defense”).
In sum, so long as fairminded jurists could disagree about
the prospects of Waters’s sufficiency claim succeeding, they
could disagree about whether his appellate counsel met the
12
objective standard of reasonableness under Strickland. And if
fairminded jurists could disagree over that latter point, then
under AEDPA we must deny Waters’s habeas petition. We
therefore turn to the merits of Waters’s sufficiency claim.
2
In his sufficiency claim, Waters argues that no rational
juror—viewing the evidence in the light most favorable to the
government—could have found him guilty beyond a
reasonable doubt on the intentional knife charge because he
acted in self-defense. This argument fails. To show why, a brief
primer on D.C. self-defense law is in order.
To justify self-defense in the D.C. courts, the record must
reflect that: “(1) there was an actual or apparent threat to the
defendant; (2) the threat was unlawful and immediate; (3) the
defendant honestly and reasonably believed that he was in
imminent danger of death or serious bodily harm; and (4) the
defendant’s response was necessary to save himself from
danger.” Murphey-Bey v. United States, 982 A.2d 682, 690
(D.C. 2009). However, a defendant cannot claim self-defense
if he “was the aggressor or if [h]e provoked the conflict upon
himself[].” Id. (quoting Rorie v. United States, 882 A.2d 763,
772 (D.C. 2005)). That said, an aggressor can restore his right
to self-defense “[o]nly in the event he communicates to his
adversary his intent to withdraw and in good faith attempts to
do so.” Id. at 690-91 (quoting Rorie, 882 A.2d at 772).
Even when the evidence establishes that self-defense
would otherwise be justified, “that defense nevertheless fails if
the evidence also establishes the defendant used greater force
than [h]e actually and reasonably believed to be necessary
under the circumstances.” Williams v. United States, 90 A.3d
1124, 1128 (D.C. 2014). In evaluating whether the person
13
claiming self-defense acted reasonably under the
circumstances, the fact-finder must take into account that the
defendant acted in the “heat of the conflict.” Id. (quoting Brown
v. United States, 256 U.S. 335, 344 (1921)). Even so, the fact-
finder should recognize excessive force when the “secondary,
responsive aggression was completely disproportionate to the
initial aggression faced.” Id. (quoting Gay v. United States, 12
A.3d 643, 649 (D.C. 2011)).
Once a defendant presents any evidence that he acted in
self-defense, the government assumes the burden of proving
beyond a reasonable doubt that he did not. Parker v. United
States, 155 A.3d 835, 842 (D.C. 2017). In his testimony,
Waters presented some evidence indicating that he acted in
defense when asking Randolph and Doe to stab Hargrove.
Therefore, the government bore the burden of proving beyond
a reasonable doubt that Waters did not act in self-defense.
Waters argues that “any rational trier of fact” would
conclude that the government failed to demonstrate beyond a
reasonable doubt that Waters did not act in self-defense. United
States v. Boyd, 803 F.3d 690, 692 (D.C. Cir. 2015) (quoting
Jackson, 443 U.S. at 319). Instead, according to Waters, the
evidence presented at trial demonstrated that he communicated
to Hargrove his intention that he sought to withdraw from the
conflict in good faith, thereby restoring his right to self-
defense. Further, Waters claims that he reasonably believed he
was in danger of death or serious bodily harm, justifying his
asking Randolph and Doe to stab Hargrove. Finally, Waters
argues that the degree of force used—having Randolph and
Doe stab Hargrove twenty-seven times—was necessary under
the circumstances to avoid serious bodily harm.
We disagree. Put simply, a rational juror could reject
Waters’s self-defense claim when viewing the evidence in a
14
light most favorable to the government. We can imagine at
least two ways in which a rational juror could have concluded
that Waters did not act in self-defense when instructing his co-
conspirators to stab Hargrove.
First, a rational juror could have concluded that Waters did
not “withdraw” from the conflict because insufficient time had
elapsed between his retreat and when the fight reinitiated.
Generally, an effective withdrawal happens after a period of
“disengagement” between parties. An initial aggressor does not
have a restored right to self-defense when the latter
confrontation reflects only a “stage[] in an essentially
continuous chain of events.” United States v. Grover, 485 F.2d
1039, 1043 (D.C. Cir. 1973). Hargrove testified that the time
between the gunshots and the moment that Randolph and Doe
began stabbing him “may have been thirty seconds.” 9/12/06
Tr. 148. A rational juror could readily conclude that the fight’s
movement from the basement to the utility room took place in
such a short period that the encounters were “stages in an
essentially continuous chain of events” rather than two distinct
conflicts separated by Waters’s withdrawal.
Second, even if Waters withdrew from the conflict, and
restored his self-defense right, his defense would still fail if he
and his co-conspirators used excessive force to repel
Hargrove’s attack. See Parker, 155 A.3d at 845-46; Williams,
90 A.3d at 1128; Gay, 12 A.3d at 649. A rational juror could
conclude that Waters directed his co-conspirators to use
excessive force. When Hargrove attacked Waters by banging
his head against a gas line, Waters allegedly called out to
Randolph and Doe, “This [guy] is trying to kill me. Ya’ll stab
him. Stab him. Do something. Don’t just stand there. Stab
him.” 9/12/06 Tr. 148. Note that Waters specifically demanded
his co-conspirators “stab” Hargrove, rather than merely “stop”
him. Despite the fact that three men should have been able to
15
subdue Hargrove—who was suffering from multiple gunshot
wounds and bleeding profusely—Waters insisted that they stab
him anyway. While the D.C. courts counsel jurors to consider
a defendant’s thought process in the “heat of the conflict,”
Williams, 90 A.3d at 1128, the heat of the moment might not
have justified Waters singling out the need to “stab” Hargrove
unless Waters wanted more than merely his own self-defense—
unless he wanted Hargrove dead. And the result of Waters’s
command—Randolph and Doe stabbing Hargrove twenty-
seven times—was arguably “completely disproportionate” to
countering Hargrove’s attack. Gay, 12 A.3d at 649. At the very
least, a rational juror could conclude beyond a reasonable doubt
that even if Waters could claim a right to self-defense, he and
his co-conspirators used an unreasonable amount of force to
stop the injured Hargrove’s counterattack.
The DCCA reasonably concluded that a rational juror
could find that Waters did not act in self-defense. As such, the
DCCA also reasonably concluded that Waters’s appellate
counsel did not act deficiently under Strickland by forgoing a
losing argument.
B
While we need not address Strickland’s second prong,
which requires Waters to show prejudice from his counsel’s
conduct, we note that when it comes to ineffective-assistance
claims leveled against appellate counsel, there is not much
daylight between Strickland’s deficiency prong and its
prejudice prong. See, e.g., Howard v. Gramley, 225 F.3d 784,
790-91 (7th Cir. 2000); Miller v. Keeney, 882 F.2d 1428, 1434
(9th Cir. 1989). If appellate counsel reasonably opts not to raise
an issue with little or no likelihood of success, then there is
usually no “reasonable probability” that raising the issue would
have changed the result of a defendant’s appeal. Strickland,
16
466 U.S. at 694. Such is the case here. Because of the weakness
of his sufficiency claim, a fairminded jurist could also conclude
Waters was not prejudiced under Strickland.
We therefore accept the DCCA’s reasonable application of
Strickland and affirm the district court’s dismissal of Waters’s
habeas petition.
V
A
In his pro se pleadings Waters only challenged the
sufficiency of the evidence presented for his intentional knife
charge. He made no mention of his aggravated knife charge.
And the COA is likewise limited to whether Waters was
“deprived of his right to effective assistance of appellate
counsel by his appellate counsel’s failure to challenge his
conviction of assault with intent to kill with a knife . . . .” Order,
Waters v. Lockett, No. 13-5275 (D.C. Cir. Sept. 16, 2014). But
in his opening brief Waters now seeks to fold a challenge to his
aggravated knife charge into his sufficiency claim on the
intentional knife charge. Waters Br. 2 n.1.
The question of whether, and when, to allow an expansion
of a COA is unsettled in our circuit. Many of our sister circuits
have local rules addressing the expansion of COAs, and many
of those circuits’ cases draw on their local rules. Our circuit has
no local rule governing this issue.
When a habeas petitioner files his initial brief, some
circuits allow the petitioner to raise issues that were not
previously certified for review. However, those courts also
generally require petitioners to “notify th[e] court of the[ir]
desire to expand the COA” by filing a “separate statement.”
17
Reid v. True, 349 F.3d 788, 796 (4th Cir. 2003); see also Dung
The Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005) (per
curiam) (explaining that circuit rules allowed a habeas
petitioner “to expand the COA by presenting uncertified issues,
under a separate heading, in his opening brief” (emphasis
added)); Jones v. United States, 224 F.3d 1251, 1255-56 (11th
Cir. 2000) (discussing the “explicit request” requirement for
expanding a COA).
Based on these precedents, it’s unclear whether Waters
adequately requested in his opening brief that we expand the
COA. Waters simply asserted in a footnote that the “issue he
raised” related to the intentional knife charge “applies equally”
to the aggravated knife charge. Waters Br. 2 n.1. Waters argues
in his reply brief that this passing reference to the aggravated
knife charge amounted to an expansion request. See Reply Br.
3-4.
Even if we assume that Waters requested such an
expansion in his opening brief, we may not grant his request.
When making a COA determination, we “look to the District
Court’s application of AEDPA to petitioner’s constitutional
claims and ask whether that resolution was debatable amongst
jurists of reason.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (emphases added); see also id. at 338 (“The petitioner
must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong.” (emphasis added)); id. at 348 (“The COA inquiry asks
only if the District Court’s decision was debatable.” (emphasis
added)). Because our COA determination turns on the district
court’s resolution of Waters’s claims, it follows that we may
only grant a COA when the district court had the opportunity
below to consider the claim for which Waters requests a COA.
18
In light of this requirement, ordinarily, to present new
claims on the merits, a habeas petitioner “would have to amend
his habeas petition to add his new claims” or “file a second or
successive habeas application.” Milton v. Miller, 812 F.3d
1252, 1265 (10th Cir.), cert. denied, 137 S. Ct. 69 (2016).
Waters did neither with respect to his appellate counsel’s
handling of the aggravated knife charge. Waters’s habeas
petition made no mention of the aggravated knife charge. Nor
did his motion in the DCCA to recall the mandate. As such, the
district court never had an opportunity to consider that claim
and we may not grant a COA on any claim that the district court
could not consider. Therefore, even assuming that Waters
validly requested an expanded COA regarding the aggravated
knife charge, we must deny that request.
B
Additionally, Waters filed a pro se supplemental brief, sent
via email to the Federal Public Defender’s Office. In that brief,
Waters argues that the district court violated his Fifth
Amendment right to a grand jury indictment by suggesting that
Waters had “robbed” Hargrove, even though Waters was never
indicted for robbing Hargrove. See Suppl. Br. 1-2. This issue
also falls outside the scope of the COA. In a pro se
supplemental reply brief, Waters asserts that the Fifth
Amendment issue “cannot be separated from this Court’s
consideration of the COA sanctioned issue.” Suppl. Reply Br.
1.
We conclude that Waters failed to request an expansion of
the COA in his opening pro se supplemental brief. Waters first
mentioned the scope of the COA in his pro se supplemental
reply brief. And because Waters raised the issue of expanding
the COA for the first time in his pro se supplemental reply brief,
19
that argument is forfeited. See United States v. Gurr, 471 F.3d
144, 152 n.3 (D.C. Cir. 2006).
In any event, even if we assume that Waters’s opening pro
se supplemental brief adequately requested that we expand the
COA, we lack jurisdiction to consider Waters’s Fifth
Amendment claim. When we initially denied a COA on this
claim we cited D.C. Code § 23-110. Pursuant to § 23-110, a
prisoner convicted in D.C. Superior Court may raise a
collateral constitutional challenge to his sentence by motion in
that court, but may not apply for a writ of habeas corpus “unless
it . . . appears that the remedy by [§ 23-110] motion is
inadequate or ineffective to test the legality of his detention.”
Id. § 23-110(g); Ibrahim v. United States, 661 F.3d 1141, 1142
(D.C. Cir. 2011).
Moreover, “resolution of an issue on direct review bars
relitigation of that issue in a [D.C.] court” under § 23-110.
Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986). Even
though Waters characterizes his challenge as one aimed at the
district court, his true target is the DCCA, which squarely
addressed and rejected Waters’s Fifth Amendment claim on
direct review. See Randolph v. United States, No. 07-CF-539,
slip op. at 10 n.7 (D.C. Jan. 5, 2011). Waters all but concedes
as much. See Suppl. Br. 1 (“The District Court’s confusion
appears to come from it’s [sic] endorsement of the DCCA’s
Memorandum opinion . . . .”). Habeas corpus is available to
Waters only if the remedy available under § 23-110 is
“inadequate or ineffective to test the legality of his detention.”
Garris, 794 F.2d at 727 (emphasis added) (quoting D.C. Code
§ 23-110(g)). Simply because Waters chose to raise his Fifth
Amendment claim on direct appeal, and was therefore barred
from pursuing a § 23-110 motion on the issue, that did not
render any potential § 23-110 remedy “inadequate or
ineffective,” nor open the door to federal habeas relief. See id.
20
(“It is the inefficacy of the remedy, not a personal inability to
utilize it, that is determinative . . . .”).
Because § 23-110 offered Waters a sufficient remedy in
the D.C. courts on his Fifth Amendment claim, he may not seek
federal habeas relief. We therefore lack jurisdiction to hear this
claim and consequently decline to expand the COA.
VI
We affirm the district court’s judgment.
So ordered.