Smith v. Finley

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SYDNEY E. SMITH, :
:
Petitioner, : Civil Action No.: 19-1763 (RC)
:
v. : Re Document Nos.: 17, 18, 19, 23
:
SCOTT FINLEY, :
:
Respondent. :

MEMORANDUM OPINION

DENYING PETITIONER’S MOTION TO ALTER OR AMEND JUDGMENT;
GRANTING PETITIONER’S MOTION FOR LEAVE TO AMEND PLEADING;
GRANTING PETITIONER’S MOTION FOR A CERTIFICATE OF APPEALABILITY;
GRANTING PETITIONER’S MOTION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

On March 30, 2020, this Court granted Respondent Scott Finley’s motion to dismiss

Petitioner Sydney E. Smith’s “Petition for a Writ of Habeas Corpus.” See Mem. Op. (“MTD

Mem. Op.”), ECF No. 14. Petitioner now moves under Federal Rule of Civil Procedure 59(e) to

ask this Court to alter or amend that decision. See Mot. Alter or Amend J. (“Mot. Amend”), ECF

No. 17. Petitioner also requests that this Court grant his application for a certificate of

appealability pursuant to 28 U.S.C. § 2253(c) and moves for leave to proceed on appeal in forma

pauperis. See Mot. Cert. of Appeal, ECF No. 18; Mot. for Leave, ECF No. 23. For the reasons

discussed below, the Court will deny Mr. Smith’s motion to alter or amend judgment but grant

Mr. Smith’s requests for a certificate of appealability and to proceed in forma pauperis. 1

1
Petitioner also moves for leave to amend his pleading, ECF No. 19, which the Court
will grant for the reasons explained below.

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 II. FACTUAL BACKGROUND

On November 19, 2001, Mr. Smith was convicted of first-degree murder in D.C. Superior

Court. See Am. Pet. at 1, 2 ECF No. 3. On February 1, 2002, Judge Retchin sentenced Mr. Smith

to a term of imprisonment of thirty years to life. Id. On November 10, 2003, Mr. Smith, through

counsel, filed a motion to vacate his conviction pursuant to D.C. Code § 23-110, the statutory

mechanism for collateral review of a conviction in the District of Columbia. Id. The trial court

denied Mr. Smith’s § 23-110 motion by an order dated April 9, 2004. Mot. Dismiss at 3, ECF

No. 8. Mr. Smith filed a timely notice of appeal of that decision on April 28, 2004. Id. The

District of Columbia Court of Appeals (DCCA) consolidated the direct appeal of his conviction

and the § 23-110 appeal. See id. at 3–4; see also Shepard v. United States, 533 A.2d 1278, 1280

(D.C. 1987) (noting that “if [a] § 23-110 motion is denied, the appeal from its denial can be

consolidated with the direct appeal”). Mr. Smith continued filing successive collateral review

challenges, to no avail. Am. Pet. at 1–3.

On June 11, 2019, Mr. Smith, proceeding pro se, made a filing styled as a petition for

habeas corpus under 28 U.S.C. § 2254. See Pet., ECF No. 1. In an amended petition, Mr. Smith

argued that his initial collateral review counsel, Mr. Myers, was constitutionally ineffective.

Am. Pet. at 8. He claimed that Mr. Myers did not adequately explore his claim of ineffective

assistance of trial counsel (“IATC”), specifically because Mr. Myers did not respond to a

particular motion by the government during the collateral review proceedings or explore related

alleged misconduct by Mr. Smith’s trial counsel, Mr. Clennon. Id. at 10.

2
Because the filings in this case are not consecutively paginated throughout, the Court
refers to the ECF page numbers.

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 In an opinion issued on March 30, 2020, this Court dismissed Mr. Smith’s habeas petition

for lack of subject matter jurisdiction. See generally MTD Mem. Op. The Court first noted that,

generally, a federal court in this district only has jurisdiction under § 2254 when a D.C. Superior

Court prisoner claims that appellate counsel was constitutionally ineffective in a direct appeal,

i.e., not for claims brought under § 23-110. See Williams v. Martinez, 586 F.3d 995 (D.C. Cir.

2009). Mr. Smith’s claims had no apparent relation to the conduct of his counsel on direct

appeal. See Mot. Dismiss at 5; Am. Pet. at 10. The Court also identified two other potential

avenues that might provide jurisdiction. The first is contained in § 23-110(g), which provides

that a D.C. prisoner may seek a federal writ of habeas corpus if it “appears that the remedy by

motion [under § 23-110] is inadequate or ineffective to test the legality of his detention.” D.C.

Code § 23-110(g). The second was the Supreme Court’s Martinez/Trevino line of cases, which

under certain circumstances, allows federal review of procedurally barred collateral review

claims. See generally Trevino v. Thaler, 569 U.S. 413 (2013); Martinez v. Ryan, 566 U.S. 1

(2012). Notably, Trevino widens the exception espoused by Martinez to state court systems that

do “not offer most defendants a meaningful opportunity to present a claim of ineffective

assistance of trial counsel on direct appeal.” Trevino, 569 U.S. at 428. This Court explained,

however, that both of these exceptions appeared unavailing to Mr. Smith. First, Mr. Smith had

not explained why his § 23-110 remedy was inadequate or ineffective. See MTD Mem. Op. at 3.

Second, the Court concluded, consistent with earlier decisions, that the District of Columbia

review scheme is “not so constrained” as those in Martinez/Trevino. See id. at 7 (quoting

Richardson v. United States, 999 F. Supp. 2d 44, 49 (D.D.C. 2013)). Accordingly, Mr. Smith’s

claims could not be heard by this Court.

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 Mr. Smith disagrees with this analysis, and now moves to alter or amend the Court’s

March 30, 2020 dismissal of the action. See Mot. Amend. He also applies for a certificate of

appealability under 28 U.S.C. § 2253(c), see Mot. Cert. of Appeal, which requires that a

petitioner make a “substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2).

III. MOTION TO ALTER OR AMEND JUDGMENT

A. Legal Standard

Rule 59(e) permits a party to file a motion to “alter or amend a judgment” within 28 days

of the entry of that judgment. Fed. R. Civ. Pro. 59(e). Rule 59(e) motions are “disfavored and

relief from judgment is granted only when the moving party establishes extraordinary

circumstances.” Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001)

(quoting Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998)). A court may grant a

motion to amend or alter a judgment only: “‘(1) if there is an ‘intervening change of controlling

law’; (2) if new evidence becomes available; or (3) if the judgment should be amended in order

to ‘correct a clear error or prevent manifest injustice.’” Leidos, Inc. v. Hellenic Republic, 881

F.3d 213, 217 (D.C. Cir. 2018) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.

1996)); see also Solomon v. Univ. of S. Cal., 255 F.R.D. 303, 304 (D.D.C. 2009). Relief under

Rule 59(e) is not appropriate when the moving party seeks to “relitigate old matters, or to raise

arguments or present evidence that could have been raised prior to the entry of judgment.”

Niedermeier, 153 F. Supp. 2d at 28 (citation and internal quotation marks omitted); see

also Turner v. U.S. Capitol Police, No. 12-45, 2014 WL 169871, at *1 (D.D.C. Jan. 16, 2014).

The party seeking reconsideration bears the burden of establishing that relief is warranted. Elec.

Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 811 F. Supp. 2d 216, 226 (D.D.C. 2011).

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 B. Analysis

Petitioner moves to alter or amend this Court’s March 30, 2020 judgment pursuant to

Rule 59(e). See Mot. Amend. As best the Court can discern, Mr. Smith’s motion raises several

arguments concerning Respondent’s reliance on Williams, 586 F.3d at 995, and the standard for

dismissal under Rule 12(b). Id. at 4. For the reasons set forth below, Mr. Smith fails to establish

that he is entitled to relief under Rule 59(e) or other avenues for seeking reconsideration of

judicial decisions.

As a preliminary matter, this Court must address the timeliness of Petitioner’s Rule 59(e)

motion. 3 Under Rule 59(e), a motion is only timely if it is filed within 28 days of the entry of the

judgment. Fed. R. Civ. P. 59(e). A motion for reconsideration filed outside the 28-day window

provided by Rule 59(e) is typically viewed as a Rule 60(b) motion. See McMillian v. District of

Columbia, 233 F.R.D. 179, 179–80 n. 1 (D.D.C. 2005) (holding that motions for reconsideration

filed within Rule 59(e)’s time limit are treated as Rule 59(e) motions, while those filed outside it

are treated as motions under Rule 60(b)); 4 Computer Professionals for Soc. Responsibility v. U.S.

Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 1996). It appears from Mr. Smith’s attached certificate

3
Mr. Smith also moves for leave to amend his 59(e) motion, presumably under Federal
Rule of Civil Procedure 15(a)(2). See Mot. Amend Pleading, ECF No. 19. Though his 15(a)(2)
motion is not drafted with perfect clarity, Smith appears to use it as a means to justify any delay
in receipt of his 59(e) motion. See id. at 1–2. Petitioner asserts that he did not receive a
complete copy of this Court’s March 30, 2020 Order until April 4, 2020. See Mot. Amend
Pleading at 1. Mr. Smith also cites FCI Schuylkill’s modified operations under Covid-19 as
additional grounds for delay. See id. at 2, 4. To the extent the motion to amend seeks to
introduce these additional arguments regarding timeliness, it is granted. As the Court explains
below, whether Mr. Smith’s 59(e) motion is timely or not does not alter the outcome here.
4
Rule 60(b) motions allow a party to seek relief from a final judgment “within a
reasonable time” after entry of the judgment, but only for specified reasons. See Fed.R.Civ.P.
60(b). These reasons include among other things, “mistake, inadvertence, surprise, or excusable
neglect,” id. at (60)(b)(1), “newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b),” id. at (60)(b)(2), and
“any other reason that justifies relief,” id. at 60(b)(6).

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of service that he placed a copy of his Rule 59(e) motion in the FCI Schuylkill mail system on

April 29, 2020. See Mot. Amend at 5. Accepting April 29, 2020 as the filing date, 5 the date

would seem to fall more than 28 days after entry of the Court’s March 30, 2020 judgment,

meaning that Petitioner’s motion should be treated as one under Rule 60. Ultimately, however,

“this Court need not determine under which Rule [Mr. Smith’s] motion was brought or should be

considered, however, because as explained below, the Court finds that [Mr. Smith’s] motion

should be denied regardless of whether it is treated as a motion for reconsideration pursuant to

Rule 54(b), 59(e), or 60(b).” Ali v. Carnegie Inst. of Washington, 309 F.R.D. 77, 82 (D.D.C.

2015), aff’d, 684 F. App’x 985 (Fed. Cir. 2017).

Indeed, Mr. Smith fails to raise any “intervening change of controlling law,” allege any

new evidence, or establish any clear error in the Court’s prior ruling as required under Rule

59(e). Fed. R. Civ. P. 59(e); see Firestone, 76 F.3d at 1208. Mr. Smith also fails to allege fraud

or any other reason that would justify relief under Rule 60(b). See Fed. R. Civ. P. 60(b).

Instead, Mr. Smith appears to challenge Respondent’s reliance on Williams and this Court’s

application of Rule 12(b) in dismissing his habeas petition. 586 F.3d at 995. Mr. Smith states

that Williams “deal[s] with a constitutional right, [and] Martinez argue[s] a[n] equitable right;”

and, Williams “speaks to [a] direct appeal which is brough[t] in the appella[te] court, whereas

Martinez speaks to collateral appeal which is brough[t] i[n] the trial court.” Mot. Amend at 4;

see Williams 586 F.3d at 995; Martinez, 566 U.S. at 16.

However, to the extent that Respondent’s reliance on Williams was misplaced, Williams

alone did not inform this Court’s decision to dismiss Smith’s action. The Court has an

5
Under the “mailbox rule,” the operative filing date for a pro se prisoner litigant is “that
on which petitioner placed his motion in the prison mail system to be sent to the Court.” Davis
v. Cross, 825 F. Supp. 2d 200, 201 (D.D.C. 2011).

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independent duty to “to determine whether subject-matter jurisdiction exists, even in the absence

of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006) (emphasis

added). Accordingly, Mr. Smith’s motion for reconsideration cannot be granted on these

grounds. Mr. Smith also quotes Am. Nat. Ins. Co. v. F.D.I.C., which states that when

“considering a motion to dismiss under Rule 12(b)(1) for lack of jurisdiction, the court must

accept as true all uncontroverted material factual allegations contained in the complaint and

‘construe the complaint liberally[.]’” 642 F.3d 1137, 1139 (D.C. Cir. 2011); see Mot. Amend at

4. Mr. Smith claims that because Respondent “has not denied any material factual allegation[s]”

contained in his complaint, the Court must accept all facts alleged by him as true. Mot. Amend

at 4. But the Court accepted all of Mr. Smith’s allegations as true and assumed, for the purpose

of the motion, that his counsel in state collateral review proceedings was ineffective. 6

Nonetheless, as explained in this Court’s opinion, even under the facts alleged, the Court does

not have jurisdiction over a habeas petition challenging the adequacy of Mr. Smith’s collateral

review counsel. See MTD Mem. Op at 5–8; see also Williams, 586 F.3d at 1001 (noting that a

prisoner “lack[s] a constitutional entitlement to effective assistance of counsel in state collateral

proceedings”). This Court likewise lacks jurisdiction over any claims Mr. Smith might be

attempting to raise concerning the IATC because such claims could have been brought on direct

appeal of the criminal case. See Martinez, 566 U.S. at 17; see also MTD Mem. Op at 7. Thus,

the Court remains convinced it lacks jurisdiction over his petition.

6
Mr. Smith, in his habeas petition, states that he was “denied access to the court, due
process, and equal protection of the law by the state court accepting a fraudulent motion and
affidavit from the government and ineffective assistance of collateral review counsel.” See Am.
Pet. at 6. Accordingly, he contests the “integrity of his Initial Collateral Review proceeding”
and, thus, the “correctness” of the collateral review court’s ruling. Id. at 9.

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 Because Mr. Smith fails to identify any proper basis for reconsideration under any

standard, his motion to amend this Court’s March 30, 2020 decision is denied.

IV. MOTION FOR CERTIFICATE OF APPEALABILITY

A. Legal Standard

A “prisoner seeking an appeal from a decision on a petition for habeas corpus and whose

detention arose from state court proceedings must first seek a certificate of appealability from a

circuit justice or judge” pursuant to 28 U.S.C. § 2253(c). Baisey v. Stansberry, 777 F. Supp. 2d

1, 4 (D.D.C. 2011); see also Slack v. McDaniel, 529 U.S. 473 (2000) (explaining that a

petitioner’s right to appeal an order denying habeas relief is “governed by the requirements []

found at § 2253(c)”).

A certificate of appealability may issue only if the petitioner “has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial

showing” includes “showing 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, 529 U.S. at 483–84 (quoting Barefoot v. Estelle, 463

U.S. 880, 893 & n. 4 (1983)). If the certificate is granted, the court must specify which issues

raise such a substantial showing. United States v. Weaver, 195 F.3d 52, 53 (D.C. Cir. 1999). In

instances where a court denies a habeas petition on procedural grounds “without reaching any

underlying constitutional claims,” a “certificate of appealability ‘should issue when the prisoner

shows, at least, that jurists of reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.’” Baisey, 777 F. Supp. 2d at 5.

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 B. Analysis

Mr. Smith asserts several grounds for issuance of a certificate of appealability. First, he

asserts that a “reasonable jurist could debate whether the government responded to [his]

complaint, whether the government responded to [his] habeas corpus, and whether that response

was timely.” Mot. Cert. of Appeal at 3. He also states that a “reasonable jurist” could debate

whether the “underlying infective assistance of trial counsel claims are ‘substantial’ and such

prisoners can establish that their post-conviction counsel was ineffective under the Strickland

standard.” Id. Generally, he contends that this Court has jurisdiction over his IATC claim

because his initial collateral review counsel was ineffective during collateral review proceedings.

Id.

As noted previously, the Court does not see any conceivable merit in Mr. Smith’s

procedural arguments regarding timeliness or waiver relating to Respondent’s conduct in this

litigation. 7 But, as Mr. Smith’s references to Martinez or Trevino indicate, there is a potential

argument that Mr. Smith’s underlying IATC should not be procedurally barred. As mentioned,

his main objection appears to be that he was never able to fully explore the IATC claim because

his collateral review counsel was ineffective in raising that argument and his further attempts to

litigate the issue were barred as successive petitions.

Although a prisoner “lack[s] a constitutional entitlement to effective assistance of counsel

in state collateral proceedings,” Williams, 586 F.3d at 1001, Trevino holds that when a state

system, whether by design or operation, deprives defendants of a “meaningful opportunity” to

7
The record indicates that the Respondent’s motion was timely filed: the order to show
cause was served on Respondent on August 6, 2019, see Executed Show Cause Order, ECF No.
7, and the government filed its motion to dismiss twenty-eight days later on September 4, 2019,
within the thirty-day period allotted by the show cause order.

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raise an IATC on direct review, a federal court should not be barred from considering that IATC

claim if counsel in the collateral review proceeding was absent or ineffective, 569 U.S. at 428.

As explained in this Court’s memorandum opinion and reiterated above, the Court is not

convinced that Martinez/Trevino are relevant to the District of Columbia’s review scheme, which

allows IATC claims to be raised on direct review. See Mem. Op. at 7–8; see also Richardson,

999 F. Supp. 2d at 49 (determining that the D.C. systems “is not so constrained” as those

implicated by Martinez/Trevino, because a petitioner “could raise—and actually did raise—

ineffective assistance of trial claims on direct appeal”). But Trevino appears to contemplate a

sensitive, fact-bound analysis of the actual operation of a state’s appeal and post-conviction

system. 569 U.S. at 418 (indicating that the question is whether the “procedural system—as a

matter of its structure, design, and operation—does not offer most defendants a meaningful

opportunity to present a claim of ineffective assistance of trial counsel on direct appeal”)

(emphasis added). The fact that state law technically permits a petitioner to raise IATC claims

on direct review is not automatically determinative. See id. at 417 (noting that the Texas system

at issue “appears at first glance to permit (but not require) the defendant initially to raise a claim

of ineffective assistance of trial counsel on direct appeal”). Indeed, the D.C. Court of Appeals

has noted that, because a direct appeal is limited to evidence in the trial record, “[i]neffective

assistance of counsel is the type of serious defect which is typically not correctable on direct

appeal and is therefore an appropriate ground for a collateral attack.” Ramsey v. United States,

569 A.2d 142, 146 (D.C. 1990) (citing Proctor v. United States, 381 A.2d 249, 252 (D.C.1977);

Angarano v. United States, 329 A.2d 453, 457–58 (D.C. 1974) (en banc)); see also Trevino, 569

U.S. at 428 (noting that “practical considerations, such as the need for a new lawyer, the need to

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expand the trial court record, and the need for sufficient time to develop the claim, argue strongly

for initial consideration of the claim during collateral, rather than on direct, review”).

For these reasons, and because the Circuit does not appear to have directly addressed the

issue, the Court concludes that jurists of reason would (or could) find it debatable whether the

Court was correct in its procedural ruling that the D.C. system is “not so constrained” as the one

at issue in Trevino. Accordingly, the Court will grant Mr. Smith’s request for a certificate of

appealability. In light of the seriousness of the underlying issue, Mr. Smith deserves a chance to

at least present this argument. See Martinez, 566 U.S. at 1 (“A prisoner’s inability to present an

ineffective-assistance claim is of particular concern because the right to effective trial counsel is

a bedrock principle in this Nation’s justice system.”). Given the issuance of a certificate of

appealability and Mr. Smith’s uncontested representations of his financial status, his motion for

leave to proceed in forma pauperis, ECF No. 23, is also granted.

V. CONCLUSION

For the foregoing reasons, Mr. Smith’s motion to alter or amend judgment (ECF No. 17)

is DENIED, Mr. Smith’s motion for leave to amend a pleading (ECF No. 19) is GRANTED,

Mr. Smith’s motion for certificate of appealability (ECF No. 18) is GRANTED, and Mr. Smith’s

motion for leave to proceed on appeal in forma pauperis (ECF No. 23) is GRANTED.

An order consistent with this Memorandum Opinion is separately and contemporaneously

issued.

Dated: September 3, 2020 RUDOLPH CONTRERAS
United States District Judge

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