United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2016 Decided June 27, 2017
No. 15-5056
CARLTON J. BLOUNT,
APPELLANT
v.
UNITED STATES OF AMERICA AND DISTRICT OF COLUMBIA,
APPELLEES
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.
2
Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Senior Circuit Judge
WILLIAMS.
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
3
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
4
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
1
There is some dispute as to whether another date—other than
the one on which Blount signed and mailed his motion—should be
considered the filing date when calculating the limitations period
here. We discuss this issue below in section II.B.ii.
2
The filing date of this petition is also in dispute, as discussed
in section II.B.ii.
5
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
6
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
7
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
3
Because we deny the COA on those grounds, we also decline
to address either the district court’s alternative procedural holding
that D.C. Code § 23-110 barred Blount’s IAAC claim or the
propriety of Blount’s naming the “United States of America (District
of Columbia)” as respondent and filing his petition in the U.S.
District Court for the District of Columbia.
8
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 mandate issued), and the
limitations period’s remaining 56 days expired on January 27,
2010. Blount filed his present habeas petition in 2013: over
three years later, and thus considerably out of time.
B
The recounting of that timeline provides enough analysis
to end the case. Blount and amicus raise several alternative
theories in an effort to argue that it is at least debatable that his
habeas petition was timely. None succeeds.
i
Principally, Blount and amicus contend that the D.C. Court
of Appeals reopened direct review in 2012, thereby restarting
the entire one-year limitations period for Blount’s habeas
9
petition that expired in 2010. Under Jimenez v. Quarterman,
555 U.S. 113 (2009), a “conviction [is] no longer final for
purposes of § 2244(d)(1)(A)” when a court “reopen[s] direct
review of [the] conviction.” Id. at 120. In that event, the
AEDPA limitations clock starts anew when the reopened
appeal reaches a final judgment. See id. According to Blount
and amicus, the D.C. Court of Appeals reopened direct review
in Blount’s case in evaluating his motion to recall the direct-
appeal mandate, which Blount made to exhaust his local
remedies on his IAAC claim.
That theory fails, however, for the simple reason that the
D.C. Court of Appeals never granted Blount’s motion to recall
the mandate. There is no reasonable debate over whether the
motion was granted: the court “ordered that the motion to recall
mandate [be] denied.” Blount v. United States, No. 01-CF-974,
at 1 (D.C. Oct. 11, 2012) (capitalization altered). And there is
no reasonable debate over whether this disposition reopened
the appeal: the D.C. Court of Appeals has never held that
denying a motion to recall the mandate reopens an appeal.
To fully explain these issues requires a bit more
discussion. When a movant raises an IAAC claim through a
motion to recall the mandate, the D.C. Court of Appeals first
determines whether the motion has “on [its] face sufficient
merit” to justify disturbing the judgment. Watson v. United
States, 536 A.2d 1056, 1060 (D.C. 1987) (en banc). If so, the
court will then “recall[] the mandate and reopen[] the movant’s
appeal in order to fully explore and then decide whether there
was ineffective assistance of counsel on the first appeal.” Id. at
1061. By reopening the direct appeal, a recall of the mandate
resets the filing deadline for a federal habeas petition,
regardless of whether the reopened appeal is ultimately
resolved in the appellant’s favor. But critically, the appeal is
not reopened until the motion to recall the mandate is granted.
10
Id.; see also id. (“A motions panel granted the request [to recall
the mandate], vacated our original judgment, and thereby
revitalized [the] direct appeal.” (emphasis added)); Head v.
United States, 626 A.2d 1382, 1384 (D.C. 1993) (“[B]y
granting the motion to recall the mandate, the direct appeal is
revived . . . .”). This requirement ensures that “judgments will
not be disturbed” except “in the presence of exceptional
circumstances.” Watson, 536 A.2d at 1060. In Blount’s case,
the D.C. Court of Appeals “ordered that the motion to recall
mandate [be] denied,” Blount, No. 01-CF-974, at 1
(capitalization altered) (emphasis added), which left the
original mandate intact, the direct appeal closed, and the habeas
filing deadline untouched.
Blount and amicus try several paths around this obstacle,
but each finds a dead end. To begin with, they argue that the
D.C. Court of Appeals followed an unconventional procedure
in which the court simultaneously denied Blount’s motion to
recall the mandate, and reopened and rejected his direct appeal.
The D.C. Court of Appeals followed a similar procedure in
Long v. United States, 83 A.3d 369 (D.C. 2013). There, the
court granted a motion to recall the mandate raising an IAAC
claim and, in the same opinion, resolved the direct appeal by
vacating the sentences at issue. Id. at 378, 384. The court
explained that it was “combin[ing] those procedural steps”—
that is, “resolution of the question of the motion’s merit and
resolution of [the] appellant’s re-opened appeal”—because
they “require[d] an examination of the same issues, so that a
ruling on one [was] essentially a decision on the other.” Id. at
378 n.15. Blount and amicus argue that the D.C. Court of
Appeals did the same in his case. In one fell swoop, they argue,
the court resolved Blount’s motion to recall the mandate and
his underlying IAAC claim. By reaching the latter, they argue,
the court reopened direct review of Blount’s appeal.
11
First, this argument misreads Long. That case, where the
court granted the motion, tells us nothing new about this case,
where the court denied the motion. Long’s streamlined
approach is perfectly consistent with the rule that a motion to
recall the mandate reopens an appeal only when granted. In
Long, the court first “grant[ed] appellant’s motion to recall the
mandate as sufficiently meritorious, and after re-opening
appellant’s direct appeal,” then resolved the IAAC claim. Id.
at 384 (emphases added). Long’s innovation was to take those
two steps in a single opinion. As Blount and amicus would have
it, however, Long also made the two steps equivalent: the
court’s decision on the motion to recall the mandate becomes
the same as a decision on the merits of the IAAC claim in the
reopened direct appeal. Not so. Recalling the mandate is
antecedent, logically and procedurally, to resolving the direct
appeal. Taking both steps in the same opinion made sense in
Long, because recalling the mandate at the first step allowed it
to reach the second step of resolving the appeal, and the court
saw no need to wait for a second opinion to do so. When the
court refuses to recall the mandate, however, it has no occasion
to proceed to the reopened appeal. Put simply, in a single
gesture the court can unlock the door and step into the room,
but if it leaves the door shut, it can go no further.
Second, even if Blount and amicus were right that D.C.
law somehow allows a court to resolve the underlying IAAC
claim even when declining to recall the mandate, the D.C.
Court of Appeals did not do that here. The court concluded only
that Blount “ha[d] not met the high standard necessary to recall
the mandate.” Blount, No. 01-CF-974, at 1 (emphasis added).
The court did not go beyond that threshold inquiry and take up
whether Blount met the standard for vacating his conviction on
direct review. According to amicus, there are signs that the
court did actually reach the underlying appeal: for instance, the
court invoked the merits of Blount’s IAAC claim, based its
12
decision “upon the entire record,” id., and issued a separate
order requesting a response from the government. But those
signs do not contradict the court’s declaration that it applied
only the standard for recalling the mandate; instead, they are
fully consistent with that disposition. The movant’s “heavy
initial burden” requires him to make “a persuasive case for
recall of the mandate” by showing that the IAAC claim has
“sufficient merit” to warrant reopening the appeal and giving
the claim full consideration. Watson, 536 A.2d at 1060. To
determine whether Blount’s IAAC claim had sufficient merit,
the court assessed it in light of the record and the government’s
arguments. Concluding that Blount failed to satisfy his initial
burden, the court never moved beyond that threshold inquiry.
Having failed to show that the D.C. Court of Appeals
recalled the mandate by using the procedure followed in Long,
Blount and amicus take a different tack. They argue that the
court’s analysis in denying the motion to recall the mandate
was so much like what the court would have done on direct
review that the court effectively reopened direct review. In
particular, they note that the court denied Blount’s motion on
the ground that his IAAC claim lacked merit, which is the same
analysis the court would have conducted if reviewing a
reopened direct appeal. With no direct support for this notion
of functional equivalence, Blount and amicus extrapolate from
the Supreme Court’s statement in Jimenez that when a court
reopens an appeal, the “conviction [is] again capable of
modification through direct appeal to the state courts and to
[the Supreme Court] on certiorari review.” 555 U.S. at 120.
Blount and amicus argue that the D.C. Court of Appeals
functionally treated Blount’s conviction as “capable of
modification” by assessing the merits of his IAAC claim.
We reject this argument, too. The D.C. Court of Appeals
does not reopen a completed appeal simply because its
13
reasoning in denying a motion to recall the mandate mirrors the
reasoning it would use on a reopened appeal. That logic leads
to incongruous results. Consider a hypothetical motion to recall
the mandate raising a wholly frivolous IAAC claim. The court
would deny the motion because the IAAC claim is frivolous. If
the court were reviewing a reopened direct appeal with the
same claim, the court would likewise conclude that the claim
is frivolous. According to the argument advanced by Blount
and amicus, because the court performed the same analysis
when reviewing the motion to recall the mandate as it would
have if reviewing a reopened direct appeal, resolving the
motion reopened direct review. But that would mean that any
habeas petitioner could unilaterally reopen direct review and
restart his limitations clock simply by filing a frivolous motion
to recall the mandate. That cannot be. Instead, the court must
deliberately agree to reopen direct review. Here, the court
refused to do so.
Jimenez does not suggest otherwise. The passage on which
Blount and amicus rely simply describes what happens after a
state court issues an “order . . . ‘restor[ing] the pendency of the
direct appeal.’” 555 U.S. at 120 (quoting Ex parte Torres, 943
S.W.2d 469, 472 (Tex. Crim. App. 1997)). After such an order,
the conviction becomes “again capable of modification through
direct appeal to the state courts and to [the Supreme Court] on
certiorari review.” Id. Here, the D.C. Court of Appeals issued
no order restoring the direct appeal. The order instead denied
the motion to recall the direct-appeal mandate. Blount’s
conviction thus never became capable of modification
“through direct appeal to” the D.C. courts or the U.S. Supreme
Court. Those courts could hear no new direct appeal while the
original direct-appeal mandate remained in effect.
14
In short, the D.C. Court of Appeals did not reopen Blount’s
direct appeal because the court never recalled the mandate. 4
Our dissenting colleague would resolve the issue differently,
but we share a key premise. He concludes that the D.C. Court
of Appeals reopened Blount’s appeal because its “disposition
of Blount’s motion comprised both a decision to recall and a
decision on the merits.” Dissenting Op. at 16. We agree that
would be the disposition necessary to reopen the appeal. But
we struggle to understand how the court could have “deci[ded]
to recall,” id., when it expressly “ordered that the motion to
recall mandate [be] denied,” Blount, No. 01-CF-974, at 1
(capitalization altered). Because we see no reasonable debate
over whether the D.C. Court of Appeals denied Blount’s bid to
reopen his appeal, he is not entitled to a COA on this theory.
ii
In the alternative, Blount argued to the district court that
he is entitled to equitable tolling that would make his habeas
petition timely. Although he does not press that argument
before us in his pro se briefs, court-appointed amicus does. Cf.
Bowie v. Maddox, 642 F.3d 1122, 1135 n.6 (D.C. Cir. 2011)
(“We have no qualms about addressing an argument raised by
4
It may appear harsh at first glance not to adjust Blount’s
limitations clock after his motion to recall the mandate languished in
the D.C. courts. But we expect (with no need to decide here) that
statutory tolling would pause the clock during such proceedings,
because a motion to recall the mandate raising an IAAC claim is a
form of local “post-conviction or other collateral review.” 28 U.S.C.
§ 2244(d)(2). Even if this were so, however, Blount would not
benefit from statutory tolling because his time ran out before he filed
his motion to recall the mandate. That is why he must take the more
aggressive position that his motion restarted the clock altogether. As
we have explained, that position is clearly incorrect.
15
court-appointed amicus curiae and not by the pro se party on
whose behalf he was appointed to present arguments.”).
Amicus’s first theory of equitable tolling is that Blount’s first
federal habeas petition should have been stayed and held in
abeyance, an approach endorsed in Rhines v. Weber, 544 U.S.
269 (2005). Under that theory, because the limitations clock
would have stopped while the first petition was held in
abeyance, equitable tolling would apply from the filing of
Blount’s first petition until the filing of the present one.
Second, amicus argues that Blount’s pursuit of judicial
remedies through his first petition, although unsuccessful,
warranted equitable tolling during the pendency of that
petition. Cf. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96
(1990) (“We have allowed equitable tolling in situations where
the claimant has actively pursued his judicial remedies by filing
a defective pleading during the statutory period . . . .”).
But under either theory, equitable tolling begins only when
Blount filed his first federal habeas petition. By then the
limitations period had already expired. As explained above in
section II.A, the limitations period expired on January 27,
2010, and Blount’s first federal habeas petition was filed over
a year later, in March 2011. 5 Regardless of the legal merits of
5
Amicus suggests that the filing date of the first petition is
uncertain, but the uncertainty does not affect our analysis. Blount
signed the petition on March 17, 2011, S.A. 7, so he presumably filed
it on that date or later. But Blount claimed before the district court in
the present proceedings that he filed the petition in December 2010,
and the government failed to object. See Amicus Br. 12 & n.4.
Regardless of whether we consider the petition filed in December
2010 or March 2011, the filing date came long after the limitations
period expired in January 2010.
16
amicus’s theories, neither theory would start equitable tolling
early enough to make Blount’s petition timely.
Amicus’s only response is that we should modify our
calculation of the limitations period in two ways, both of which
amicus concedes are actually incorrect. Amicus Br. 10 & n.3,
41-42. First, amicus wants us to use June 6, 2005 as the filing
date for Blount’s first motion under D.C. Code § 23-110, which
starts statutory tolling. In the district court, the parties and the
court assumed that was the proper filing date, but that was
wrong twice over. For one, the date appears to be a
typographical error meaning to refer to June 5, 2006, the date
on which the D.C. Superior Court docketed the motion. See
J.A. 190. For another, the docketing date is not the filing date.
The motion was filed when Blount mailed the motion on
November 16, 2005. See S.A. 69-70; Houston v. Lack, 487 U.S.
266, 276 (1988) (holding that a prisoner files a document at the
time he “deliver[s] it to the prison authorities for forwarding to
the court clerk”). Next, amicus wants us to adopt a second error
from the government’s district-court briefing: using October 4,
2010, when the Supreme Court denied certiorari review of
Blount’s first section 23-110 motion, as the end date for
statutory tolling. But Supreme Court review does not count
towards statutory tolling, so the correct end date is December
2, 2009, when the D.C. Court of Appeals issued its mandate.
See Lawrence v. Florida, 549 U.S. 327, 329 (2007) (holding
that a petition for certiorari does not extend statutory tolling);
Holland, 560 U.S. at 638 (ending statutory tolling when
mandate issued).
Only if we adopted both errors would Blount’s first habeas
petition appear timely, making amicus’s equitable-tolling
theories viable. Amicus argues that we should do so because the
government waived any objection. As amicus observes, the
government included both errors in its district-court briefing,
17
mistakenly stated in its appellate briefing that Blount’s first
federal habeas petition was timely, and failed to respond to
amicus’s waiver argument.
We will use the correct dates, despite the government’s
repeated failure to argue for them. Cf. Nattah v. Bush, 605 F.3d
1052, 1058 (D.C. Cir. 2010) (“[W]e may affirm the district
court’s decision ‘on the basis of any grounds which support
it.’” (alterations omitted) (quoting In re Swine Flu
Immunization Prods. Liab. Litig., 880 F.2d 1439, 1444 (D.C.
Cir. 1989)); cf. also Kamen v. Kemper Fin. Servs., Inc., 500
U.S. 90, 99 (1991) (“When an issue or claim is properly before
the court, the court . . . retains the independent power to
identify and apply the proper construction of governing law.”).
It is particularly clear that we have no basis to adopt the first
error of using June 6, 2005 as the filing date for Blount’s first
D.C. Code § 23-110 motion. That date is not only wrong, but it
is undisputedly and indisputably so. As explained above, it is
an apparent typographical error without a scintilla of support in
the record or the law. To treat the section 23-110 motion as
filed on June 6, 2005—and to treat Blount’s first habeas
petition as timely and his equitable tolling theories as viable—
would be to decide the case on facts and law that all know to
be false.
Even if a party’s waiver or forfeiture could ever lead a
reasonable jurist to accept such an erroneous premise, there is
no justification for doing so here. Notwithstanding the
government’s mistake, Blount had ample notice of the issue
and opportunity to argue the point. In fact, it was amicus—
raising the equitable-tolling arguments in support of Blount—
who candidly identified the date error. Even more significantly,
Blount himself introduced the error. His habeas petition, the
opening filing in the present litigation, averred that he filed his
D.C. Code § 23-110 motion “[o]n June 6, 2005.” J.A. 6. That
18
may well have been an honest mistake, but all the same, the
government and district court used that date only after Blount
did first. We see no reason why Blount should get the benefit
of an error he introduced. Instead, under all these
circumstances, we think it obvious that the correct date should
apply.
Finally, AEPDA’s waiver rules do not require otherwise.
True, under AEDPA a court may not “bypass, override, or
excuse [the government’s] deliberate waiver of a limitations
defense.” Wood v. Milyard, 132 S. Ct. 1826, 1830 (2012); cf.
also id. at 1833-34 (explaining that a court may, however,
excuse the unintentional forfeiture of a timeliness defense). But
the government has not waived, forfeited, or conceded its
defense that Blount’s current petition is untimely. Far from it:
the government raised that defense below, prevailed, and now
argues for affirmance on that ground. The government merely
failed to make a particular argument, based on the correct date
calculation, in support of that defense. Nor did the government
waive its limitations defense against Blount’s first habeas
petition. To be sure, the government wrongly stated in the
present proceedings that the first petition was timely. But that
statement does not somehow retroactively waive a defense
from the prior proceeding.
In sum, the equitable-tolling theories do not justify a COA.
The thread by which those theories hang—that we should
calculate Blount’s limitations period using a date all agree is
wrong—is too thin to make the issue debatable. 6
6
Our dissenting colleague writes that we have conducted a
“full-blown merits review” rather than a threshold COA inquiry.
Dissenting Op. at 1, 3-4. To his accusation that we “focus[] squarely
on the merits,” id. at 3, we admit that some review of the merits is
19
III
We conclude that jurists of reason would not find
debatable the district court’s procedural holding that Blount’s
unavoidable in “a threshold inquiry into the underlying merit of the
claims,” Buck, 137 S. Ct. at 774 (quoting Miller-El v. Cockrell, 537
U.S. 322, 327 (2003)). But he overstates the nature of our analysis.
We have reviewed the merits only to answer a limited question: Are
the issues close, or is it clear that dismissing Blount’s petition was
correct? To the extent the dissent objects to the amount of analysis
we perform, we acknowledge that our opinion could have been
shorter (though the outcome no different) had we merely computed
the limitations period, see section II.A, and left it at that. But we
thought it better for all if we described Blount’s arguments for a
different computation and explained why we found them clearly
unavailing. We find it difficult to believe that the COA standard
requires us to make our opinion more cursory. And to be clear, we
have not impermissibly given “full consideration to the factual or
legal bases adduced in support of the claims,” Buck, 137 S. Ct. at 773
(quoting Miller-El, 537 U.S. at 336). We have done nothing more
than reject Blount’s timeliness theories on their face. We have also
refrained from reaching a number of factual and legal questions in
the case, including whether equitable tolling is required by Rhines v.
Weber, 544 U.S. 269 (2005), or Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89 (1990), and whether Blount’s IAAC claim is entitled to
habeas relief. In the end, if our opinion looks to our dissenting
colleague like a rejection of Blount’s arguments on the merits, that
is because, as the Supreme Court has observed, “when a court of
appeals properly applies the COA standard and determines that a
prisoner’s claim is not even debatable, that necessarily means the
prisoner has failed to show that his claim is meritorious,” Buck, 137
S. Ct. at 774. As we see it, we have simply asked whether Blount’s
arguments rise to the level of reasonable debate. We conclude that
they do not.
20
petition was time-barred. We therefore deny Blount’s request
for a certificate of appealability.
So ordered.
WILLIAMS, Senior Circuit Judge, dissenting: My
colleagues have determined that no “jurists of reason would
find . . . debatable” whether Carlton Blount’s habeas petition
is timely. See Maj. Op. at 7 (quoting Slack v. McDaniel, 529
U.S. 473, 478 (2000)). As a jurist formerly known as
reasonable, I disagree. In the form of a Certificate of
Appealability (“COA”) analysis, the majority performs a full-
blown merits review on the timeliness of Blount’s petition—
exhausting legal and factual arguments, crafting a new rule for
interpreting state law, and invoking the court’s rarely-used
discretion to forgive the government its concessions. Such an
analysis is inappropriate at the COA stage, as the Supreme
Court clearly held only a few months ago. Buck v. Davis, 137
S. Ct. 759 (2017). In fact, Blount’s contentions easily pass the
Court’s threshold COA test. More importantly, once over that
modest hurdle, Blount’s claims on appeal warrant a remand to
the district court. I first explain why Blount’s claims entitle
him to a COA, and, having done so, propose a merits
disposition.
* * *
In 2001 a District of Columbia jury was asked to
determine if Blount committed murder, a specific intent
crime. Over defense counsel’s objection, the trial court
instructed the jury that Blount could be convicted even if he
did not intend to commit murder. Transcript, United States v.
Blount, No. F-983-00, at 73-75 (D.C. Super. Ct. Feb. 20,
2001). All the jury needed to find was that (1) Blount
“intentionally participate[d]” in some crime and (2) that
murder was a “natural and probable consequence” of that
crime. Id. Blount was, quite unsurprisingly, convicted. On
appeal, his new counsel neglected to raise the rejection of trial
counsel’s objection to the jury instruction, and the conviction
was affirmed. Blount’s conviction is thus marred by two
prima facie constitutional errors. The jury instructions
2
omitted necessary elements of the crime. See United States v.
Gaudin, 515 U.S. 506, 509-10 (1995); see also Wilson-Bey v.
United States, 903 A.2d 818, 826, 843-44 (D.C. 2006) (en
banc) (finding the same jury instructions unconstitutional).
And Blount’s appellate counsel did not challenge the
substance of these instructions, though the error was
compelling and properly preserved. See Smith v. Robbins,
528 U.S. 259, 288 (2000) (articulating Sixth Amendment test
for appellate counsel’s “failure to raise a particular claim”);
see also Strickland v. Washington, 466 U.S. 668 (1984). His
appellate lawyer’s error, bound up with the trial court’s error,
is the subject of Blount’s current petition.
Blount filed this petition (his second) over a dozen years
after his conviction. Absent some reason to stop the clock, it
would appear untimely against the one-year statute of
limitations in 28 U.S.C. § 2244(d)(1). But Blount has offered
two reasons for us to find him entitled to have the merits of
his petition addressed.
First, Blount claims that he is entitled to equitable tolling
of the statute of limitations as of the date he filed his first
federal habeas petition. That petition contained the same
claim as the current one, but it was dismissed for lack of
exhaustion (Blount had not yet employed the District’s device
for seeking relief on his claim of ineffective appellate counsel,
i.e., asking the D.C. Court of Appeals to recall its mandate).
Assuming that the first petition was timely (a fact the
government conceded), and assuming that it was improperly
dismissed rather than stayed (a highly probable conclusion),
Blount would be entitled to equitable tolling for a reasonable
period, thereby overcoming the time barrier.
3
Second, and independent of the first argument, Blount
asserts that the D.C. Court of Appeals re-opened his case on
October 11, 2012, when it adjudicated his motion to recall the
mandate. As per Jimenez v. Quarterman, 555 U.S. 113
(2009), a state court’s decision to re-open an appeal resets the
limitations period. If the D.C. Court of Appeals in fact re-
opened Blount’s case, then it would not have become “final”
again until January 9, 2013, when the 90-day window closed
on petitioning for certiorari of the October decision;
§ 2244(d)(1)’s one-year limit would thus give him until
January 2014 to file a new petition. Blount filed his current
petition in 2013, so it would also be timely if his re-opener
theory is correct.
My colleagues examine both issues, but they create a
chimerical beast, neither COA nor merits analysis and in
disregard of the sequence mandated by statute and the
Supreme Court. Before Miller-El v. Cockrell, “[m]any Courts
of Appeals decisions ha[d] denied applications for a COA
only after concluding that the applicant was not entitled to
habeas relief on the merits.” 537 U.S. 322, 348 (2003)
(Scalia, J., concurring). The Supreme Court put an end to that
practice, declaring that a COA is a “threshold question” that
“should be decided without ‘full consideration of the factual
or legal bases adduced in support of the claims.’” Buck, 137
S. Ct. at 773 (quoting Miller-El, 537 U.S. at 336). A court
cannot de facto “decid[e] the case on the merits” and then use
that determination to deny the COA. Id. In Buck the Fifth
Circuit had issued a brief unpublished opinion that “phrased
its determination in proper terms” of the COA standard, id.,
insisting that it was performing an “[i]nitial examination” and
merely looking for any “plausible argument” on the merits,
see Buck v. Stephens, 623 F. App’x 668, 673-74 (5th Cir.
2015). But the Court looked past those recitations to find that
4
the Fifth Circuit’s analysis was “essentially” the same as
would be performed on an actual merits review. Buck, 137 S.
Ct. at 773.
The majority today also focuses squarely on the merits—
but does so with even less pretense of a COA analysis than in
the Fifth Circuit’s Buck opinion. Although a “thorough”
consideration of the issues certainly suggests that we’ve
moved beyond the COA stage, see Buck, 137 S. Ct. at 774, the
primary fault of the majority opinion isn’t that it’s lengthy and
detailed, compare Maj. Op. at 18-19 n.6; the problem, as we’ll
see, is that it resolves a number of subtle issues, clearly
debatable among reasonable jurists (as here).
That is a “fundamental” error, Miller-El, 537 U.S. at 342,
though one whose correction would likely do Blount no
good—the majority opinion leaves little doubt that my
colleagues would deny the claim if they recognized the merits
as being properly before the panel. In any event, the merits
analysis they perform is not simply inappropriate at this stage;
it is, as I explain after discussing the COA, incorrect.
To warrant a COA Blount need only show that reasonable
jurists could disagree about one of his two procedural
arguments, along with, of course, his constitutional claim of
right. See Slack, 529 U.S. at 478 (COA should be granted
when the prisoner shows “at least” that reasonable jurists
could disagree over both the procedural propriety and the
substance of the petition). On the equitable tolling point, the
government has insisted to us that Blount’s first habeas
petition was timely. Gov’t Opposition to Mot. for COA, No.
15-5056, at 4 n.5 (July 27, 2015) (“Gov’t Opp.”); see Maj.
Op. at 16. Given this concession, tolling for a reasonable
5
period from that date could render the second petition timely
as well.
But relying on our discretionary authority to forgive “the
government’s [] failure,” my colleagues resolve that the first
petition was time barred and that any tolling from that date
would be pointless. Maj. Op. at 16-17. How such a
forgiveness becomes indisputable among reasonable jurists I
cannot fathom. In Day v. McDonough, 547 U.S. 198 (2006),
the Court found discretion in the courts to overlook a state’s
mistaken assertion that a habeas petition was timely; it agreed
with the state’s contention that the exercise of that discretion
should depend on “whether the administration of justice is
better served by dismissing the case on statute of limitations
grounds or by reaching the merits of the petition.” Id. at 208-
09. The Court later cautioned in Wood v. Milyard, 132 S. Ct.
1826 (2012), that “appellate courts ordinarily abstain from
entertaining issues that have not been raised and preserved”
and that they “should reserve” their Day “authority for use in
exceptional cases.” Id. at 1834.
The majority disregards the principle of Day v.
McDonough, paying no attention to its instruction to consider
whether the administration of justice is better served by
holding the government to its concession. Instead the
majority insists that Blount’s argument would require
deviating from certain “correct dates” and expresses doubt
that a “waiver or forfeiture could ever lead a reasonable jurist”
to deviate so, at least not without justification beyond the
concession itself. Maj. Op. at 16-17. But under Day and
Wood those doubts are misplaced. And treating Blount’s first
petition as timely would not require changing any of the
majority’s reconstructed dates. As the majority agrees that
equitable tolling would begin “when Blount filed his first
6
federal habeas petition,” id. at 15, and the government
conceded the timely filing of that petition, Gov’t Opp. at 4
n.5, the majority’s calculations merely show that Blount needs
what is being requested: equitable tolling for every day
between the first and second petitions.
It makes no difference that the government never waived
its statute of limitations defense to the current, second
petition. Maj. Op. at 19. The government’s explicit
concession that Blount’s first petition was “filed . . . within
the one-year statute of limitations,” Gov’t Opp. at 4 n.5, if
accepted by us, opens the door to equitable tolling and defeats
the government’s general timeliness objection to the second.
Under the Court’s cases, the government’s concession (even if
erroneous) should be excused only in “exceptional”
circumstances. See Wood, 132 S. Ct. at 1834; Day, 547 U.S.
at 209-10. The majority offers nothing remotely exceptional
here.
In exercising the discretion allowed by Wood and Day,
my colleagues have chosen to respond to the government’s
errors with easy magnanimity, and to Blount’s diligence with
merciless exactitude. This approach is particularly troubling
given the strength of Blount’s underlying Strickland
argument. See Rhines v. Weber, 544 U.S. 269, 278 (2005)
(courts should be wary of dismissing “potentially meritorious”
habeas claims). And regardless of how my colleagues treat
the government’s concession, they are incorrect to insist on
fully resolving that issue at the COA stage. “[A] court of
appeals should not decline the application for a COA merely
because it believes the applicant will not demonstrate an
entitlement to relief.” Miller-El, 537 U.S. at 337.
7
In some cases, a choice might be discretionary but
nonetheless obvious to any reasonable jurist. Not so here,
where the default rule lies in Blount’s favor (a party must live
with its concessions) and Blount’s constitutional claim is
likely to succeed. Blount’s equitable tolling argument is
hardly one we can say all reasonable jurists would reject. He
has thus made the necessary showing on the procedural part of
the COA. (Blount’s Jimenez theory would also survive the
threshold analysis suitable for a COA, but as Blount’s
equitable tolling argument is enough to earn him a COA for
review of the district court’s procedural holding, I discuss
Jimenez only below, as an alternative route for reversal in the
appeal proper.)
The substance of Blount’s Strickland claim also deserves
a COA. When it adjudicated Blount’s motion to recall the
mandate, the D.C. Court of Appeals “did not decide” the first
Strickland prong, deficiency, but may have ruled on the
second prong, prejudice—reasonable jurists would therefore
decide deficiency de novo and review prejudice with
deference to that court. See Porter v. McCollum, 558 U.S. 30,
38-39 (2009); see also 28 U.S.C. § 2254(d). In Robbins, the
Supreme Court adopted the Seventh Circuit’s formula for
ascertaining deficiency when counsel omitted an issue on
appeal: appellate advocacy is constitutionally deficient when
“ignored issues are clearly stronger than those presented.”
528 U.S. at 288. Blount has offered more than enough
evidence on this front. His appellate counsel neglected to
challenge the unconstitutional jury instructions even though
that challenge had been preserved by trial counsel and those
instructions “w[ere] under active criticism and discussion at
the time,” Blount v. United States, No. 08-CO-959, slip op. at
1 (D.C. Nov. 10, 2009) (“Blount II”) (affirming denial of post-
conviction relief for the jury instruction error, because
8
Blount’s appellate counsel had no “cause” to omit that claim).
The minor weaknesses of this argument—e.g., the possibility
that the error could be found harmless, see Neder v. United
States, 527 U.S. 1, 4 (1999)—offer scant reason for omitting
it. And it remains far more compelling than the points
Blount’s appellate counsel did raise, contentions almost bound
to lose, such as that the court admonished trial counsel too
harshly during cross-examination and that it was error to give
an accomplice instruction because the indictment failed to
allege accomplice liability. See Blount v. United States, No.
01-CF-974, slip op. at 3-7 & n.12 (D.C. June 29, 2004)
(“Blount I”) (affirming conviction on direct appeal).
As for the prejudice prong, the D.C. Court of Appeals
stated that “based upon the entire record, any error was
harmless due to the overwhelming evidence presented at
trial.” Blount v. United States, No. 01-CF-974, slip op. at 1
(D.C. Oct. 11, 2012) (“Blount III”) (order adjudicating motion
to recall the mandate). That analysis misses the nuance of the
test mandated by Robbins: whether there is “a reasonable
probability that, but for his counsel’s unreasonable failure . . .
he would have prevailed on his appeal.” 528 U.S. at 285.
Thus it would suffice for Blount to show, as he has, a
reasonable probability that the original appellate panel would
have rejected the government’s claim of harmlessness beyond
a reasonable doubt. When you multiply a fraction of a burden
(reasonable probability) by a fraction of a burden (rebutting
government’s contention that the jury instruction made no
difference beyond a reasonable doubt), you get a smaller
fractional burden: Blount need establish only a reasonable
probability that the government might not have established
harmless error. The D.C. Court of Appeals was incorrect to
require Blount to rebut the government’s harmlessness
contention entirely. Whether that mistake amounts to an
9
“unreasonable application” of Strickland, reasonable jurists
might debate. See 28 U.S.C. § 2254(d). And that is all that
Blount need show “at this stage,” where “we only ask whether
. . . deference” to the state court decision is “debatable
amongst jurists of reason.” Miller-El, 123 S. Ct. at 1042.
For these reasons, the majority should have granted the
COA rather than issue, as they did, an advisory opinion on the
merits followed by a summary denial of the COA. As I find
grounds for granting the COA, I now proceed to the appeal
proper, on which I find the majority’s advisory opinion
mistaken. Readers may wonder why I did not simply grant
the certificate myself and thus provide my colleagues with
jurisdiction to reach the merits decision that they do. A circuit
judge acting alone is authorized to grant a COA. 28 U.S.C.
§ 2253(c)(1); Fed. R. App. Pro. 22(b)(1)-(2). But as far as I
can tell, no judge has ever taken that step in this court,
certainly not after panel oral argument. I have chosen not to
do so partly out of comity but more out of futility; a move to
the more difficult appeal stage would—so far as appears—not
yield a difference in my colleagues’ conclusion. Nonetheless,
I now move on to the merits, the logical sequel to my view on
the COA.
* * *
Turning to “full consideration” of the procedural merits,
Buck, 137 S. Ct. at 773, I find Blount entitled to equitable
tolling—covering the time spent adjudicating Blount’s first
federal petition as well as the short periods it took him to go
from our court back to the D.C. Court of Appeals and from
there back to federal court. (Blount’s time litigating the
motion to recall the mandate can be tolled as a matter of
course. See Maj. Op. at 13-14 n.4.) Equitable tolling is
10
appropriate under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214, when the prisoner “has been pursuing his rights
diligently” and “some extraordinary circumstance stood in his
way.” Holland v. Florida, 560 U.S. 631, 649 (2010). Blount
has certainly been diligent. He filed his motion to recall just
31 days after the COA on his first petition was denied.
Compare Blount v. Wilson, No. 11-7060 (D.C. Cir. Sept. 27,
2011) (denying COA) with Mot. to Recall Direct Appeal
Mandate, Blount v. United States, No. 01-CF-974 (mailed
October 28, 2011). As for an extraordinary blocking
circumstance, that can be found in the ill-advised handling of
Blount’s first petition, which the district court (along with this
court) construed too narrowly and dismissed too readily,
rather than holding it in abeyance for Blount to exhaust his
District remedy.
Blount had not exhausted his Strickland claim before he
brought his first petition. But “pleading errors may be
corrected through the liberal construction or amendment we
are accustomed to providing a pro se prisoner.” Davis v. U.S.
Sentencing Comm’n, 716 F.3d 660, 667 (D.C. Cir. 2013).
Blount’s Strickland claim was intertwined with one that had
been exhausted in District post-conviction proceedings: that
the jury charge was unconstitutional. See Blount v. Wilson,
No. 11-7060, at 1-2 (noting that the first petition appeared to
raise both claims). Blount had already challenged those
instructions via the District’s procedure for post-conviction
relief, D.C. Code § 23-110. See Blount II at 1. Although the
D.C. Court of Appeals acknowledged that the instructions
were “improper,” it affirmed the denial of that challenge
because he had not raised the issue on direct appeal. Id.
When his federal habeas petition is read to focus on that
claim, the Strickland argument still plays a role; it serves to
11
excuse his procedurally defaulting in his direct appeal. See
Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Blount’s
first petition then, was a mix of both exhausted and
unexhausted claims. And “it likely would be an abuse of
discretion for a district court to deny a stay and dismiss a
mixed petition if the petitioner had good cause for his failure
to exhaust, his unexhausted claims are potentially meritorious,
and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” Rhines, 544 U.S. at
278. Blount’s mixed petition satisfied each Rhines element.
First, Blount’s unexhausted claim had considerable merit;
second, his failure to exhaust was due, at least in part, to the
District’s byzantine process for pursuing Strickland claims of
appellate representation; and third, he did not—and had no
incentive to—engage in “dilatory litigation tactics,” as those
tactics would prolong his time in prison. Dismissing Blount’s
first petition also ran counter to our precedent on unexhausted
Strickland claims flowing to us from the D.C. Court of
Appeals. In Streater v. Jackson, 691 F.2d 1026 (D.C. Cir.
1982), a petitioner for federal habeas for ineffective assistance
of appellate counsel had been stymied by the then prevailing
uncertainty in the District over where such a claim could get
review. Recognizing the interaction between that confusion
and the requirement of exhausting state remedies, we held the
federal petition in abeyance so that the petitioner could pursue
whatever the District might offer. Id. at 1028. Both Rhines
and Streater show that Blount’s first petition should have been
stayed, not dismissed.
Equitable tolling would correct this unfortunate mistake
and retroactively stop the clock during the pendency of
Blount’s first petition and during the reasonable amount of
time it took Blount to file his motion to recall and his second
12
federal habeas petition. The district court was incorrect to
deny Blount equitable tolling, and its decision should be
reversed.
Blount’s Jimenez claim also warrants reversal. The D.C.
Court of Appeals views its procedure for Strickland-based
motions to recall the mandate (its sole remedy for
constitutionally defective appellate counsel) as a two-step
process. There is a decision on the motion itself, and then, if
the motion is granted, full consideration of the Strickland
claim and the merits of the recalled appeal. See Long v.
United States, 83 A.3d 369, 378 & n.15 (D.C. 2013).
The parties here appear to agree that the first stage does
not qualify as a re-opening under Jimenez but that the second
does. That shared assumption seems a reasonable reading of
Jimenez, where the Court specifically found that, as a matter
of plain meaning, 28 U.S.C. § 2244(d)(1)(A)’s trigger for the
AEDPA’s one-year habeas limitations period—“the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review”—encompasses not only standard conclusion of direct
review but also instances where a state court re-opens and re-
concludes direct review. 555 U.S. at 119-20.
But as Long itself illustrates, the D.C. Court of Appeals
may collapse into a single proceeding its grant of the motion
to recall and its adjudication of the re-opened appeal. 83 A.3d
at 378 n.15.1 A composite process would also count as re-
1
There are, practically speaking, three steps combined in
Long: an initial Strickland inquiry when reviewing the motion to
recall the mandate; the post-recall complete Strickland analysis; and
the adjudication of the claim that should have been brought in the
13
opening direct review, and Blount claims this occurred in his
case. In Long the movant ultimately prevailed in the re-
opened appeal, but there is nothing preventing the use of
Long’s streamlined process in cases where the movant
ultimately loses (as did Blount). The two steps in the D.C.
Court of Appeals’s process impose successively increasing
burdens on the defendant: he need only show “sufficient
merit” to pass the first stage but can only prevail in the second
stage after the court “fully explores” his Strickland claim.
Griffin v. United States, 598 A.2d 1174, 1175-76 (D.C. 1991)
(emphasis and internal quotation marks omitted). As a matter
of logic, a court can, in a single proceeding, find that a movant
clears the lower hurdle but not the higher one. Indeed, this
ladder of increasing burdens should sound familiar: it is the
process AEDPA’s COA provision calls for us to follow
here—analyze the COA and then (if we grant the COA)
address the merits.
My colleagues recognize the possibility of a combined
grant-and-reject process. See Maj. Op. at 11. But they insist
that when the D.C. Court of Appeals claims it has dismissed a
motion at the first stage, we must end our inquiry, even if that
court’s “reasoning . . . mirrors the reasoning it would use on a
reopened appeal.” Id. at 12. They reject Blount’s “notion” of
analyzing what a state court actually did, preferring to treat as
final what it said it did. See id.
original appeal. Id. at 378-84 (performing initial Strickland
analysis, full Strickland analysis, and plain error analysis
simultaneously, then remanding to district court because there was
plain error). Performance of either of the latter two steps would
indicate re-opening.
14
Blount’s “notion,” though, flows from the Supreme
Court’s command: we are to analyze the state court decision
to see if “in fact” it re-opened the appeal. Jimenez, 555 U.S.
at 120 n.4. “[F]or purposes of applying” AEDPA provisions
“that interact[] with state procedural rules, we look to how a
state procedure functions, rather than the particular name
that it bears.” Carey v. Saffold, 536 U.S. 214, 223 (2002)
(emphasis added). Federal courts applying AEDPA are
admonished not to take what the state court said it was doing
“as an absolute bellwether” for what it actually did. Id. at
226. Doubtless there may be close cases, such as this one, but
accepting the burden of adjudicating these cases is, in the
Supreme Court’s judgment, radically preferable to willful
ignorance. Closing ourselves off to reality does no honor to
state courts and no justice to habeas petitioners.
Still, my colleagues contend that horrendous
consequences would flow from treating a denial of a motion
to recall the mandate as a reopening of the appeal—even in
cases where the state court’s reasoning “mirrors” what it
“would use on a reopened appeal.” Maj. Op. at 12-13. The
majority envisions prisoners evading time limits altogether as
they endlessly filed frivolous motions to recall the mandate.
See id. But state and federal courts have formidable tools to
prevent such gamesmanship. First, the D.C. Court of Appeals
invites little chance of re-opening when it follows its standard
practice of dismissing motions to recall when they are facially
insufficient. Here though, the court issued multiple orders,
noted the apparent sufficiency of Blount’s claims, and applied
the legal standard appropriate for a re-opened appeal. See
Dissent, infra, at 15-16. Second, there is the District’s 180-
day deadline for motions to recall the mandate, after which the
D.C. Court of Appeals may dismiss a motion procedurally
with no hint of re-opening. D.C. Ct. App. R. 41(f). The court
15
waived that bar in Blount’s case, further indicating its desire
to plumb the merits. Finally, any fear of meretricious re-
opening must assume extraordinary sloppiness on the part of
federal courts in interpreting state court decisions. We are
quite capable of comprehending that though all cats have four
legs (with a few exceptions), not all animals with four legs are
cats. Characterizing a motion to recall as frivolous may
“mirror[]” a merits dismissal for frivolity, but the reasoning
would be inconsistent with any idea that the court went on to
the second stage of its procedure. Compare Maj. Op. at 12-
13.
I would follow the Supreme Court’s example in Carey,
looking to the substance of the D.C. Court of Appeals’s
decision, not its form. Judged from this perspective, the
decision almost certainly re-opened Blount’s appeal. After
Blount filed his motion, the D.C. Court of Appeals released an
order noting that “the jury may have relied upon the aiding
and abetting instruction which included the ‘reasonable and
probable consequences’ language this court held to be
unconstitutional”; requesting a response from the government;
and concluding that Blount “appear[ed]” to have raised a
viable Strickland claim. Order, Blount v. United States, No.
01-CF-974 (D.C. Aug. 29, 2012). Thus the court seems to
have concluded that “on their face” Blount’s claims had
“sufficient merit,” see Watson v. United States, 536 A.2d
1056, 1060 (D.C. 1987) (plurality); see Griffin, 598 A.2d at
1176, and that it was necessary “to consider more fully and
then decide” whether a Strickland violation had occurred, see
Stratmon v. United States, 631 A.2d 1177, 1178 (D.C. 1993)
(internal quotation marks omitted). That is precisely the
reasoning the D.C. Court of Appeals uses when it “recall[s]
the mandate.” See Stratmon, 631 A.2d at 1178.
16
Consistent with this interpretation of the first order, the
court’s next order on Blount’s motion appears to involve the
type of “full[] explor[ation]” one expects in a recalled appeal.
See Griffin, 598 A.2d at 1176. As mentioned in my
discussion of Blount’s Strickland claim, the second order
invoked the precise legal test, harmless error, that should
govern the re-opened appeal. See Blount III at 1. Thus it
went well beyond what would have been necessary simply to
deny recall of the mandate. Compare Maj. Op. at 11-12. To
be sure, the D.C. Court of Appeals’s precedents on this issue
are somewhat confusing. Despite case law asserting that the
motions to recall are decided “on their face,” Watson, 536
A.2d at 1060, the D.C. Court of Appeals once ordered “an
evidentiary hearing by the trial court” on such a motion,
Stratmon, 631 A.2d at 1180. But the best reading of the
decisional array appears to be that the D.C. Court of
Appeals’s disposition of Blount’s motion comprised both a
decision to recall and a decision on the merits. Thus this
panel would have done well to find Blount’s petition timely
by virtue of Jimenez as well as the equities (and certainly
within the realm of reasonable disagreement).
Finding grounds for granting the COA and for ultimately
finding Blount’s petition not time-barred, I would reverse on
the timing issue and remand for the district court to address
the merits of the constitutional claim. See Mickles-El v. D.C.
Gov’t, No. 98-7019, 1998 WL 846649, at *1 (D.C. Cir. Nov.
24, 1998).
I respectfully dissent.