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Waters v. Lockett

United States Court of Appeals, District of Columbia Circuit

July 24, 2018

Lewis Waters, Appellant
Charles L. Lockett, Warden, Appellee

          Argued May 2, 2018

          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.


          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.



         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. 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.

         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."


         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 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 ...

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