United States Court of Appeals, District of Columbia Circuit
May 2, 2018
from the United States District Court for the District of
Columbia (No. 1:13-cv-00049)
B. Wright, Assistant Federal Public Defender, argued the
cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender.
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
Before: Tatel, Griffith, and Wilkins, Circuit Judges.
Griffith, Circuit Judge.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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."
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 ...