[00:00:02] Speaker ?:
Case number 13 of 5275.

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Lewis Waters, appellate, versus Charles L. Lockett, warden.

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Miss Wright for the appellate, Mr. Smith for the appellate.

[00:00:14] Speaker 02:
Good morning.

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May it please the court?

[00:00:16] Speaker 02:
Good morning.

[00:00:17] Speaker 02:
Lisa Wright, representing Mr. Waters.

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I'd like to reserve two minutes for rebuttal.

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The DC Court of Appeals rejection of Mr. Waters' pro se claim of ineffective assistance of appellate counsel was unreasonable application of federal law, where his counsel failed to raise a meritorious sufficiency challenge to the AWIC knife count and the aggravated assault knife count.

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based on the government's failure to negate self-defense beyond a reasonable doubt as to those counts.

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This was a winning legal claim where under the government's own evidence, no reasonable juror could find beyond a reasonable doubt that at the time of the stabbing, Mr. Waters had not withdrawn from the conflict with Hargrove, did not reasonably fear serious bodily injury necessitating the use of deadly force, and had used deadly force.

[00:01:02] Speaker 04:
What standard of review do we use on this particular claim?

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Well, as in pain, the court said that questions of law in these matters are decided to no vote.

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So I would say it's a pure legal question that this court can decide on its own.

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The sufficiency, I think I have a footnote that cites sufficiency questions are just, they're yes or no pure legal questions.

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So we don't, as far as reviewing the district court here, what standard of review do we rely upon?

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It's de novo, and then as far as the district court's review and our review of the DC Court of Appeals,

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to the extent that they have passed on this issue, what do we do?

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Well, as to the district court, I think, again, the district court's findings, legal findings would be reviewed to know about, and factual findings would be reviewed under the looser standard.

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But here, the district court didn't reach this question.

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So there isn't really review in that sense.

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So it's more a question of this court looking at, was it reasonable for the DCCA, was it reasonable application of federal law to deny recall of the mandate when

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This was an obviously winning claim, and therefore under Strickland, ineffective assistance was established as a matter of law.

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Okay.

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So, but nonetheless, the issue of sufficiency, of course, we look at the evidence in the light most favorable to the government, right?

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Yes.

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And while there was some evidence of withdrawal,

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I mean, sufficient that the trial judge gave the instruction.

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Wasn't there evidence, including from your client, that was inconsistent with the self-defense claim?

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Scenarios that were presented were, you know, mutually exclusive, and Mr. Waters denied having used a knife at all.

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The charge was AWIC knife.

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So the jury clearly had rejected that.

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that argument.

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There was no discussion of a knife by Waters at all.

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So the only evidence about a knife was from Hargrove and Hargrove's testimony clearly necessarily created a reasonable doubt in the mind of a jury about withdrawal since he himself openly acknowledged that that was communicated to him by Mr. Waters

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that he ran like a coward.

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He didn't want to face me.

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He was not trying to fight.

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Mr. Hargrove was open about that.

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But he decided that because he had been killed, he believed he was going to, in retribution, kill Mr. Waters and the others.

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And... Where's the withdrawal here?

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Pardon?

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Where's the withdrawal here?

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The withdrawal is when... To make this something other than a continuous attack?

[00:04:27] Speaker 02:
Yes, it's a withdrawal because there's the moment, the break, and the disengagement.

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How much time?

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It was a short period of time.

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How much time?

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It was 30 seconds, right?

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Short, yes.

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That's withdrawal.

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That's an interruption.

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No reasonable juror could disagree with that.

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That's the standard you have to show, that no reasonable juror could come to any other conclusion

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other than that that was a withdrawal.

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Well, given that the victim... Is there a single case that you can cite to in the history of the Republic that has said that that would be unreasonable for a juror to say withdrawal did not occur here?

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No, there's not a factual case exactly on point, but I think Mr. Hargrove testified 100% that he did withdraw, that he... Yeah, but he withdrew because... I mean, in addition to Judge Griffith's question,

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Waters was retreating from an attack by the man he tried to kill, right?

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Yes.

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That's what Hargrove testified.

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A rage came over me, and I wanted to kill Lewis for what he had just done to me.

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So how could it possibly be that someone's right to self-defense is restored when he's trying to escape from an attack by the man he just tried to kill?

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Well, he testified that it was not his... Pardon?

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It doesn't make any difference what he testified, does it?

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Why does it make any difference?

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He testified that he was not trying to defend himself at that point at all, that the game had switched up at that point, that they had stood up.

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There had been this moment of shock and disengagement when they were both on the floor, and Mr. Hargroves... My question is more fundamental than that.

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If someone is escaping from an attack by the person he just tried to kill,

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How can that be a retreat that restores the right to self-defense?

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I think that's a common scenario where someone... Yeah, it's very common and it's hard for me to see how under that circumstance the right... I mean, if you'd gone away for a couple of hours, perhaps, but when it's instantaneous like this and he's trying to escape

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an attack from the man he tried to kill.

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It just seems to me that a jury, no reasonable jury would accept that.

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Well, the whole premise of this area of law, this withdrawal area, is that the aggressor, that it's changed up, that you can withdraw even though you were the aggressor.

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And the timing factor, I think, is less important than what the standard says is that you have to take actions or words indicating an intent to withdraw.

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And that was clearly done and effectively communicated.

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There was really no— viewing the government's evidence in the light most favorable, Mr. Hargrove received the withdrawal message from Mr. Waters.

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And so how could a reasonable jury not have a doubt about that?

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By the way, I just have a question.

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So Waters' conviction was as a co-conspirator, right?

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Yes.

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He didn't have the knife.

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or aiding and abetting.

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Yeah, right.

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Either way.

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Does that have any significance for this issue?

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In other words, since it's a conspiracy, do all three have to withdraw for anyone to have the right to self-defense restored?

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Well, I think the self-defense, just as it excuses the aider and abetter liability or justifies the aider and abetter liability, also would justify or excuse the co-conspirator liability.

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And, you know, alternatively.

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Because the other two, the other one had not retreated, in fact, right?

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Well, Hargrove's testimony was they were just standing against the wall.

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And it was not until Mr. Waters called for help, which was not during the retreat or withdrawal.

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It was not until after he had retreated that he then summoned them for help.

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And that's when they joined in.

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And arguably, if he can make out a self-defense, they could have made out a defense of others.

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But I don't think that's necessary.

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because he has a defense to this co-conspiratorial liability.

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And also, you know, although it's unclear how this was in furtherance of a conspiracy at this point to steal.

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So there was no evidence that he was trying to disarm him.

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There was no evidence he was trying to save himself.

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In fact, he essentially was blowing himself up too.

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He's not defending himself against Mr. Waters or the others.

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He's essentially accepting his death and almost hastening it by his actions and on purpose.

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his only purpose being his desire to kill Waters, and given this, no reasonable juror could be convinced beyond a reasonable doubt that he did not adequately withdraw, and a rational juror would necessarily find him restored, and I don't think... Couldn't a rational juror have thought that he ran to the utility room for strategic purposes, maybe to get another weapon or a tool or something?

[00:10:00] Speaker 00:
If that's possible, if that's possible, then you'd lose on that argument.

[00:10:05] Speaker 02:
Well, I think the victim's perception, that's the government's evidence in the light most favorable, is that that's not what it was.

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I don't know where the juror would get that from when the witness testified as to what his thinking was.

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And that was not his thinking.

[00:10:23] Speaker 01:
Could you just tell me, just in terms of the record, so looking at Murphy, the DC Court of Appeals case, the aggressor must

[00:10:36] Speaker 01:
communicate his intent to withdraw.

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And what's the evidence of that?

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Just point to it.

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Any words communicated his intent to withdraw?

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the running into the utility room, trying to hide from him with a look of fear on his face, and essentially we know he communicated it because the message was received.

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It's an unusual case.

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I mean, normally the victim is not saying, yes, he tried to withdraw, but that's what the victim testified to, essentially.

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I mean, that is the government's evidence that he tried to withdraw.

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Likewise, the government's own evidence supports a valid exercise of the right to self-defense once it is restored because it failed to negate Mr. Waters' actual and reasonable fear of imminent serious bodily injury.

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Again, he had the look of fear on his face in light of Hargrove's understandable rage.

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Hargrove admitted his goal was to kill the defendant.

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My mind was still focused on trying to kill Lewis.

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If I could just break his head across the boiler gas line, I could blow the whole house up.

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Mr. Waters recognized that Hargrove was trying to kill him and said so explicitly.

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So there's really no doubt there because he doesn't just say, help me, help me.

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He says, he's trying to kill me, he's trying to kill me.

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So that shows his subjective belief as to the danger he was in, and that fear was reasonable.

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He was pinned and he was being essentially tossed like a ragdoll by this enraged hand-to-hand combat expert who characterized himself as a trained assassin.

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And so under those circumstances, no rational juror could think that Mr. Waters' fear was unreasonable beyond a reasonable doubt.

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And finally, the government failed to establish that the force that he used was excessive.

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The issue is, again, the subjective belief of the defendant who said, he's trying to kill me.

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There was not an escalation here of the violence since there was already a lethal battle going on.

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And self-defense permits the use of, quote, reasonable force to repel the perceived attack.

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And that's Parker.

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explains excessive force very well.

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Twenty-seven stabs were necessary to defend himself?

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By definition, they were not sufficient to repel the attack.

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And it's also the subjective determination in the heat of the moment, in a calm mind.

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What's reasonable to the mind in the moment might not be as reasonable to the calm mind, but the mind of the defendant subjectively.

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is what matters.

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And in fact, even objectively, it was not enough because Mr. Hargrove testified that he was numb, he was basically adrenalized and enraged and numb to these lacerations he was receiving, and that he only ceased his attack once this other object was used against him, which was not the conduct at issue here, this blunt object.

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And he also agreed that as the moment that he stopped fighting, stopped trying to kill,

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Mr. Waters, that they immediately stopped.

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So again, you have to have a reasonable doubt whether that's excessive.

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And you don't look at, you know, whether there's something else under Ewell, the Ewell case.

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You don't consider what else a defendant might have done.

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It's only excessive if it's completely disproportionate and it's an escalation of force, which it was not here.

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So given all that,

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The government presented insufficient evidence to negate the withdrawal or to establish the conduct underlying counts three and six, a manager excessive force, and there was therefore no reasonable basis for the DCCA to deny Mr. Waters' claim that appellate counsel was ineffective in not raising the sufficiency claim, and Mr. Waters is entitled to habeas relief.

[00:14:31] Speaker 02:
Thank you.

[00:14:44] Speaker 03:
May it please the court, Peter Smith on behalf of the United States.

[00:14:48] Speaker 03:
The D.C.

[00:14:49] Speaker 03:
Court of Appeals reasonably rejected appellant's claim of ineffective assistance of appellate counsel.

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It was reasonable for counsel to forego the withdrawal claim that appellant is raising on appeal.

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It's counsel's responsibility in

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working on an appeal to winnow out the issues.

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This was not a meritorious issue and there was, counsel reasonably chose not to make this argument.

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First of all, defendant's own testimony contradicted appellant's withdrawal theory.

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Appellant testified that he was tussling with the victim Aaron Hargrove and that Hargrove never banged appellant's head on anything.

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In addition, this was best understood as one continuous episode where Hargrove and Appellant were struggling and Appellant retreated briefly into the utility room and the struggle continued.

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Cases like Grover and Rory have found withdrawal where there's been a one or two and a half hour

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break in the proceeding and disengagement between the parties.

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And here you do not have that.

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You have basically one continuous episode.

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And you have the close temporal time and the close proximity of the combatants during this time period.

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So you don't have the withdrawal that you do in these other cases.

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So I'm trying to understand how you believe that we should interpret the law.

[00:16:24] Speaker 04:
Suppose the facts were, instead of going into the utility room, Waters and the other two co-defendants walked towards the exit.

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And as Waters was about to reach the exit, 30 seconds later, Hargrove

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rushed him and attacked him.

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Same result, that's not withdrawal?

[00:16:53] Speaker 03:
I think you'd have the same result in that case, your honor, because you don't have unambiguous withdrawal.

[00:17:01] Speaker 03:
In Peterson, for example, the first aggressor said that he was leaving, got in a car, tried to drive away.

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And that constituted withdrawal.

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And in your hypothetical, although walking to the exit is more like withdrawal, and if appellant and his co-defendants had run out of the exit and were gone for some period of time, you may well have withdrawal.

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in that circumstance where it's such a brief period of time and the withdrawal is not unambiguous, you wouldn't have withdrawal.

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And here, of course, the facts are even more clear because Appellant himself testified that the two were struggling the whole time, although Hargrove testified that Appellant backed up into the utility room.

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The facts are that the shooting occurred in the hallway right in front of the utility room.

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Appellant is backing up in a very brief period of time

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a very short distance, and then the struggle ensues inside the utility room.

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So you don't have the facts that you have in these other cases where there has been withdrawal.

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And I'm not aware of any case where a court has found withdrawal when someone is merely backing up a short distance.

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and appellant hasn't cited any such case.

[00:18:20] Speaker 00:
What do you say to Ms.

[00:18:22] Speaker 00:
Wright's argument that Hardgrove knew that withdrawal was communicated to Hardgrove and that that's what he thought had taken place?

[00:18:32] Speaker 03:
I don't think so.

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I think that this court, in sufficiency review and looking at Strickland and whether it was reasonable for counsel to not have raised this argument, has to look at the whole record.

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That includes appellant's testimony that the two were struggling the whole time.

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Although Hargrove testified that Appellant's act was cowardly in retreating into the utility room.

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That didn't mean that Appellant had withdrawn.

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For example, it didn't indicate, he didn't say anything about renouncing or surrendering or giving up the fight.

[00:19:06] Speaker 03:
He didn't, his co-defendants were still standing right there.

[00:19:12] Speaker 01:
Yeah, he didn't say it, but it was obvious from his behavior and his facial expressions and what Hargrove understood that that's exactly what was communicated.

[00:19:20] Speaker 03:
I don't think it would have been obvious in that short period of time, in that close proximity, where appellant testified that the two were scuffling the entire time.

[00:19:31] Speaker 01:
You agree that communicate doesn't mean he has to actually say it.

[00:19:33] Speaker 03:
No, that's correct.

[00:19:34] Speaker 03:
But again, courts that haven't relied on direct communication

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meaning a comment like, you know, I'm leaving, or I'm surrendering, or I'm not trying to rob you anymore.

[00:19:45] Speaker 03:
You don't have that here.

[00:19:47] Speaker 03:
In the absence of that, where courts have found withdrawal, there's been this break in time of an hour, two and a half hours, like in Rory.

[00:19:56] Speaker 01:
Well, that's because those were the facts in those cases.

[00:19:58] Speaker 01:
That doesn't mean there isn't withdrawal in this case also.

[00:20:03] Speaker 01:
None of those cases said that those cases didn't say that less time

[00:20:08] Speaker 01:
would have produced a different result.

[00:20:10] Speaker 03:
They didn't, but I'm not aware of any case, again, that would find it in this close period of time.

[00:20:15] Speaker 01:
Right, well, yeah, we have lots of cases like that, where there's no case precisely appointed.

[00:20:20] Speaker 01:
We have to figure out where the line is.

[00:20:22] Speaker 03:
Yeah, but then you have the fact that they're struggling, you have the fact that the co-defendants are standing right by, and the co-defendants are armed at the time that appellant called out to his co-defendant to stab

[00:20:35] Speaker 03:
the victim, which is inconsistent with withdrawal.

[00:20:40] Speaker 01:
Well, it's not unlikely that someone, the aggressors, the aggressor could still well be armed, right, and still, and still withdraw.

[00:20:52] Speaker 03:
They could, I guess, if they said so, or there was a gap in time.

[00:20:56] Speaker 03:
I guess this case would be a lot more like Dorsey, where the original defendant, the first aggressor is armed, the victim is unarmed, the defendant is uninjured.

[00:21:11] Speaker 03:
And in that case, the DC Court of Appeals found that the use of deadly force wasn't justified, that the defendant in that case hadn't been restored to his right of self-defense, in part because he was armed and he was attacking an unarmed victim.

[00:21:31] Speaker 03:
So I guess all of those things together would be the facts that would show that despite that one

[00:21:38] Speaker 03:
aspect of Hargrove's testimony that you don't have withdrawal.

[00:21:42] Speaker 03:
And this court has to look at the entire record and it has to look at that record in the light most favorable to the government on sufficiency review.

[00:21:50] Speaker 03:
And then there's another layer on top of that that I guess goes to Judge Wilkins' earlier question for appellants council that this court is looking at whether it was reasonable for counsel, appellate counsel to forego this argument.

[00:22:04] Speaker 03:
And so you're looking at the sufficiency standard

[00:22:07] Speaker 03:
You're looking at appellant counsel's strategic decision, given the closeness of this, the fact that the parties are arguing about what the facts even are.

[00:22:20] Speaker 00:
Isn't there yet another layer, and that's under EDPA?

[00:22:24] Speaker 00:
Wouldn't we have to come to the conclusion that the D.C.

[00:22:28] Speaker 00:
Court of Appeals was not just wrong, but unreasonably

[00:22:31] Speaker 03:
That's correct.

[00:22:32] Speaker 03:
I mean, I guess that's the first level of review is the statutory level, which is that this court has to find that the lower court, the state court was unreasonable.

[00:22:43] Speaker 00:
And then we get to Strickland.

[00:22:44] Speaker 00:
Right.

[00:22:44] Speaker 00:
And then on top of that, we have the sufficiency of the evidence.

[00:22:47] Speaker 00:
Right.

[00:22:48] Speaker 03:
So we're sort of burrowing down now deep into the facts.

[00:22:51] Speaker 03:
But I guess my point is that the fact that the parties are arguing about the facts just illustrates that counsel made a reasonable strategic decision in not raising this claim.

[00:23:00] Speaker 03:
for the reasons that I articulated earlier.

[00:23:03] Speaker 03:
If there are no further questions, we would urge the court to affirm the judgment of the DC Court of Appeals.

[00:23:10] Speaker 01:
Thank you.

[00:23:20] Speaker 02:
Just because the withdrawal has been found after longer breaks doesn't mean a shorter break cannot be withdrawal.

[00:23:27] Speaker 02:
In this case, it's highly unusual.

[00:23:29] Speaker 02:
It short circuits the whole question of the temporal break by having the victim, the government's own evidence, jumps to the ultimate question and acknowledges the ultimate question in our favor.

[00:23:41] Speaker 02:
There's no reason to require some extended period because the law wants to encourage

[00:23:44] Speaker 02:
Fights to end and once immediate withdrawal is a good thing that you don't want to encourage victims, you know, the non aggressor to continue once the person withdraws.

[00:23:57] Speaker 02:
And as whether this is a strategic decision, it cannot be a strategic decision to, when a question of law is involved and is a yes or no answer, and it's meritorious, which this court can find de novo, there could be no possible strategic reason not to raise it when it takes 17 years off the defendant's sentence.

[00:24:12] Speaker 02:
There's no downside at all.

[00:24:14] Speaker 02:
And likewise, it would be, by definition, unreasonable for the DCCA

[00:24:19] Speaker 02:
to not find effectiveness in that circumstances because there is just a pure question of law.

[00:24:25] Speaker 02:
So we would ask the court to grant Mr. Waters his habeas relief.

[00:24:30] Speaker 02:
Thank you.

[00:24:31] Speaker 01:
Thank you.

[00:24:31] Speaker 01:
Both cases submitted.