Gaulden v. United States

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               DISTRICT OF COLUMBIA COURT OF APPEALS

                     Nos. 17-CO-243, 17-CO-244, & 17-CO-245

                          ROBERT F. GAULDEN, APPELLANT,

                                          V.

                             UNITED STATES, APPELLEE.

                          Appeals from the Superior Court
                            of the District of Columbia
                    (CF2-19416-06, CF2-3217-08, CF2-20509-08)

                         (Hon. Robert E. Morin, Trial Judge)

(Argued May 7, 2019                                       Decided October 8, 2020)

      Jenifer Wicks for appellant.

      Anne Y. Park, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney at the time the brief was filed, and Elizabeth Trosman,
Elizabeth H. Danello, and Nicole Raspa, Assistant United States Attorneys, were
on the brief, for appellee.

      Before GLICKMAN and THOMPSON, Associate Judges, and GREENE,* Senior
Judge, Superior Court of the District of Columbia.




      *
          Sitting by designation pursuant to D.C. Code § 11-707 (a) (2012 Repl.).
                                          2

      GLICKMAN, Associate Judge: Appellant, Robert F. Gaulden, challenges the

trial court’s denial after a hearing of five claims of ineffective assistance of

counsel. Appellant raised these claims in a D.C. Code § 23-110 motion to set aside

his convictions on a series of counts relating to his unlawful possession of a

firearm and his efforts to obstruct justice by threatening witnesses. For reasons set

forth in the trial court’s written decision, we reject appellant’s challenges and

affirm the denial of his motion.



                                          I.



      On June 22, 2006, police saw a man carrying a semiautomatic pistol with a

long, extended high capacity magazine, emerge from a parked car and run into an

apartment building. One of the officers and two civilian eyewitnesses, Alesha and

Felicia Knott, identified the fleeing man as appellant.      He was charged with

unlawful possession of a firearm by a convicted felon and other weapons-related

offenses. His first trial on those charges, at which both Alesha Knott and Felicia

Knott testified, ended in a mistrial in February 2008.



      Alesha Knott’s friend Cleveland Bryan accompanied her when she came to

court for appellant’s February trial. The following month, according to Bryan,

appellant spotted him when they were being transported together by bus from the
                                           3

D.C. Jail to Superior Court on March 25, 2008, for hearings in their unrelated

criminal cases. Bryan reported (and later testified) that appellant threatened to kill

Alesha and Felicia Knott for testifying against him, and to kill Bryan for

supporting Alesha Knott’s decision to testify. On the bus ride back from the

courthouse, Bryan said, appellant “tr[ied] to persuade [him] . . . to get [Alesha

Knott] to . . . take her statement back” and say that the government had “paid her

to lie.” Appellant allegedly added that if Bryan did not succeed, appellant would

make sure he encountered “problems” at the Jail. After returning to the Jail, Bryan

placed a recorded call that evening to Alesha Knott and told her about appellant’s

threats. Bryan also reported appellant’s threats to the government; they were the

basis for the obstruction and threats charges at issue in this appeal.



      The weapons and obstruction charges were joined for trial in May 2009.

Alesha and Felisha Knott again testified that they saw appellant running from the

police on June 22, 2006, as did one of the police officers who chased him and saw

him holding a gun. 1 Appellant’s defense to the weapons charges was that the

eyewitnesses had wrongly identified him.


      1
        Alesha Knott, who knew appellant, claimed not to remember the events of
June 22, 2006. Her contrary grand jury testimony was introduced as substantive
evidence.
                                         4

      Bryan testified to his March 25, 2008 encounter with appellant, and his

recorded phone call to Alesha Knott of that evening was introduced in evidence.

Appellant contended that Bryan was blowing their jail bus conversation out of

proportion and that, while he and Bryan had spoken on the bus, appellant had not

made any threats. Defense counsel opened on this theory, telling the jury that

appellant “never tried to get anyone to say anything other than the truth.” In

support of that theory, counsel cross-examined Bryan on whether he had

exaggerated and embellished appellant’s words to lessen his own jail time. 2 In the

defense case, appellant did not testify, but called a witness named James Brandon

to support his version of the jail bus incident. The defense expected Brandon to

testify, as he had before the grand jury, that he was on the bus and heard appellant

and Bryan get into an argument, but did not hear appellant make any threats.

Brandon surprised the defense, however, by testifying that he did not remember

seeing Bryan on the jail bus. To salvage the situation, the defense entered into a

stipulation with the government that Bryan had been on the bus along with

Brandon and appellant.


      2
         As part of a plea agreement in his own case, Bryan had agreed with the
government to testify against appellant. The cross-examination of Bryan
emphasized his strong desire to reduce his jail time because he was struggling to
cope, as well as past lies Bryan had told and dramatic things he had said to Alesha
Knott in recorded phone calls from the Jail.
                                          5

      The jury found appellant guilty of most of the charges emanating from the

June 22, 2006, and March 25, 2008 incidents. This court affirmed appellant’s

convictions on direct appeal.



                                         II.



      In his § 23-110 motion and this appeal from its denial, appellant claims his

defense counsel was ineffective in the following five ways: (1) failing, due to a

conflict of interest, to call a former client named Robert Pettus to provide

testimony at trial that Bryan was not on the jail bus with appellant on March 25,

2008; (2) stipulating to Bryan’s presence on that bus; (3) failing to obtain a

surveillance camera recording of what happened on the jail bus, or to request that

the government be sanctioned for destroying that recording; (4) failing to inform

appellant of the details of the government’s plea offer and giving him false hope he

would be acquitted based on evidence counsel did not intend to present; and (5)

failing to present evidence of appellant’s physical inability to run like the man seen

fleeing with a gun by the prosecution’s witnesses on June 22, 2006.
                                          6

      In order to succeed under the two-part test for evaluating ineffective

assistance of counsel claims set forth in Strickland v. Washington,3 an appellant

must show both “that his or her trial counsel’s performance was deficient under

prevailing professional norms, and that the deficient performance prejudiced his or

her defense.”4 Because “[f]ailure to satisfy either prong” of the Strickland test

“defeats the [ineffective assistance of counsel] claim,” the court may address the

prejudice prong first and is not required to address deficiency if the appellant fails

to show prejudice.5



      The inquiries for each prong of Strickland involve mixed questions of law

and fact. 6     “[W]e accept the trial court’s findings of fact unless they lack

evidentiary support in the record,” and “[w]e review the trial court’s legal

determinations de novo.”7        We defer to a judge’s reasonable “credibility




      3
          

466 U.S. 668

(1984).
      4
         Long v. United States, 

910 A.2d 298

, 309 (D.C. 2006); see 

Strickland, 466 U.S. at 687-88

.
      

5 Smith & H. v

. United States, 

203 A.3d 790

, 796 (D.C. 2019).
      6
          Cosio v. United States, 

927 A.2d 1106

, 1123 (D.C. 2007) (en banc).
      7

Id. 7

determinations” because such determinations are “the appropriate function of the

fact finder.”8



      “A criminal defendant . . . can also establish ineffective assistance of counsel

by showing that defense counsel had an actual conflict of interest.” 9 Where an

appellant failed to object to the alleged conflict at trial, he “must demonstrate that

an actual conflict of interest adversely affected his lawyer’s performance.”10

Conflicts that “are merely speculative or hypothetical” are not actual conflicts.11

To prevail on an ineffectiveness claim based on a conflict of interest, appellant

must demonstrate “(1) that ‘some plausible alternative defense strategy or tactic

might have been pursued’ but was not, and (2) that the alternative defense was

‘inherently in conflict with or not undertaken due to the attorney’s other loyalties

or interests.’”12   “‘An alleged conflict of interest that obstructs the use of a


      8
        Ruffin v. United States, 

25 A.3d 1

, 8 (D.C. 2011) (internal quotation marks
omitted) (quoting Price v. United States, 

985 A.2d 434

, 439 n.5 (D.C. 2009)).
      9
           Wages v. United States, 

952 A.2d 952

, 960 (D.C. 2008).
      10
          Veney v. United States, 

738 A.2d 1185

, 1192 (D.C. 1999) (quoting Cuyler
v. Sullivan, 

446 U.S. 335

, 348 (1980)).
      11
           Gibson v. United States, 

632 A.2d 1155

, 1159 (D.C. 1993).
      12
         McCraney v. United States, 

983 A.2d 1041

, 1060-61 & n.64 (D.C. 2009)
(quoting 

Veney, 738 A.2d at 1193

n.10).
                                         8

particular strategy or defense is not significant unless the defense is plausible,’

meaning it was available and realistically ‘might have influenced twelve

reasonable jurors.’”13



           A. Failure to Interview Robert Pettus and Call Him as a Witness



      Appellant’s trial counsel, Public Defender Service attorney Eric Klein, had

represented Pettus briefly in connection with an unrelated criminal proceeding.

Klein withdrew from that representation in December 2007, over a year before

appellant’s trial. Other PDS attorneys continued to represent Pettus until July

2008, some ten months before appellant’s trial.



      Appellant argues that a conflict of interest arising from Klein’s prior

representation of Pettus caused him to refrain from interviewing Pettus and calling

him as a witness at appellant’s trial. Appellant reasons that Klein had an actual

conflict because he “must have known that if Mr. Pettus were to testify at trial in a

manner that did not advance [appellant’s] case, it would have been incumbent on

Mr. Klein to cross-examine Mr. Pettus and to potentially attack his veracity[,] . . .


      13

Id. at 1060

& n.63 (quoting Fitzgerald v. United States, 

530 A.2d 1129

,
1138 (D.C.1987)).
                                            9

[which] undoubtedly would have involved using confidential and/or privileged

information that Mr. Klein learned about Mr. Pettus during PDS’[s] representation

of Mr. Pettus.”14



      This scenario is purely hypothetical and conclusory; there is no evidence that

it actually motivated Klein, 15 or that Klein acquired any confidential or privileged

information that could have been used to impeach Pettus. Absent such evidence,

the imagined scenario does not satisfy the standard for an actual conflict.

Normally, as we held in Freeman v. United States,16 when an alleged conflict

stems merely from the fact that a defendant’s attorney previously represented a

favorable defense witness in an entirely unrelated case, “there [i]s no risk that [the

attorney] w[ould] [be] in a position to act detrimentally to either of his clients’

interests” because “the interests of [the defendant and the witness] [a]re not in

conflict nor d[o] they risk dividing their shared attorney’s loyalties.” 17



      14
           Brief for Appellant at 20-21.
      15
         On its face, the imagined explanation is attenuated and even far-fetched,
since Klein would have called Pettus as a witness at trial only if he expected he
would not have to impeach Pettus’s testimony.
      16
           

971 A.2d 188

(D.C. 2009).
      17

Id. at 203-04. 10

      In fact, the trial court found, based on the testimony at the § 23-110 hearing,

that “Mr. Klein’s prior representation of Mr. Pettus did not play a role in his

decision not to interview or call him as a witness.” Appellant has not demonstrated

that this finding is clearly erroneous. The record shows that Klein had other sound

reasons to forgo Pettus as a witness; Klein testified that, while he could not recall

all his reasons after so many years, Pettus’s convictions for first-degree murder and

other felonies in a recent “high profile case” factored into the decision. Where an

attorney would have made the same decision even if he had not previously

represented another individual, “[t]he trial attorney’s performance is not adversely

affected” by the prior representation. 18



      The trial court further found that appellant had neither identified “a plausible

defense strategy” Klein failed to pursue because of his putative conflict of interest,

nor demonstrated that Pettus “actually possessed relevant, exculpatory testimony”

that could have made any difference at appellant’s trial so as to establish Strickland

prejudice. The evidence adduced at the § 23-110 hearing supported these findings

and conclusions. As more fully explicated in the trial court’s written decision,

Pettus could not credibly testify that he actually was on the jail bus with appellant


      18
           

Veney, 738 A.2d at 1197

.
                                        11

on March 25, 2008; he admitted it “could have been another day in March” that he

and appellant were on the bus.       In addition, Pettus’s credibility was heavily

impeached by his prior criminal convictions and his past claims to have been

suffering from severe mental illnesses, delusions, and memory problems. 19 We see

no reason to question the trial court’s assessments, which also took into account

Pettus’s demeanor on the witness stand, that Pettus’s proffered testimony denying

Bryan’s presence on the March 25, 2008 jail bus “would not have been persuasive

because he was not believable as a witness and some of his testimony was

manifestly incredible,” and that “Pettus offered no exculpatory value while also

raising credibility issues.”   Given, too, that the contemporaneous recording of

      19
           On cross-examination, Pettus testified that he began having “memory
problems” in 2004 after hitting his head in a car accident. He asserted that, by
2008, his memory was “[f]air.” In further testimony, however, he acknowledged
having claimed severe mental impairments on many occasions. Pettus had claimed
to be “delusional” and temporarily “insane” at the time of one of his past crimes in
order, he said, to “advance [his] insanity theory.” He had testified in a previous
proceeding that he was “mentally ill,” “that [he] had not been treated adequately
for [his] mental health,” and that he did not become “competent” until 2009.
Pettus also acknowledged having testified that he thought “something [wa]s wrong
with [his] brain.” He brushed this off as something he had said “to advance [his]
theory that [his] whole head was mess[ed] up, [and he] was neglected.” Pettus
similarly admitted to “throw[ing]” self-diagnosed labels of post-traumatic stress
disorder and paranoid schizophrenia “out there” in a proceeding for his own
criminal case in the hopes of “get[ting] the judge to understand where [he] was
coming from.” He also stated that he had been diagnosed with bipolar disorder and
had never been treated for it.
                                        12

Bryan’s March 25, 2008 phone conversation with Alesha Knott strongly

corroborated Bryan’s claimed presence on the jail bus with appellant that day, we

agree that Pettus would not have supported a plausible alternative defense strategy

for appellant, and that appellant has not shown a reasonable probability that

Pettus’s testimony would have altered the outcome of the trial.



             B. Stipulation that Bryan was on the Bus with Appellant



      At trial, after Brandon unexpectedly testified that he did not recall seeing

Bryan on the bus on March 25, 2008, Klein sought to salvage the situation by

stipulating as follows:


             On March 25th, 2008, a witness James Brandon appeared
             for a Court hearing at the DC Superior Court. . . . [H]e
             was transported on the bus from DC Jail with the
             Defendant Robert Gaulden and the witness Cleveland
             Br[y]an.


Appellant contends that his counsel performed deficiently in making this

stipulation because it prevented the defense from using Brandon’s testimony to

contest Bryan’s presence on the jail bus. The trial court rejected this contention,
                                         13

concluding instead that Klein’s decision to enter into the stipulation was reasonable

under the circumstances. We agree. 20



      As the trial court found, crediting Klein’s testimony, the defense pursued a

reasonable strategy at trial of trying “to discredit Mr. Bryan’s testimony about what

actually occurred on the bus rather than deny that [appellant and Mr. Bryan] were

on the bus together.”21 Defense counsel opened on that theory and cross-examined

Bryan in accordance with it. This may well have been the only reasonable strategy

to pursue, given the strong corroboration of Bryan’s presence on the bus.

Brandon’s expected testimony would have supported that strategy. His unexpected

testimony at trial undercut it and diminished the credibility and exculpatory value

of Brandon’s own testimony.       Thus, as the trial court concluded, “counsel’s

reasonable decision was that the stipulation could (1) help rehabilitate Mr.

Brandon’s testimony and (2) establish that he was on the bus with Mr. Bryan and

Mr. Gaulden and thus would have seen any interaction between the two.” In

      20
          The court also concluded there was no reasonable probability that, but for
the stipulation, appellant would not have been convicted of the charges of threats
and obstruction based on Bryan’s testimony. We agree with that conclusion as
well.
      21
         The court credited Klein’s testimony that his pretrial investigation had
confirmed that the jail bus passengers on March 25, 2008, included appellant,
Bryan, Brandon, and Pettus.
                                         14

addition to reconciling Brandon’s testimony with the defense theory that appellant

and Bryan had a conversation, but that appellant did not make any threats, the

stipulation made room for the jury to draw the positive inference (if it found

Brandon credible) that because Brandon did not remember Bryan’s presence, any

conversation between appellant and Bryan must have been mild and unremarkable.

Without the stipulation, the jury would likely have discounted Brandon’s testimony

as wrong, because it deviated from both the government’s evidence and the

defense’s theory of the case.



      “An appellate court will not second-guess trial counsel’s strategic choices,”22

particularly where, “in the circumstances presented, and considering the

alternatives, it was a reasonable strategy, and it was selected . . . on the basis of

sufficient pretrial investigation.”23    Here, trial counsel’s stipulation was a

reasonable strategic choice, albeit forced by less than ideal circumstances. It was

therefore not deficient performance.24



      22
           Brown v. United States, 

934 A.2d 930

, 943 (D.C. 2007).
      23
           Leftridge v. United States, 

780 A.2d 266

, 273 (D.C. 2001).
      24
          The trial court also rejected appellant’s assertion that Klein coerced him
into agreeing to the stipulation in order to avoid angering the trial judge. As the
court observed, the stipulation “was read in open court and Mr. Gaulden, who was
active in his defense and not shy about informing the Court of his discontent
                                                                        (continued…)
                                         15

     C. Failure to Obtain Surveillance Camera Footage or Request Sanctions
                       for Premature Destruction of Evidence


      Appellant argues that defense counsel was ineffective in failing to obtain

surveillance footage recorded by a camera on the jail bus on March 25, 2008; and

that, if this failure was due to the government’s premature destruction of the

surveillance footage, counsel was ineffective in failing to request that the court

sanction the government for the loss of the evidence.          These arguments fail

because the trial court, crediting the testimony presented by the government of a

Supervisory Deputy U.S. Marshal and a Department of Corrections Captain, found

that the alleged footage never existed because no camera surveillance was being

conducted on any of the jail buses in March 2008. We see no reason to overrule

that factual finding. It means that appellant cannot show deficient performance or

prejudice based on counsel’s alleged failure to obtain the footage or seek sanctions

for its supposed loss.




(…continued)
during the trial, made no objection to the stipulation as it was presented at trial or
at any time thereafter” (until the § 23-110 hearing). We see no reason to disagree
with the court’s finding that appellant entered into the stipulation “freely and
voluntarily, and as a result of a strategic decision by the defense.”
                                           16

                        D. Counseling Regarding Plea Offer



      Appellant’s next claim of ineffectiveness is that his trial counsel’s deficient

performance caused him to reject the government’s day-of-trial plea offer that

could have resulted in a lighter sentence. The offer would have required appellant

to plead guilty to one felony firearms possession offense, one count of obstruction

as to Alesha Knott, one count of obstruction as to Felisha Knott, and one count of

threats against Cleveland Bryan, in exchange for dismissal of the remaining

charges. At the motion hearing, appellant asserted (with some inconsistency, as

the trial court noted in its decision) that Klein (1) failed to explain the details of the

plea offer to him, and (2) convinced him not to accept it by falsely promising to

introduce evidence supporting his physical impairment and his jail bus surveillance

footage claims. Appellant also continued at the hearing to assert his innocence of

some of the charges the plea offer would have required him to admit.



      For multiple reasons, the trial court found appellant’s “testimony on the

issue about the plea offer to be largely incredible and self-serving.” Crediting

Klein’s “testimony and experience,” and the inconsistencies in appellant’s

testimony, the court disbelieved appellant’s allegations that Klein had failed to

inform him of the details of the plea offer, and that Klein had falsely promised to
                                          17

introduce favorable evidence he did not have or expect to have. Moreover, the

court found, “in light of Mr. Gaulden’s continued denial [of] some of the offenses

encompassed in the plea offer, he has failed to show that he would have

successfully completed the plea colloquy and that the Court would have accepted

the plea.” The court concluded that appellant had not demonstrated either that his

counsel performed deficiently in connection with the plea offer or that he suffered

prejudice from counsel’s allegedly ineffective advice.



      “We see nothing in the record that required the trial court to reject the

‘strong presumption’ that trial counsel’s strategic analysis and advice [about the

plea offer] were reasonable.” 25 We defer to the credibility assessments of the trier

of fact. It is indeed incredible (and contrary to Klein’s testimony) that defense

counsel promised appellant on the day of trial to present exculpatory evidence he

did not have at that point and could not obtain.          As for whether appellant

understood the details of the plea offer, we can look to appellant’s answers in court

at the time the plea offer was put on the record. The trial court asked appellant if

he “underst[oo]d the nature of the plea offer” and if he had “had enough time to

discuss it with [his] attorneys.” Appellant replied “[y]es, sir” to both questions.


      25
           

Ruffin, 25 A.3d at 8

(quoting 

Strickland, 466 U.S. at 689

).
                                          18

When the court asked appellant if he “want[ed] any additional time,” he declined

it. And in any event, to show the requisite prejudice to support his claim of

ineffectiveness, appellant needed to show, among other things, that but for the

ineffective advice of counsel, there was a reasonable probability he would have

accepted the plea offer and the court would have accepted his plea. 26           Given

appellant’s insistence even at the time of the § 23-110 hearing on his factual

innocence, we cannot fault the court determination that appellant failed to make

that necessary showing.



            E. Failure to Present Evidence of Permanent Physical Injury



      Appellant claims Klein was ineffective in failing to present evidence of his

physical inability to run, which appellant attributed to a shooting he suffered

around 1990 as a teenager. He argues this evidence would have negated the

testimony of the three eyewitnesses who identified him as the man they saw

running with a firearm into an apartment building on June 22, 2006, to escape the

police—the testimony that supported the firearm charges against appellant. 27 The



      26
           See Lafler v. Cooper, 

566 U.S. 156

, 164 (2012).
      27
         Appellant notes that his previous defense counsel presented some
evidence of his physical injury at his first trial (including displaying his scar to the
                                                                         (continued…)
                                           19

trial court ruled that appellant failed at the § 23-110 hearing to establish that he

was physically impaired and unable to run; found Klein’s “decision not to attempt

to build a defense around defendant’s alleged inability to run to be reasonable and

‘considered sound trial strategy’” 28; and concluded that appellant had not

demonstrated a reasonable probability that, but for this supposed error, he would

have been acquitted on any count.



      At the § 23-110 hearing, appellant claimed that Klein told him he simply had

forgotten to collect and present the physical impairment evidence. Klein testified

that he recalled reviewing appellant’s medical records but could not recall why he

decided not to present evidence to show that appellant was physically incapable of

running from the police. We therefore look first at whether appellant has shown

Strickland prejudice.




(…continued)
jury), which ended in a mistrial after the jury could not reach a unanimous verdict.
(According to the trial court, the jury in that trial voted 11-1 in favor of
conviction.) The first trial encompassed only the firearm charges; the jury in that
trial heard no evidence that appellant had threatened the eyewitnesses against him.
Like the trial court, we attach no significance to the fact that the first trial ended in
a mistrial.
      28
           Quoting 

Strickland, 466 U.S. at 689

.
                                        20

      Appellant had the opportunity to demonstrate prejudice at the evidentiary

hearing by presenting the evidence his counsel could have presented at trial. He

offered the following evidence. He introduced two x-rays of his pelvic bone that

were taken in 2010, four years after witnesses say they saw him running from the

police. He testified that the x-rays showed buckshots that remained lodged in his

pelvic bone from when he was shot in the spine and hip with a 12-gauge shotgun at

age fourteen. This shooting, he claimed, left him unable to run. 29 Appellant

acknowledged, however, being able to engage in other strenuous physical

activity—doing pushups and squats, playing basketball, lifting weights, engaging

in manual labor as a bricklayer—and that in 2002 he had fled from police by

jumping off a balcony. Appellant did not present any medical testimony or other

medical evidence supporting his assertion that he was unable to run.



      Appellant called only his sister, Meewah Bell, as a witness to support his

claim of physical incapacity to run. She testified that she had not seen appellant

run since he was shot in the back as a young teen. After the injury, she said, “he

wasn’t able to go with [her] . . . to the gym and do things that [she] would do.”




      29
        We note that because appellant chose not to testify at trial, it cannot be
presumed that the jury would have heard his testimony.
                                          21

When asked whether appellant had ever told her that he could not run, Ms. Bell

replied:


              Yeah. Because I asked him if he wanted to go work out,
              if he was able to do anything. He’d just like walk or just
              limit himself, but not run. “I couldn’t work out with you
              back at the gym.”


On cross-examination, Ms. Bell admitted that appellant had jumped from a balcony

at some point after the shooting incident as a teen.



      The evidence on which appellant relied—his and his sister’s testimony,

uncorroborated by any expert medical testimony or other independent witnesses—

was hardly sufficient, in our view, to support a finding of a “reasonable probability

that [the jury] would have returned with a different [verdict]” 30 if it had heard that

testimony. Appellant’s reluctance to exert himself in the same manner as his sister

during workouts and the fact that his sister had never seen him run since the

accident in no way prove that appellant was medically incapable of running when

startled by the police while illegally in the possession of a gun. As the trial court

stated,



      30
           

Cosio, 927 A.2d at 1132

(quoting Wiggins v. Smith, 

539 U.S. 510

, 535-36
(2003)).
                                           22

               Mr. Gaulden’s own testimony presents conflicting stories
               as to his physical abilities, which undercuts the strength
               of his claim. The testimony of Ms. Bell is similarly
               unpersuasive in that it merely repeats what she heard
               from Mr. Gaulden without offering anything more. Mr.
               Gaulden also chose not to produce testimony or affidavit
               of a qualified medical professional regarding his limited
               physical abilities.


      And as the trial court also pointed out, appellant’s prison medical records

(part of the government’s evidence at the hearing) “substantially weaken[ed]”

appellant’s claim of physical inability to run. The medical records report, for

example, that in January 2002, appellant stated he had no permanent injury

resulting from the gunshot wound to his lower back; that while appellant was

incarcerated he was injured at least twice (in 2007 and again in 2011) playing

basketball; and that appellant “does not experience prob[lems]s with activity.” The

records contain no report of an impaired ability to run or similar physical

limitations.



      The evidence in its totality supports the trial court’s conclusion that

appellant was not prejudiced within the meaning of Strickland by his counsel’s

failure to raise the physical impairment issue at trial.
                                       23

                                      III.



      For the foregoing reasons, we affirm the judgment of the Superior Court

denying appellant’s motion for relief pursuant to D.C. Code § 23-110 on claims of

ineffective assistance of counsel.
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