Dubose, Jr. v. United States
Dubose, Jr. v. United States
Opinion
A jury convicted appellant Erwin Dubose, Jr., of possession with intent to distribute cocaine while armed, possession of a firearm during a crime of violence or dangerous offense ("PFCV"), carrying a pistol without a license ("CPWL"), possession of an unregistered firearm ("UF"), unlawful possession of ammunition ("UA"), and possession of a large capacity ammunition feeding device. We affirmed his convictions on direct appeal.
See
Dubose v. United States
, No. 16-CF-610, Mem. Op. & J.,
I. Background
On June 16, 2015, Metropolitan Police Department ("MPD") Officers Van Hook and McGinnis responded to a radio call for a black male wearing jeans, a white tank top, and a colorful hat, carrying a gun in front of 830 Crittenden Street, N.W. The officers saw a man matching the description at the intersection of 8th and Crittenden Streets. Officer Van Hook stopped the police vehicle and asked to talk to the man, and the man took off running. Officers Heffelman and Fitzgerald arrived at the scene and Officers Van Hook and McGinnis eventually brought appellant to the ground.
Appellant told the officers, "I'm going to tell you, I'm going to tell you, it's in my waist, it's in my waist." An officer felt a hard object in appellant's waistband which he recognized to be a gun. A pat down and search of appellant revealed a pistol loaded with fourteen cartridges in an extended magazine, 12.2 grams of crack cocaine, and $1,339 in cash.
At trial, appellant testified that he had purchased the drugs the day before to cope with his sister's death and the money was from odd jobs and his family. He asserted that while he was on the way to a friend's house, he stopped to urinate in an alley, found the gun lying on the ground, and was walking to the police station to turn it in for a reward. Appellant stated that he ran when police approached because he was "confused and scared, didn't know what to do."
This court affirmed his convictions on direct appeal, rejecting arguments that the trial court erred in denying his motion to suppress evidence and in refusing to instruct the jury on the defense of temporary innocent possession of the firearm and ammunition. See Mem. Op. & J. at 1, 5. On October 1, 2017, appellant moved to vacate his convictions for CPWL, UF, and UA, claiming that he had been denied the effective assistance of counsel and that those convictions violated the Second *602 Amendment. 1 Judge McKenna denied appellant's motion in an order issued on June 15, 2018.
II. Ineffective Assistance of Counsel Claim
Appellant argued that his trial counsel was ineffective "because he failed to move to dismiss the gun charges pursuant to the Second Amendment of the United States Constitution." The trial court denied appellant's § 23-110 motion, finding that "a motion to dismiss these charges would have been fruitless."
We review the trial judge's legal conclusions de novo and "accept the judge's factual findings unless they lack evidentiary support."
Bost v. United States
,
" 'Judicial scrutiny of counsel's performance must be highly deferential,' and 'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' "
Turner v. United States
,
At the time appellant was arrested, District law required a person applying for a license to carry a pistol to show "good reason" for needing to carry a firearm.
See
*603
Hooks v. United States
,
In any event, "failure to anticipate a change in the law is not ineffective assistance of counsel."
Stratmon v. United States
,
III. Second Amendment Claim
Even if appellant had raised a Second Amendment challenge to the CPWL, UF, and UA counts at or before trial, that challenge would have failed for various sound reasons. 2
A. The UF and UA Convictions
"[N]o person ... in the District shall possess or control any firearm, unless the person ... holds a valid registration certificate for the firearm."
Appellant now asserts that these convictions violate the Second Amendment, but he cites no controlling authority for that proposition. Although
Wrenn
invalidated the "good reason" provision of the licensing statutes, it did not disturb the separate requirement to register a firearm.
Wrenn
,
Registration remains a prerequisite for lawfully possessing a firearm or ammunition in the District of Columbia. Nothing in Wrenn or Supreme Court precedent has invalidated the provisions cited above requiring registration of a firearm. Therefore, appellant's UF and UA convictions stand.
B. The CPWL Conviction
Appellant also argues that the CPWL statute is invalid both facially and
*604
as applied to him.
3
A facial challenge "amounts to an argument that no application of the CPWL statute could be constitutional."
Brown v. United States
,
As discussed above, this court continues to recognize after
Wrenn
that "there is no Second Amendment right to carry a concealed firearm in public."
Hooks
,
In order to carry a pistol lawfully outside the home, a person must have a license to do so.
However, at the time appellant was arrested, the statute which dealt with the issuance of licenses contained the "good reason" provision later invalidated in Wrenn . Appellant's primary argument therefore seems to be that, because he could not satisfy the "good reason" requirement, no valid statute prohibited him from carrying a pistol without a license. This assertion is based on a misreading of Wrenn .
Wrenn
did not invalidate the statutory scheme which required a person to obtain a license to carry a pistol outside the home. Severing the "good reason" provision in light of
Wrenn
,
Nor has appellant demonstrated that the CPWL statute is unconstitutional as applied to him. Even after
Wrenn
, registering a pistol remains a prerequisite for obtaining a license to carry that pistol in the District of Columbia.
See
Appellant thus has not established that the "good reason" requirement in effect at the time of his arrest unconstitutionally precluded him from obtaining a license to carry a pistol. In order for the "good reason" requirement to have that impact, appellant would have to be otherwise qualified to receive a license. As noted, he had not in fact registered the pistol. We therefore agree with the trial court's conclusion that appellant's "failure to register his weapon is fatal" to any as-applied Second Amendment challenge to his CPWL conviction. Furthermore, to be a "suitable person" qualified for a concealed-carry license, the applicant must meet all of the requirements for registering a firearm.
See
24 DCMR § 2335.1 (2015) ("A person is suitable to obtain a concealed carry license if he or she [m]eets all of the requirements for a person registering a firearm ... ; [h]as completed a firearms training course ... ; [and] [h]as not exhibited a propensity for violence ...." (among other conditions);
see also
IV. Conclusion
Appellant has not established ineffective assistance of counsel. Moreover, his Second Amendment claim is without merit. For the reasons discussed, the judgment of the Superior Court is
Affirmed.
Appellant does not challenge his convictions for possession of cocaine with intent to distribute while armed, PFCV, and possession of a large capacity ammunition feeding device.
Appellant did not raise his Second Amendment claim at trial or on direct appeal.
Wrenn
was decided in July 2017, but this court did not issue its Memorandum Opinion and Judgment in appellant's direct appeal until September 2017. Appellant did not seek leave to file a supplemental brief. "Section 23-110 is not a substitute for a direct appeal. Thus, where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure."
Wu v. United States
,
Appellant's brief to this court is less than clear as to whether he is raising an as-applied challenge, but the trial judge's order from which he appeals addressed and rejected an as-applied claim as well as a facial challenge. The government has briefed the appeal as if appellant were still pursuing an as-applied challenge, and appellant did not file a reply brief disclaiming such an argument.
The qualifications for registration of a firearm include, among other things, never having been convicted of a felony, not having been convicted within five years prior to the application for registration of "any law restricting the use, possession, or sale of any narcotic," and completing a firearms training course.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.