Opinion
Case: 1:14-cv-01964
11-18-2014
BRYAN WILSON, Plaintiff, v. THOMAS D. ENGLE, et al., Defendants.
Assigned To: Unassigned
Assign. Date. 11/20/2014
Description: Pro Se Gen. Civil
MEMORANDUM OPINION
Plaintiff brings this action against Thomas D. Engle and Burke & Engle, P.L.L.C., counsel appointed by the District of Columbia Court of Appeals to represent plaintiff on direct review of his criminal conviction in the Superior Court of the District of Columbia. See Compl. at 1. He alleges that counsel "had not properly researched controlling law" relevant to an argument that a government witness had been coerced into testifying against him at trial. See id. at 2-3. As a result, plaintiff alleges, counsel "rejected a viable claim which would have secured a more favorable outcome (i.e. remand for hearing) to the plaintiff's direct appeal." Id. at 3. For counsel's alleged "legal malpractice and breach of fiduciary duty," plaintiff demands compensatory damages totaling $1,500,000. Id. at 4.
Twice plaintiff has brought - and lost - a claim of ineffective assistance of appellate counsel. See Wilson v. O'Brien, 869 F. Supp. 2d 169 (D.D.C. 2012) (denying ineffective assistance of appellate claim), appeal dismissed per curiam, No. 12-5225, 2013 WL 216328, at *1 (D.C. Cir. Jan. 4, 2013); Wilson v. United States, No. 07-CF-1097 (D.C. Ct. of App. filed Sept. 10, 2010) (per curiam) (order denying pro se motion to recall the mandate). These rulings preclude plaintiff's pursuit of a third claim of ineffective assistance of appellate counsel. See McCord v. Bailey, 636 F.2d 606 (D.C. Cir. 1980) (finding that legal malpractice claim barred after adverse determination of ineffective assistance of counsel claim), cert. denied, 451 U.S. 983 (1981). He cannot evade this outcome by casting his claim as one for legal malpractice, see Smith v. Pub. Defender Serv. for the Dist. of Columbia, 686 A.2d 210 (D.C. 1996), or for breach of fiduciary duty, see Hinton v. Rudasill, 384 F. App'x 2 (D.C. Cir. 2010) (per curiam).
The Court will grant the plaintiff's application to proceed in forma pauperis and will dismiss the complaint because it fails to state a claim upon which relief can be granted. An Order consistent with this Memorandum Opinion is issued separately. DATE: 11/18/2014
/s/_________
United States District Judge