Jasper Dockery v. Joe Driver ( 2010 )

Case: 09-30279 Document: 00511019782 Page: 1 Date Filed: 02/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 3, 2010
No. 09-30279 Charles R. Fulbruge III
Summary Calendar Clerk
JASPER LLOYD DOCKERY,
Petitioner - Appellant
v.
JOE DRIVER, Warden,
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:08-CV-958
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jasper Lloyd Dockery was convicted in the Superior Court for the District
of Columbia of first-degree premeditated murder while armed, two counts of
possessing a firearm during a crime of violence, six counts of assault with intent
to kill while armed, and unlawful possession of ammunition. He appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition for writ of habeas
corpus challenging his convictions.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 09-30279
Dockery argues the district court erred in determining it was the proper
district to consider his section 2241 petition. He maintains he was incarcerated
in West Virginia when he filed a 28 U.S.C. § 2254 application that was construed
as a section 2241 petition. He acknowledges he was confined in the Western
District of Louisiana when he filed the present section 2241 petition, but
maintains this filing was a refiling of his initial 2254 application. Dockery
asserts that jurisdiction would have been proper in the district of conviction, the
District of Columbia, and the district court should have transferred his case
there. As Dockery was confined in the Western District of Louisiana at the time
he filed the present section 2241 petition, the district court did not err by
considering the petition.1
Dockery also argues the district court erred by ruling that his claims were
not cognizable in a section 2241 petition. Dockery claims his convictions were
improper because there was no evidence he was indicted by a properly
constituted grand jury and because he was indicted as a principal but convicted
on an aiding and abetting theory. Based upon these claims he argues the
Superior Court of the District of Columbia did not have jurisdiction and he has
been incarcerated for non-existent offenses for fourteen years. He further
maintains he was denied a speedy trial and his incarceration constitutes a
miscarriage of justice. The district court determined the claims were properly
characterized as claims challenging the convictions and therefore must be
brought under 28 U.S.C. § 2255 or its District of Columbia equivalent D.C. Code
§ 23-110.
1
See Rumsfeld v. Padilla, 542 U.S. 426, 442-43 (2004); Lee v. Wetzel, 244 F.3d 370, 375
n.5 (5th Cir. 2001).
2
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No. 09-30279
D.C. Code § 23-110 was patterned off 28 U.S.C. § 2255 with similar
language to the federal one.2 Thus the primary method of collaterally
challenging a conviction and sentence entered in the Superior Court of the
District of Columbia is the filing of a section 23-110 motion in that court.3 In
contrast, section 2241 is the proper procedural vehicle by which to raise an
attack on “the manner in which the sentence is executed.” 4 However, section 23-
110, like section 2255, contains a savings clause that provides that a prisoner
may challenge a conviction or sentence imposed by the Superior Court for the
District of Columbia in a section 2241 petition if the remedy provided under
section 23-110 is inadequate or ineffective to test the legality of his detention.5
Dockery argues his claims fit within the savings clause of section 23-110
because they were based upon the retroactively applicable Supreme Court
rulings in Blakely v. Washington,6 Apprendi v. New Jersey,7 and Richardson v.
United States.8 He also argues his claims were foreclosed when they should have
been raised because the Government concealed documents showing he was not
indicted by a properly constituted grand jury in violation of Brady v. Maryland.9
2
Swain v. Pressly, 430 U.S. 372, 377-78 & n.9 (1977).
3
Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir. 1998)
4
Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000).
5
D.C. CODE § 23-110(g); Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986); Tolliver,
21 F.3d at 878.
6
542 U.S. 296 (2004).
7
530 U.S. 466 (2000).
8
526 U.S. 813 (1999).
9
373 U.S. 83, 87 (1963).
3
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No. 09-30279
These challenges are to the propriety of his convictions; thus Dockery must
demonstrate the remedy provided by D.C. Code § 23-110 is inadequate or
ineffective to raise his claims in a section 2241 petition. In order to seek relief
under the savings clause Dockery must demonstrate three things: (1) his claim
is based on a retroactively applicable Supreme Court decision; (2) the Supreme
Court decriminalizes the conduct for which he was convicted; and (3) his claim
would have been foreclosed had he raised it at trial.10 None of cases Dockery
points to decriminalized any of the conduct for which he was convicted.
Accordingly, the district court did not err by ruling Dockery could not raise his
claims in a section 2241 petition.
The judgment of the district court is AFFIRMED. Dockery’s Motions for
Bail Pending Appeal, for Appointment of Counsel, and for Permission to Make
References to the Record are DENIED.
10
See Christopher v. Miles, 342 F.3d 378, 382 (5th Cir. 2003).
4