Pleasant v. Wilson ( 2011 )

F1'LED
DEC 23 2011
UNITED sTATEs DISTR!CT CoURT Cf;'erk. u.s. o»sz_nc: a sankrupz¢y
FoR THE DISTR!CT oF CoLUMBIA "S '°’ *'"* D'Sffi¢f of columbia
)
)
TERRENCE K. PLEASANT, )
)
Petitioner, ) 1 _
> 2‘ l
v. ) Civil Action No. )
)
ERIC D. WILSON, )
)
Respondent. )
)
MEMORANDUM OPINION
Petitioner states that he was convicted in the Superior Court in 1995, and that the District
of Columbia Court of Appeals affirrned the convictions in December 1997 and issued its
mandate in June 1998. See Pet. at l-2. Years later, after the District of Columbia courts denied
him relief on two pro se motions brought under D.C. Code § 23-110, see z``a'. at 2-3, in February
?.Ol(), "[p]etitioner filed in the D.C. Court of Appeals a motion for leave to file Motion to Recall
Mandate Out of Time . . . so he could raise the claim of ineffective assistance of appellate
counsel." Ia'. at 3. The motion was denied on the ground that "[p]etitioner had not shown why
the time limit set forth in D.C. App. R. 4l(f) should not [have been] adhered to in this case." Id.'
Under District of Columbia law, "[a] prisoner in custody under sentence of the Superior
Court claiming the right to be released . . . may move the court to vacate, set aside, or correct the
sentence.” D.C. Code § 23-l lO(a). A claim for such relief may arise where, for example, the
Superior Court imposed a sentence "in violation of the Constitution of the United States or the
laws of the District of Columbia." D.C. Code § 23-1 lO(a)(Z). Ordinarily, a District of Columbia
l "Any motion to recall the mandate must be filed within 180 days from issuance of the
mandate." D.C. App. R. 4l(f).
Code offender has "no recourse to a federal judicial forum unless the local remedy is ‘inadequate
or ineffective to test the legality of his detention."’ Garris v. Lz``ndsay, 794 F.2d 722, 726 (D.C.
Cir. 1986) (quoting D.C. Code § 23-l l0(g)). However, federal courts do have habeas
jurisdiction over a District of Columbia Code offender’s ineffective assistance of appellate
counsel claim after the he has moved to recall the mandate of the District of Columbia Court of
Appeals.z Wz``llz``ams v. Martinez, 586 F.3d 995, 999 (D.C. Cir. 2009) cert a'enied, _U.S. __, l30
S.Ct. 2073 (2010); see also Ibrahz'm v. United States, No. 09-5052, 20ll WL 2011 WL 5924458,
ar *1 (D.C. Cir. N@v. 29, 2011).
In this case, petitioner had an available local remedy, recall of the Court of Appeals’
mandate, yet he failed to file his motion timely. This "remedy is not made ineffective or
inadequate by a [petitioner’s] procedural default in availing himself of it." Branch-El v. United
States, No. 10-0328, 2010 WL 737337, at *l (D.D.C. Mar. 2, 20l0); see Garrz's, 794 F.2d at 727("It is the inefficacy of the remedy, not a personal inability to utilize it, that is determinative, and
appellant’s difficulty here is simply that his circumstances preclude him from invoking it.");
Reyes v. Rios, 432 F. Supp. 2d l, 4 (D.D.C. 2006) ("Even if petitioner has failed to file a motion
to recall the mandate, the availability of such a course precludes the finding of inadequacy or
ineffectiveness required to support his petition in this Court."). Petitioner cannot show that his
local remedy is inadequate or ineffective, and the petition must be denied for lack of subject
matter jurisdiction. See Baz``sey v. Stcmsberry, 777 F. Supp. 2d l, 3 (D.D.C. 20l l); Wrz'ght v.
Stansberry, 759 F. Supp. 2d 49, 5l (D.D.C. 201 l), appeal dismz``ssed, No. ll-5046 (D.C. Cir.
June 24, 20l l) (per curiam); Branch-El, 2010 WL 737337, at *l.
2 An ineffective assistance of appellate counsel claim cannot be entertained by motion in
the Superior Court under D.C. Code § 23-l l0. Watson v. United States, 536 A.2d 1056, 1060
(D.C. 1987). Such a claim must be brought by motion in the District of Columbia Court of
Appeals to recall its mandate. Id
An Order accompanies this Memorandum Opinion.
DATE; ;-L{q,qwu
United States District Judge