Briscoe v. Wagner ( 2010 )

UNITED STATES DISTRICT COURT
FILED
FOR THE DISTRICT OF COLUMBIA MAY - 5 2010
Clerk, U.S. District &Bankruptcy
Tyrone Briscoe, ) Courts for the District Of Columbia
)
Plaintiff, )
)
v. ) Civil Action No. 10 0710
)
Chief Judge Annice M. Wagner et aI., )
)
Defendants. )
MEMORANDUM OPINION
This action, brought pro se, is before the Court on its initial review of the complaint,
which is accompanied by an application to proceed in forma pauperis. The Court will grant the
application to proceed in forma pauperis and will dismiss the case pursuant to the screening
provisions of28 U.S.C. § 1915A(a). Under that statute, the Court is required to screen a
prisoner's complaint and dismiss it upon a determination that the complaint fails to state a claim
upon which relief can be granted. See 28 U.S.c. § 1915A(b)(1).
The plaintiff is a District of Columbia prisoner confined at the United States Penitentiary
McCreary in Pine Knot, Kentucky. Invoking 42 U.S.c. § 1983, the plaintiff sues former Chief
Judge Annice M. Wagner of the District of Columbia Court of Appeals, former Assistant United
States Attorney ("AU SA") John Fisher and AUSA James Sweeney, and attorneys Kenneth A.
Rosenau and Susan H. Rosenau, both of whom were appointed in 2001 to represent the plaintiff
in his criminal appeal before the D.C. Court of Appeals. See Complaint ("Compl.") Attachment
(Nov. 21,2001 Order). In the appointment order, Judge Wagner instructed the newly appointed
counsel to file a supplemental brief within 90 days to the plaintiff's pro se "motion ... to dismiss
his indictment and/or to be granted release on bail." Id.
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The plaintiff sues Judge Wagner apparently for making the aforementioned appointment
of counsel against the plaintiffs wishes, see Compl. at 2-3, the AUSAs for allegedly failing to
respond to his pro se motion (brief), see id. at 2, and his appointed appellate counsel for allegedly
failing to supplement the issues he had raised in his earlier filing and for providing ineffective
assistance of counsel, see id. The plaintiff "is asking to be giving [sic] his pro se rights ... so he
can move to have his indictment dismiss[ ed]." ld. at 3. This court does not have authority to
review orders issued by the D.C. Court of Appeals and, thus, cannot direct the D.C. Court of
Appeals to restore the plaintiff s pro se status. See Fleming v. United States, 847 F. Supp. 170,
172 (D.D.C. 1994) (applying District o.fColumbia Court o.f Appeals v. Feldman, 460 U.S. 462,
482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 4l3, 415, 416 (1923». "Only the United
States Supreme Court has [the] power" to review the final judgment of a state or District of
Columbia court. ld.
As for the claim of ineffective assistance of appellate counsel, the plaintiff has not stated
that he moved in the D.C. Court of Appeals to recall the mandate, which is "the appropriate
vehicle for mounting a challenge to the effectiveness of appellate counsel." Williams v.
Martinez, 586 F.3d 995, 999 (D.C. Cir. 2009). This Court therefore is without jurisdiction to
entertain that claim via a writ of habeas corpus. See id. (concluding that this Court would have
jurisdiction over a "federal habeas petition asserting ineffective assistance of appellate counsel
after [the petitioner has] moved to recall the mandate in the D.C. Court of Appeals[.]"); 28
U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus ... shall not be granted
unless it appears that . .. the applicant has exhausted the remedies available [in the local
courts].").
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Finally, the claims against the AUSAs cannot be maintained because failing to respond to
the plaintiffs pro se filing does not state a claim upon which relief may be granted. Accordingly,
the complaint will be dismissed. I
~A,ti9
Un d States DIstnct Judge
Date: April .J-/, 2010
I A separate Order of dismissal accompanies this Memorandum Opinion.
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