Branch-El v. United States of America ( 2010 )

FILED
MAR - 2 2010
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District and
8ankruptcy Courts
Willie Branch-El,
Plaintiff,
v. Civil Action No. 10 0328
United States of America et aI.,
Defendants.
MEMORANDUM OPINION
Plaintiff Willie Branch-El has filed an application to proceed in forma pauperis, a pro se
complaint, and a motion for appointed counsel. The application will be granted, the complaint
will be dismissed, and the motion for counsel will be denied as moot.
Plaintiff is a prisoner serving a life sentence without possibility of parole imposed by the
Superior Court for the District of Columbia. He is currently confined at the United States
Penitentiary Hazelton in West Virginia. Although styled a complaint, the submission is
presented on a form designed for motions brought under 28 U.S.C. § 2255, and the essence of the
submission is an attack on the lawfulness of the plaintiff s sentence. Therefore, the submission
will be construed as a petition for habeas corpus. The complaint establishes that the plaintiff has
pursued his remedies by a motion under D.C. Code § 23-110, by a direct criminal appeal, and by
a motion to recall the mandate issued by the Court of Appeals for the District of Columbia. See
Compl. at 3, 4,7, and the unnumbered page immediately following numbered page 5. 1 The
I Reference by page number is made only to the pages that are numbered on the form
motion. Several pages, both numbered and unnumbered, from various other documents are
inserted among the numbered pages of the form motion.
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complaint alleges a plethora of constitutional violations, including ineffective assistance of
counsel at trial and on appeal, prosecutorial misconduct, judicial error, fabricated witness
testimony and other faulty evidence. Id. at 3-12. It seeks as relief "to vacate, set aside, and
correct an excessive sentence." Id. at 12. The papers do not include factual allegations to show
that the § 23-110 motion or the motion to recall the Court of Appeals' mandate is inadequate or
ineffective.
With the exception of plaintiff s claim that his appellate counsel was ineffective, all of
the claims plaintiff asserts in this complaint must be presented first to the Superior Court by
motion made under D.C. Code § 23-110. Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir.
1998) (holding that § 23-110 is the exclusive remedy for such challenges). This court does not
have jurisdiction to entertain claims that were or could have been presented to the Superior Court
on a § 23-110 motion, unless the petitioner can show that his remedy under § 23-110 is
"ineffective or inadequate to test the legality of his conviction." D.C. Code § 23-11O(g).
Plaintiffs § 23-110 motions were denied. The mere denial of relief by the local courts does not
render the local remedy inadequate or ineffective. See Garris v. Lindsay, 794 F.2d 722, 727
(D.C. Cir.); Charles v. Chandler, 180 F.3d 753, 756-58 (6th Cir. 1999) (citing cases); Wilson v.
Office of the Chairperson, 892 F. Supp. 277,280 (D.D.C. 1995). Because the complaint does
not claim or demonstrate that plaintiffs§ 23-110 remedy was ineffective or inadequate, these
claims will be dismissed for lack of jurisdiction.
Plaintiff s claim for ineffective assistance of counsel on direct appeal cannot be heard on
a motion made under D.C. Code § 23-110; rather, the remedy for such a claim is by motion to the
Court of Appeals for the District of Columbia to recall its mandate. Williams v. Martinez, 586
F.3d 995,998-99 (D.C. Cir. 2009); Watson v. United States, 536 A.2d 1056, 1060 (D.C. 1987)
(noting that ineffective assistance of appellate counsel claims cannot be heard by the Superior
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Court on a motion made under D.C. Code §23-110 and instructing that a motion to recall the
mandate is the proper procedure for presenting a claim of ineffective assistance of appellate
counsel of right). Plaintiff filed a motion to recall the mandate, which was denied as untimely.
No writ of habeas corpus may be granted by this court unless Johnson can also show that
"circumstances exist that render" the remedy by motion to recall the mandate "ineffective to
protect [his] rights." 28 U.S.C. § 2254(b)(1)(B)(ii); see Williams, 586 F.3d at 1002 (directing the
district court on remand to make a determination "in light of the standard set forth in 28 U.S.C.
§ 2254). A remedy is not made ineffective or inadequate by a plaintiffs procedural default in
availing himself of it. See Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986) ("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.").
Plaintiff has not alleged facts to show that the motion to recall the mandate was ineffective to
protect his rights. Therefore, the claim for ineffective assistance of counsel on direct appeal will
also be dismissed for lack of jurisdiction. In sum, because the plaintiff has not alleged
facts to show that either his remedy by motion under § 23-110, or his remedy by motion to recall
the mandate, is inadequate or ineffective to test the legality of his detention, this court lacks
jurisdiction to entertain this collateral attack on plaintiffs sentence. A separate order
accompanies this memorandum opinion.
Date: ,:}. frJ,/t-o
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