Hazel v. Lves ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
BOBBY E. HAZEL, )
)
Petitioner, )
)
v. ) Civil Action No. 11-1100 (BAH)
)
R. LVES, )
)
Respondent. )
)
MEMORANDUM OPINION
The Petitioner is currently imprisoned at United States Penitentiary McCreary, where he
is serving a sentence imposed by the Superior Court of the District of Columbia. Inmate
Locator, Fed. Bureau of Prisons, http://www.bop.gov/iloc2/LocateInmate.jsp (search for Register
Number 41097-133); Mem. of P. & A. in Supp. for Writ of Habeas Corpus at 1–2, ECF No. 1
[hereinafter Mem.]. The Petitioner has petitioned for a writ of habeas corpus. See Pet. for Writ
of Habeas Corpus, ECF No. 1 [hereinafter Pet.]. The petition will be dismissed because the
Court lacks jurisdiction to consider it.
Although 28 U.S.C. § 2241 serves as the general federal statute governing habeas corpus
petitions filed in federal court, a petition filed “on behalf of a person in custody pursuant to the
judgment of a State court” is considered under 28 U.S.C. § 2254. § 2254(a). “The D.C. Circuit
has consistently held that when considering a writ of habeas corpus a prisoner of the District of
Columbia is considered a State prisoner, when the prisoner is held under a conviction of the D.C.
Superior Court.” Banks v. Smith, 377 F. Supp. 2d 92, 94 (D.D.C. 2005). Therefore, although the
Petitioner purports to bring his petition under § 2241, Pet. at 1, the Court must consider it under
§ 2254.
A federal district court lacks subject-matter jurisdiction to consider a habeas petition
under § 2254 to the extent that a petitioner may make a motion in a D.C. court seeking relief in
the nature of habeas under D.C. Code § 23-110, which provides:
An application for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to this section shall not be
entertained by . . . any Federal . . . court if it appears . . . that the Superior Court
has denied him relief, unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of his detention.
§ 23-110(g). Thus, it is settled that “a District of Columbia prisoner 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. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986) (quoting § 23-110(g)).
“Section 23-110 has been found to be adequate and effective because it is coextensive with
habeas corpus,” Saleh v. Braxton, 788 F. Supp. 1232, 1232 (D.D.C. 1992), except where a
petitioner claims ineffective assistance of appellate counsel and has unsuccessfully moved to
recall the mandate of the D.C. Court of appeals, because § 23-110 does not provide a means to
make such a claim, Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir. 2009) (citing § 23-
110(a)).
The gravamen of Petitioner’s current petition is that, at some point, his appellate counsel
failed to pursue a collateral attack under § 23-110, and that the requirement that he attempt to
recall the appellate mandate of the D.C. Court of Appeals “is an inadequate remedy for the
petition to pursue attack against appellate counsel for not seeking a collateral attack under D.C.
Code [§] 23-110.” Pet. at 7. Petitioner misunderstands the adequacy of his remedy. Section 23-
110 is only inadequate insofar it does not provide a means for a petitioner to claim ineffective
2
assistance of appellate counsel. Williams, 586 F.3d at 998. A petitioner may therefore bring
such a claim in federal court under § 2254, but he must first exhaust the appellate process, which
requires a petitioner to move to recall the mandate of the D.C. Court of Appeals. Id.;
§ 2254(b)(1)(A), (c)(1). The Petitioner does not allege that he has moved to recall the mandate
of the D.C. Court of Appeals, but instead incorrectly argues that the requirement that he make
such a motion is what makes his local remedy inadequate. See Mem.
Because the Petitioner has not shown that he has exhausted the remedies available in
D.C. courts, the Court lacks jurisdiction to consider his petition.1 Because the Court lacks
jurisdiction to consider the petition, it will be dismissed. A separate order consistent with this
Memorandum Opinion shall issue this date.
Date: October 20, 2011 /s/Beryl A. Howell
BERYL A. HOWELL
United States District Judge
1
Moreover, even if the Court had jurisdiction, Plaintiff would fail to state a habeas claim
upon which relief can be granted. The Petitioner claims that his appellate counsel was
ineffective insofar as he failed to pursue a collateral attack under § 23-110, but § 2254
specifically provides that “[t]he ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254.” § 2254(i).
3