Tolliver v. Cross

FILED
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA Nov 27 2009
NANcY MAYER W
BROOK M. TOLLIVER, U.S. DIST~lJ'~&``, CLERK
Petitioner,
v. Civil Action No. U 2253
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JAMES CROSS,
Respondent.
MEMORANDUM OPINION
This matter comes before the Court on petitioner's application to proceed informa
pauperis and pro se petition for a writ of habeas corpus.
Petitioner challenges his conviction in and the sentence imposed by the Superior Court of
the District of Columbia on the ground that the prosecutor deliberately misstated evidence which
corroborated the testimony of an eyewitness. A challenge of this nature must be brought by
motion in the Superior Court under D.C. Code § 23-110. In relevant part D.C. Code § 23-110provides:
[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.
D.C. Code § 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 (D.D.C. 1992). It is
settled that "a District of Columbia prisoner has no recourse to a federal judicial forum unless
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the local remedy is 'inadequate or ineffective to test the legality of his detention'" Byrd v.
Henderson, 119 F.3d 34,36-37 (D.C. Cir. 1997) (internal footnote omitted); Garris v. Lindsay,
794 F.2d 722, 726 (D.C. Cir.), cert. denied, 479 U.S. 993 (1986). A prisoner's lack of success in
his previous attempts to collaterally attack his conviction and sentence by means of a motion
under D.C. Code § 23-110(g) does not render this remedy inadequate or ineffective. See Wilson
v. Office of the Chairperson, 892 F. Supp. 277, 280 (D.D.C. 1995).
Accordingly, the Court will dismiss the petition without prejudice. An Order consistent
with this Memorandum Opinion will be issued separately on this date.
~Th'~
Un ed S a es Dlstnct Judge
Date: H)01; J 0;
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