Opinion
Case No. 1:05-cv-53.
December 20, 2005
REPORT AND RECOMMENDATION
On March 21, 2005, the Petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. On May 5, 2005, the Respondent was directed to answer the petition. After the granting of several motions to extend time, an answer was filed on August 5, 2005. The Petitioner filed a traverse to the answer on August 22, 2005. Also pending before the Court is the Petitioner's Request for Default, or in the Alternative, for Summary Judgment filed on July 28, 2005.
This matter, pending before me for an initial review and report and recommendation pursuant to LR PL P 83.01, et seq., is ripe for review.
I. Conviction and Sentence
As set forth in the Petition, the Petitioner was found guilty in the District of Columbia Superior Court of assault, aggravated assault while armed, and mayhem while armed. Petitioner received concurrent sentences of 12 to 36 years for the aggravated assault charge and the mayhem charge. Petitioner also received a 180-day sentence for the assault charge.
After sentencing, Petitioner filed an appeal and several post conviction motions. On August 7, 2000, Petitioner filed a motion to correct sentence pursuant to D.C. Superior Court Criminal Rule 35(a). That motion was denied on October 11, 2000 and no appeal was taken from that decision. On March 23, 2000, Petitioner filed a motion to correct, set aside, or vacate sentence pursuant to D.C. Code § 23-110. Petitioner supplemented that filing on November 2, 2000 with four other pleadings. After the government filed a consolidated response, the trial judge denied Petitioner's § 23-110 motion without a hearing. Petitioners' conviction was affirmed on May 17, 2004, however, the District of Columbia Court of Appeals remanded the case to the trial court for the sole purpose of vacating Petitioner's assault conviction and either the mayhem conviction or the aggravated assault conviction. Petitioner does not state the results of the remand.
The Court of Appeals found that all three convictions should have merged so that the sole surviving conviction was either mayhem while armed or aggravated assault.
II. Claims of Petition
Petitioner now brings this case pursuant to § 2254 raising the following grounds for relief:
(1) the merits of the factual dispute were not resolved by the District of Columbia Court of Appeals or the trial court;
(2) the fact finding procedure employed by the District of Columbia Superior Court trial judge on collateral 23-110 review was not adequate to afford a full and fair hearing;
(3) Petitioner was not allowed to adequately develop the material facts when he was denied an evidentiary hearing;
(4) Petitioner was denied due process of law in the District of Columbia Superior Court proceedings; and
(5) the determinations made by the trial court of the District of Columbia and its court of appeals were erroneous.
III. The Respondent's Answer
In response to the Petition, the Respondent asserts that the Petition should be denied, or alternately, transferred to the United States District Court for the District of Columbia. In doing so, the Respondent argues that although Petitioner is considered a "state" prisoner for purposes of federal habeas law, he is prohibited by D.C. Code § 23-110 from using § 2254 as a vehicle to challenge the validity of his D.C. conviction and sentence without a showing that the remedy under § 23-110 was inadequate or ineffective. The Respondent further argues that Petitioner has failed to demonstrate that the remedy under § 23-110 was inadequate or ineffective. Instead, he is simply attempting to relitigate issues that were unsuccessfully presented to the District of Columbia Courts. Alternately, the Respondent argues that Petitioner's claims are without merit.
IV. Analysis
It is undisputed that for purposes of federal habeas law, convictions in the District of Columbia Superior Court for offenses under the D.C. Criminal Code, are considered "state" convictions. Garris v. Lindsay, 794 F.2d 722 (D.C. Cir.), cert. denied, 479 U.S. 993 (1986) (citing, inter alia, Swain v. Pressley, 430 U.S. 372 (1977)). However, D.C. Code § 23-110 clearly prohibits a prisoner convicted in the D.C. Superior Court from pursuing federal habeas relief if he has "failed to make a motion for relief under this section or 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. St. § 23-110(g).
In Swain v. Pressley, the United States Supreme Court found that D.C. prisoners, unlike other state prisoners, could not utilize § 2254 to challenge the validity of a conviction and sentence without first showing that § 23-110 was inadequate or ineffective. Swain, supra (finding that § 23-110 divests federal courts of jurisdiction over such claims without a showing that the remedy under § 23-110 is inadequate or ineffective). Moreover, to gain recourse in a federal judicial forum, a D.C. prisoner cannot simply rely on an unsuccessful attempt to obtain relief under § 23-110 as a basis for federal habeas relief. See Garris v. Lindsay, 794 F.2d at 726; Swain v. Pressley, 430 U.S. 377-378. In other words, § 23-110 is an exclusive remedy that precludes federal habeas review unless found to be inadequate or ineffective. Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir. 1998).
Compare to other state prisoners who can obtain federal habeas review simply by properly exhausting their state court remedies and timely filing a habeas petition. Garris v. Lindsay, 794 F.2d at 726.
To show that the remedy under § 23-110 is inadequate or ineffective, the inmate must show that "it is so configured as to deny a convicted defendant any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense." In re Smith, 285 F.3d 6, 8 (D.C. Cir. 2002) (quoting In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998) (emphasis in original). "It is the inefficacy of the remedy, not a personal inability to utilize it, that is determinative . . ." Garris v. Lindsay, 794 F.2d at 727.
Here, Petitioner has failed to show that the remedy under § 23-110 was inadequate or ineffective. Instead, Petitioner merely asks this Court to examine issues previously denied by the District of Columbia Courts upon § 23-110 review. Petitioner does not allege that he was denied any opportunity for judicial rectification, only that he disagrees with the District of Columbia's disposition of his case. Such an argument is insufficient to show that his proceedings under § 23-110 were inadequate or ineffective. Moreover, none of Petitioner's claims in the instant case rise to the level of a fundamental defect showing that Petitioner was convicted of a nonexistent offense. Thus, the federal Courts are without jurisdiction to hear Petitioner's claims under § 2254 and it would be futile to transfer this case to the United States District Court for the District of Columbia.
See Lyons v. Federal Bureau of Prisons, 2005 WL 3211417 2005) (D.D.C. Nov. 14) (also concluding that D.C. Code § 23-110(g) divests the district courts of jurisdiction over a § 2254 petition filed by a person under a sentence of the D.C. Superior Court where the Petitioner has failed to show that the remedy under § 23-110 was inadequate or ineffective to test the legality of the detention).
V. Petitioner's Motion
On July 28, 2005, Petitioner filed a Request for Entry of Default, or in the Alternative, for Summary Judgment. In the motion, Petitioner asserts that he is entitled to default or summary judgment due to the Respondents failure to file a timely response to the Petition. However, a review of the file shows that the Respondent was granted several extensions of time to file his answer to the Petition and did so on August 5, 2005. Any delay in the filing of the answer was not prejudicial to the Petitioner.VI. Recommendation
For the reasons stated in this opinion, it is recommended that the Petitioner's Request for Default, or in the Alternative, for Summary Judgment (Doc. 8) be DENIED and the § 2254 petition be denied and DISMISSED WITH PREJUDICE.
I have not addressed the merits of Petitioner's claims as I find that this Court does not have jurisdiction to do so.
Within ten (10) days after being served with a copy of this recommendation, any party may file with the Clerk of Court written objections identifying those portions of the recommendation to which objection is made and the basis for such objections. A copy of any objections should also be submitted to the Honorable Irene M. Keeley, Chief United States District Judge for the Northern District of West Virginia. Failure to timely file objections to this recommendation will result in waiver of the right to appeal from a judgment of this Court based upon such recommendation.
28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
The Clerk is directed to mail a copy of this Report and Recommendation to the pro se Petitioner.