
    Melvin BAISEY, Petitioner, v. Patricia R. STANSBERRY, Respondent.
    Civil Action No. 10-0352 (RMU).
    United States District Court, District of Columbia.
    March 4, 2011.
    Opinion Denying Motion for Certifícate of Appealability July 13, 2011.
    
      Melvin Baisey, Petersburg, VA, pro se. Sherri Lee Berthrong, U.S. Attorney’s Office, Washington, DC, for Respondent.
   MEMORANDUM OPINION

Granting the Respondent’s Motion to Dismiss; Denying as Moot the Petitioner’s Motion to be Released on Bail

RICARDO M. URBINA, District Judge.

I.INTRODUCTION

This matter is before the court on the respondent’s motion to dismiss petitioner Melvin Baisey’s petition for a writ of habeas corpus. Because the court lacks jurisdiction, it grants the respondent’s motion to dismiss.

II.FACTUAL & PROCEDURAL BACKGROUND

In October 1976, the petitioner was sentenced for various offenses, including first-

1. Accordingly, the petitioner’s motion to be released on bail is denied as moot. degree murder and armed robbery, in the Superior Court of the District of Columbia. Pet., Mem. in Supp. (“Petr’s Mem.”) at 1. The petitioner appealed to the District of Columbia Court of Appeals, which affirmed the conviction in February 1978. Respt’s Mot. at 2.

In March 2010, the petitioner filed this petition for a writ of habeas corpus based on the purported ineffective assistance of his appellate counsel. See generally Pet. The petitioner has not filed any post-conviction motions in the Superior Court of the District of Columbia, nor has he filed a motion to recall the mandate with the District of Columbia Court of Appeals. Petr’s Mem. at 2, 9.

III.ANALYSIS

A. The Court Lacks Jurisdiction Over the Petitioner’s Claim of Ineffective Assistance of Appellate Counsel on Direct Appeal

The respondent argues that this court lacks jurisdiction because the petitioner has not demonstrated that his local remedy under District of Columbia law — specifically, D.C.Code § 23-110 — is inadequate or ineffective. Respt’s Mot. at 9. The respondent points out that ineffective assistance of trial counsel claims are routinely brought under D.C.Code § 23-110, which has proven adequate in providing relief in similar circumstances. Id. at 11.

The petitioner counters that § 23-110 is not available as a remedy for his ineffective assistance of appellate counsel claim. Pet. ¶ 9; Petr’s Mem. at 2. He adds that he is currently unable to file a motion to recall the mandate for ineffective assistance of appellate counsel because the District of Columbia Court of Appeals has not maintained a docket connected with his direct appeal. Petr’s Mem. at 9.

A petitioner may not seek a writ of habeas corpus in a federal court until he has exhausted his local remedies. 28 U.S.C. § 2254(c). Under District of Columbia law, an individual claiming ineffective assistance of appellate counsel may seek relief by moving the District of Columbia Court of Appeals 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). “[S]uch a motion — filed directly in the D.C. Court of Appeals — is obviously not a ‘remedy by [section 23-110] motion,’ which is filed in the D.C. Superior Court.” Williams, 586 F.3d at 998. Nevertheless, “[i]n light of the exhaustion requirement of 28 U.S.C. § 2254(c),” before seeking habeas relief, “the prisoner will first have to file a motion to recall the mandate with the [District of Columbia Court of Appeals].” Id., at 1005 (Brown, J., concurring). As a result, “[n]o writ of habeas corpus may be granted by this court unless [the petitioner] can show that ‘circumstances exist that render’ the remedy by motion to recall the mandate ‘ineffective to protect [his] rights.’ ” Branch-El v. United States, 2010 WL 737337, at *1 (D.D.C. Mar. 2, 2010) (quoting 28 U.S.C. § 2254(b)). This “remedy is not made ineffective or inadequate by a [petitioner’s] procedural default in availing himself of it.” Id. (dismissing a habeas petition for lack of jurisdiction because the petitioner’s motion to the District of Columbia Court of Appeals to recall its mandate was denied as untimely); see also Collier v. United States, 1999 WL 1336229, at *1 (D.C.Cir. Dec. 15, 1999) (per curiam) (concluding that a petitioner’s “[flailure to prevail in [the District of Columbia Court of Appeals] does not render his local remedies inadequate or ineffective”).

In this case, the petitioner failed to file a motion to recall the mandate, timely or otherwise, with the District of Columbia Court of Appeals. See generally Petr’s Mem. Thus, the petitioner had an available avenue for relief available to him in the District of Columbia Court of Appeals regarding his claim of ineffective assistance of appellate counsel. Moreover, the petitioner has not demonstrated any inability to seek relief before the District of Columbia Court of Appeals that was not caused by his own failure to file a timely motion. See Branch-El, 2010 WL 737337, at *1. Because the petitioner failed to show that he lacked an effective remedy under District of Columbia law as required by 28 U.S.C. § 2254(c), the court lacks jurisdiction over his petition for a writ of habeas corpus.

IV. CONCLUSION

For the foregoing reasons the court grants the respondent’s motion to dismiss and denies as moot the petitioner’s motion to be released on bail. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 4th day of March, 2011.

MEMORANDUM OPINION

Denying the Petitioner’s Motion for a Certificate of Appealability

I.INTRODUCTION

This matter is currently before the court on the petitioner’s motion for a certificate of appealability. The court previously denied the petitioner’s application for a writ of habeas corpus for lack of subject-matter jurisdiction. The petitioner argues that the court should issue a certificate of appealability because reasonable jurists would find it debatable both whether the petition states a valid claim of the denial of a constitutional right and whether the court was correct in its jurisdictional ruling dismissing the petition. Because the court plainly lacks jurisdiction to entertain the petition, the court concludes that a certificate of appealability is not warranted and denies the petitioner’s motion.

II.FACTUAL & PROCEDURAL BACKGROUND

In October 1976, the petitioner was sentenced in the Superior Court of the District of Columbia for various offenses, including first-degree murder and armed robbery. Pet. at 1. The petitioner appealed to the District of Columbia Court of Appeals, which affirmed his convictions in February 1978. Respt’s Mot. to Dismiss at 2.

In March 2010, the petitioner filed a petition for a writ of habeas corpus based on the purported ineffective assistance of his appellate counsel. See generally Pet. The petitioner has not filed any post-conviction motions in the Superior Court of the District of Columbia, nor has he filed a motion to recall the mandate with the District of Columbia Court of Appeals. Id. at 2, 9. Because the petitioner had not exhausted his local remedies in accordance with 28 U.S.C. § 2254(c) or, in the alternative, shown that he lacked an effective remedy under District of Columbia law as required by 28 U.S.C. § 2254(b), the court denied his petition for lack of subject-matter jurisdiction. See generally Mem. Op. (Mar. 4, 2011).

On March 15, 2011, the petitioner filed this application for a certificate of appealability. He argues that “jurists of reason would find it debatable” whether the district court erred in concluding that the petitioner had not exhausted his local remedies prior to filing his petition in this court. Petr’s Mot. at 3. The court turns now to the applicable legal standards and the petitioner’s arguments.

III.ANALYSIS

A. Legal Standard for a Motion for a Certificate of Appealability

A prisoner seeking an appeal from a decision on a petition for habeas corpus and whose detention arose from state court proceedings must first seek a certificate of appealability from a circuit justice or judge. 28 U.S.C. § 2253(c). Without a certificate of appealability, federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). For the purposes of the statute, the phrase “circuit justice or judge includes district court judges,” United States v. Mitchell, 216 F.3d 1126, 1129 (D.C.Cir.2000), and a court of the District of Columbia is considered a state court, Madley v. U.S. Parole Comm’n, 278 F.3d 1306, 1309 (D.C.Cir.2002).

A court may issue a certificate of appealability only if the petitioner satisfies the threshold inquiry requirements of 28 U.S.C. § 2253. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. Under § 2253, a certificate of appealability is appropriate “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If the court denied the petition on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Where, as here, the court denied the habeas petition on procedural grounds without reaching any underlying constitutional claims, a certificate of appealability “should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. When a “plain procedural bar is present,” however, and “the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.” Id.

B. The Court Denies the Motion for a Certificate of Appealability

In his request for a certificate of appeal-ability, the petitioner asserts that the district court incorrectly determined that it was “mandatory for [him] to file a motion to recall the mandate in the D.C. Court of Appeals regarding a claim of ineffective-assistance-of-appellate-counsel.” Petr’s Mot. at 4. Specifically, the petitioner argues that asking him to pursue a recall of the mandate as a remedy prior to seeking a habeas petition is requiring him to “do much more than what Congress has intended a D.C. Code prisoner to do when attempting relief through federal habeas statutes,” and is in fact contrary to the holding in a recent D.C. Circuit case. Id. For these reasons, the petitioner claims that jurists of reason “would find the district court’s findings debatable in every single respect.” Id.

As discussed in the court’s previous memorandum opinion, the petitioner in the instant case failed to file a motion to recall the mandate, timely or otherwise, with the District of Columbia Court of Appeals pri- or to seeking a writ of habeas corpus, and thus did not exhaust his local remedies in accordance with 28 U.S.C. § 2254(c). See Mem. Op. (Mar. 4, 2011) at 3-4. As a result, this court dismissed the petition, concluding that it lacked subject-matter jurisdiction. Id. at 4. Accordingly, a clear procedural bar prevented the court from hearing the merits of the habeas petition. See id. No reasonable jurist, therefore, could conclude that the court erred in dismissing the petition. See Slack, 529 U.S. at 484,120 S.Ct. 1595.

In addition, the petitioner challenges the court’s decision not to hold an evidentiary hearing prior to dismissing the petition. Id. at 5. He argues that the court should have afforded him the opportunity to offer evidence to support his factual allegations. Id.

The Supreme Court has explained that “because the deferential standards prescribed by 28 U.S.C. § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.” Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). In deciding not to convene an evidentiary hearing, the court considered the requirements of the statute, specifically the requirement that the petitioner exhaust all local remedies prior to seeking habeas relief in federal court. See 28 U.S.C. § 2254(c). Because the standards of the statute were not met, the court correctly declined to hold an evidentiary hearing.

IV. CONCLUSION

For the foregoing reasons, the court denies the petitioner’s motion for a certificate of appealability. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 13th day of July, 2011. 
      
      . The respondent also argues that the petition is time-barred under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AED-PA”), which established a one-year statute of limitations on the filing of habeas petitions pursuant to 28 U.S.C. § 2254. See Respt's Mot. at 6-9. Because the court determines it lacks jurisdiction in this case, it does not consider respondent’s arguments under the AEDPA.
     
      
      .The court notes that, despite the petitioner's clear articulation that his claim is based on the ineffectiveness of his appellate counsel, see Pet. ¶¶ 8.A, 9; Petr’s Mem. at 3-4, the respondent focuses almost its entire argument on why D.C.Code § 23-110 applies to the petitioner's alleged ineffective assistance of trial counsel, Respt’s Mot. at 9-15. The respondent did not file a reply addressing the petitioner's clarification that his claim was based on the alleged ineffectiveness of his appellate representation. See Petr's Opp'n at 2 (stating that "[the petitioner directs the [c]ourt's attention to the fact that his claim in his petition relates to ineffective assistance of appellate counsel. It does not relate to ineffective assistance of trial counsel as asserted by [the] respondent”). In fact, the petitioner is correct that D.C.Code § 23-110 is not an available vehicle to bring claims of ineffective assistance of appellate counsel. Williams v. Martinez, 586 F.3d 995, 998 (D.C.Cir.2009) (explaining that because "the [District of Columbia] Superior Court lacks authority to entertain a [§] 23-110 motion challenging the effectiveness of appellate counsel ... § 23-110 does not bar [the petitioner’s] habeas petition").
     
      
      . The respondent has not filed an opposition to this motion.
     
      
      . The petitioner cites an order issued by the D.C. Circuit in Johnson v. Stansberry, 2010 U.S.App. LEXIS 9830 (D.C.Cir. May 11, 2011), for the proposition that the "appellant need not show that moving to recall the mandate is ineffective in order for the district court to have habeas jurisdiction over his claim of ineffective assistance of appellate counsel.” Petr’s Mot. at 4. In addition to misquoting the order, however, the petitioner omitted the pertinent first portion of the sentence, which explains that the appellant in that case had exhausted his available local remedies. Johnson, 2010 U.S.App. LEXIS, at *3. More specifically, the appellant had moved to recall the mandate in the District of Columbia Court of Appeals, and was therefore not required to also prove that such a remedy would be ineffective to protect his rights. Id. Had the petitioner here exhausted his local remedies, he would be correct in asserting that he need not also show that moving to recall the mandate is ineffective to protect his rights.
     