Byrd v. Henderson

• Decision Date: 25 July 1997
• Docket Number: No. 96-5273,96-5273
• Citation: 119 F.3d 34
• Parties: Gary E. BYRD, Appellant, v. John S. HENDERSON and United States of America, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 34

119 F.3d 34

326 U.S.App.D.C. 235

Gary E. BYRD, Appellant, v. John S. HENDERSON and United States of America, Appellees.

No. 96-5273.

United States Court of Appeals, District of Columbia Circuit.

Argued April 1, 1997.

Decided July 25, 1997.

Appeal from the United States District Court for the District of Columbia (No. 96cv00223).

Michael L. Converse, Washington, DC, argued the cause for the appellant. Larry S. Gondelman, Washington, DC, was on brief.

Mary-Patrice Brown, Assistant United States Attorney, argued the cause for the appellees. Eric H. Holder, Jr., United States Attorney, and John R. Fisher, John M. Facciola and L. Jackson Thomas, II, Assistant United States Attorneys, were on brief. R. Craig Lawrence, Assistant United States Attorney, and Charles L. Reischel, Deputy Corporation Counsel, entered appearances.

Before: WALD, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed Per Curiam.

Per Curiam:

Appellant Gary Byrd petitioned the district court for a writ of habeas corpus, claiming that the District of Columbia Court of Appeals (Court of Appeals), in affirming the sentence imposed on him by the District of Columbia Superior Court (Superior Court), applied a harmless error analysis that violated Byrd's due process rights under the fifth and fourteenth amendments to the United States Constitution. ¹ The district court dismissed the case for lack of subject matter jurisdiction on the ground that Byrd had an adequate and effective means of collaterally attacking his sentence by motion in the Superior Court and therefore was not entitled to a federal forum. We affirm the district court.

I.

In 1985 Byrd was convicted in the Superior Court of two counts of assault with a dangerous weapon, in violation of D.C.Code § 22-502 (1981); one count of assault with intent to kill while armed, in violation ofD.C.Code § 22-501; and two counts of carrying a pistol without a license, in violation of D.C.Code § 22-3204. Byrd v. United States, 551 A.2d 96, 97 (D.C.1988), cert. denied, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989). In his appeal to the Court of Appeals Byrd argued, inter alia, that the Superior Court jointly tried offenses relating to separate incidents in violation of Superior Court Criminal Rule 8(b) (Rule 8(b)). ² The Court of Appeals held that the trial should have been severed but that the Superior Court's joinder error was harmless. Byrd, 551 A.2d at 99-101. Byrd's subsequent petitions for rehearing and rehearing en banc were denied, JA 48, as was his petition for certiorari to the United States Supreme Court, Byrd v. United States, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989).

Seven years after the Supreme Court denied certiorari, Byrd filed a petition for writ of habeas corpus in the United States District Court for the District of Columbia. The basis of Byrd's petition was that the Court of Appeals's harmless error analysis, because it contradicted the standards established in United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), denied Byrd his right to due process under the fifth and fourteenth amendments to the United States Constitution. A magistrate judge issued a report finding that the district court lacked jurisdiction and recommended dismissal. The district court accepted the magistrate judge's findings and dismissed Byrd's petition. The district court issued a certificate of probable cause and we therefore have jurisdiction to hear this appeal. Fed. R.App. P. 22(b). ³

II.

Before passage of the District of Columbia Court Reform and Criminal Procedure Act of 1970 (Court Reform Act), Pub.L. No. 91-358, 84 Stat. 473, a District of Columbia prisoner collaterally attacking his sentence sought relief in the United States District Court for the District of Columbia. See Swain v. Pressley, 430 U.S. 372, 375 n. 4, 97 S.Ct. 1224, 1226 n. 4, 51 L.Ed.2d 411 (1977) (describing limited jurisdiction of Superior Court before Court Reform Act). Since passage of the Court Reform Act, however, a District of Columbia prisoner seeking to collaterally attack his sentence must do so by motion in the sentencing court--the Superior Court--pursuant to D.C.Code § 23-110. ⁴ Thus a District of Columbia prisoner bears a certain resemblance to his federal counterparts who must collaterally challenge their sentences, not by seeking a writ of habeas corpus in the district where they are in custody, but by motion pursuant to 28 U.S.C. § 2255 in the district where they were sentenced. Despite the similarity there is one obvious difference between a federal prisoner and a District of Columbia prisoner: a federal prisoner who seeks collateral relief pursuant to section 2255 is heard by an Article III court (i.e. the federal district court that imposed sentence) whereas a District of Columbia prisoner who seeks collateral relief pursuant to section 23-110 of the D.C.Code is heard by an Article I court (i.e. the Superior Court). In order to collaterally attack his sentence in an Article III court a District of Columbia prisoner faces a hurdle that a federal prisoner does not. Namely, he must show that the relief by motion in Superior Court pursuant to section 23-110 of the D.C.Code "is inadequate or ineffective to test the legality of his detention." D.C.Code § 23-110(g).

In his petition Byrd maintains that the Court of Appeals's application of the harmless error test to his misjoinder claim, see United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), was so arbitrary and capricious as to constitute a violation of his right to due process under the fifth and fourteenth amendments. He argues further that any remedy he may have by way of motion in Superior Court meets the "inadequate or ineffective" requirement because the Superior Court cannot review the proceedings of the Court of Appeals. See Watson v. United States, 536 A.2d 1056, 1060 (D.C.1987), cert. denied, 486 U.S. 1010, 108 S.Ct. 1740, 100 L.Ed.2d 203 (1988). Byrd's attack on the Court of Appeals's harmless error analysis, however, is not a meritorious due process claim. Byrd repeatedly accuses the Court of Appeals of ignoring the Lane framework. But Lane did not, as Byrd suggests, set forth a three prong test for evaluating harmless error. Lane holds that misjoinder under Federal Rule of Criminal Procedure 8(b) does not always require reversal but instead is subject to harmless error analysis. In Lane the Court found that misjoinder was harmless on the facts. The Court listed three factors to support its conclusion: overwhelming evidence of the defendant's guilt; a proper limiting instruction to the jury; and the fact that evidence underlying the severed counts would likely have been admissible in each trial had separate trials taken place. Lane, 474 U.S. at 450, 106 S.Ct. at 732. But the Court did not state that all three factors had to exist to find harmless error. Instead, the Court held that error is not harmless if it " 'had substantial and injurious effect or influence in determining the jury's verdict.' " Id. at 449, 106 S.Ct. at 732 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). Here the Court of Appeals concluded misjoinder was harmless based only on the third Lane factor. See Byrd, 551 A.2d at 100-01. We think the Court of Appeals gave a reasonable reading to Lane and, accordingly, its decision comes nowhere near being so arbitrary and capricious as to deny Byrd due process. Byrd's attack on the Court of Appeals's harmless error analysis is thus at most a claim that the Court of Appeals's resolution of his Rule 8(b) claim was erroneous. Byrd cannot raise his claim of non-constitutional error in Superior Court by motion for collateral relief because the Superior Court lacks the power to review the Court of Appeals's decision. See Watson, 536 A.2d at 1060. That does not, however, render Byrd's remedy by motion inadequate or ineffective to test the legality of his detention. See Garris v. Lindsay, 794 F.2d 722, 726-27 (D.C.Cir.), cert. denied, 479 U.S. 993, 107 S.Ct. 595, 93 L.Ed.2d 595 (1986). Accordingly, the district court's dismissal of Byrd's petition for a writ of habeas corpus is

Affirmed.

1 Defendant John Henderson, Warden of the Lorton Correctional Complex, is Byrd's custodian.

2 The rule, which is identical to Federal Rule of Criminal Procedure 8(b), "permits the joinder of offenses in a multiple defendant case, but only if the...