Richardson v. United States

• Decision Date: 14 November 2013
• Docket Number: Civil Action No. 13–0492 RLW
• Citation: 999 F.Supp.2d 44
• Parties: Roosevelt Richardson, Petitioner, v. United States of America, Respondent.
• Court: U.S. District Court — District of Columbia

999 F.Supp.2d 44

Roosevelt Richardson, Petitioner

v.United States of America, Respondent.

Civil Action No. 13–0492 RLW

United States District Court, District of Columbia.

November 14, 2013

Roosevelt Richardson, Petersburg, VA, pro se.

Bernard J. Delia, U.S. Attorney's Office, Washington, DC, for Respondent.

MEMORANDUM OPINION

ROBERT L. WILKINS, United States District Judge

This matter is before the Court on Roosevelt Richardson's petition for a Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 [ECF No. 1] and the Government's Motion to Dismiss Petitioner's Petition for Writ of Habeas Corpus [ECF No. 7]. For the reasons discussed below, the petition will be dismissed.

I. BACKGROUND

In the Superior Court of the District of Columbia, “[f]ollowing a jury trial, [petitioner] was convicted on October 2, 1996, of five felonies relating to a gun injury suffered by Lanita Spears.” Richardson v. United States, 8 A.3d 1245, 1246 (D.C.2010) ; see Gov't's Mot. to Dismiss Pet'r's Pet. for Writ of Habeas Corpus (“Gov't Mot.”) at 1 (listing charges set forth in indictment). The court imposed a sentence of 16 years to life imprisonment. Pet. at 1. Petitioner filed an appeal to the District of Columbia Court of Appeals on March 6,1997. Gov't Mot. at 2; see Pet. at 2.

Petitioner also filed a motion under D.C.Code § 23–110 for a new trial, which the Superior Court denied on August 30, 1999, after having conducted an evidentiary hearing. Gov't Mot. at 2. Petitioner appealed this ruling, and the Court of Appeals consolidated it with his direct appeal.¹ Id. Before the Court of Appeals were the following four arguments:

1) that the trial court erred in failing to suppress the identification testimony of the government's main eyewitness; 2) that the trial court erred in declining to give a missing witness instruction; 3) that there was insufficient evidence to sustain [petitioner's] conviction; and 4) [that] the trial court erred in allowing the government to elicit certain repetitious information from a witness.

Id., Ex. A (Memorandum Opinion and Judgment at 1, Richardson v. United States, Nos. 97–CF463 & 99–CO–1237, 814 A.2d 447 (D.C.Ct.App. Nov. 26, 2002) ). The Court of Appeals affirmed both the judgment of conviction and the denial of the § 23–110 motion for new trial. Id. Ex. A. Petitioner neither moved to recall the mandate nor filed a petition for a writ of certiorari in the United States Supreme Court. See Pet. at 2–3.

Pursuant to the Innocence Protection Act (“IPA”), see D.C.Code § 22–4135, on October 24, 2006, petitioner filed in the Superior Court another collateral attack on his conviction, this time “on the basis of an affidavit from a witness who was not called at [his] 1996 trial.” Richardson, 8 A.3d at 1246. Petitioner “claimed that the affidavit contained ‘new evidence’ that proved his actual innocence.” Id. He also brought a second claim of ineffective assistance of trial counsel pursuant to D.C.Code § 23–110. Id. The Superior Court appointed counsel to represent petitioner, held a hearing at which the witness testified, and ultimately denied the motion. Id. at 1248. The Court of Appeals affirmed, noting its “agree[ment] with the trial court that the affidavit and testimony do not entitle [petitioner] to relief under the IPA.” Id. at 1246. Nor did the Superior Court “err in denying consideration of [petitioner's] successive § 23–110 motion, which is barred by procedural default.” Id . at 1247.

On April 11, 2013, petitioner filed the instant petition for a writ of habeas corpus, setting forth ten instances underlying his claim of ineffective assistance of trial counsel. See generally Pet. at 3–12.² In addition, petitioner alleges “that his appellate counsel was ineffective and should have raised” these instances of trial counsel error “during the Petitioner's first 23–110 motion.” Pet. at 13. Had appellate counsel raised these “non-frivolous claims,” petitioner contends, petitioner “would have prevailed.” Id.

II. DISCUSSION

Under District of Columbia law, a prisoner convicted and sentenced in the Superior Court may file a motion in that court to vacate, set aside, or correct his sentence “upon the ground that (1) the sentence was imposed in violation of the Constitution of the United States or the laws of the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, [or] (4) the sentence is otherwise subject to collateral attack[.]” D.C.Code § 23–110(a). Although habeas relief in federal court may be available to a District of Columbia Code offender who “is in custody in violation of the Constitution ... of the United States,” 28 U.S.C. § 2241(c)(3), his habeas petition “shall not be entertained by ... any Federal ... court if it appears that the [prisoner] has failed to make a motion for relief under [D.C.Code § 23–110 ] 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.”³ D.C.Code § 23–110(g) ; see Williams v. Martinez, 586 F.3d 995, 998 (D.C.Cir.2009) (“Section 23–110(g)'s plain language makes clear that it only divests federal courts of jurisdiction to hear habeas petitions by prisoners who could have raised viable claims pursuant to section 23–110(a).”), cert. denied, 559 U.S. 1042, 130 S.Ct. 2073, 176 L.Ed.2d 423 (2010) ; Byrd v. Henderson, 119 F.3d 34, 36–37 (D.C.Cir.1997) (finding 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”).

To the extent that petitioner seeks review of claims arising from errors that may have occurred during criminal proceedings in the Superior Court and from trial counsel's allegedly deficient performance, this Court cannot entertain them because petitioner does not show that his remedy under D.C.Code § 23–110 is inadequate or ineffective. See Williams, 586 F.3d at 998 ; Plummer v. Fenty, 321 Fed.Appx. 7, 8 (D.C.Cir.2009) (per curiam). Nor does “petitioner's lack of success in the District of Columbia courts ... render his local remedy inadequate or ineffective.” Blount v. Wilson, No. 11–0743, 2011 WL 1526945, at *1 (D.D.C. Apr. 19, 2011) (citations omitted); see Garris v. Lindsay, 794 F.2d 722, 727 (D.C.Cir.1986) (“It is the inefficacy of the remedy, not a personal inability to utilize it, that is determinative, and appellant's difficulty here is simply that his circumstances preclude him from invoking it.”). The only matter that this Court may address is petitioner's ineffective assistance of appellate counsel claim under “the standard set forth in 28 U.S.C. § 2254.” Williams, 586 F.3d at 1002.

“Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) ... impose[d] a 1–year period of limitation on motions brought under [28 U.S.C. § 2255 ],” United States v. Saro, 252 F.3d 449, 451 (D.C.Cir.2001) (citation omitted), which runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” Id. § 2241(d)(2). “Courts have generally applied the same analysis to the time limitations in § 2254 and § 2255,” United States v. Cicero, 214 F.3d 199, 203 n. * (D.C.Cir.2000), and, therefore, a one-year period of limitation applies to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of the District of Columbia Superior Court. 28 U.S.C. § 2244(d)(1) ; see Wright v. Wilson, 930 F.Supp.2d 7, 10–11 (D.D.C.2013).

Applying 28 U.S.C. § 2244(d)(1)(A), because petitioner did not seek a writ of certiorari within 90 days after the Court of Appeals affirmed his convictions on November 26, 2002, see Sup.Ct. R. 13(1), his convictions became final on or about February 25, 2003. The one-year limitation period would have ended on or about February 26, 2004. Thus, respondent argues, the habeas “petition is time-barred and should be dismissed.”⁴ Gov't Mot. at 10.

Petitioner raises two arguments in an attempt to establish the timely filing of his habeas petition. First, see Pet. at 13, he relies on Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), which recognizes a single, narrow circumstance where a petitioner might overcome a procedural default so that his claim for ineffective assistance of counsel may proceed. See id. at 1320. Presumably petitioner is arguing that the filing of the instant petition within one year after the Martinez decision renders the petition timely.

Martinez provides that, if a state collateral review scheme prevents a petitioner from raising an ineffective assistance of trial counsel claim on direct review, and instead allows him to raise such a claim for the first time in a collateral proceeding, “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance of counsel.” Id. at 1315. In the District of Columbia, peti...