Wilson v. Office of Chairperson, DC Bd. of Parole, Civ. A. No. 95-953 (CRR).

• Decision Date: 29 June 1995
• Docket Number: Civ. A. No. 95-953 (CRR).
• Citation: 892 F. Supp. 277
• Parties: Charles H. WILSON, Petitioner, v. OFFICE OF the CHAIRPERSON, DISTRICT OF COLUMBIA BOARD OF PAROLE, et al., Respondents.
• Court: U.S. District Court — District of Columbia

892 F. Supp. 277

Charles H. WILSON, Petitioner, v. OFFICE OF the CHAIRPERSON, DISTRICT OF COLUMBIA BOARD OF PAROLE, et al., Respondents.

Civ. A. No. 95-953 (CRR).

United States District Court, District of Columbia.

June 29, 1995.

Charles H. Wilson, pro se.

John M. Facciola, Asst. U.S. Atty., with whom, Eric H. Holder, U.S. Atty., for District of Columbia, was on the Motion to Dismiss, for respondents.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

Before the Court in the above-entitled cause is a Motion to Dismiss Petitioner's Application for a Writ of Habeas Corpus for lack of jurisdiction filed by the Respondent United States. Upon careful consideration of the parties' pleadings, the entire record herein, and the applicable law with respect thereto, the Court will GRANT the Respondent's Motion to Dismiss.

I. BACKGROUND

Petitioner, convicted in 1981 in the District of Columbia Superior Court of five counts of Armed Robbery, one count of Assault, and one count of First Degree Burglary while Armed, and sentenced to fifteen to forty-five years of imprisonment, challenges the lawfulness of his continued custody by District of Columbia officials. Petitioner alleges that his trial counsel was ineffective.

Petitioner sought relief in the Superior Court, but his Motion to Vacate his Sentence under D.C.Code § 23-110 was denied without a hearing. Petitioner contends that the remedy afforded to him under D.C.Code § 23-110 is inadequate and ineffective to challenge the lawfulness of his confinement. He accordingly seeks a writ of habeas corpus in this Court.

II. DISCUSSION

As this Court recently noted in Perkins v. Henderson, 881 F.Supp. 55 (D.D.C.1995) (Richey, J.), "the unique status of the District of Columbia precludes nearly all federal post-conviction review of District of Columbia Superior Court criminal convictions. It also prevents federal courts from entertaining habeas corpus petitions filed by prisoners in the custody of District of Columbia officials." Id. at 57. The Court is precluded by D.C.Code § 16-1901 from entertaining the instant Petition because the Petitioner is in the custody of District of Columbia officials.

A. D.C.Code §§ 16-1901 and 23-110.

D.C.Code § 23-110 vests subject matter jurisdiction to entertain collateral attacks upon Superior Court sentences in that court. Thus, prisoners serving sentences imposed by the Superior Court must file motions challenging their sentences in that court; federal courts are generally without jurisdiction to entertain motions to vacate, set aside, or correct a sentence imposed by the District of Columbia Superior Court. See Swain v. Pressley, 430 U.S. 372, 377-78, 97 S.Ct. 1224, 1227-28, 51 L.Ed.2d 411 (1977); Saleh v. Braxton, 788 F.Supp. 1232 (D.D.C.1992).

D.C.Code § 23-110 is the functional equivalent of 28 U.S.C. § 2255. Section 2255, which authorizes the filing of a motion to vacate, set aside, or correct federal sentence in the court that sentenced the prisoner, is distinguishable from habeas corpus. Section 2255 is available only to attack the imposition of a sentence; an attack on the execution thereof may be accomplished only by way of habeas corpus.¹ Accordingly, a § 2255 motion "may not be invoked for matters occurring subsequent to the judgment." Hartwell, 353 F.Supp. at 357. But, "if predicated on facts that existed prior to the imposition of sentence, a motion under section 2255 may encompass all the grounds that might be included in a habeas corpus petition." Id.; see Stirone v. Markley, 345 F.2d 473 (7th Cir.) (grounds for motion to vacate sentence under § 2255 encompass all grounds that might be set up in an application for habeas corpus predicated on facts that existed at or prior to time of imposition of sentence), cert. denied, 382 U.S. 829, 86 S.Ct. 67, 15 L.Ed.2d 73 (1965).

"In a case where the Section 2255 procedure is shown to be `inadequate or ineffective', the Section provides that the habeas corpus remedy shall remain open to afford the necessary hearing." United States v. Hayman, 342 U.S. 205, 222, 72 S.Ct. 263, 274, 96 L.Ed. 232 (1952). Still, a decision on a § 2255 motion is ordinarily required before a federal court will entertain a habeas petition. See 28 U.S.C. § 2255 (1988) ("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 if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such 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 similarly provides that "an application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to § 23-110 shall not be entertained by the Superior Court or by any Federal or State court if it appears that the applicant has failed to make a motion for relief under § 23-110 or that the Superior Court has denied him relief, unless it also appears the remedy by motion is inadequate or ineffective to test the legality of his detention." D.C.Code § 23-110(g) (1981); see Alston v. United States, 590 A.2d 511, 513 (D.C.App.1991) ("Under D.C.Code § 23-110, a prisoner may seek to vacate, set aside, or correct sentence.").

If unsuccessful on his or her motion in the Superior Court, the prisoner may take an appeal to the District of Columbia Court of Appeals. D.C.Code § 23-110(f) (1981); see Garris v. Lindsay, 794 F.2d 722, 725-26 (D.C.Cir.1986). However, District of Columbia prisoners have no recourse to any habeas corpus review unless they can demonstrate that the § 23-110 remedy is "inadequate or ineffective" to test the legality of their detention. D.C.Code § 23-110(g) (1981); see Swain, 430 U.S. at 378, 97 S.Ct. at 1228 (Congress created postconviction remedy in District of Columbia sentencing court; § 23-110 does not merely require exhaustion of that remedy, rather, habeas petition may not be entertained elsewhere absent demonstration that remedy is inadequate or ineffective); Garris, 794 F.2d at 727 ("Habeas corpus is available to a petitioner only if `the remedy by motion under § 23-110 is inadequate or ineffective to test the legality of his detention.'").

The determination of whether the remedy available to a prisoner under § 23-110 is inadequate or ineffective hinges on the same considerations enabling federal prisoners to seek habeas review: 28 U.S.C. § 2255 and D.C.Code § 23-110 are coextensive.² A petitioner may not complain that the remedies provided him by D.C.Code § 23-110 are inadequate merely because he was unsuccessful when he invoked them. "It is the inefficacy of the remedy, not a personal inability to utilize it, that is determinative." Garris, 794 F.2d at 727; see also David v. Bragg, Civ.A. No. 90-2731, 1991 WL 21563, at *3 (D.D.C. Feb. 14, 1991) ("The focus is on the efficacy of the remedy itself, and a federal court will therefore have jurisdiction only in extraordinary cases, especially given the similarity between the D.C. and federal habeas remedies.").

Mere delay by the District of Columbia Superior Court in deciding a Motion to Vacate or Correct a Sentence does not ordinarily render the remedy available under § 23-110 inadequate or ineffective. Jackson v. Jackson, 491 F.Supp. 445, 447 (D.D.C. 1980) (Flannery, J.) (where application for vacatur of sentence under D.C.Code § 23-110 remained unanswered for four months, the four months of near-inactivity warranted close review of the situation but such delay, without more, did not render the remedy inadequate or ineffective within the meaning of D.C.Code § 23-110(g)). Nor does the fact that motions under § 23-110 are entertained by term-tenured judges by the District of Columbia appointed by virtue of the grant of legislative authority over that territory in Art. I, § 8, cl. 17 of the Constitution, rather than life-tenured judges appointed under Article III. Swain, 430 U.S. at 382-83, 97 S.Ct. at 1230-31; Garris, 794 F.2d at 726.

However, even if § 23-110 proves inadequate or ineffective to test the legality of a prisoner's detention, a second hurdle must be overcome prior to obtaining federal habeas review: D.C.Code § 16-1901.

Distinguishable from § 2255 and D.C.Code § 23-110, habeas corpus is the sole remedy available to federal and state prisoners challenging the fact or duration of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973) (habeas corpus the sole remedy for challenging imprisonment or seeking speedier release); Chatman-Bey v. Thornburgh, 864 F.2d 804, 810 n. 5, 274 U.S.App.D.C. 398, 404 n. 5 (D.C.Cir.1988) (habeas corpus the sole remedy for challenging parole eligibility); United States v. Monteer, 556 F.2d 880, 880-81 (8th Cir.1977) (prisoner's request for restoration of good time credits challenges manner of execution of sentence, not sentence itself, and must be brought by habeas corpus). Habeas corpus is also the exclusive avenue available to a District of Columbia prisoner challenging the manner of execution of a sentence, rather than the sentence itself. See Bennett v. Ridley, 633 A.2d 824, 827 (D.C.App.1993) (challenge to parole revocation must be brought as habeas corpus action); Alston, 590 A.2d at 514 (Claims challenging the computation of a sentence may not be raised under D.C.Code § 23-110, rather "because such contentions concern the executive department's execution of a sentence, they must be raised in a habeas corpus petition."); Jones v. Jackson, 416 A.2d 249, 251 (D.C.App.1980) (challenge to parole procedures must be brought as habeas corpus). However, just as the ability of a prisoner to mount a collateral attack upon a Superior Court sentence is circumscribed by § 23-110, the habeas corpus relief available to prisoners incarcerated in District of Columbia facilities is...