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PERKINS v. HENDERSON

March 31, 1995

WILLIAM O. PERKINS, Petitioner,
v.
JOHN S. HENDERSON, Respondent.



The opinion of the court was delivered by: CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE

 Before the Court in the above-entitled cause is the Respondent's Motion to Dismiss the Petitioner's Application for a Writ of Habeas Corpus for lack of jurisdiction and on its merits. 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 upon jurisdictional grounds.

 I. BACKGROUND

 Petitioner, convicted in 1977 in the District of Columbia Superior Court of rape and two counts of burglary, challenges the lawfulness of his continued custody at the Lorton Correctional Complex. Plaintiff alleges that the District of Columbia Board of Parole denied him due process and equal protection of the laws in basing its decision to deny him parole on allegedly false information and by failing to order a reconsideration hearing under 28 D.C.M.R. § 104.11. Plaintiff further maintains that the application of 1987 revisions to the parole guidelines in the Board's decision violated the bar against ex post facto laws.

 II. DISCUSSION

 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.

 Since prisoners sentenced in the Superior Court and incarcerated in District of Columbia facilities are not considered "state" offenders or prisoners in state custody, they may not seek federal habeas corpus relief under 28 U.S.C. § 2254. See Swain v. Pressley, 430 U.S. 372, 377, 51 L. Ed. 2d 411, 97 S. Ct. 1224 (1977); Palmore v. United States, 411 U.S. 389, 395, 36 L. Ed. 2d 342, 93 S. Ct. 1670 (1973); Garris v. Lindsay, 254 U.S. App. D.C. 13, 794 F.2d 722, 726 nn.23, 24 (D.C. Cir. 1986), cert. denied, 479 U.S. 993, 93 L. Ed. 2d 595, 107 S. Ct. 595 (1986).

 And because they are not "federal" offenders, prisoners sentenced in the Superior Court may not file motions to vacate, set aside, or correct their sentences under 28 U.S.C. § 2255. See Swain, 430 U.S. at 377; Gary v. United States, 499 A.2d 815, 857 (D.C. App. 1985) (Mack, J., concurring & dissenting).

 The federal habeas corpus and post-conviction review that is available to District of Columbia prisoners is, in turn, limited by D.C. Code §§ 16-1901 and 23-110, which were enacted as part of the District of Columbia Court Reform and Criminal Procedure Act of 1970. *fn1" The former precludes the Court from entertaining the instant petition.

 A. The two forms of postconviction relief available to prisoners sentenced in the Superior Court and in the custody of District of Columbia officials mirror those available to federal prisoners under 28 U.S.C. §§ 2255 and 2241.

 
1. D.C. Code. § 23-110 and 28 U.S.C. § 2255.

 D.C. Code § 23-110 vests subject matter jurisdiction to entertain collateral attacks upon Superior Court sentences in that court. *fn2" 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, 430 U.S. at 377-78; 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. *fn3" 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. *fn4" 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 ...


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