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PERKINS v. HENDERSON

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


March 31, 1995

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

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

MEMORANDUM OPINION OF 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 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, 15 L. Ed. 2d 73, 86 S. Ct. 67 (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, 96 L. Ed. 232, 72 S. Ct. 263 (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, 590 A.2d at 513 ("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, 794 F.2d at 725-26 ("[A] prisoner under a sentence imposed by the Superior Court . . . may collaterally challenge the constitutionality of his [or her] conviction by moving in that court for vacatur of his [or her] sentence. The prisoner may also, if unsuccessful on his [or her] motion in the Superior Court, prosecute an appeal to the District of Columbia Court of Appeals."). 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 (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).

 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: *fn5" 28 U.S.C. § 2255 and D.C. Code § 23-110 are coextensive. *fn6" 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.

 2. D.C. Code § 16-1901 and 28 U.S.C. § 2241.

 Distinguishable from § 2255 and D.C. Code § 23-110, see Calvin, 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"), 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, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (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 (inmate's challenge to Executive Branch's execution of his sentence, rather than imposition of sentence, had to be raised in habeas corpus petition, rather than in motion to correct sentence); 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 circumscribed by D.C. Code § 16-1901. *fn7"

 Habeas petitions are directed to a prisoner's custodian. See Braden v. 30th Judicial Circuit, 410 U.S. 484, 495, 35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973) (habeas corpus requires that the court issuing the writ have jurisdiction over the custodian); Schlanger v. Seamans, 401 U.S. 487, 490-91, 28 L. Ed. 2d 251, 91 S. Ct. 995 (1971) (proper to dismiss habeas corpus petition where court lacks personal jurisdiction over petitioner's custodian). In all but extraordinary cases a petitioner's custodian is the warden of the facility where the petitioner is incarcerated. See Guerra v. Meese, 252 U.S. App. D.C. 1, 786 F.2d 414, 417 (D.C. Cir. 1986) (wardens of the federal facilities at which they were confined, rather than Parole Commission, were custodians of the prisoners and were the proper respondents of the prisoners' habeas petitions).

 D.C. Code § 16-1901 provides that if the habeas petition is directed to a federal official, the petition is to be filed in the United States District Court for the District of Columbia. *fn8" If the petition is directed to any other official, the petition is to be filed in the District of Columbia Superior Court. *fn9"

 Accordingly, prisoners convicted in the District of Columbia Superior Court and incarcerated in District of Columbia facilities must file their petitions in Superior Court, while prisoners convicted in Superior Court but incarcerated in federal facilities must file their petitions in the United States District Court for the District of Columbia. D.C. Code § 16-1901(b), (c).

 The general requirement that a prisoner exhaust his local remedies is distinguishable from the jurisdictional limitations imposed by the Court Reform Act. The former dictates that appeal of the Superior Court's denial of a § 23-110 motion or § 16-1901 petition to the District of Columbia Court of Appeals should be required before the United States District Court for the District of Columbia attempts to ascertain whether the local remedy is inadequate or ineffective; this allows a prisoner sentenced in the Superior Court to exploit fully his or her remedy in the District of Columbia courts. *fn10" The latter -- together with the requirement that habeas petitions be brought in the district where the petitioner is confined on the date of filing -- effectively eliminates the jurisdictional reach of the United States District Court for the District of Columbia regarding collateral attacks brought by prisoners sentenced in the Superior Court, whether styled as motions to vacate, set aside or modify a sentence, or petitions for habeas corpus.

 B. Because Petitioner is serving a District of Columbia Superior Court sentence in a District of Columbia facility. he is in the custody of a District of Columbia official and must therefore file his habeas petition in the Superior Court.

 Petitioner cites McCall v. Swain, 166 U.S. App. D.C. 214, 510 F.2d 167 (D.C. Cir. 1975) for the proposition that prisoners incarcerated in the Lorton Facility are in federal custody and that such prisoners may therefore file their habeas petitions in the United States District Court for the District of Columbia under D.C. Code § 16-1901. However, Petitioner misconstrues both the facts and the holding of that case.

 Prior to the District of Columbia Court Reform Act, the United States District Court for the District of Columbia functioned as both a local and federal court with respect to certain local crimes. It had exclusive jurisdiction over all felonies (except juveniles retained by the Juvenile Court) and concurrent jurisdiction with the District of Columbia Court of General Sessions over all misdemeanors. As a result of the Act, the District of Columbia now has a two-tier judicial system comprised of one, the United States District Court and the United States Court of Appeals for the District of Columbia, and a second system made up of strictly local courts, the Superior Court and the District of Columbia Court of Appeals. The Superior Court consolidated the former District of Columbia Court of General Sessions, the Juvenile Court of the District of Columbia, and the District of Columbia Tax Court, in addition to assuming jurisdiction over most local matters previously within the jurisdiction of the United States District Court. See Court Reform Act § 111, 84 Stat. 482, codified at 11 D.C. Code § 901 (1973).

 The petitioner in McCall had been tried and sentenced in the United States District Court for a local offense prior to the Court Reform Act. The United States Court of Appeals for the District of Columbia held that whether the petitioner could seek federal habeas corpus review hinged on whether the District of Columbia officials in charge of his or her incarceration were acting as federal or local officials on the date he filed the petition; the proper characterization of these officials, in turn, depended on whether the petitioner was serving a federal or local sentence. Incarcerated at the Lorton Correctional Complex pursuant to a sentence meted out by the United States District Court, the Court held that McCall was in federal custody for habeas jurisdictional purposes. McCall, 510 F.2d at 182-83.

  The petitioner in the instant case, however, was convicted in the District of Columbia Superior Court. Currently incarcerated at Lorton, Petitioner is accordingly in the custody of District of Columbia officials and his habeas petition must therefore be filed in the District of Columbia Superior Court under D.C. Code § 16-1901. See Poole, supra.

 III. CONCLUSION

 Upon careful consideration of the parties' pleadings, the entire record herein, and the applicable law with respect thereto, the Court will enter an Order of even date herewith consistent with the foregoing Memorandum Opinion dismissing the above-entitled cause, without prejudice to refiling in the District of Columbia Superior Court.

 March 31, 1995

 CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE

 ORDER

 Upon careful consideration of the parties pleadings, the entire record herein, and the law applicable thereto, and for the reasons set forth in the Court's Memorandum Opinion filed this date in the above-captioned cause, it shall be and is, by the Court, this 31st day of 1995

 ORDERED that the above-entitled cause is DISMISSED, without prejudice to refiling in the District of Columbia Superior Court.

 March 31, 1995

 CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE


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