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WILSON v. OFFICE OF THE CHAIRPERSON

June 28, 1995

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



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

 UNITED STATES 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, 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. 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. *fn1" Accordingly, a § 2255 motion "may not be invoked for matters occurring subsequent to the judgment." Hartwell, 353 F. Supp. 354 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 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, 254 U.S. App. D.C. 13, 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. 372 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 ...


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