United States District Court, D. Columbia.
Order Filed: October 24, 2013
VERNON NORMAN EARLE, Petitioner, Pro se, Pine Knot, KY.
For UNITED STATES OF AMERICA, Respondent: Carolyn K. Kolben, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
PAUL L. FRIEDMAN, United States District Judge.
The United States moves to dismiss this action for a writ of habeas corpus as untimely filed. See United States' Motion to Dismiss Petitioner's Petition for a Writ of Habeas Corpus (" Resp't's Mot." ) [Dkt. No. 26]. Mr. Earle opposes the motion. See Objection to Government Motion to Treat Petitioner's Habeas Corpus Filed Pursuant to 28 U.S.C. § 2241, as Filed Pursuant to 28 U.S.C. § 2254 and for Summary Dismissal as Untimely Filed (" Pet'r's Opp'n" ) [Dkt. No. 29]. Upon consideration
of the parties' submissions and the entire record, the Court will grant the United States' motion and dismiss the case.
Mr. Earle is serving an aggregate prison sentence of 20 years to life as a result of multiple convictions in the Superior Court of the District of Columbia on November 3, 1986, and June 2, 1987. See Earle v. U.S., 808 F.Supp.2d 301, 302 (D.D.C. 2011). " Following numerous unsuccessful direct and collateral attacks of his convictions in both D.C. and federal courts, . . . petitioner filed the instant petition for a writ of habeas corpus on May 14, 2010, in which he alleges ineffective assistance of trial and appellate counsel." Id. (citing Pet. at 1, 5-7) (other citations omitted). This Court previously determined that D.C. Code § 23-110(g) deprived it of jurisdiction to consider Mr. Earle's claim of ineffective assistance of trial counsel, see id. at 303-04, and that it lacked jurisdiction to consider the claim of ineffective assistance of appellate counsel because Mr. Earle had not exhausted that claim by moving to recall the mandate in the District of Columbia Court of Appeals (" DCCA" ). Id. at 304. The Court therefore granted the United States' motion to dismiss, and Mr. Earle noticed an appeal of the dismissal order [Dkt. No. 17].
In denying what was construed as Mr. Earle's request for a certificate of appealability (" COA" ), the United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of Mr. Earle's trial counsel claim for lack of jurisdiction, reasoning that " [a]ppellant has not demonstrated that his remedy under D.C. Code § 23-110 is inadequate or ineffective with regard to this claim." Order, Earle v. United States of America, No. 11-5250, (D.C. Cir. Apr. 13, 2012) [Dkt. No. 22] (" D.C. Cir. Order" ). In addition, the D.C. Circuit agreed that " at the time of its decision," this Court lacked jurisdiction to consider Mr. Earle's appellate counsel claim " due to [his] failure to exhaust local remedies." Id. at 2. The D.C. Circuit denied the COA as to the appellate counsel claim " without prejudice to [Mr. Earle] seeking appropriate relief in the district court now that his motion to recall the mandate has been resolved by the [DCCA]." Id. See Resp't's Mot., Ex. A ( Earle v. United States, No. 87-CF-1234 (D.C. Feb. 14, 2012) (denying motion to recall mandate as untimely filed). In light of Mr. Earle's satisfaction of the exhaustion requirement, this Court granted his motion to reopen this case by Minute Order issued on October 22, 2012.
The United States argues first that the petition brought under the general habeas statute set out at 28 U.S.C. § 2241 should be construed as brought under 28 U.S.C. § 2254, Resp't's Mot. at 3-5, and second that the petition should be dismissed as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (" ...