United States District Court, D. Columbia.
MARCEL JOHNSON, Petitioner, Pro se, PETERSBURG, VA.
For ERIC D. WILSON, Respondent: Margaret J. Chriss, Thomas Anthony Quinn, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Special Proceedings Section, Washington, DC.
RUDOLPH CONTRERAS, United States District Judge.
This matter is before the Court on Marcel Johnson's Petition for a Writ of Habeas Corpus by a Person in Custody in the District of Columbia. For the reasons discussed below, the petition will be denied.
On September 10, 2010, in the Superior Court of the District of Columbia, a jury found petitioner guilty of conspiracy and robbery. United States' Opp'n to Pet'r's Pet. for Writ of Habeas Corpus (" Resp't's Opp'n" ) at 5; Pet. at 2. The Superior Court sentenced petitioner to a 36-month term of imprisonment followed by a 3-year term of supervised release on the conspiracy conviction, and sentenced him to a 120-month term of imprisonment followed by a three-year term of supervised release for robbery. Resp't's Opp'n at 5. The sentences were to be served concurrently to each other and consecutively to any other sentence. Id. Petitioner filed a notice of appeal on December 23, 2010, and counsel was appointed to represent him before the District of Columbia Court of Appeals. See Resp't's Opp'n, Ex. B (docket sheet, Johnson v. United States, No. 10-CF-1610 (D.C. Ct. of App. filed Dec. 23, 2010) at 2. The Court of Appeals affirmed petitioner's conviction on September 23, 2011, and issued its mandate on October 28, 2011. Id., Ex. A ( Judgment, Johnson v. United States, No. 10-CF-1610 (D.C. Ct. of App. filed Sept. 23, 2011)); see id., Ex. B at 1.
Petitioner, who then was proceeding pro se, filed a motion to recall the mandate, see id., Ex. C (Defendant's Motion to Recall the Mandate Pursuant to D.C. App. R. 41(f)), which the Court of Appeals denied on the merits, id., Ex. D (Order, Johnson v. United States, No. 10-CF-1610 (D.C. Ct. of App. filed Oct. 25, 2012)). Undaunted, petitioner now seeks relief in federal district court under 28 U.S.C. § 2254.
A. Ineffective Assistance of Trial Counsel Claim
According to petitioner, trial counsel rendered deficient performance by failing
to file a motion for a mistrial and a motion for a new trial after the jury's verdict. Pet. at 5 (Ground Three). Respondent argues that the ineffective assistance of trial counsel claim " must be dismissed because the petitioner has not, and cannot, show that his remedy under . . . D.C. Code § 23-110 . . . is 'adequate or ineffective.'" Resp't's Opp'n at 11.
Under District of Columbia law, a prisoner convicted and sentenced in the Superior Court may file a motion in that court to vacate, set aside, or correct his sentence " upon the ground that (1) the sentence was imposed in violation of the Constitution of the United States or the laws of the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, [or] (4) the sentence is otherwise subject to collateral attack[.]" D.C. Code § 23-110(a). Although habeas relief in federal court may be available to a District of Columbia offender who " is in custody in violation of the Constitution . . . of the United States," 28 U.S.C. § 2241(c)(3), his habeas petition " shall not be entertained by . . . any Federal . . . court if it appears that [he] has failed to make a motion for relief under [D.C. Code § 23-110] or that the Superior 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(g); see Williams v. Martinez, 586 F.3d 995, 998, 388 U.S.App.D.C. 316 (D.C. Cir. 2009) (" Section 23-110(g)'s plain language makes clear that it only divests federal courts of jurisdiction to hear habeas petitions by prisoners who could have raised viable claims pursuant to section 23-110(a)." ), cert. denied, 559 U.S. 1042, 13 ...