United States District Court, District of Columbia
HOWARD L. SMITH, JR., Petitioner,
JUSTIN ANDREWS, Respondent.
MEMORANDUM OPINION GRANTING RESPONDENT'S MOTION
TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
RUDOLPH CONTRERAS United States District Judge.
matter is before the Court on Howard L. Smith, Jr.'s
pro se Petition for Writ of Habeas
Corpus. For the reasons discussed below, the Court
lacks subject matter jurisdiction, so the petition will be
December 9, 1987, Smith was indicted in the Superior Court
for the District of Columbia on four charges: burglary in the
second degree while armed, murder in the first degree while
armed, carrying a pistol without a license, and felony
murder. These charges, in case number 1987-FEL-6416, related
to the murder of Nelson Able on March 29, 1987. Before Smith
was tried on these charges, however, a superseding indictment
was issued on January 5, 1988, in which Smith was re-indicted
for the murder of Able and the related offenses, as well as
two counts of assault with intent to commit murder while
armed. The latter two new counts related to a shooting
incident that occurred outside of a D.C. nightclub on May 25,
the superseding indictment, Smith was tried before a jury on
the charges related to the Able murder and convicted on all
four charges. He was sentenced to twenty years to life on the
first-degree murder charge, twenty years to life on the
felony-murder charge, five to fifteen years on the
burglary-while-armed charge, and one year on the charge of
carrying a pistol without a license. The sentences for the
burglary, felony murder, and first-degree murder convictions
were imposed to run concurrently, while the firearm sentence
was imposed to run consecutively to those sentences.
Following an appeal, the conviction for felony murder was
ultimately set aside as duplicative of the first-degree
murder conviction. See Smith v. United States, No.
88-1290, slip op. at 4 (D.C. Ct. of App. June 17, 1991).
on January 30, 1989, Smith entered a guilty plea to one count
of assault with a dangerous weapon in connection with the May
25, 1987 nightclub assaults. On March 20, 1989, the trial
court sentenced him to a term of imprisonment of two to six
years and ordered the sentence to run concurrently with the
sentences previously imposed for the Able murder. See
United States v. Smith, 10 F.Supp.2d 578, 580 (E.D. Va.
1995 through 2016, Smith filed six post-judgment collateral
attack motions pursuant to D.C. Code § 23-110 and two
federal habeas petitions related to the Able murder. These
motions raised a variety of legal challenges, including
ineffective assistance of counsel, actual innocence, and
illegal indictment under D.C. Code § 22-3202.
instant petition, Smith alleges that his Able murder
convictions were the result of “a fake superseded
indictment that was never presented and re-indicted by a
Grand Jury.” Pet. at 4, ECF No. 5. Based on this claim,
Smith asserts that the Superior Court lacked subject matter
jurisdiction over his trial, and that his Fifth Amendment
right to be indicted by grand jury was violated. See
28 U.S.C. § 2254, federal district courts are authorized
to issue writs of habeas corpus with respect to a person
detained pursuant to a state court judgment “on the
ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C.
§ 2254. Local D.C. courts, including the Superior Court
in which Smith was convicted, are treated as state courts for
purposes of this jurisdiction. See Gorbey v. United
States, 55 F.Supp.3d 98, 103 (D.D.C. 2014) (citing
Milhouse v. Levi, 548 F.2d 357, 360 n.6 (D.C. Cir.
prisoners in D.C., however, habeas relief is particularly
challenging to obtain in federal court because of an
additional requirement imposed by D.C. Code § 23-110.
This provision provides that a habeas petition “shall
not be entertained by . . . any Federal . . . court if it
appears that [the petitioner] 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).Section § 23-110, in other words,
“vest[s] the Superior Court with exclusive jurisdiction
over most collateral challenges by prisoners sentenced in
that Court.” Williams v. Martinez, 586 F.3d
995, 1000 (D.C. Cir. 2009). And federal courts lack
jurisdiction “to entertain a habeas corpus petition
attacking the constitutional validity of a Superior Court
sentence even after the local remedy . . . has been pursued
unsuccessfully.” Garris v. Lindsay, 794 F.2d
722, 726, (D.C. Cir. 1986) (per curiam) (citing Swain v.
Pressley, 430 U.S. 372, 377-78 (1977)). Thus, a D.C.
“prisoner has no recourse to a federal judicial forum
unless the local remedy is inadequate or ineffective to test
the legality of his detention.” Byrd v.
Henderson, 119 F.3d 34, 36 (D.C. Cir. 1997) (per
Smith's case, the local remedy is neither inadequate nor
ineffective. As evidenced by one of Smith's own previous
§ 23-110 motions (filed in January 2003), improper
indictment challenges can be made under § 23-110.
Resp.'s Mot. Dismiss at 3-4, ECF No. 5; see also
United States v. Graham, No. F-5576-03, 2011 D.C. Super.
LEXIS 21 (June 2, 2011) (discussing § 23-110 motion
involving trial error claims, including prosecutorial
misconduct); Saunders v. United States, 72 F.Supp.3d
105, 108 (D.D.C. 2014) (finding that errors in a Superior
Court verdict should have been raised under § 23-110);
Johnson v. Stansberry, No. 10-0178, 2010 WL 358521,
at *1 (D.D.C. Jan. 29, 2010) (same with respect to claims of
prosecutorial misconduct and imposition of illegal sentence).
That Smith was unsuccessful in his 2003 motion does not mean
his remedy under § 23-110 was inadequate or ineffective;
rather, “[i]t is the inefficacy of the remedy, not a
personal inability to utilize it, that is
determinative.” See Garris, 794 F.2d at 727.
generally, the D.C. Circuit has indicated that § 23-110
is the appropriate route for D.C. prisoners to allege trial
court errors like the one Smith has alleged in the current
petition. Indeed, the circuit court has recognized that
federal court jurisdiction is proper under § 2254 only
in a few narrow categories of cases where the constitutional
claim falls outside the scope of § 23-110, such as
ineffective assistance of appellate counsel, see
Williams, 586 F.3d at 1001, or challenges to parole
denial procedures, see Blair-Bey v. Quick, 151 F.3d
1036, 1043 (D.C. Cir. 1998). Smith's claims here are far
removed from those narrow categories of challenges and relate
solely to ...