UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) BOBBY E. HAZEL, ) ) Petitioner, ) ) v. ) Civil Action No. 11-1100 (BAH) ) R. LVES, ) ) Respondent. ) )

MEMORANDUM OPINION

The Petitioner is currently imprisoned at United States Penitentiary McCreary, where he

is serving a sentence imposed by the Superior Court of the District of Columbia. Inmate

Locator, Fed. Bureau of Prisons, http://www.bop.gov/iloc2/LocateInmate.jsp (search for Register

Number 41097-133); Mem. of P. & A. in Supp. for Writ of Habeas Corpus at 1–2, ECF No. 1

[hereinafter Mem.]. The Petitioner has petitioned for a writ of habeas corpus. See Pet. for Writ

of Habeas Corpus, ECF No. 1 [hereinafter Pet.]. The petition will be dismissed because the

Court lacks jurisdiction to consider it.

Although

serves as the general federal statute governing habeas corpus

petitions filed in federal court, a petition filed “on behalf of a person in custody pursuant to the

judgment of a State court” is considered under

. § 2254(a). “The D.C. Circuit

has consistently held that when considering a writ of habeas corpus a prisoner of the District of

Columbia is considered a State prisoner, when the prisoner is held under a conviction of the D.C.

Superior Court.” Banks v. Smith,

(D.D.C. 2005). Therefore, although the Petitioner purports to bring his petition under § 2241, Pet. at 1, the Court must consider it under

§ 2254.

A federal district court lacks subject-matter jurisdiction to consider a habeas petition

under § 2254 to the extent that a petitioner may make a motion in a D.C. court seeking relief in

the nature of habeas under

, which provides:

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 by . . . any Federal . . . court if it appears . . . 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.

§ 23-110(g). Thus, it is settled that “a District of Columbia prisoner has no recourse to a federal

judicial forum unless the local remedy is ‘inadequate or ineffective to test the legality of his

detention.’” Garris v. Lindsay,

(D.C. Cir. 1986) (quoting § 23-110(g)).

“Section 23-110 has been found to be adequate and effective because it is coextensive with

habeas corpus,” Saleh v. Braxton,

(D.D.C. 1992), except where a

petitioner claims ineffective assistance of appellate counsel and has unsuccessfully moved to

recall the mandate of the D.C. Court of appeals, because § 23-110 does not provide a means to

make such a claim, Williams v. Martinez,

(D.C. Cir. 2009) (citing § 23-

110(a)).

The gravamen of Petitioner’s current petition is that, at some point, his appellate counsel

failed to pursue a collateral attack under § 23-110, and that the requirement that he attempt to

recall the appellate mandate of the D.C. Court of Appeals “is an inadequate remedy for the

petition to pursue attack against appellate counsel for not seeking a collateral attack under D.C.

Code [§] 23-110.” Pet. at 7. Petitioner misunderstands the adequacy of his remedy. Section 23-

110 is only inadequate insofar it does not provide a means for a petitioner to claim ineffective

2 assistance of appellate counsel. Williams,

. A petitioner may therefore bring

such a claim in federal court under § 2254, but he must first exhaust the appellate process, which

requires a petitioner to move to recall the mandate of the D.C. Court of Appeals. Id.;

§ 2254(b)(1)(A), (c)(1). The Petitioner does not allege that he has moved to recall the mandate

of the D.C. Court of Appeals, but instead incorrectly argues that the requirement that he make

such a motion is what makes his local remedy inadequate. See Mem.

Because the Petitioner has not shown that he has exhausted the remedies available in

D.C. courts, the Court lacks jurisdiction to consider his petition.1 Because the Court lacks

jurisdiction to consider the petition, it will be dismissed. A separate order consistent with this

Memorandum Opinion shall issue this date.

Date: October 20, 2011 /s/Beryl A. Howell BERYL A. HOWELL United States District Judge

1 Moreover, even if the Court had jurisdiction, Plaintiff would fail to state a habeas claim upon which relief can be granted. The Petitioner claims that his appellate counsel was ineffective insofar as he failed to pursue a collateral attack under § 23-110, but § 2254 specifically provides that “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” § 2254(i). 3