UNIT ED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JERRY T. GRAHAM, : : Petitioner, : : v. : Civil Action No. 11-0149 (GK) : B.A. BLEDSOE et al., : : Respondents. :

MEMORANDUM OPINION

In this habeas corpus action transferred from the Middle District of Pennsylvania, Petitioner

challenges his conviction entered by the Superior Court of the District of Columbia. For the

following reasons, the petition will be denied.

I. BACKGROUND

Petitioner, confined at the United States Penitentiary in Lewisburg, Pennsylvania, is serving

a sentence of 10 to 30 years’ imprisonment as a result of his conviction by a Superior Court jury on

February 2, 1995, for possession with intent to distribute (“PWID”) crack cocaine. Petition Under

for Writ of Habeas Corpus by a Person in State Custody (“Pet.”) at 2; see Graham

v. U.S.,

(D.C. 2006) (explaining that Petitioner “was convicted of the lesser

included offense of unarmed PWID.”). The D.C. Court of Appeals affirmed Petitioner’s conviction

on January 31, 2001, and denied his motion to recall the mandate on July 23, 2001. Pet. at 3. In

addition, the Superior Court denied Petitioner’s motion for post-conviction relief under

on July 17, 2002, a decision affirmed by the D.C. Court of Appeals on January 30, 2006.

; see

On December 17, 2010, Petitioner filed a habeas petition pursuant to

in the

Middle District of Pennsylvania, which, in turn, considered the petition as one brought under

, and transferred it to this Court. See Order [Dkt. # 4]. As grounds for habeas relief,

Petitioner claims (1) that the trial court erred in refusing to suppress certain evidence, (2) that his

appellate counsel was ineffective in failing “to file a post-conviction 23-110 motion arguing” the

ineffectiveness of trial counsel “at the suppression hearing and at trial,” (3) that the trial and

appellate courts erred in denying his motion to dismiss on double jeopardy grounds, and (4) that the

D.C. Court of Appeals erred “in recharacterizing [his] writ of habeas corpus in Superior Court into

[a] 23-110 [motion] . . . without warning [him] of the adverse consequences.” Pet. at 5-6.

II. ANALYSIS

“A court . . . entertaining an application for a writ of habeas corpus shall forthwith award the

writ or issue an order directing the respondent to show cause why the writ should not be granted,

unless it appears from the application that the applicant . . . is not entitled thereto.”

. It is established that challenges to a Superior Court judgment of conviction must be pursued

in that court under

, see Blair-Bey v. Quick,

(D.C. Cir.

1998); Byrd v. Henderson,

(D.C. Cir. 1997), and that absent a showing of an

inadequate or ineffective local remedy, “a District of Columbia prisoner has no recourse to a federal

judicial forum,” Garris v. Lindsay,

(D.C. Cir.), cert. denied,

(1986)

(internal footnote omitted). The statute provides that

[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

2 also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

(g). In Williams v. Martinez, the District of Columbia Circuit determined that

§ 23-110 does not bar a habeas petition challenging the effectiveness of appellate counsel “because

the Superior Court lacks authority to entertain a section 23-110 motion challenging the effectiveness

of appellate counsel.”

(D.C. Cir. 2009). Thus, “D.C. prisoners who challenge

the effectiveness of appellate counsel through a motion to recall the mandate in the D.C. Court of

Appeals will get a second bite at the apple in federal court.”

.

As grounds for habeas relief, Petitioner claims that the trial court erred during a suppression

hearing (Ground 1), and in denying his motion to dismiss on double jeopardy grounds (Ground 3).

He has not demonstrated the inadequacy of the available local remedies to address those issues. See

(a) (authorizing D.C. prisoners to move to vacate, set aside, or correct a sentence

“imposed in violation of the [U.S.] Constitution or the laws of the District of Columbia”). The fact

that Petitioner did not prevail on such claims in the D.C. courts does not render the local remedy

inadequate or ineffective. See Garris,

(“mere lack of success on [direct] appeal does

not pave the way for collateral attack”) (footnote and citations omitted); cf. Bruton v. Ashcroft,

(D.C. Cir., Oct. 4, 2002) (“The [28 U.S.C.] § 2255 remedy is not inadequate or

ineffective simply because § 2255 relief has already been denied.”) (citing Charles v. Chandler,

(6th Cir. 1999) (collecting cases)); Wilson v. Off. of the Chairperson,

(D.D.C. 1995) (“A petitioner may not complain that the remedies provided him by

are inadequate merely because he was unsuccessful when he invoked them.”).

Because the foregoing grounds for habeas relief could have been raised by motion under § 23-110,

3 this Court finds that it lacks jurisdiction to entertain them.1 See Williams,

(“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).”).

Because Petitioner pursued his claim of ineffective assistance of appellate counsel (Ground

2) by moving in the D.C. Court of Appeals to recall the mandate, he may proceed in this Court on

that claim under “the standard set forth in

.” Williams,

. Petitioner

claims that appellate counsel was ineffective for allegedly failing to file a § 23-110 motion to

challenge the effectiveness of trial counsel’s performance. Pet. at 5. However, “[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.”

(i); see Johnson

v. Stansberry,

, at * 1 (D.D.C., Jan. 29, 2010) (“To the extent that Johnson's claim

of ineffective assistance of counsel extends to counsel's performance in representing Johnson in a

§ 23-110 motion, or counsel's refusal to assist in the § 23-110 motion, the claim must fail.”) (citation

omitted). Consequently, the Court, finding no basis for relief under § 2254, will deny Petitioner’s

habeas application. A separate Order accompanies this Memorandum Opinion.

/s/ April 18, 2011 GLADYS KESSLER United States District Judge

1 In Ground 4 of the petition, Petitioner claims that the D.C. Court of Appeals erred in recharacterizing his habeas petition as one for relief under

. Pet. at 6. But “federal district courts . . . have no authority to review a final judgment of a state court that has acted in its judicial capacity . . . . Only the United States Supreme Court has that power.” Fleming v. United States,

(D.D.C. 1994), cert. denied

(1995) (citations omitted).

4