UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CLIFFORD WILLIAMS, : : Petitioner, : Civil Action No.: 10-0522 (RMU) : v. : Re Document No.: 15 : CRAIG APKER, : : Respondent. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE RESPONDENT’S MOTION TO DISMISS

I. INTRODUCTION

This case is currently before the court on the respondent’s motion to dismiss the petition

for a writ of habeas corpus. The respondent argues that the court lacks subject matter

jurisdiction over all but the petitioner’s claim of ineffective assistance of appellate counsel. The

respondent also contends that the petition is statutorily time-barred because the petitioner filed

the petition more than one year after the time after his conviction became final. Although the

respondent is correct that the court lacks jurisdiction over all but the petitioner’s claim of

ineffective assistance of appellate counsel, the respondent has not established that the petition is

time-barred. The court therefore grants in part and denies in part the respondent’s motion.

II. FACTUAL & PROCEDURAL BACKGROUND

The petitioner is currently incarcerated at the United States Penitentiary Tuscon, where

he is serving concurrent sentences imposed by the Superior Court of the District of Columbia in

May 2003 following his convictions for mayhem while armed, aggravated assault while armed,

carrying a dangerous weapon and assault with a dangerous weapon. See Inmate Locator, Fed. Bureau of Prisons, http://www.bop.gov/iloc2/LocateInmate.jsp, (search for Register Number

33118-007); Application Under

[1] for Writ of Habeas Corpus by a Person in

State or Fed. Custody (“Pet.”)2 at 1; Mem. Op. & J., at 1, Williams v. United States, No. 03-CF-

1183 (D.C. Jan. 8, 2008). The petitioner appealed that conviction to the District of Columbia

Court of Appeals, which upheld the conviction on January 8, 2008. See generally Mem. Op. &

J., Williams v. United States, No. 03-CF-1183 (D.C. Jan. 8, 2008). The petitioner thereafter filed

a petition for a writ of certiorari in the U.S. Supreme Court, see Pet. at 49 (Letter from William

K. Suter, Clerk, U.S. Supreme Court, to Clifford Williams (Aug. 13, 2008)), as well as a motion

to recall the mandate of the D.C. Court of Appeals, see

(Order, Williams v. United

States, No. 03-CF-1183 (D.C. May 28, 2008)). The District of Columbia Court of Appeals acted

first, denying the petitioner’s motion on May 28, 2008.

The Supreme Court denied certiorari

on October 6, 2008. See Williams v. United States,

(2008).

The petitioner commenced this action on September 8, 2009, asserting an entitlement to

relief under Federal Rule of Civil Procedure 60(b), Pet. at 12-19, ineffective assistance of trial

counsel, id. at 20-26, ineffective assistance of appellate counsel, id. at 28-31, a violation of his

1 The petitioner ostensibly commenced this case under

, the federal law generally governing petitions for writs of habeas corpus in federal courts. See generally Pet. Because, however, the petitioner is in custody pursuant to a judgment of the D.C. Superior Court, which is considered a state court, the court construes the petition as made under

, the federal law governing petitions for writs of habeas corpus filed in federal courts by state prisoners. See Banks v. Smith,

(D.D.C. 2005) (“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.”); cf. Madley v. U.S. Parole Comm’n,

(D.C. Cir. 2002) (concluding that “a court of the District is a state court” for purposes of the certificate of appealability requirement for habeas appeals). 2 The petitioner intersperses several pages of attachments between the already numbered pages of his petition form. See generally Pet. The court therefore refers to specific portions of the petition by identifying the page numbers assigned by the ECF header, rather than those already on the petition form or those written by the petitioner on his attachments. 2 Sixth Amendment right to counsel, id. at 32-33, a violation of his Fourth Amendment right

against unreasonable search and seizure, id. at 34-35, an impermissible denial of his right to an

evidentiary hearing, id. at 36-37, and an illegal or unauthorized sentence, id. at 38-39. The

respondent has moved to dismiss the petition, arguing that the court lacks subject matter

jurisdiction over all of the petitioner’s claims except his claim of ineffective assistance of

appellate counsel and, alternatively, that the petition is time-barred. See generally Respt’s Mot.

to Dismiss (“Respt’s Mot.”). That motion is now ripe for adjudication.

III. ANALYSIS

A. The Court Dismisses the Majority of the Plaintiff’s Claims Pursuant to Rule 12(b)(1)

1. Legal Standard for a Rule 12(b)(1) Motion to Dismiss

Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency,

(D.C. Cir. 2004)

(noting that “[a]s a court of limited jurisdiction, we begin, and end, with an examination of our

jurisdiction”).

Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory

requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal

court.’” Akinseye v. Dist. of Columbia,

(D.C. Cir. 2003) (quoting Ins. Corp.

of Ir., Ltd. v. Compagnie des Bauxites de Guinee,

(1982)). On a motion to

dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the

3 burden of establishing by a preponderance of the evidence that the court has subject matter

jurisdiction. Lujan v. Defenders of Wildlife,

(1992).

Because subject matter jurisdiction focuses on the court’s power to hear the claim,

however, the court must give the plaintiff’s factual allegations closer scrutiny when resolving a

Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a

claim. See Macharia v. United States,

(D.C. Cir. 2003); Grand Lodge of

Fraternal Order of Police v. Ashcroft,

(D.D.C. 2001). Thus, the court is

not limited to the allegations contained in the complaint. Hohri v. United States,

(D.C. Cir. 1986), vacated on other grounds,

(1987). Instead, “where necessary,

the court may consider the complaint supplemented by undisputed facts evidenced in the record,

or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”

Herbert v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992) (citing Williamson v. Tucker,

(5th Cir. 1981)).

2. The Court Lacks Subject Matter Jurisdiction Over All But the Plaintiff’s Claim of Ineffective Assistance of Appellate Counsel

The respondent argues that the court lacks subject matter jurisdiction over nearly all of

the grounds for relief asserted in the petition. See Respt’s Mot. at 8-13. The petitioner, without

squarely addressing the respondent’s jurisdictional arguments, maintains that he is entitled to

habeas relief. See generally Petr’s Opp’n.

The petitioner’s first alleged ground of habeas relief is Federal Rule of Civil Procedure

60(b)(1), (2), (3), and (6). Pet. at 12. Those provisions provide in relevant part that

on motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding for . . . (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud

4 (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; . . . or (6) any other reason that justifies relief.

FED. R. CIV. P. 60(b).3 Apparently, the petitioner seeks relief from his conviction by the

Superior Court and the affirmance of that conviction by the District of Columbia Court of

Appeals. See Pet. at 12.

Rule 60(b), however, only provides a federal district court with subject matter jurisdiction

over requests for reconsideration of federal district court decisions; it does not give the court

jurisdiction to relieve a party from state court judgments, including judgments of the D.C.

Superior Court. See Goodwin v. Home Buying Inv. Co., Inc.,

(D.D.C.

1973) (noting that “reliance” on Rule 60(b) “is misplaced where the judgment from which a

party seeks relief was not of judgment of the court in which relief is sought”); see also Holder v.

Simon,

(9th Cir. 2010) (“Rule 60(b) does not provide a basis for subject

matter jurisdiction over a claim for relief from a state court judgment.”). The court therefore

lacks subject matter jurisdiction over the petition insofar it seeks relief under Rule 60(b).

Most of the petitioner’s remaining justifications for habeas relief concern claims of

ineffective assistance of trial counsel and various alleged legal errors that tainted his conviction

and sentencing. See Pet. at 20-26, 32-39. Challenges of this nature must be brought by motion

in the D.C. Superior Court under

, which provides in relevant part that

[a]n 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

3 The petitioner cites Rule 60(b)(2) twice, once for “[n]ewly discovered evidence,” and again for “[f]raud,” but never cites Rule 60(b)(3). Pet. at 12. Because (b)(2) concerns newly discovered evidence and (b)(3) concerns fraud, the court presumes that petitioner’s second citation to (b)(2) was intended to invoke (b)(3).

5 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).

It is well 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.’”

Byrd v. Henderson,

, 36–37 (D.C. Cir. 1997) (internal footnote omitted); Garris v.

Lindsay,

(D.C. Cir. 1986). “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 alleges ineffective assistance of appellate counsel

and has unsuccessfully moved to recall the mandate of the District of Columbia Court of

Appeals, Williams v. Martinez,

(D.C. Cir. 2009) (“[S]ection 23-110 does not

deprive federal courts of jurisdiction over habeas petitions alleging ineffective assistance of

appellate counsel.”). The court therefore lacks subject matter jurisdiction over those grounds for

habeas relief that the petitioner can pursue under § 23-110.

The petitioner’s only remaining justification for relief is ineffective assistance of

appellate counsel. See Pet. at 28–31. The respondent does not contest the court’s subject-matter

jurisdiction over this ground. Respt’s Mot. at 13 n.7; see also Williams,

. In light

of the respondent’s concession, the court now turns to the issue of whether the petition is time-

barred.

6 B. The Court Declines to Dismiss the Petition on Statute of Limitations Grounds Pursuant to Rule 12(b)(6)

1. Legal Standard for a Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.

Clinton,

(D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal,

(2009) (internal quotation marks omitted); Bell

Atl. Corp. v. Twombly,

(2007) (abrogating the oft-quoted language from

Conley, 355 U.S. at 45-46, instructing courts not to dismiss for failure to state a claim unless it

appears beyond doubt that “no set of facts in support of his claim [] would entitle him to relief”).

A claim is facially plausible when the pleaded factual content “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

(citing Twombly,

).

A defendant may raise the affirmative defense of statute of limitations via a Rule 12(b)(6)

motion when the facts that give rise to the defense are clear from the face of the complaint.

Smith-Haynie v. Dist. of Columbia,

(D.C. Cir. 1998). Because, however,

statute of limitations issues often turn on contested questions of fact, the court should hesitate to

dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.

Firestone v. Firestone,

(D.C. Cir. 1996). Rather, the court should grant a

motion to dismiss only if the complaint on its face is conclusively time-barred. Id.; Doe v. Dep’t

of Justice,

(D.C. Cir. 1985). If “no reasonable person could disagree on the

date” on which the cause of action accrued, the court may dismiss a claim on statute of

limitations grounds. Smith v. Brown & Williamson Tobacco Corp.,

, 1475

7 (D.D.C. 1998) (citing Kuwait Airways Corp. v. Am. Sec. Bank, N.A.,

, 463 n.11

(D.C. Cir. 1989)).

2. The Petition is Not Time-Barred

The respondent contends that the petition is barred by the statute of limitations because

the petitioner’s conviction became final more than one year before he filed his petition. Respt’s

Mot. at 4-7. The petitioner maintains that he filed his petition within the limitations period and

that his petition warrants equitable tolling. Petr’s Opp’n at 17-18.

Petitions for writs of habeas corpus filed under

face a one-year statute

of limitations:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of –

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

.

The running of this limitations period is statutorily tolled during the time in “which a

properly filed application for State post-conviction or other collateral review with respect to the

8 pertinent judgment or claim is pending.”

§ 2244(d)(2). The running of this limitations period

may also be equitably tolled if a petitioner can show “‘(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely

filing.” Holland v. Florida,

(2010) (quoting Pace v. DiGuglielmo,

(2005)).

For the purposes of § 2244(d)(1), “[f]inality attaches when [the U.S. Supreme Court]

affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or

when the time for filing a certiorari petition expires.” Clay v. United States,

(2003). The deadline for filing a certiorari petition expires “90 days after entry of the judgment”

of which the petitioner seeks Supreme Court review, S. CT. R. 13.1, unless the ninety-day filing

deadline is extended by a Justice of the Supreme Court, S. CT. R. 13.5.

The respondent argues that the petition is time-barred because the petitioner was required

to file his petition within one year after the denial of his motion to recall the mandate of the

District of Columbia Court of Appeals became final. Respt’s Mot. at 7. That motion was denied

on May 28, 2008. Order, Williams v. United States, No. 03-CF-1183 (D.C. May 28, 2008). The

petitioner thereafter had 90 days within which to file a petition for a writ of certiorari.

(d)(1)(A). Because he did not do so, the respondent argues, “the petitioner’s convictions

and sentence became final on August 26, 2008.” Respt’s Mot. at 7.

Although the petitioner did not seek Supreme Court review of the ruling on his motion to

recall the mandate, he did file a petition for writ of certiorari regarding the decision of the

District of Columbia Court of Appeals to affirm his conviction. Petr’s Opp’n at 17-18. That

petition was accepted for consideration by the Supreme Court and was not denied until October

9 6, 2008. See Williams, 129 S. Ct. at 308. The petitioner filed the instant petition on September

8, 2009 – less than one year after the Supreme Court denied his certiorari petition. See generally

Pet. Therefore, the petition is timely. See

(d)(1)(A). Accordingly, the court

denies the respondent’s motion to dismiss the petition as time-barred.

V. CONCLUSION

For the foregoing reasons, the court grants in part and denies in part the respondent’s

motion to dismiss the petition.4 An Order consistent with this Memorandum Opinion is

separately and contemporaneously issued this 28th day of March, 2011.

RICARDO M. URBINA United States District Judge

4 The only ground for relief asserted in the petition to survive the court’s ruling is the petitioner’s assertion of ineffective assistance of appellate counsel. See supra Part III. The respondent has requested “an opportunity to address the merits of the petitioner’s claims” that survive the respondent’s dispositive motion. Respt’s Mot. at 14 n.8. Accordingly, the court grants the respondent additional time within which to respond to the substance of the petitioner’s remaining allegation. 10