J oy ner e x pressly

states that he is not claiminghere that his appellate c ounsel was 1 ineffe ctive. Pet. at 14 (“ At this juncture, it must be noted that J oy ner is not alleg ing ine ffe ctive a ssi sta nc e of a pp e llate c ouns e l.” ); cf. W illiams v. Martinez , 586 F.3d 995, 998 ( D.C. Cir. 2009) (dete rmining that D.C. Code § 23-110(g ) does not divest fe dera l courts of ha beas jurisdiction ov e r c la ims of

ine ff e c tiv e a ssi sta

nc e of a pp e llate c ouns e l) . In h is “ tr ave rs e ,” but no t in his petition, J oy

ner a sserts a c laim of ac tual innocenc e, but ar g ues only that the evidenc e at tria l was insufficient to support a c onviction. See Pet.’s “Tra verse ” at 4- 5. UNITED STAT ES DIS TRICT COURT F OR THE D ISTRIC T OF CO LU M BIA

_______________________________________) ERNEST JOYNER, ) ) P etitioner , ) ) v. ) Ci vilAc ti on N o. 09 -9 13 (J DB ) ) TERRYO’ BRIEN , W ar de n, ) ) Respondent. ) _______________________________________)

MEMORANDUM OPI

NI ON Petitioner Ernest Joy

ner is a pr isoner under

sentenc e imposed in 1997 by the Superior Court for the District of

Columbi a, and c urre ntly

confine d at the United States Penitentiary L ee County in J onesville, Virg inia. He f iled a habe as petition challeng ing his de tention on the g round of inef

fec tive assistance of counse l during his 1997 trial. The pe tition wil l be dismissed 1 for lac k of jurisdiction. BA CKGROUND J oy ner ha s attacke d his 1997 conviction and sentenc e once by direc t criminal appe al and three times by

motion under D.C. Code § 23-110. See United States’ Opp’ n at 2-5; Pet. at 7, 9. In his first § 23-110 motion, J oy ner did not alleg e inef

fec tive assistance of trial counse l. Id. at 3. In th e tw o s ub se qu e nt § 23 -1 10 mot ion s, Joy ne r p ut h is 1 99 7 tr ia l c ouns e l’ s p e rf or manc e dir e c tly- 2 -

at issue. Id. at 3-6. In eac h instance, the Superior Court consider ed his claims and de nied re lief. Id. at 4-6. In eac h instance, Joy ner a ppeale d to the Court of Appea ls for the District of Columbia, which conside red his cla ims and aff irmed the lowe r cour

t. Id. Joy ne r w a s a ssi ste d b y

c ourt

appointed appe llate counse l for his direc t appea l and for the second of his three § 23- 110 motions. Id. at 4-5; Pet. at 7. J oy ner a lleg es in this habeas pe tition t hat the trial a nd appellate courts of the District of Columbi a er

red when they

denied him re lief for

ineffe ctive assistanc e of c ounsel and whe n they ref used to allow discover

y on that issue. See Pe t. at 11 -1 3. He a sse rt s th at hi s tr ia l c ouns e l, Retna M. Pullings, was a

drug -user

at the time of his trial, and that her use of drug s aff ecte d her conduct of

his case to his detriment. Id. In fac t, the public rec ord shows that his trial counsel pled guilty

to criminal cha

rg es filed in 1999, and that in 2000 she was disbarr ed with her consent. In re Pullings, 753 A.2d 1013 (D.C. 2000). The public rec ord also esta blishes that Pull ings w as require d to make re stitut ion for mishandling a client’ s acc ount in or around 1995. In rePu lli ng s, 72 4 A .2 d 6 00 (D .C. 19 99 ); Pe t., Ex. A . Joy ne r a sse rt s, wi tho ut p ro vid ingdo c ume nta ry su pp or t, that Pulli ng s was indicted on six counts of fraudule nt activities occur ringbetwee n 1994 and 1996, Pet. at 12, and that “a t her sente ncing , both Pull ings a nd the g overnme nt asserte d that she committed her fr audulent ac tiviti es due to he r drugaddiction,” Pet. at 13. He argues that the

c ourt s e rr e d in

de nyinghim

dis c ov e ry

on the fa c tua l ba sis fo r t

he c ri min a l c ha

rg e s a g a ins t Pulli ng s. Id. at 12 . H e a lso c on te nd s th at bo th t he Sup e ri or

Court fo r t he Di str ic t of

Col umb ia and the Court of A

ppeals for the District of Columbia err ed in conc luding that Pullings’ “ drug useag e and psychiatric problems occ urre d well af ter [J oy ner’ s 1997] t rial, in 1999.” Id. at 11 (qu o t i n g Joyne r v. United States, 818 A.2d 166, 174 (D.C. 2003).- 3 - DI SCUS SI ON Collateral cha lleng es to sentenc es imposed by the Superior Court must be brought in that court unde r D.C. Code § 23-110. See B lair-Bey v . Quick, 151 F.3d 1036, 1042 ( D.C. Cir. 1998) (§ 23-110 is exclusive reme dy for suc h challeng es). An a pp lic atio n f

or a wr it o f h a

be a s c or pu s in be ha lf of a pr iso ne r who is authorized to apply

for r elief by

motion [ under § 23- 110] shall not be ente rtained by . . . any Fe dera l . . . court if it appea rs . . . that the Superior Court ha s denied him relief, unless it also appe ars that the r emedy by motion is inadequate or ineffe ctive to test the leg ality of his detention. D.C. Code § 23-110(g ). The r ecor d establishes that the Superior Court has denied Joy

ner r elief on his claim of ineff

ective a ssistance of tr ial counsel. Thus, his habe as petition cannot be considere d here unless he ca n show that his remedy

by motion under § 23-110 is inadequate or ineffe ctive. Ge ne ra lly ,“ [s]e c tio n 2 3- 11 0 h a s b e e n f ound to b e a de qu ate and

e ff e c tiv e be c a

us e it i s coextensive with habea s corpus.” Saleh v. Brax ton, 78 8 F . Su pp . 1 23 2 ( D. D. C. 1 99 2) ; ac c or d Blair-Bey v . Quick, 15 1 F .3 d at 10 42 (d e sc ri bin g§ 2 3- 11 0 r e me dy a s “ ana log ou s to 28 U. S.C. § 2255 for pr isoners sentenc ed in D.C. Superior Court who wished to c halleng e their c onviction or sentenc e.”)

.

In deter mining whether the loc al re medy is ‘inadequate or inef

fec tive,’ we are g uided by

judicial interpre tations of the statutory provisions enablingfede ral pr iso ne rs to c ha lle ng e the ir c onvic tio ns . Th e fe de ra l and loc a l st atut e s a

re ne arl y ident i ca l in langua g e, and f unctionally

they are equivalent. The reme dy now available to District of Columbia pris o n e r s w a s p a tterned a fter that confe rre d upon fede ral prisone rs, and both reme dies are commensurate with habea s corpus. That judge s of t he S uperior Court do not have the te nure a nd salary protec tion affor ded fede ral judg es does no t ca l l for a dif fer ent conc lusion. “[T] he judg es of the Superior C ourt of t he Dist rict of Columbi a must be pre sumed compete nt to decide all issues, including c onstit u t i o n al issues, that routinely arise in the tr ial of criminal ca ses.” Garris v. Lindsay, 7 9 4 F. 2 d at7 2 6 (qu o t i n g Swain v. Pressley, 430 U.S.372, 382-83 (1977)) (footnotes omitted). It is well-established that the mer e denia l of relief by the local c ourts does- 4 -

not rende r the loca l remedy inadequate or inef

fec tive. See id. at 72 7; Charles v. Chandler, 180 F .3 d 7 53 , 7 56 -5 8 ( 6th

Cir . 1 99 9) (c iti ngc a se s) ; W ilson v. Office of the Chairperson, 892 F. Supp. 277, 280 (D.D.C. 1995). J oy ner c ontends that the loca l courts base d their dete rminations on a fa ctual er ror reg ardingthe per iod during which Pullings wa s using dr ug s. Howeve r, whe ther the c ourts err ed in their conc lusion as to when Pullings was usingdrug s is imm ater ial to their deter mination of whether Pulli ng s’ per formanc e in her repr esentation of J oy

ner a s a cr iminal defenda nt constituted ineffe ctive assistanc e of c ounsel. The point is that the courts of the District of Columbia have deter mined that J oy

ner did not show that Pullings’ r epre sentation prejudice d him at his 1997 trial, reg ardle ss of whethe r she wa s using dr ug s at the time. See Pet. at 7-8 (“ ‘Absent a showing of pre judicial ineffe ctiveness, the c ause of counsel’s a lleg ed inef

fec tiveness is irrele vant.’” ) (quote attributed to trial court). And the re is no basis to conc lude that the re medy available there

wa s in a de qu ate . In s ho rt , e ve n a ssumin gthat Pu lli ng s u se d d ru g s in 19 94 -9 6, a s Joy

ne r a lle g e s, or for the duration of her r epre sentation of him in his 1997 trial, the local cour ts have de termined that J oy ner ha s not shown that his trial counsel rende red c onstitut ionally ineffe ctive assistanc e, and the r emedy

available to J oy

ner in those pr ocee dings w as ade quate. Henc e, Joy

ner ha s not shown that the reme dy § 23-110 af

fords is inadequate or ineffe ctive to test the leg ality of his detention. Ther efor e, this Court lacks subject matter jur isd ic tio n o ve r t

his ha be a s p e tit ion

and wi ll d ism iss it. A s e pa

rate or de r a c c omp anie s th is memorandum opinion.

/ s / J OHN D. B ATES Da t e: J an u ary

1 5 , 2 0 1 0 Un i t edS t at es Di s tri ctJ u d ge