UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

DONALD J. HATCH, Petitioner,
v. Civil Action No. 09-116 (RJL) B.R. JETT, Warden,Respondent.

## ~ RANDUM OPINION March ,2012 [Dkt. #1, 30, 37] This action arises from Donald J. Hatch's ("petitioner") petition for writ ofhabeas corpus. This matter is before the Court onthe government's ("respondent") motion to dismiss the petition for a writ ofhabeas corpus and petitioner's opposition thereto. For the reasons discussed below, respondent's motion to dismiss will be GRANTED, the petition will be DENIED, and this action will be DISMISSED. l 1. BACKGROUND On August 24, 1988, ajury in the Superior Court ofthe District ofColumbia found petitioner guilty ofthree counts ofarmed kidnapping (Counts C, H, and M); three counts ofarmed robbery (Counts D, I, and N); two counts ofarmedrape (Counts F and J); one count ofassault with intentto commit armedrape (Count 0); two counts of

1In addition, petitioner's Motion to Clarify the Record [Dkt. #37], which the Court construes as a motion for leave to supplement his opposition to the government's motion to dismiss, will be granted nuncpro tunc. 1sodomy (Counts E and K); and two counts ofthreats (Counts G and L). Respondent's Motionto Dismiss Petitioner's Petition for a Writ ofHabeas Corpus ("Resp't's Mot.") [Dkt. #30] at 2-3; Memorandum ofPoints and Authorities in Support of: Motion to Vacate, Set Aside, or Correct Sentence Pursuantto 28 U.S.C. § 2241 and 16 D.C. Code § 1901 ("Pet'r's Mem.") [Dkt. #1] at 5. On September 21, 1988, petitioner filed apro se motion under D.C. Code § 23-110 to vacate and set aside his conviction. Resp't's Mot. at 3. Counsel supplemented this motion onFebruary 23, 1989. Id. The Superior Court held hearings onpetitioner's Motion for a New Trial on Grounds oflneffective Assistance ofCounsel on March 19 and March 21,1989. Id. OnMarch 21, 1988, the court denied the motion. Id.; Ex. 1to Resp't's Mot. at 16 ("motion for new trial due to ineffective assistance ofcounsel is heard and denied"). On March 28, 1989, the Superior Court sentencedpetitionerto fifteen to forty-five years each as to Counts D, F, I, J, and N, to run consecutively; fifteen to forty-five years each as to Counts C, H, M, and 0, to run concurrently; three to nine years each as to Counts E and K, to run consecutively; and two to sixyears each as to Counts G and L, to
run concurrently. Resp't's Mot. at 25; Ex. 2 to Resp't's Mot. Petitioner filed a notice of appeal on April 10, 1989 challenging both his conviction and the ruling on his September 21, 1988 § 23-110 motion. Resp't's Mot. at 4; Ex. 3 to Resp't's Mot. at 3; Ex. 9 to Resp't's Mot. at 2. OnAugust 17, 1993, petitioner filed a secondpro se motion underD.C. Code § 23-110 challenging his convictions as to one victim, N.T. Resp't's Mot. at 4; Ex. 4 to Resp't's Mot. at 3. According to petitioner, "he was denied his Sixth Amendmentright 2to the effective assistance ofcounsel during his trial" because counsel "fail[ed] to retain a forensic serologist to inspect the items ofphysical evidence in the [N.T.] incident to determine the feasibility ofconducting DNAtesting." Ex. 4 to Resp't's Mot. at 3. Based
on the government's discovery of"an undisclosed FBI serology report that was performed on physical evidence obtained from one ofthe
...victims, [N.T.]" and analysis concludingthat "the seminal stains could not have been secreted by petitioner," counsel appointed to represent petitioner on direct appeal moved, on March 4, 1994, "for
a new trial on all ofpetitioner's convictions." Resp't's Mot. at 4. On October 25, 1994, the trial courtheld an evidentiary hearing on boththepro se motion under D.C. Code § 23-110 and counsel's motion for a new trial under D.C. Superior Court Rule of Criminal Procedure 33. Id. On March 3, 1995, the court granted the motion for a new trial as to the conviction "relating to the [N.T.] incident," (Counts C, D, E and F), denied the motion for a new trial in all otherrespects, and denied petitioner'sprose § 23-110 motion claiming ineffective assistance ofcounsel. Id. at 4-5; Ex. 4 to Resp't's Mot. at 24-25. On March 11, 1995, petitioner appealed both denials. Resp't's Mot. at 5. On August 29,2002, the District ofColumbia Court ofAppeals affirmed petitioner's convictions on direct appeal, denied theprose § 23-110 motion filed on February 23, 1989,2 and denied his challenge to the partial denial ofhis Rule 33 motion

2The motion was originally filed bypetitioner on September 21, 1988, butwas supplemented by counsel on February 23, 1989. See suprap. 2. 3for anewtrial. 3 Resp't's Mot. at 6; Ex. 7 to Resp't's Mot. at 7. The mandate issued on November 20,2002, Resp't's Mot. at 7; Ex. 9 to Resp't's Mot. at 19, and the D.C. Court ofAppeals denied his petition for rehearing en bane on February 27, 2003.4 Resp't's Mot. at 7. On April 6, 2004, petitioner filed apro se motion in the Superior Courtrequesting reconsideration ofthe denial ofthe 

### §23-110 motion. Resp't's Mot. at 7. The court denied this motion on April 26, 2004, and the petitioner appealed that decision on May 24,2004. Id. On March 28,2007, the D.C. Court ofAppeals dismissed the appeal for lack of jurisdiction. Resp't's Mot. at 7-8; Ex. 10 to Resp't's Mot. at 8. The mandate issued on May 14,2007. Resp't's Mot. at 8; Ex. 10 to Resp't's Mot. at 9. During the pendency ofhis direct appeal, petitioner filed a Motion for a New Trial pursuant to D.C. Code § 23-110 on December 4,2001 and supplementedthe motion on

3 The D.C. Court ofAppeals docket reflects thatpetitioner submitted a letter dated November 29, 1995 that the Court "construed as a notice ofappeal from the October 26, 1995 order, and docketed as appeal no. 95-CF-1735," and directed that the "appeal shall include all issues, both direct and collateral, arising from all non-vacated convictions." Ex. 9 to Resp't's Mot. at 2. Accordingly, the Clerk ofCourt "transfer[red] and file[d] the records previously filed in appeal nos. 88-CF-1229, 89-CF-438 and 95-CF-431 as the record in appeal no. 95-CF-1735." Id.
4 Petitioner subsequently moved to recall the mandate on September 16, 2004, but the D.C. Court ofAppeals denied that motion on October4,2004. Resp't's Mot. at 7. 4April 8,2002.5 Resp't's Mot. at 5-6. OnAugust 26,2002, the Superior Court denied petitioner's § 23-110 motion, noting that all ofthe issues pertaining to petitioner's ineffective assistance claims hadbeen raised, or could have beenraised, in his prior 

### § 23- 110 motions. Resp't's Mot. at 6; Ex. 6 to Resp't's Mot. at 2. Petitionerdid not appeal this ruling until March 4,2008. Resp't's Mot. at 6 n.4; Ex. 8 to Resp't's Mot. at 1. The D.C. Court ofAppeals dismissed the appeal as untimely on April 23, 2008, denied petitioner's motion for reconsideration on May 7, 2008, and the mandate issued on May 16,2008. Resp't's Mot. at 6 n. 4; Ex. 8 to Resp't's Mot. at 2. Undaunted, petitioner filed additional motions in the Superior Court in 2007, 2008 and 2009 and appeals to the D.C. Court ofAppeals, all without success. See Resp't's Mot. at 8, 28-30; see generally Exs. 11-13 & 17 to Resp't's Mot. OnJanuary 16,2009, petitioner filed the petition for a writ ofhabeas corpus presently before the Court. II. DISCUSSION Inthe instant action, petitionerraises several issues, most ofwhich pertainto alleged errors committedby trial counsel, see Pet'r'sMem. at 13-15,21-22;the prosecutors, see id. at 19-21 & 23; the Superior Court, see id. at 23-30; andthe D.C. Court ofAppeals, see id. at 15-19. The only matter overwhichthis Court has jurisdiction, however, is petitioner's claim ofineffective assistance ofappellate counsel;

5 In an Order filed August 22, 2001 the D.C. Court ofAppeals stated that if petitioner filed his § 23-110 motion "within 60 days from the date ofthis order, the trial court shall consider the merits ofthe motion without first analyzing whether appellanthas met the 'cause' requirement articulated inShepardv. UnitedStates, 5[3]3 A.2d 1278 (D.C. 1987)." Ex. 5 to Resp't's Mot. Petitioner filed his motion beyond this sixty-day time limit. 5and this claim is time-barred. Therefore, for the reasons that follow, the Courtgrants respondent's motion to dismiss. A. Claims of Error by the District of Columbia Courts UnderDistrict ofColumbia law, a prisoner convicted and sentenced in the Superior Court may file a motion in that courtto vacate, set aside, or correcthis sentence "uponthe ground that (1) the sentence was imposed in violation ofthe Constitution ofthe United States or the laws ofthe District ofColumbia, (2) the court was without jurisdictionto impose the sentence, (3) the sentence was in excess ofthe maximum authorized by law, [or] (4) the sentence is otherwise subjectto collateral attack." D.C. Code 

### § 23-11O(a). Althoughhabeas reliefin federal court is available to a District of Columbia Code offenderwho "is in custody in violation ofthe Constitution
... ofthe United States," 28 U.S.C. 

### § 2241(c)(3), his habeas petition "shall not be entertained by
... any Federal
... court ifit appears that the [petitioner] has failed to make a motion for reliefunder [D.C. Code § 23-110] orthat the Superior Courthas denied him relief, unless it also appears thatthe remedy by motion is inadequate or ineffective to test the legality ofhis detention.,,6 D.C. Code § 23-110(g); Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986) (per curiam) ("[A] District ofColumbiaprisonerhas no recourse to a federaljudicial forum unless the local remedy is inadequate or ineffective to test the legality ofhis detention.") (internal quotation marks and citation omitted).

6Thephrase "'[r]emedyby motion' plainly refers to motions filed pursuantto section 23-11O(a)." Williams v. Martinez, 586 F.3d 995,998 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 2073 (2010). 6"Itis well-established thatthe mere denial ofreliefby the local courts does not renderthe local remedy inadequate or ineffective." Joyner v. O'Brien, No. 09-0913, 2010 WL 199781, at *2 (D.D.C. Jan. 15,2010) (citations omitted); see Corley v. 

# u.s. Parole Comm'n, No. 08-1342, 2009 WL 2606554, at *3 (D.D.C. Aug. 26, 2009) (citing Garris, 794 F.2d at 727); see also Morton v. UnitedStates, No. 07-5253, 2008 WL 4726051, at *1 (D.C. Cir. June 12,2008) (per curiam) (denying request for certificate of appealability on the ground that appellant "maynot challenge his District ofColumbia convictions in federal court unless his remedy under D.C. Code § 23-110 is inadequate or ineffective to test the legality ofhis detention" and explaining that "[t]he § 23-110 remedy
... is not considered inadequate or ineffective simply because the requested reliefhas been denied"). Petitionerhas vigorously contested his convictions, both in the Superior Courtby filing motions under D.C. Code 

### § 23-110 and by appealing unfavorable rulings to the D.C. Court ofAppeals. His assertions that the D.C. Court ofAppeals "denied [him] the right to file claims ofineffective assistance oftrial counsel" and thatthe Superior Court "refused to consider any claims ofineffective assistance ofcounsel and othermeritorious claims," Pet'r's Mem. at 2, are hardly persuasive. Review ofthe record demonstrates not only that petitionerhas raised ineffective assistance ofcounsel claims on more than one occasion, but also that he had ample opportunity to raise any other claim since his conviction in 1988. Moreover, his allegations oferrorby the Superior Courtwere properly raised in and decided bythe D.C. Court ofAppeals, and this Court is without jurisdictionto review oroverturn these rulings. In short, petitionercannot avail himself 7ofthis federal forum merely because his prior attempts to challenge his conviction in the District ofColumbia courts have not been successful. 

### B. The Petition is Treatedas 

## if Filed Under 28 

### Us.C. 

### § 2254 Generally, a district court may grant a writ ofhabeas corpus, 28 U.S.C. 

### § 2241(a), ifthepetitioner "is in custody in violation ofthe Constitution or laws or treaties ofthe United States." 28 U.S.C. 

### § 2241(c)(3). A district court also may "entertain an application for a writ ofhabeas corpus in behalfofaperson in custody pursuantto the judgment ofa State court only on the ground that he is in custody in violation ofthe Constitution or laws or treaties ofthe United States." 28 U.S.C. 

### § 2254(a). Respondent submits thatwhere, as here, the petition "does not challenge the conditions of
... confinement butratherthe legality of[petitioner's] conviction and sentence," the petition "should more properly be captioned, and addressed, as having been filed pursuant to 22 U.S.C. 

### § 2254." Resp't's Mot. at 2 n.1. Ample authority supports the proposition that a person serving a criminal sentence imposed by the Superior Court of the District ofColumbia is considered a state prisoner for purposes offederal habeas relief. 

### See, e.g., Hazel v. 

### Lves, No. 11-1100,2011 WL 5022899, at 

## *1(D.D.C. Oct. 20, 2011) (recognizing that a District ofColumbiaprisoner is considered a state prisoner); 

### Banks v. 

### Smith, 377 F. Supp. 2d 92,94 (D.D.C. 2005) ("The D.C. Circuithas consistently held that when considering a writ ofhabeas corpus a prisoner ofthe District ofColumbia is considered a Stateprisoner, when the prisoner is held under a conviction ofthe D.C. Superior Court.") (citation omitted); 

### cfMadley v. 

### Us. Parole Comm 'n, 278 F.3d 1306, 1308-09 (D.C. Cir. 2002) (holding that District ofColumbia courts are deemed to be state 8courts for purposes of28 U.S.C. § 2253(c». Neitherpetitioner's characterization ofhis pleading, see Petitioner's Response to Respondent's Motion to Dismiss Petitioner's Petition for a Writ ofHabeas Corpus ("Pet'r's Opp'n) [Dkt. #36] at 11, northe fact that petitioner is servinghis sentence in a federal correctional institution, see id. at 8-9, is dispositive. Petitioner clearly is challenging the Superior Court convictions, and, therefore, the Court construes his petition as that ofa state courtprisoner filed under 28 U.S.C. § 2254. SeeAdams v. Middlebrooks, 810 F. Supp. 2d 119, 122-23 (D.D.C. 2011) (construing petition as one filed under § 2254, not § 2241, where petitioner challenged Superior Courtjudgment);Davis v. Cross, 774 F. Supp. 2d 62,64 (D.D.C. 2011) ("Because petitioner is in custody pursuantto ajudgment ofa state court, he makes his petition under 28 U.S.C. § 2254."). 

### C. The Petition is Time-Barred "A I-year period oflimitation shall apply to an application for a writ ofhabeas corpus by a person in custodypursuanttothejudgment ofa State court." 28 U.S.C. § 2244(d)(l). In this case, "[t]he limitationperiod
... run[s] from
...the date on whichthe judgmentbecame final by the conclusion ofdirect review orthe expiration ofthe time for seeking such review." 28 U.S.C. § 2244(d)(l)(A). The limitationperiod is tolled, however, while "aproperly filed application for Statepost-conviction or other collateral review with respect to the pertinentjudgment or claim is pending," 28 U.S.C. § 2244(d)(2); that is, until the completion ofthe ordinary state collateral review process. See Carey v. Saffold, 536 U.S. 214, 219-20 (2002).

9In petitioner's case, the limitations period beganto run on May 28, 2003-"the date on which the time to file a petition for a writ ofcertiorari from the February 27,2003 denial ofpetitioner's petition for rehearing en banc elapsed." Resp't's Mot. at 33 (emphasis removed); see Clay v. UnitedStates, 537 U.S. 522, 527 (2003) ("Finality [ofa conviction] attaches when [the Supreme] Court affirms a conviction on the merits on direct review or denies a petition for awrit ofcertiorari, or when the time for filing a certiorari petition expires.") (citations omitted). The limitations period continuedto run through April 6, 2004-the date on whichpetitioner filed his motion for reconsideration ofthe denial ofhis § 23-110 motion. See Resp't's Mot. at 33,35. Bythen, 312 days had elapsed. The limitations period was tolled for twenty days to April 26, 2004-the date the trial court denied his motion for reconsideration-resumedthe following day, and tolled again on May 24, 2004-the date on which petitioner filed a notice ofappeal ofthe denial ofhis motion for reconsideration. Id. at 35-36. Bythen, 340 days had elapsed, leaving twenty-five days ofthe one-year limitationperiod remaining. The limitation period was tolled until May 14, 2007-the date on which the D.C. Court ofAppeals issued its mandate dismissing petitioner's last relevant appeal-resumed on May 15, 2007, and expired twenty-five days later, on June 8, 2007. Id. Petitioner filed the instant petition on January 16,2009. Respondent argues that it must be dismissed as untimely. See Resp't's Mot. at 1, 31-37; Ex. 23 to Resp't's Mot. Petitionerresponds that the government "ignore[s] the obvious fact that a timetriggering requirement had not been initiated." Petitioner's Addendum to Petitioner's Response to Respondent's Motion to Dismiss Petitioner's Petition for a Writ ofHabeas 10Corpus ("Pet'r's Addendum") [Dkt. #38] at 2. He asserts that the limitations period did not begin to run in 2003 because "the direct review herein has yet to be finalyzed [sic], since the D.C. Court ofAppeals
...put off
... consideration ofany ofthe claims of ineffective assistance ofcounsel." Id. at 5. Petitioner appears to argue, then, that the limitations period did notbegin to run or should not have begun until such time as the D.C. Court ofAppeals entertainedhis motions, regardless ofwhether his motions were meritorious ortimely filed. See id. at 6-7. Additionally, petitionerpoints to his status as
apro se incarcerated litigantwho "does not have adequate access to his legal papers" due in partto his physical limitations and the prison's "refus[al] toprovide anyone to assist [him]." 

### Id. at 7. Further, he claims that the government's failure to respond timely to his Freedom ofInformation Actrequests "hampered this endeavor" such that the limitations period should not have started to run until May 20, 2008-the date his last motion for a
new trial was denied. Id. at 8. None ofthese arguments is meritorious. The running ofthe limitations period is not determined by petitioner's satisfaction with the collateral proceedings in the Superior Court and the D.C. Court ofAppeals, the speed with which he obtained governmentrecords, orthe assistance received from staffat the correctional facilities where he has been incarcerated. Nor is his status as apro se litigant "acircumstance in which it is appropriate to toll the statute oflimitations." UnitedStates v. Lawson, 608 F. Supp. 2d 58, 62 (D.D.C. 2009). Petitioner's hurdles
wereprocedural, and his failure to timely file documents orraise claims in the District of Columbia courts does not deprive him ofa vehicle for adjudication ofhis claims.

11Petitioner filed this action on January 16,2009, approximately eighteen months afterthe limitations period expired. "[T]he threshold issue is whether more than one year passed between the final conviction date and the habeas petition filing date, excluding any time during which state post-conviction or other collateral proceedings were pending." Davis v. Cross, No. 10-0761,2011 WL 5865886, at *2 (D.D.C. Nov. 20, 2011). Even accounting for the periods during which the limitations period was tolled, the instant petition was not timely filed. III. CONCLUSION Accordingly, the Court will GRANTrespondent's motion to dismiss, DENYthe petition, and DISMISS this action. An Order consistent with this decision accompanies this Memorandum Opinion. 

### \

12