# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2011 Decided November 29, 2011

No. 09

- 5052

J IBRIL L. I BRAHIM , ALSO KNOWN AS G RANT A NDERSON , A PPELLANT

v.

U NITED S TATES OF A MERICA , ET AL ., A PPELLEE S

Appeal from t he United States District Court for the District of Columbia (No. 1:08

- cv

- 02130)

Rosanna M. Taormina
, Assistant Federal Public Defender, argued the cause as amicus curiae in support of appellant . With her on the briefs was A.J. Kramer , Federal Public Defender

.
Nicholas P. Coleman
, Assistant U.S. Attorney
, argued the cause for appellees

. On the brief were Ronald C. Machen Jr.
, U.S. Attorney, and Roy W. McLeese, III and John P. Mannarino , Assistant U.S. Attorneys

. R. Craig Lawrence
, Assistant U. S. Attorney, entered an appearance.

Before: S ENTELLE , Chief Judge , and W ILLIAMS and R ANDOLPH , Senior Circuit Judges

.2
Opinion for the Court filed by Senior Circuit Judge W ILLIAMS

.
W ILLIAMS , Senior Circuit Judge : A prisoner convicted in D.C. Superior Court may raise a collateral challenge to his
sentence by motion in that court
, D.C. Code § 23

- 110(a), but may not apply for a writ of habeas corpus “unless it .

. . appears that the remedy by motion is inadequate or ineffective
to tes t the legality of his detention, ” id

. § 23

- 110(g). Because the Supreme Court has found that the District of Columbia judges’ lack of life tenur e and constitutional salary protection do not render the § 23

- 110 remedy “inadequate or ineffe ctive,” see Swain v. Pressley , 430 U.S. 372, 377

- 84 (1977), the availability of relief by motion under § 23

- 110 typically precludes the challenger from seeking habeas relief in federal court. In this respect, § 23

- 110 parallels 28 U.S.C. § 2255, which est ablishes the collateral challenge procedures for federal prisoners and similarly allows those prisoner s to proceed by way of habeas (rather than § 2255) only when the avenue provided by § 2255 is “inadequate or ineffective.” See 28 U.S.C. § 2255(e).

I n Wi lliams v. Martinez , 586 F.3d 995 (D.C. Cir. 2009), however, we held that the “remedy by motion” referred to in § 23

- 110 (g) meant only “motions filed pursuant to section 23

- 110 (a) .” Id . at 998. Thus, since the D.C. Court of Appeals (“DCCA”) had held in Wa tson v. United States , 536 A.2d 1056, 1060 (D.C. 1987) (en banc), that claims of ineffective appellate counsel could be raised solely by a motion to the DCCA to recall the mandate (i.e., not under § 23

- 110 itself), such a claim triggered the safety valve provided by § 23

- 110’s “inadequate or ineffective” language, and therefore federal
courts had habeas jurisdiction over such a challenge. Williams
, 586 F.3d at 998

- 1001

.3
As a result of multiple convictions, a ppellant Jibril L. Ibrah im (a.k.a. Grant Anderson) is serving a n aggregate life
sentence imposed by the D.C. Superior Court and affirmed by the DCCA

. He has often challenged these convictions in D.C. and federal court s . On October 23, 2008 he filed a petition for writ of habeas corpus in the d istrict c ourt for the District of Columbia, “based on actual innocence coupled with a constitutional violation an d miscarriage of justice claims

. . . and other due process and equal protection of law claims.” Appendix for Amicus/Appellant (“App.”) 6. Th e district court dismissed the petition for want of jurisdiction
, reasoning that Ibrahim was required to pursue his challenge in D.C. Superior Court rather than federal court because his § 23

- 110 remedy was not inadequate or ineffective

. Ibrahim v. United States , No. 08

- cv

- 2130, 2008 WL 5169121, at *1 (D.D.C. Dec. 8, 2008).

Under 28 U.S.C. § 2253(c)(1), a n appeal can be taken from a habeas corpus or § 2255 proceeding before a district
court only if a certificate of appealability (“COA”) is issued by a circuit justice, or a circuit or district judge

. See United States v. Mitchell , 216 F.3d 1126, 1129

- 30 (D.C. Cir. 2000); F ED

. R. A PP

. P. 22(b). The certificate may issue only if “the applicant has made a substantial showing of the denial of a constitut ional right,” 28 U.S.C. § 2253(c)(2), and the Supreme Court held in Slack v. McDaniel , 529 U.S. 473 (2000), that this criterion is satisfied if “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a const itutional right
, ” id . at 484. Where (as here) there is an anterior jurisdictional issue, the Slack inquiry first requires us to address whether jurists of reason would find it debatable whether the district court was correct in dismissing the petition for lack of jurisdiction. Williams , 586 F.3d at 997.
The district court denied Ibrahim’s initial request for a COA. See Notice to Court of Appeals (July 7, 2009),4

App. 23. Ibrahim applied to this court for a COA o n July 29, 2009, and w e held the application in abeyance pending our decision in Williams . We then appointed amicus curiae to address whether our holding in Williams had any be aring on Ibrahim’s effort to pursu e his claims in federal court. Through able amicus, Ibrahim now argues that the district
court had jurisdiction to hear his petition under 28 U.S.C. § 2254 on the theory that , as with the appellant in Williams , a prior DC CA decision

— in Ibrahim’s case Diamen v. United States , 725 A.2d 501 (D.C. 1999)

— prevents Ibrahim from bringing his challenge in D.C. Superior Cou rt under § 23

- 110. More specifically, Ibrahim reads Diamen as locating the D.C. remedy for his “actual innocen ce” claims exclusively under the Innocence Protection Act, D.C. Code § 22

- 4131 et seq. (“IPA”)

— a separate statutory avenue for collateral challenges

— which is outside § 23

- 110.
As we explain below, we conclude that jurists of reason would not find his claim that the district court had jurisdiction “debatable. ” In essence this is because Diamen cannot reasonably be read to bar Ibrahim from bringing his federal constitutional claims in D.C. Superior Court under § 23

- 110. Accordingly we deny the COA.

* * *

Section 23

- 110(a) (1) allows a D.C. prisoner to challenge his sentence “upon the ground that

. . . the sentence was imposed in violation of the Constitution of the United States.” Although the exact nature of Ibrahim’s constituti onal clai ms is not clear, they involve “actual innocence coupled with a constitutional violation and miscarriage of justice” and “other due process and equal protection of law claims.” Amicus’s Br. 7; App. 6. The reason Ibrahim provides for not being abl e to bring these constitutional claims under § 23

- 110(a) is that “his actual innocence allegations are tethered to alleged5

constitutional violations,” Amicus’s Br. 13, and accordingly
, in light of Diamen
, the IPA “provides the exclusive judicial remedy for District of Columbia offenders who .

. . obtain new evidence of actual innocence more than three years after they are convicted,” see id . at 19

- 20. This is, quite simply, a misreading of Diamen

.
There are theoretically two recognized types of constitutio nal claim s for which newly discovered evidence of actual innocence has been found relevant: “stand

- alone” innocence claims associated with Herrera v. Collins , 506 U.S. 390 (1993), and “gateway” innocence claims associated with Schlup v. Delo , 513 U.S. 298 (1995), and kindred Supreme Court decisions . We explain why it is clear that Ibrahim could bring either claim in Superior Court under § 23

- 110
, i.e., the notion that he cannot do so is not “debatable

. ” We of course focus solely on Ibrahim’s constitutional claims because any denial of non

- constitutional claims (such as the statutory protections afforded by the IPA itself) cannot amount to a “substantial showing of the d enial of a constitutional right. ” 28 U.S.C. § 2253(c)(2).

In Diamen , as here, the appellants sought to vacate their convictions based on newly discovered evidence demonstrating actual innocence and constitutional errors committed at trial. See Diamen , 725 A.2d at 503

- 04. Their claims we re brought by motion under § 23

- 110. See id . The DCCA divided its discussion into two segments: “II: Newly Discovered Evidence and the Claim of Actual Innocence,” largely revolving around the Supreme Court’s decision in Herrera , and “III: The Alleged Co nstitutional Violation,” largely revolving around Schlup

. W e follow Diamen in using th ose two categories to analyze the decision’s meaning

.6

* * *

Herrera. As to claims along the lines of Herrera
, the Diamen court held that such claims were barred by Rule 33 of the Superior Court’s Rules of Criminal Procedure, which required th em to be brought within two years of the verdict. See Diamen , 725 A.2d at 505

- 06 (citing D.C. Super. Ct. Crim. R. 33, which was later amended to extend the time limit to three y ears). The court found that Rule 33’s two

- year time limit was jurisdictional and applied to the claims, notwithstanding § 23

- 110(b)(1)’s provision that motions under § 23

- 110 could be filed “at any time.” See Diamen , 725 A.2d at 507. At no point did the Diamen court hold that these Herrera

- type claims were not “cognizable” under § 23

- 110.

The Diamen court additionally concluded that applying Rule 33’s two

- year limit to the claims did not hinder the appellants’ federal constitutional rights under Herrera . In that
case, the Supreme Court “assume[d],” without deciding, “that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.” 506 U.S. at 417. The Diamen court found its application of Rule 33 ’s time limit to be consistent with that standard, noting that Herrera itself found no deficiency in the relevant state
statute , which had afforded only 60 days (as opposed to two years) to bring an “actual innocence” claim, and further
, that Herrera ’s reference to a “state avenue” included the opportunity to seek a pardon, which also was available to the Diamen appellants in the District of Columbia. See Diamen
, 725 A.2d at 507

- 08 & nn.15, 17

- 18. Cf. U nited States v. Kaplan , 101 F. Supp. 7, 14 (S.D.N.Y. 1951) (Weinfeld, J.) (after concluding that the two

- year limit in Federal R ule of Crimin al Procedure 33 precluded an oth erwise meritorious claim of actual innocence, and noting that the Assistant7
United States Attorney had recommended favorable action on the defendant’s petition for executive clemency, court expresse d hope for “prompt consideration” thereof).
Although Ibra him’s position on whether he is even bring ing a Herrera

- type cl aim is rather muddled
, and the record is not developed enough to be sure of the exact dimensions of any such claim
, Diamen cannot reas onably be read to bar a Herrera

- type claim from being brought under § 23

- 110.

To counter Diamen ’s careful effort to conform to Herrera itself, Ibrahim points to the following language from Diamen ’s conclusion:
One who reads Super. Ct. Crim. R. 33 in conjunction with the Supreme Court’s decision in Herrera i s led to the uncomfortable sense that an innocent defendant may be executed or left to rot in jail because conclusive exculpatory evidence, through no fault of his own, came to his attention too late. Such a defendant is, of course, free to apply for exec utive clemency, but pardons are discretionary, and often politically unpopular as well. Moreover, a defendant cannot fairly be blamed if he regards executive clemency as an insufficient remedy when he did not in fact commit the crime for which he is being pardoned. An innocent man asks for justice, not for mercy.

. . . Under Rule 33 as written, however, passage of a relatively short time

— two years

— acts as an absolute bar, no matter how compelling the showing of innocence may be

.
Amicus’s Reply Br. 11

- 12 n.6 (quoting Diamen , 725 A.2d at 513

- 14 (emphasis added by Ibrahim ) )

. But t his passage gives

no support to Ibrahim’s idea that the DCCA “ has already held that claims of actual innocence based on newly discovered8
evidence are not cognizable under § 23

- 110. ” Id . at 11 (emphasis in original). To the contrary, the court explicitly held that Superior Court Rule 33’s (then) two

- year limit was consistent with the Herrera standard, and in this passage expressed regret that some innocent prisoners would according ly go unprotected. The practical result may be that Herrera claims cannot be brought under § 23

- 110 after the running of Rule 33’s time limit ; that is not a denial of the existen ce of such claims, but rather an interpretation of the protection Herrera aff ords.
Schlup. T he Diamen court found that Schlup was not “contrary to [its] analysis.” 725 A.2d at 512. In Schlup , the Supreme Court had reaffirmed that “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for [the prisoner’s ] pr ocedural default.” 513 U.S. at 321 (quoting Murray v Carrier , 477 U.S. 478, 496 (1986)). Thus the term “‘ gateway ’ innocence. ” Diamen explicitly “assume[d] .

. . that at least where newly discovered evidence of actual innocence is relevant to a defendant ’s claim that his constitutional rights have been violated, that evidence may be presented and considered more than two years after final judgment.” 725 A.2d at 511. But it ultimately held that the newly discovered evidence presented by the appellants di d not “meet the substantive standard articulated in Schlup and in the authorities on which Schlup relies.” Id . at 512. Thus what defeated the Diamen appellants was simply the quality of their newly discovered evidence. The ultimate holding, and the whol e tenor of the Diamen case , preclude any reasonable f inding that § 23

- 110 provides no forum for Schlup “gateway” claims.

The district court’s decision in Eastridge v. United States
, 372 F. Supp. 2d 26 (D.D.C. 2005), does not persuade us9

otherwise. There the court did find that “ Diamen had misapplied Schlup ,” and then found that such misapplication rendered § 23

- 110 “inadequate and ineffective

. ” Id . at 45. But the only specific “misapplication” identified in the published opinion was the DCCA’s supposed imposition of the “local statute of limitations.” See id . Given that the DCCA explicitly assumed that Rule 33’s two

- year limit would
not apply to Schlup claims, Eastridge ’s conclusion is untenable.
Ibrahim argues that § 23

- 110 is inadequate and ineffective as to his “gateway” claims for an additional reason. He contends that Diamen interpreted Schlup more narrowly than have some federal district courts that have regarded the “fundamental miscarriage of justice” excepti on to procedurally barred constitutional claims as applicable even when there is no direct nexus between newly discovered evidence and the claims

. See Amicus’s Br. 28 n.21 (citing United States v. Roman , 938 F. Supp. 288, 292 (E.D. Pa. 1996)). In contras t, the Diamen court observed that in Schlup cases “the evidence must be relevant to the constitutional issue sought to be relitigated, and not just to the question of guilt or innocence.” 725 A.2d at 511. We do not find federal jurisdiction to be debatab le under this theory.

First
, the entire discussion of a necessary relation between the new evidence and the constitutional error was dictum
, because, as we’ve already noted, the Diamen court’s decision ultimately rested on the failure of the newly discov ered evidence in question to meet “ the substantive standard articulated in Schlup and in the authorities on which Schlup relies.” Id . at 512. In other words, the appellants had a poor Schlup claim, not one that could not be brought at all. Second , even if Diamen had interpreted an unresolved aspect of Schlup somewhat more narrowly than one or more district courts, any such divergence of opinion would not take the10

constitutional claim “outside [§ 23

- 110’s] scope,” Williams
, 586 F.3d at 1000, which is essential to triggering the “inadequate or ineffective” exce ption under § 23

- 110 (g)

. M ere differences in interpretation of habeas rights are a natural result of entrusting adjudication of such claims to hundreds of district and circuit court judges, pl us the courts of the District of Columbia
, and do not implicate the “safety valve” function intended for § 23

- 110(g). Compare Garris v. Lindsay , 794 F.2d 722, 725

- 26 (D.C. Cir. 1986) (D.C. prisoner who is merely “unsuccessful” with collateral challenge ha s no recourse to federal forum), with Williams
, 586 F.3d at 998

- 1000 (citing cases) ( federal jurisdiction proper where § 23

- 110 “unavailable” ). Diamen cann ot be read as executing a carve

- out of Schlup claims from § 23

- 110, and that is what is needed to tr igger § 23

- 110(g)’s provision for federal habeas.
Finally, Ibrahim argues that a D.C. prisoner can pursue a Schlup

- based habeas claim in federal district court regardless of whether the claim can be pursued under § 23

- 110. Under this theory, § 23

- 110 (g) itself constitutes a “procedural bar” as envisioned in Schlup , see 513 U.S. at 326

- 27 , which a showing of actual innocence under the Schlup standard can
overcome. On this theory an actual innocence claim provides a “gateway” through § 23

- 110. One distric t court appears to have adopted this view, although it found the habeas petitioner’s alleged evidence of innocence insufficient. See Bonilla v. Wainwright , No. 10

- cv

- 0224, 2011 WL 2938125, at *4 (D.D.C. July 22, 2011).

But § 23

- 110 (g) is not a procedural bar to otherwise available federal habeas claims; it is Congress’s deliberate channeling of constitutional collateral attacks on Superior Court sentences to courts within the District’s judicial system (subject to Supreme Court review) , with federal habeas available only as a safety valve. If Bonilla ’s interpretation11

were correct, it would read § 23

- 110(g) out of the statute as applied to Schlup claims. That is not a reasonably debatable construction

.

* * *

W e thus conclude that the § 23

- 110 remedy is n either inadequate n or ineffective to test the legality of Ibrahim’s claims . Accordingly § 23

- 110(g) presented the sort of “ plain procedural bar ” that justifie s dis missal of the case. Slack , 529 U.S. at 484. Therefore, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id

. The request for a certificate of appealability is

Denied

.