United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2011 Decided November 29, 2011

No. 09-5052

JIBRIL L. IBRAHIM, ALSO KNOWN AS GRANT ANDERSON,

APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the 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: SENTELLE, Chief Judge, and WILLIAMS and 

RANDOLPH, Senior Circuit Judges.
2

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, 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 test the legality of his detention,” id. § 23-110(g). Because 

the Supreme Court has found that the District of Columbia 

judges’ lack of life tenure and constitutional salary protection 

do not render the § 23-110 remedy “inadequate or 

ineffective,” 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 establishes the collateral challenge procedures 

for federal prisoners and similarly allows those prisoners 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).

In Williams 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 Watson 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, appellant Jibril L. 

Ibrahim (a.k.a. Grant Anderson) is serving an 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 courts. On October 23, 2008 he filed a petition for 

writ of habeas corpus in the district court for the District of 

Columbia, “based on actual innocence coupled with a 

constitutional violation and miscarriage of justice claims . . . 

and other due process and equal protection of law claims.” 

Appendix for Amicus/Appellant (“App.”) 6. The 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), an 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); 

FED. R. APP. P. 22(b). The certificate may issue only if “the 

applicant has made a substantial showing of the denial of a 

constitutional 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 constitutional 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 on July 29, 

2009, and we held the application in abeyance pending our 

decision in Williams. We then appointed amicus curiae to 

address whether our holding in Williams had any bearing on 

Ibrahim’s effort to pursue 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 DCCA 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 Court under § 23-110. 

More specifically, Ibrahim reads Diamen as locating the D.C. 

remedy for his “actual innocence” 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 constitutional claims 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 able 

to bring these constitutional claims under § 23-110(a) is that 

“his actual innocence allegations are tethered to alleged 
5

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 

constitutional claims 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 denial 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 were 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 Constitutional Violation,” 

largely revolving around Schlup. We follow Diamen in using

those 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 them 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 years). 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. United States v. 

Kaplan, 101 F. Supp. 7, 14 (S.D.N.Y. 1951) (Weinfeld, J.) 

(after concluding that the two-year limit in Federal Rule of 

Criminal Procedure 33 precluded an otherwise meritorious 

claim of actual innocence, and noting that the Assistant 
7

United States Attorney had recommended favorable action on 

the defendant’s petition for executive clemency, court 

expressed hope for “prompt consideration” thereof). 

Although Ibrahim’s position on whether he is even 

bringing a Herrera-type claim is rather muddled, and the 

record is not developed enough to be sure of the exact 

dimensions of any such claim, Diamen cannot reasonably 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 is 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 executive 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 this passage gives 

no support to Ibrahim’s idea that the DCCA “has already held

that claims of actual innocence based on newly discovered 
8

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 

accordingly 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 

existence of such claims, but rather an interpretation of the 

protection Herrera affords.

Schlup. The 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] procedural 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 did 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 

whole tenor of the Diamen case, preclude any reasonable 

finding 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 us 
9

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” exception 

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 contrast, 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 debatable 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 

discovered 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 the 
10

constitutional claim “outside [§ 23-110’s] scope,” Williams, 

586 F.3d at 1000, which is essential to triggering the 

“inadequate or ineffective” exception under § 23-110(g). 

Mere differences in interpretation of habeas rights are a 

natural result of entrusting adjudication of such claims to 

hundreds of district and circuit court judges, plus 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 has no recourse to federal forum), with Williams, 

586 F.3d at 998-1000 (citing cases) (federal jurisdiction 

proper where § 23-110 “unavailable”). Diamen cannot be 

read as executing a carve-out of Schlup claims from § 23-110, 

and that is what is needed to trigger § 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 district 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 interpretation 
11

were correct, it would read § 23-110(g) out of the statute as 

applied to Schlup claims. That is not a reasonably debatable 

construction.

* * *

We thus conclude that the § 23-110 remedy is neither 

inadequate nor ineffective to test the legality of Ibrahim’s 

claims. Accordingly § 23-110(g) presented the sort of “plain 

procedural bar” that justifies dismissal 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.