UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

:

DELAJANDRO YOUNG, :

Petitioner : No. 4:CV-04-1805

:

vs. : (Petition Filed 08/16/04)

:

: (Judge Muir)

JOSEPH SMITH, Warden, :

Respondent :

ORDER

May 17, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Petitioner, Delajandro Young, an inmate confined in

the United States Penitentiary, Lewisburg, Pennsylvania, filed

the instant petition for writ of habeas corpus pursuant to 28

U.S.C. § 2241, challenging his District of Columbia convictions

of first-degree felony murder, second-degree murder and

robbery. (Doc. No. 1). By Order dated August 23, 2004,

Young’s petition was construed as a petition filed pursuant to

28 U.S.C. § 2254, see Madley vs. United States Parole Comm’n,

278 F.3d 1306, 1309 (D.C. Cir. 2002), and the petition was

dismissed for lack of jurisdiction. (Doc. No. 5). 

On September 2, 2004, Young filed a motion to alter

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or amend judgment pursuant to FED.R.CIV.P. 59(e). By Order

dated December 22, 2004, this Court granted petitioner's motion

for reconsideration, vacated its August 23, 2004 Order

dismissing petitioner's action and directed that a response be

filed. On January 24, 2005, respondent filed a response to the

petition. (Doc. 17). Petitioner filed a traverse on February

4, 2005. (Doc. 19). Thus, the petition is ripe for

disposition. For the reasons set forth below, the petition

will be denied 

Factual Background

Following a jury trial, Young was convicted on charges

of first-degree felony murder, second-degree murder and

robbery. On May 22, 1990, he was sentenced by the Superior

Court of the District of Columbia to consecutive terms of 20

years to Life for felony murder; 15 years to Life for second

degree murder; 5 years to 15 years for robbery and 180 days for

contempt. (Doc. No. 1). Young then filed a direct appeal from

his conviction to the District of Columbia Court of Appeals.

Id. On May 27, 1992, while his appeal from that conviction was

pending, Young filed a motion to vacate his sentence and grant

a new trial pursuant to D.C. Code § 23-110 and Super.Ct.Crim.R.

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33. Id. Young raised two issues in his motion:

1. That Yvette Pree, his common law

wife who had been indicted with

him as a co-defendant, perjured

herself and had since recanted her

testimony.

2. Ineffective assistance of counsel

for failing to cross-examine Ms.

Pree about her supposed bias

against Young.

Id. On October 9, 1992, the trial court denied this motion.

Young then filed a direct appeal to the District of Columbia

Court of Appeals from the denial of his motion for new trial.

Id. 

On March 15, 1994, the District of Columbia Court of

Appeals affirmed both the conviction itself and denial of the

§ 23-110 motion, remanding only for the purpose of vacating

redundant convictions. See Young vs. United States, 639 A.2d

92 (D.C. 1994). 

In March, 1997, Young filed a second collateral attack

under D.C. Code § 23-110, asserting the following grounds:

1. Petitioner is entitled to a new

trial because, during the trial, a

Deputy United States Marshal

assigned to the trial judge’s

courtroom had had a romantic

relationship with Yvette Pree,

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Young’s common law wife and

principal witness against him at

trial. 

2. Trial counsel had been ineffective

because she had failed to notify

the court about the alleged

relationship between the marshal

and Ms. Pree and had failed to

bring to the court’s attention the

fact hat Young “had been an

informer for the F.B.I. against

Pree’s cousin, and that this was

another basis for Pree’ bias

against [Young].”

3. Ineffective assistance of trial

counsel for failing to crossexamine Ms. Pree about her

supposed bias against Young.

(Doc. 1, Exhibit 7, copy of opinion in Young vs. United States,

Nos. 97-CO-931 and 98-CO-1224 (D.C. October 17, 2000). On

April 6, 1997, the court denied Young’s second § 23-110 motion

because he had not shown cause for failing to raise the claims

in his first motion. Id. Young then filed a direct appeal

from the court’s denial. 

While Young’s appeal from his second § 23-110 denial

was pending, he filed a motion for reconsideration of the

court’s April 6, 1997 order. Id. That motion was denied and

Young then filed an appeal from that denial. Id. By

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1D.C.App.R. 41(c) provides:

RECALL OF MANDATE: In any appeal from a

judgment of conviction in a criminal case,

no motion to recall a mandate based on the

asserted failure of counsel to represent

the appellant effectively on appeal shall

be considered by the court unless the

motion is filed within 180 days from the

issuance of the mandate. 

5

Memorandum Opinion and Judgment dated October 17, 2000, the

District Court of Columbia Court of Appeals consolidated

Young’s pending appeals and affirmed the trial court’s refusal

to consider Young’s § 23-110 motion which had advanced claims

that had not previously been raised. Id. 

On December 4, 2000, Young filed a motion for

rehearing. (Doc. No. 1, p. 3). By mandate dated February 7,

2001, the District of Columbia Court of Appeals denied Young’s

motion. Id. On April 24, 2001, Young filed a motion to recall

the mandate,1

 which was also denied. 

Young then filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the United States District for

the District of Columbia. On June 30, 2003, the District Court

dismissed Young’s petition for lack of jurisdiction. Young vs.

United States, No. 02-0237 (D.D.C. June 30, 2003). Young’s

subsequent applications for a certificate of appealability from

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the District Court and the Court of Appeals for the District

of Columbia were also denied. (Doc. No. 1, p. 4). Young then

filed a petition for certiorari with the United States Supreme

Court which was denied on June 1, 2004. Id.

On August 16, 2004, Young filed the instant petition

for writ of habeas corpus asserting the following grounds for

relief: 

1. Ineffective assistance of trial

counsel for failing to crossexamine Ms. Pree about her

supposed bias against Young.

2. Trial counsel had been ineffective

because she had failed to notify

the court about the alleged

relationship between the marshal

and Ms. Pree and had failed to

bring to the court’s attention the

fact that Young “had been an

informer for the F.B.I. against

Pree’s cousin, and that this was

another basis for Pree’ bias

against [Young].”

3. Ineffective assistance of trial

counsel for failing to question

the government’s other witnesses

about the relationship between the

marshal and Ms. Pree. 

4. Ineffective assistance of trial

counsel for “failing to secure an

affidavit from Ms. Pree when Ms.

Pree admitted to trial counsel

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that she had committed perjury in

the trial phase of petitioner’s

trial.”

5. Ineffective assistance of

appellate/post-conviction counsel

for “failure to fully raise issues

of ineffectiveness of trial

counsel” relating to “Ms. Pree’s

bias in petitioner’s first motion

for a new trial and in failing to

secure an affidavit from Ms. Pree

regarding her perjurious testimony

at trial. The failure of

petitioner’s first appellate/postconviction counsel, Ms. Kent, to

raise these issues resulted in the

foreclosure of these

constitutional claims in the

second motion for a new trial.” 

(Doc. No. 1, pp. 5,6). 

Young argues that he should be permitted to proceed

with the instant action because his remedy pursuant to D.C.Code

§ 23-110 is inadequate and ineffective. (Doc. 1, p. 17).

Discussion

A collateral challenge to a District of Columbia

offender’s conviction or sentence, is to be brought pursuant

to D.C. Code Ann. § 23-110 and filed in the Superior Court of

the District of Columbia. Swain vs. Pressley, 430 U.S. 372,

375 (1977). Specifically, § 23-110(a) provides the following

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remedy: 

(a) A prisoner in custody under sentence of

the Superior Court claiming the right to be

released upon the ground that (1) the

sentence was imposed in violation of the

Constitution of the United States or the

laws of the District of Columbia, (2) the

court was without jurisdiction to impose the

sentence, (3) the sentence was in excess of

the maximum authorized by law, [or] (4) the

sentence is otherwise subject to collateral

attack, may move the court to vacate, set

aside, or correct the sentence. 

Thus, prisoners serving sentences imposed by the Superior Court

must file motions challenging their sentence in that court;

federal courts are generally without jurisdiction to entertain

motions to vacate, set aside, or correct a sentence imposed by

the District of Columbia Superior Court. Swain, 430 U.S. at

377-78. D.C. Code Ann. § 23-110 further states that District

of Columbia prisoners are precluded from bringing habeas claims

in federal court unless the local remedy is inadequate or

ineffective. See Swain, 430 U.S. at 377-78; Garris vs.

Lindsay, 794 F.2d 722, 725 (D.C.Cir. 1986). Specifically, that

provision states as follows:

An 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 the

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Superior Court or by any Federal or State

court if it appears that the applicant has

failed to make a motion for relief under

this section or that the Superior Court 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 Ann. § 23-110(g). “The determination of whether the

remedy available to a prisoner under § 23-110 is inadequate or

ineffective hinges on the same considerations enabling federal

prisoners to seek habeas review. 28 U.S.C. § 2255 and D.C.

Code § 23-110 are coextensive. A petitioner may not complain

that the remedies provided him by D.C. Code § 23-110 are

inadequate merely because he was unsuccessful when he invoked

them. ‘It is the inefficacy of the remedy, not a personal

inability to utilize it, that is determinative.’ Garris, 794

F.2d at 727; see also David v. Briggs, Civ.A.No. 90-2731, 1991

WL 21563, at *3 (D.D.C. Feb. 14, 1991)(‘[T]he focus is on the

efficacy of the remedy itself, and a federal court will

therefore have jurisdiction only in extraordinary cases,

especially given the similarity between the D.C. and federal

habeas remedies.’).” Wilson vs. Office of the Chairperson,

District of Columbia Board of Parole, 892 F. Supp. 277, 279-80

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(D.D.C. 1995). 

The petitioner has appealed his conviction directly,

filed two petitions for relief pursuant to § 23-110, and

challenged his conviction in federal court pursuant to 28

U.S.C. § 2254. He has appealed the denials of those decisions

to the courts of appeals and, in his previous federal habeas

petition, appealed to the United States Supreme Court. The

mere fact, however, that petitioner's requested relief has been

repeatedly denied does not indicate that the § 23-110 remedy

is inadequate or ineffective. See Garris, 794 F.2d at 727;

Wilson, 829 F. Supp. At 280. Moreover, petitioner's argument

that if he were to seek relief under § 23-110, his request

would likely be denied by the D.C. courts, does not excuse him

from complying with § 23-110. The possibility of relief being

denied does not establish that § 23-110 remedy is inadequate

or ineffective. See Id. Thus, this Court is without

jurisdiction to entertain the above mentioned claims. See

Swain, 430 U.S. 372 (1977)(holding that the District Court

lacks jurisdiction to entertain a habeas corpus petition

attacking the constitutional validity of a Superior Court

sentence even after the local remedy, if adequate and

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effective, has been pursued unsuccessfully). 

With respect to petitioner's claim of ineffective

assistance of appellate counsel, this is a claim that could

have and should have been previously raised. In Streater vs.

United States, 429 A.2d 173, 174 (D.C. 1980), the Court of

Appeals for the District of Columbia held that appellate

ineffectiveness claims are not cognizable in the Superior Court

under § 23-110. 429 A.2d at 174. A motion to recall the

mandate pursuant to D.C. App.R. 41 is the appropriate avenue

for a D.C. prisoner to take in presenting a claim of

ineffective assistance of appellate counsel. See Wu vs. United

States, 798 A.2d 1083, 1088-89 (D.C. 2002), Mayfield vs. United

States, 659 A.2d 1249, 1251-53 (D.C. 1995), Streater, 429 A.2d

at 174. However, “any motion to recall the mandate must be

filed within 180 days from issuance of the mandate.” See

D.C.App.R. 41(f). The D.C. Court of Appeals affirmed

petitioner's conviction on March 15, 1994. Thus, any motion

to recall the mandate should have been filed on or before

September 15, 1994. Petitioner did not file a motion to recall

the mandate. Thus, any relief that may have been available to

Young is now foreclosed. As such, the petitioner has

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procedurally defaulted the claim. 

Nonetheless, the claim may be deemed exhausted if,

despite the previous availability of state procedures, those

remedies are now foreclosed due to lapse of time. See

O’Sullivan vs. Boerckel, 526 U.S. 838, 842-45 (1999). “When

a claim is not exhausted because it has not been ‘fairly

presented’ to the state courts, but state procedural rules bar

the applicant from seeking further relief in state courts, the

exhaustion requirement is satisfied because there is ‘an

absence of available State corrective process.’” McCandless

vs. Vaughn, 172 F.3d 255, 3rd Cir.(Pa.), Mar 30, 1999) (quoting

28 U.S.C. § 2254(b)). Exhaustion will be deemed satisfied only

if there is no “reasonable probability” that further state

review could be obtained. Santana vs. Fenton, 685 F.2d 71, 76

n. 3 (3d Cir. 1982)); see also Lines vs. Larkins, 208 F.3d 153,

163 (3d Cir. 2000). But the same procedural default that

permits a finding of exhaustion also precludes relief on the

merits of the petition. See O’Sullivan, 526 U.S. at 842-45.

Where, as here, a defendant is not entitled to state court

review because he has failed to comply with a state procedural

rule, “federal habeas review . . . is barred unless the

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prisoner can demonstrate cause for the [state procedural]

default and actual prejudice as a result of alleged violation

of federal law, or demonstrate that failure to consider the

claims will result in a fundamental miscarriage of justice.”

Coleman vs. Thompson, 501 U.S. 722, 750 (1991). 

To show cause, a petitioner must prove that some

objective factor external to the defense prevented compliance

with the state’s procedural requirements. Murray vs. Carrier,

477 U.S. 478, 488 (1986); Cristin vs. Brennan, 281 F.3d 404,

420 (3d Cir.), cert. denied, 537 U.S. 897 (2002). In the

present case, petitioner does not assert, and the record does

not suggest, any “cause” for his failure to file a motion to

recall the mandate in the District of Columbia Court of Appeals

from the decision of the Superior Court.

Nor does the record support the possibility of a

“fundamental miscarriage of justice,” should the Court deny the

petition. “A fundamental miscarriage of justice may be found

if the petitioner presents evidence of actual innocence of the

underlying criminal charges.” Schlup vs. Delo, 513 U.S. 298,

327 (1995)); see also Keller vs. Larkins, 251 F.3d 408, 415 (3d

Cir. 2001). Young has offered no evidence or argument that he

is innocent of the underlying charge. His claim that appellate

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counsel was ineffective for “failure to fully raise issues of

ineffectiveness of trial counsel” relating to alleged perjury

by Pree, the key government witness, does not allege factual

innocence of the offense. No fundamental miscarriage of

justice will result from denial of the claim based on

procedural default.

In its 1994 reported decision, the D.C. Court of

Appeals found that the trial court's determination that the

evidence of Pree's alleged perjury was “inherently incredible

and inadmissable” was supported by the record. See Young, 639

A.2d at 95-96. The appellate court also agreed with the trial

court's finding that Young's trial counsel was effective during

trial and had represented Young with due diligence. Id. at 96.

The appellate court further found that the trial court was

proper in denying Young's initial § 23-110 motion without a

hearing since “'the record conclusively shows that he is not

entitled to the relief he seeks.” Id. Thus, petitioner's

underlying claim has been addressed. To the extent that he

seeks to again challenge the alleged perjury of the

government's witness through the guise of ineffective

assistance of appellate counsel, his claim is denied as

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procedurally defaulted. 

Young’ status as a state prisoner requires the Court

to make a determination concerning issuance of a certificate

of appealability. 28 U.S.C. § 2253(c). Because Young has

failed to make a substantial showing of the denial of a

constitutional right, a certificate of appealability will not

be issued. 

ACCORDINGLY, IT IS HEREBY ORDERED THAT

1. The petition for writ of habeas corpus (Doc.

No. 1) is DENIED. 

2. There is no basis for the issuance of a

certificate of appealability.

3. The Clerk of Court is directed to CLOSE this

case. 

 s/Malcolm Muir

 

MUIR

United States District Judge

MM:dlb

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