UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM EDWARD SHANNON, :

:

Petitioner, : No. 4:CV-04-1051

:

vs. : Petition Filed 05/12/04

:

JOSEPH V. SMITH, Warden, : (Judge Muir)

USP-Lewisburg, :

:

Respondent : (Magistrate Judge Smyser)

ORDER

August 18, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On May 12, 2004, William Edward Shannon, an inmate at the

United States Penitentiary in Lewisburg, Pennsylvania, filed a

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 

The Clerk of Court assigned this case to us but referred it to

Magistrate Judge J. Andrew Smyser for consideration. On June 9,

2005, the Magistrate Judge issued a report recommending that

Shannon’s petition be dismissed.

On June 23, 2005, Shannon filed objections to the Report and

Recommendation and a supporting brief. The government filed its

opposition brief on July 28, 2005. The time allowed for Shannon

to file a reply brief expired on August 15, 2005, and to this

date he has filed no such brief. Shannon’s objections are ripe

for disposition.

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When objections are filed to a report of a magistrate judge,

we make a de novo determination of those portions of the report

or specified proposed findings or recommendations made by the

magistrate judge to which there are objections. United States v.

Raddatz, 447 U.S. 667 (1980); 28 U.S.C. §636(b)(1); M.D. Pa.

Local Rule 72.31. Furthermore, district judges have wide

discretion as to how they treat recommendations of a magistrate

judge. Id. Indeed, in providing for a de novo review

determination rather than a de novo hearing, Congress intended to

permit whatever reliance a district judge, in the exercise of

sound discretion, chooses to place on a magistrate judge’s

proposed findings and recommendations. Id.; See also Mathews v.

Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7

(3d Cir. 1984).

Before we discuss the substantive claims in Shannon’s habeas

corpus petition and his objections to Magistrate Judge Smyser’s

Report and Recommendation, we will set forth the material

procedural and factual history of this case. Shannon was charged

with rape and the case was tried in the Superior Court of the

District of Columbia. In the midst of its deliberations, the

jury sent the following note to the trial judge: “During the

course of our negotiations it was learned that a juror was

accused of rape in the past which effects the deliberations.” 

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After discussing the matter with counsel, the court and the

parties agreed to respond to the note by instructing the jury

that it was to decide the case based on the evidence presented in

the courtroom and not upon any prejudice, passion, fear, sympathy

or other matter outside of the evidence. The jury subsequently

found Shannon guilty. On January 31, 1995, Shannon was sentenced

to a term of imprisonment of 15 years to life. 

Shannon appealed his conviction and pursued relief by other

means including a motion to recall the mandate issued by the

District of Columbia appellate court and two motions for postconviction relief filed pursuant to § 23-110 of the District of

Columbia Code (hereinafter “§ 23-110"). That statute is the

District of Columbia’s equivalent of 28 U.S.C. § 2255.

Shannon’s challenges to his conviction are based on either

the alleged ineffectiveness of his trial and appellate counsel or

the manner in which the trial court and his counsel responded to

the jury’s note. In the post-conviction proceedings he filed in

the District of Columbia courts, Shannon specifically claimed

that the manner in which his trial and appellate counsel

responded to the jury’s note violated his Sixth Amendment right

to effective counsel. He also raised the issue in the “Pro Se

Motion to Recall the Mandate and Appoint New Counsel Pursuant to

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D.C. App. R. 41(c),” which he filed in District of Columbia Court

of Appeals. 

Magistrate Judge Smyser recommends that Shannon’s petition

be dismissed without considering its substantive merits because

the claims in it may not be brought in a habeas corpus petition

filed pursuant to 28 U.S.C. § 2241. The Magistrate Judge 

considered the pivotal issue to be whether Shannon had other

adequate and effective avenues to pursue his claims. 

Magistrate Judge Smyser concluded that Shannon’s petition

should be dismissed because Shannon was able to litigate each of

his claims through some process other than a federal habeas

corpus petition. In other words, Shannon is barred from pursuing

federal habeas corpus relief because Shannon has failed to

demonstrate that the other available remedies were “inadequate or

ineffective.” See 28 U.S.C. § 2255; D.C. Code § 23-110(g);

Collier v. United States, No. 99-5120, 1999 WL 1336229 (D.C. Cir.

1999).

Shannon’s objections to the Magistrate Judge’s Report and

Recommendation are based strictly on the manner in which

Magistrate Judge Smyser interpreted subsection § 23-110(g). That

subsection provides 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

Superior Court or by any Federal or State court if it

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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 § 23-110(g).

Magistrate Judge Smyser cites the case of Collier v. United

States, No. 99-5120, 1999 WL 1336229 (D.C. Cir. 1999), in support

of his conclusion that Shannon’s ability to obtain relief by way

of a motion to recall the mandate of the District of Columbia’s

appellate court is an adequate and effective remedy which

precludes Shannon from seeking relief in a federal habeas corpus

petition. 

In his objections, Shannon argues that the Magistrate Judge

errs by interpreting § 23-110(g) too broadly. Shannon contends

that the issue should be limited to whether or not relief is

available by way of § 23-110. According to Shannon, if no relief

is available by way of § 23-110 then relief may be sought in a

federal habeas corpus petition. Shannon believes that his

ability to raise the claims at issue in a motion for the District

of Columbia Court of Appeals to recall its mandate is entirely

irrelevant.

Magistrate Judge Smyser’s position is supported not only by

the case of Collier v. United States, No. 99-5120, 1999 WL

1336229 (D.C. Cir. 1999), which he cites in his Report and

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Recommendation, but also by the reasoning and holding of the

United States Supreme Court in Swain v. Pressley, 430 U.S. 372,

97 S. Ct. 1224 (1977). 

The United States Court of Appeals for the District of

Columbia in Collier was considering whether counsel should be

appointed and a certificate of appealability issued in a case

where the appellant sought federal post-conviction relief in the

United States District Court for the District of Columbia. The

court denied both motions, stating that 

[b]efore bringing his claim in district court, appellant

properly pursued a motion to recall mandate, which is an

appropriate collateral procedure for presenting an

ineffective assistance of appellate counsel claim, in the

District of Columbia Court of Appeals. See Streater v.

Jackson, 691 F.2d 1026, 1028 (D.C. Cir.1982). Appellant has

not, however, demonstrated that his local remedy was

inadequate or ineffective. See Garris v. Lindsay, 794 F.2d

722 (D.C. Cir.1986) (per curiam). Failure to prevail in

that court does not render his local remedies inadequate or

ineffective. See id. at 727.

Collier v. United States, No. 99-5120, 1999 WL 1336229, *1 (D.C.

Cir. 1999). 

At the very least, the cited portion of Collier indicates

that a motion to recall a mandate “is an appropriate collateral

procedure for presenting an ineffective assistance of appellate

counsel claim.” Id. We further interpret that quotation to

support Magistrate Judge Smyser’s ultimate conclusion (i.e., that

the availability of a motion to recall the mandate forecloses

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Shannon from pursuing federal habeas relief). Shannon has not

provided any reason why it would be erroneous for us to rely on

the court’s analysis in Collier.

The Magistrate Judge’s Report and Recommendation is further

supported by the United States Supreme Court’s comparison of 

§ 23-110(g) with § 2255 in Swain v. Pressley, 430 U.S. 372, 97 S.

Ct. 1224 (1977). In Swain the petitioner had been convicted in

the Superior Court of the District of Columbia. He subsequently

sought review of his conviction in a federal habeas corpus

petition. The issue presented to the United States Supreme Court

was “whether § 23-110(g) of the District of Columbia Code

prevents the District Court from entertaining the application.”

Id. The United States Supreme Court held that the petitioner was

not able to pursue his claims in a federal habeas corpus

petition, stating that

the statute expressly covers the situation in which the

applicant has exhausted his local remedies, and requires

that the application be denied in such a case. The statute

provides that the application ‘shall not be entertained ...

by any Federal ... court if it appears that ... the Superior

Court has denied (the applicant) relief.’

Swain v. Pressly, 430 U.S. 372, 377, 97 S. Ct. 1224, 1228 (1977). 

The court described that text as an “unequivocal statutory

command to federal courts not to entertain an application for

writ of habeas corpus after the applicant has been denied

collateral relief in the [District of Columbia] Superior Court.”

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Id.; see also Garris v. Lindsay, 794 F.2d 722 (D.C. Cir.

1986)(holding that “a District of Columbia prisoner has no

recourse to a federal judicial forum unless the local remedy is

‘inadequate or ineffective to test the legality of his

detention.’”)

It is undisputed that Shannon presented the ineffective

assistance of counsel claim relating to the jury’s note to the

District of Columbia Court of Appeals in his motion for that

court to recall its mandate which it declined to do. It is also

clear that all of Shannon’s remaining claims could have been

presented to the District of Columbia Courts by way of a motion

filed pursuant to § 23-110. Consequently, the Magistrate Judge

properly concluded that none of Shannon’s claims may be heard by

way of a federal habeas corpus petition.

Shannon’s objections to Magistrate Judge Smyser’s Report and

recommendation are without merit. We will overrule the

objections, adopt the Report and Recommendation as our own, and

dismiss Shannon’s petition.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Shannon’s objections to Magistrate Judge Smyser’s

Report and Recommendation (Document 34) are overruled.

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2. Magistrate Judge Smyser’s Report and Recommendation

(Document 34) filed on June 9, 2005, is adopted in 

toto.

3. Shannon’s § 2241 petition (Document 1) is dismissed.

4. The Clerk of Court shall close this case.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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