UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) VERNON NO RMAN EARL E, ) ) Petitioner, ) ) v. ) Civil Action No. 10-0797 ( PL F) ) UNI TED STATES OF AMERI CA, ) ) Respondent. ) ____________________________________)
MEMORANDUM OPI

NI ON This matter is befor e the Court on pro se petitioner’s pe tition for a writ of ha beas corpus a nd responde nt’s motion to di smiss t hat petition. Upon consideration of the parties’ paper s, the rele vant leg al authorities, and the entire r ecor d in this case, the Court will g rant responde nt’s motion to di smiss t he petition.
I . BA CKGROUND On Novembe r 3, 1986, petitioner Ve rnon Norma n Earle was c onvicted in the Superior Court of the D istrict of Columbia of two counts of assa ult with int ent to kill while
arme d. See Motion P ursuant to 28 U.S.C. § 2241, Habea s Corpus, to Vacate, Set Aside, and Correc t Sentence, Pursua nt to Violation of Si x th Amendment Constitut ional Rights, to Effe ctive Assistance of

Appea ls and Trial Counsel, Violation of 5th and 14th Amendme nt Due Proce ss and Equal Protection of the L aw ( “Pet.”) at 3 [Dkt. No. 1] ; United States’ Motion to Dismi ss Petitioner’s Petition for a Writ of Habe as Corpus (“ Mot.”) at 3 [Dkt. No. 12]. Then-Superior Court J udg e Reg g ie B . Walton sentenced pe titioner to two consecutive te rms of 15 year s to lifein prison on April 14, 1987. Pet. at 3; Mot. at 2–3. On J une 2, 1987, petitioner w as also

convicted of

first-degree murder while arme d, assault with a dang erous we apon, and c arr ying a pistol wit hout a license . Pet. at 3; Mot. at 4. He wa s sentence d to 20 year s to life for the mur der and conse cutive ter

ms of three to nine y ear s for the othe r cr imes on November 22, 1987. Pet. at 3; Mot. at 4. Followingnumerous unsucc essful direc t and collater al attac ks of his convictions in both D.C. and fede ral c ourts, see Pet. at 3–4; Mot. at 4–6, petitioner filed the instant petition for a writ of habe as cor

pus on May

14, 2010, in which he a lleg es ineff ective a ssistance of tr ial and appellate counsel, Pet. at 1, 5–7.

Concerningtrial counsel, pe titioner mentions “a conf lict betwee n petitioner and his trial counsel, to the extent petitioner reque st counsel re moval from his ca se, and tria l counsel followed by

reque sting the c ouet to remove d petitioner fr om sitt ing dir ectly behind him ‘Be cause of the ser iousness of the cha rg es ag ainst petitioner.’” Pet. at 7 (er rors in spellingand grammar in orig inal). Concer

ning a ppellate c ounsel, petitioner cla ims that his appellate lawyer did not ra ise an inef fec tive assistance of trial counse l claim, which petitioner r equeste d be ra ised, and improperly

allowed a

char g e fr om his trial on which he had be en ac quitted to form a basis for the aff irmance of his conviction. Id. at 7, 11. Respondent has move d to dismi ss the petition, arguing in releva nt part that this Court lacks jurisdiction to consider the pe tition because pe titioner has failed to e x haust the re medies ava ilable to him in the courts of the District of Columbia and beca use petitioner ha s not shown those remedie s to be ineff ective. Mot. at 29–35, 37–38. The

2Court will gra nt this m otion as to jurisdiction and will notrea ch re spondent’s other a rguments. See id. at 23–29, 36–37. 1
I I . L EGAL STANDARD. Fe dera l courts ar e cour

ts of limit ed jurisdiction, with the ability to hear only case s entrusted to them by

a g rant of pow er c ontained in either the Constitut ion or in an ac t of Congr ess. See, e .g. , Bee thoven.c om LLC v. Librarian of Congress , 394 F.3d 939, 945 ( D.C. Cir. 2005); Hunter v. D istrict of Columbia , 384 F. Supp. 2d 257, 259 (D.D .C. 2005). On a motion to dismiss for lac k of subject- matter jurisdiction, the plaintiff be ars the bur den of e stablishing that the Court has jurisdiction. Brady Campaign to Preve nt Gun Violencewith the Million Mom March v . Ashcroft , 339 F. Supp. 2d 68, 72 (D.D .C. 2004). When determiningwhether to gr ant a motion to di smiss for lack of subje ct-matter jurisdiction, the Court mustconstrue the complaint in the plaintiff’s fa

vor and tre at all well pled a lleg ations of fa ct as true
. Jerom e Stev ens Pharms., Inc. v . FDA , 402 F.3d 1249, 1253–54 ( D.C. Cir. 2005). The Court nee d not acc ept unsupported infere nces or

leg al conc lusions cast as fa ctual alleg ations. Primax Re cove ries, Inc. v . Lee , 260 F. Supp. 2d 43, 47 (D.D.C. 2003). Unde r Rule 12(b)( 1), the Court may dispose of the motion on the basis of the c omplaint alone or it may consider materials beyond the pleading s, “as it dee ms appropr iate to re solve the question whethe r it has jurisdiction to hear the case .” Scolaro v. D.C. Bd. of Elections and Ethics , 104 F. Supp. 2d 18, 22 (D.D .C. 2000).

Respondent does not spec ify the Rule under which it makes its motion t o dismiss , 1 but the Court will evaluate r espondent’s jurisdictional a rguments under Rule 12(b) (1) of the Fe dera l Rules of Civil Procedur e. 3I I I . ANALYSI S Collateral cha lleng es to sentenc es imposed by the Superior Court of the District of Columbi a g ener ally

must be broug ht in that court under D .C. Code § 23-110. Blair-Bey v . Quick, 151 F.3d 1036, 1043 ( D.C. Cir. 1998). Section 23-110 provides a post-conviction collater al
reme dy to [a] prisoner in c ustody under se ntence of the Superior Court claimingthe rig ht to be rele ased upon the g round that (1) the sentenc e wa s imposed in violation of the Const itution of the United States or the laws of

the District of Columbia, (2) the c ourt was without jurisdiction t o impose the sentenc e, (3) the sentenc e wa s in excess of the maximum authorized by law, [or] (4) the sentenc e is otherwise subje ct to collater al attac k. D.C. Code § 23-110(a ). The statute also provides, howe ver, tha t [a] n application for

a wr it of habea s corpus in beha lf of a pr isoner who is authorized to apply for r elief by

motion pursuant to [ Section 23-110] shall not be entertaine d by the Superior Court or by

any Fe dera l or State court if it appe ars that the a pplicant has fa iled to make a motion for relief

under this sec tion or that the Superior Court has denied him re lief, unless it also appea rs that the re medy by motion is inadequate or inef fec tive to test the leg ality of his detention. Id. § 23-110(g ). Ther efor e, Section 23-110 is g ener ally the exclusive remedy

available to prisoners in custody

pursuant to a D.C. Superior Court sentence
. See B lair-Bey v . Quick, 151 F.3d at 1043 (quoting § 23- 110(g )) ( noting that the e nactment of Section 23-110 “e ntirely divested the fe dera l courts of jurisdiction to hear habea s corpus pe titions by prisoners who ha d a section 23-110 r emedy

available to them unless the petitioner could show that the se ction 23-110
reme dy was ‘ina dequate or ineff

ective’ ”). Mr. Ear le first cla ims that he rec eived inef fec tive assistance of trial counse l. Pet. at 6–7. He pr eviously

advanc ed this claim befor e the Super ior Court in a motion under Section 423-110, but the motion was denied on pr ocedur al g rounds by Superior Court J udg e Robert I
. Richter; this denial was a ffirme d on appea l by the D.C. Court of Appea ls. See Mot. at 5–6. Petitioner has not shown and c annot show that Section 23-110 is inade quate or ineffe ctive for consideration of this claim, because “[i] t is well-established that the mer e denia l of relief by the local cour ts does not rende r the loca l remedy inadequate or inef

fec tive.” Joyne r v. O’B rien , No. 09-cv- 0913, 2010 WL199781, at *2 (D.D .C. J an. 15, 2010); see Corley v. U.S. Parole Comm ’n , No. 08-c v-1342, 2009 WL2606554, at *3 (D.D .C. Aug . 26, 2009) (c iting Garris v. Lindsay , 794 F.2d 722, 727 ( D.C. Cir. 1986)); Morton v. United States , No. 07-c v-5253, 2008 WL4726051, at *1 (D.C. Cir. J une 12, 2008) (per c uriam) ( stating that appellant “ma y not challeng e his District of Columbia convictions in feder al cour t unless his remedy

under D .C. Code § 23-110 is inadequate or inef

fec tive to test the leg ality of his detention . . . , and [t] he § 23-110 r emedy
. . . is not considered ina dequate or ineff ective simply

beca use the re quested re lief has be en denie d”). Mr. Ear le provides no r eason to find his Section 23-110 r emedy inadequate other tha

n the denial of his petition by

J udg e Richter. See Pet. at 5–11. The Court there fore lacks jurisdiction to consider the claim of inef fec tive assistance of trial counse l. Mr. Ear le next claims that he rec eived inef fec tive assistance of appe llate counse l. Pet. at 11. The D.C. Circuit has found that this C ourt may consider a

claim that Section 23-110 is an inadequate re medy

for suc h a cla im only

“af ter [the petitioner has] moved to rec all the mandate in the D .C. Court of Appeals” and has r ece ived a r uling f rom that court. W

illiams v. Martinez , 586 F.3d 995, 999 ( D.C. Cir. 2009). Be cause Mr. Ear le has not moved to have the D.C. Court of Appea ls reca ll the mandate, this Court cannot yet consider whether his local
reme dy is inadequate
. See R ichardson v. Stephe ns , 730 F. Supp. 2d 70, 72–73 (D.D .C. 2010)
5(“N either a n unfavor able r

uling nor an off ender ’s fa ilure to file a motion to rec all the mandate rende rs his remedy

in the District of Columbia Court of Appea ls inadequate .”); Johnson v. Stansberry , No. 10-c v-178, 2010 WL358521, at *2 (D.D .C. J an. 29, 2010) ( denying pe tition wher e petitioner “ did not move to reca ll the mandate” and ther efor e had “ not exhausted his local
reme dies”); Rey es v. Rios , 432 F. Supp. 2d 1, 4 (D.D .C. 2006) (“Eve n if petitioner has f ailed to file a motion to rec all the mandate , the ava ilability of such a course prec ludes the findingof inadequa cy

or ineff ectivene ss require d to support his petiti on in this C ourt.”). T he Court there fore lacks jurisdiction to consider the claim of inef fec tive assistance of appe llate counse l.
IV. CONCLUSI ON For the fore g oing r easons, the Court will g rant the United States’ motion to dismiss . A sepa

rate Orde r consistent with this Memorandum Opinion shall issue this same date.
/s/ PAULL . FRI EDMAN United States District J udg e DATE: September

9, 2011

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