UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

HOWARD L. SMITH, JR., :

:

Petitioner, : Civil Action No.: 18-2557 (RC)

:

v. : Re Document No.: 5

:

JUSTIN ANDREWS, :

:

Respondent. :

MEMORANDUM OPINION

GRANTING RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

I. INTRODUCTION

This matter is before the Court on Howard L. Smith, Jr.’s pro se Petition for Writ of 

Habeas Corpus.

1 For the reasons discussed below, the Court lacks subject matter jurisdiction, so

the petition will be dismissed.

II. FACTUAL BACKGROUND

On December 9, 1987, Smith was indicted in the Superior Court for the District of 

Columbia on four charges: burglary in the second degree while armed, murder in the first degree 

while armed, carrying a pistol without a license, and felony murder. These charges, in case 

number 1987-FEL-6416, related to the murder of Nelson Able on March 29, 1987. Before Smith 

was tried on these charges, however, a superseding indictment was issued on January 5, 1988, in 

which Smith was re-indicted for the murder of Able and the related offenses, as well as two 

 1 Petitioner captioned his pleading as a “Motion to Vacate, Set Aside, or Correct Sentence 

by a Prisoner in State Custody, Pursuant to 28 U.S.C. 2254.” The Court has construed it as a 

petition for writ of habeas corpus. 
2

counts of assault with intent to commit murder while armed. The latter two new counts related 

to a shooting incident that occurred outside of a D.C. nightclub on May 25, 1987. 

Following the superseding indictment, Smith was tried before a jury on the charges 

related to the Able murder and convicted on all four charges. He was sentenced to twenty years 

to life on the first-degree murder charge, twenty years to life on the felony-murder charge, five to 

fifteen years on the burglary-while-armed charge, and one year on the charge of carrying a pistol 

without a license. The sentences for the burglary, felony murder, and first-degree murder 

convictions were imposed to run concurrently, while the firearm sentence was imposed to run 

consecutively to those sentences. Following an appeal, the conviction for felony murder was 

ultimately set aside as duplicative of the first-degree murder conviction. See Smith v. United 

States, No. 88–1290, slip op. at 4 (D.C. Ct. of App. June 17, 1991). 

Meanwhile, on January 30, 1989, Smith entered a guilty plea to one count of assault with 

a dangerous weapon in connection with the May 25, 1987 nightclub assaults. On March 20, 

1989, the trial court sentenced him to a term of imprisonment of two to six years and ordered the 

sentence to run concurrently with the sentences previously imposed for the Able murder. See 

United States v. Smith, 10 F. Supp. 2d 578, 580 (E.D. Va. 1998).2

From 1995 through 2016, Smith filed six post-judgment collateral attack motions

pursuant to D.C. Code § 23-110 and two federal habeas petitions related to the Able murder.

 2 While serving these various sentences, Smith was convicted in February 1998 of 

second-degree murder and prisoner possession of a shank following a trial in the U.S. District 

Court for the Eastern District of Virginia. See Smith, 10 F. Supp. 2d at 579. These convictions 

stemmed from a December 1996 incident at the Lorton Reformatory Complex, in which Smith 

murdered a fellow inmate by stabbing him with a home-made knife. Id. He received a sentence 

of life without parole to run consecutively to his D.C. sentences. 
3

These motions raised a variety of legal challenges, including ineffective assistance of counsel, 

actual innocence, and illegal indictment under D.C. Code § 22-3202.

In the instant petition, Smith alleges that his Able murder convictions were the result of 

“a fake superseded indictment that was never presented and re-indicted by a Grand Jury.” Pet. at 

4, ECF No. 5. Based on this claim, Smith asserts that the Superior Court lacked subject matter 

jurisdiction over his trial, and that his Fifth Amendment right to be indicted by grand jury was 

violated. See id.

III. ANALYSIS

Under 28 U.S.C. § 2254, federal district courts are authorized to issue writs of habeas 

corpus with respect to a person detained pursuant to a state court judgment “on the ground that 

he is in custody in violation of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254. Local D.C. courts, including the Superior Court in which Smith was convicted,

are treated as state courts for purposes of this jurisdiction. See Gorbey v. United States, 55 F.

Supp. 3d 98, 103 (D.D.C. 2014) (citing Milhouse v. Levi, 548 F.2d 357, 360 n.6 (D.C. Cir.

1976)). 

For prisoners in D.C., however, habeas relief is particularly challenging to obtain in 

federal court because of an additional requirement imposed by D.C. Code § 23-110. This 

provision provides that a habeas petition “shall not be entertained by . . . any Federal . . . court if 

it appears that [the petitioner] has failed to make a motion for relief under [D.C. Code § 23-110] 

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.”3 D.C. Code § 23-110(g).

 3 The phrase “‘[r]emedy by motion’ plainly refers to motions filed pursuant to [§] 23-

110(a).” Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir. 2009). 
4

Section § 23-110, in other words, “vest[s] the Superior Court with exclusive jurisdiction over 

most collateral challenges by prisoners sentenced in that Court.” Williams v. Martinez, 586 F.3d 

995, 1000 (D.C. Cir. 2009). And federal courts lack jurisdiction “to entertain a habeas corpus

petition attacking the constitutional validity of a Superior Court sentence even after the local

remedy . . . has been pursued unsuccessfully.” Garris v. Lindsay, 794 F.2d 722, 726, (D.C. Cir.

1986) (per curiam) (citing Swain v. Pressley, 430 U.S. 372, 377–78 (1977)). Thus, a D.C.

“prisoner has no recourse to a federal judicial forum unless the local remedy is inadequate or 

ineffective to test the legality of his detention.” Byrd v. Henderson, 119 F.3d 34, 36 (D.C. Cir. 

1997) (per curiam).

In Smith’s case, the local remedy is neither inadequate nor ineffective. As evidenced by 

one of Smith’s own previous § 23-110 motions (filed in January 2003), improper indictment

challenges can be made under § 23-110. Resp.’s Mot. Dismiss at 3–4, ECF No. 5; see also 

United States v. Graham, No. F-5576-03, 2011 D.C. Super. LEXIS 21 (June 2, 2011) (discussing 

§ 23-110 motion involving trial error claims, including prosecutorial misconduct); Saunders v. 

United States, 72 F. Supp. 3d 105, 108 (D.D.C. 2014) (finding that errors in a Superior Court 

verdict should have been raised under § 23-110); Johnson v. Stansberry, No. 10-0178, 2010 WL 

358521, at *1 (D.D.C. Jan. 29, 2010) (same with respect to claims of prosecutorial misconduct 

and imposition of illegal sentence). That Smith was unsuccessful in his 2003 motion does not 

mean his remedy under § 23-110 was inadequate or ineffective; rather, “[i]t is the inefficacy of 

the remedy, not a personal inability to utilize it, that is determinative.” See Garris, 794 F.2d at 

727.

More generally, the D.C. Circuit has indicated that § 23-110 is the appropriate route for 

D.C. prisoners to allege trial court errors like the one Smith has alleged in the current petition. 
5

Indeed, the circuit court has recognized that federal court jurisdiction is proper under § 2254 only 

in a few narrow categories of cases where the constitutional claim falls outside the scope of § 23-

110, such as ineffective assistance of appellate counsel, see Williams, 586 F.3d at 1001, or 

challenges to parole denial procedures, see Blair-Bey v. Quick, 151 F.3d 1036, 1043 (D.C. Cir. 

1998). Smith’s claims here are far removed from those narrow categories of challenges and 

relate solely to alleged errors in the trial court (an allegedly defective indictment). As such, 

§ 23-110 is an adequate remedy, and this Court must dismiss his § 2254 petition for lack of 

jurisdiction.

IV. CONCLUSION

For the foregoing reasons, Respondent’s motion to dismiss is GRANTED. An order 

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: July 8, 2019 RUDOLPH CONTRERAS

United States District Judge