1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) EUGENE ROBERSON , ) ) P etitioner , ) ) v. ) ) No. 18

- cv - 1469 (DLF ) ) UNITED STATES OF AMERICA, ) ) ) Respondent

. ) )

MEMORANDUM OPINION Petitioner Eugene Roberson , appearing pro se , seeks a writ of habeas corpus under 28 U.S.C. § 2254 , which governs review of s tate

- court convictions. Roberson does not identify the court of conviction , but he is clearly challenging his jury conviction s in the Superior Court of the District of Columbia of first

- degree murder , possession of a firearm during a crime of violence, and carrying a pistol without a license

. See Mot. Pursuant to 28 U.S.C. § 2254 (Pet. ) at 2, Dkt. 1 ( recounting indictment, convictio n , and sentence); see also Roberson v. United States , 961 A.2d 1092, 1093 (D.C. 2008)

. “A court . . . entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant

. . . is not entitled thereto. ” 28 U.S.C. § 2243 . Having carefully considered the petition , the Court will dismiss it because (1) the Court lacks jurisdiction over most of the claims , and (2) Roberson has failed to exhaust his state

court remedies.2 I. LEGAL STANDARD S “[T]o collaterally attack his sentence [or conviction] in an Article III court[,] a District of Columbia prisoner faces a hurdle ” that other prisoners do not

. Byrd v. Henderson , 119 F.3d 34, 37 (D.C. Cir. 1997). D.C. Code § 23

- 110 provides a remedy analogous to the reme dy provided in 28 U.S.C. § 2255 for collateral review of convict ions in the D.C. Superior Court. S ee Blair

Bey v. Quick , 151 F.3d 1036, 1042 (D.C. Cir. 1998) . It provides that “[a] prisoner in custody under sentence of the Superior Court” “may move the court to vacate, set aside, or correct [a] sentence” on the grounds that it was “imposed in violation of the Constitution” or otherwise

su bject to collateral attack. D.C. Code § 23

- 110(a). And it broadly strips federal courts of jurisdiction over most collateral attacks . It states that “[a]n application for a writ of habeas corpus” by a prisoner authorized to seek relief under § 23

- 110 “shall not be entertained

. . . if it

a

ppears 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 ap pears that the remedy by motion”

— that is, a motion under § 23

- 110(a)

— “ is inadequate or ineffective to test the legality of his detention .” Id. § 23

- 110(g). T h is provisi on, the D.C. Circuit has held, “ divest s federal courts of jurisdiction to hear habeas petitions by prisoners who could have raised viable claims pursuant to section 23

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

. By its terms, t he statute provides only a narrow exception to this jurisdictional bar when a motion under § 23

- 110(a) would be “inadequate or ineffective.” D.C. C ode § 23

- 110(g); see also Garris v. Lindsay , 794 F.2d 722, 726 (D.C. Cir. 1986) (per curiam) (“[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 de tention.” (internal quotation marks omitted)). And even then, a petitioner may only obtain relief if he meets “the ordinary habeas3 standard” provided in 28 U.S.C. § 2254. Gorbey v. United States , 55 F. Supp. 3d 98, 103 (D.D.C. 2014)

. Specifically , “[t]he petitioner must first either exhaust his state

- court remedies or show that such remedies are unavailable or ineffective.” Id. (citing 28 U.S.C. § 2254(b)(1)(A) & (B)). “D.C. local courts are treated as ‘state’ courts for purposes of federal habe as - corpus jurisdiction.” Id. at 102.
II. ANALYSIS Roberson argues that he is entitled to relief under 28 U.S.C. § 2254 because of prosecutorial misconduct, ineffective assistance of trial and appellate counsel, and violations of the Sixth Amendment’s Confro ntation Clause. See Pet. at 2

– 4. The Court first considers his trial error claims and then his ineffective assistance of appellate counsel claim.
A. The Trial Error Claims A ll of Roberson’s trial error claims are jurisdictionally barred by § 23

- 110(g). Section
23

- 110(a) expressly permits review in the D.C. Superior Court of alleged “violation[s] of the Constitution of the United States.” D.C. Code § 23

- 110(a). And it is well established that c laim s predicated on prosecutorial misconduct and trial counsel’s performance are “cognizable under § 23

- 110.” Saunders v. United States , 72 F. Supp. 3d 105, 109 (D.D.C. 2014) (citing cases) . It follows that the Court may no t review these claims because § 23

- 110(g) “divests [the Court] of jurisdiction t o hear habeas petitions by prisoners who could have raised viable claims pursuant to section 23

- 110(a).” Williams , 586 F.3d at 998; see also Graham v. FCC Coleman USP II Warden , No. 14

- cv - 1567 , 2016 WL 2962190, at *3 (D.D.C. May 20, 2016) (“ [T] his Court l acks jurisdiction over the claim that trial counsel was ineffective, as well as the claim of prosecutorial misconduct

. . . . ”), certificate of appealability denied , No. 16

- 5179, 2017 WL 2728390 (D.C. Cir. Jan. 3, 2017)

.4 B. The Ineffective Assistance of A ppellate Counsel Claim In contrast to his claims of trial error, Roberson’s ineffective assistance of appellate counsel claim is not jurisdictionally barred by § 23

- 110(g) . The D.C. Court of Appeals has held that a c laim for ineffective assistance of appellate counsel is not available under § 23

- 110 (a) because reviewing such a claim “ would necessarily require the lower court to pass judgment on the efficacy of the appellate review. ” Watson v. United States , 536 A.2d 1056 , 1060 (D.C. 1987) (en banc). Thus, § 23

- 110(g) “ presents no bar to [ the review of an] ineffective assistance of appellate counsel claim

. ” Williams , 586 F.3d at 998

. A lthough he clears the jurisdictional hurdle in § 23

- 110, Roberson has not satisfie d the “ordinary habeas standard” in § 2254 because he has not exhausted his state

- court remedies. Gorbey , 55 F. Supp. 3d at 103. For D.C. prisoners, “ a motion in [the D.C. Court of Appeals] to recall the mandate is the appropriate avenue” for exhausting a claim based on ineffective assistance of appellate counsel

. Watson , 536 A.2d at 1 0 60. A nd it is only “ after a cogent ruling from the D.C. Court of Appeals concerning local relief, if any , ” that “ the District Court will be in a position to rule intellig ently on [ a ] fede ral petition for habeas corpus. ” Williams , 586 F.3d at 999 ( internal quotation marks omitted ). Because Roberson does not suggest that he has satisfied the mandate

- recall procedure , the Court will dismiss the ineffective assistance of app ellate counsel claim for failure to exhaust. 1

1 To the extent Roberson asserts a claim of ineffective assistance of post

- conviction counsel , see Pet. at 19, the Court lacks jurisdiction because “[ t ]he ineffectiveness or incompetence of counsel during Federal or State collateral post

- conviction proceedings [is] not

. . . a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i).5 CONCLUSION For the foregoing reasons, the Court will dismiss the petition

. A separate order accompanies this Memorandum Opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge November 2 , 2018