1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

___________________________________ 

) 

ROOSEVELT RICHARDSON, ) 

) 

Petitioner, ) 

) 

 v. ) Civil Action No. 13-0492 (RLW) 

) 

UNITED STATES OF AMERICA, ) 

) 

Respondent. ) 

___________________________________ ) 

MEMORANDUM OPINION

 This matter is before the Court on Roosevelt Richardson’s petition for a Writ of Habeas 

Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 [ECF No. 1] and the 

Government’s Motion to Dismiss Petitioner’s Petition for Writ of Habeas Corpus [ECF No. 7]. 

For the reasons discussed below, the petition will be dismissed. 

I. BACKGROUND 

 In the Superior Court of the District of Columbia, “[f]ollowing a jury trial, [petitioner] 

was convicted on October 2, 1996, of five felonies relating to a gun injury suffered by Lanita 

Spears.” Richardson v. United States, 8 A.3d 1245, 1246 (D.C. 2010); see Gov’t’s Mot. to 

Dismiss Pet’r’s Pet. for Writ of Habeas Corpus (“Gov’t Mot.”) at 1 (listing charges set forth in 

indictment). The court imposed a sentence of 16 years to life imprisonment. Pet. at 1. Petitioner 
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filed an appeal to the District of Columbia Court of Appeals on March 6, 1997. Gov’t Mot. at 2; 

see Pet. at 2. 

 Petitioner also filed a motion under D.C. Code § 23-110 for a new trial, which the 

Superior Court denied on August 30, 1999, after having conducted an evidentiary hearing. Gov’t 

Mot. at 2. Petitioner appealed this ruling, and the Court of Appeals consolidated it with his 

direct appeal.1 Id. Before the Court of Appeals were the following four arguments: 

1) that the trial court erred in failing to suppress the identification 

testimony of the government’s main eyewitness; 2) that the trial 

court erred in declining to give a missing witness instruction; 3) 

that there was insufficient evidence to sustain [petitioner’s] 

conviction; and 4) [that] the trial court erred in allowing the 

government to elicit certain repetitious information from a witness. 

Id., Ex. A (Memorandum Opinion and Judgment at 1, Richardson v. United States, Nos. 97-CF463 & 99-CO-1237 (D.C. Ct. App. Nov. 26, 2002)). The Court of Appeals affirmed both the 

judgment of conviction and the denial of the § 23-110 motion for new trial. Id., Ex. A. 

Petitioner neither moved to recall the mandate nor filed a petition for a writ of certiorari in the 

United States Supreme Court. See Pet. at 2-3. 

 Pursuant to the Innocence Protection Act (“IPA”), see D.C. Code § 22-4135, on October 

24, 2006, petitioner filed in the Superior Court another collateral attack on his conviction, this 

time “on the basis of an affidavit from a witness who was not called at [his] 1996 trial.” 

Richardson, 8 A.3d at 1246. Petitioner “claimed that the affidavit contained ‘new evidence’ that 

proved his actual innocence.” Id. He also brought a second claim of ineffective assistance of 

trial counsel pursuant to D.C. Code § 23-110. Id. The Superior Court appointed counsel to 

represent petitioner, held a hearing at which the witness testified, and ultimately denied the 

 

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 The Court of Appeals stayed petitioner’s direct appeal pending resolution by the Superior 

Court of the § 23-110 motion for a new trial. 
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motion. Id. at 1248. The Court of Appeals affirmed, noting its “agree[ment] with the trial court 

that the affidavit and testimony do not entitle [petitioner] to relief under the IPA.” Id. at 1246. 

Nor did the Superior Court “err in denying consideration of [petitioner’s] successive § 23-110 

motion, which is barred by procedural default.” Id. at 1247. 

 On April 11, 2013, petitioner filed the instant petition for a writ of habeas corpus, setting 

forth ten instances underlying his claim of ineffective assistance of trial counsel. See generally

Pet. at 3-12.2

 In addition, petitioner alleges “that his appellate counsel was ineffective and 

should have raised” these instances of trial counsel error “during the Petitioner’s first 23-110 

motion.” Pet. at 13. Had appellate counsel raised these “non-frivolous claims,” petitioner 

contends, petitioner “would have prevailed.” Id. 

II. DISCUSSION 

 Under District of Columbia law, a prisoner convicted and sentenced in the Superior Court 

may file a motion in that court to vacate, set aside, or correct his sentence “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[.]” D.C. Code § 23-110(a). Although habeas relief in federal court 

may be available to a District of Columbia Code offender who “is in custody in violation of the 

Constitution . . . of the United States,” 28 U.S.C. § 2241(c)(3), his habeas petition “shall not be 

entertained by . . . any Federal . . . court if it appears that the [prisoner] has failed to make a 

motion for relief under [D.C. Code § 23-110] or that the Superior Court has denied him relief, 

 

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 Petitioner signed the petition on February 5, 2013, see Pet. at 14, yet the Clerk of Court did 

not receive the petition until April 11, 2013. 
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unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of 

his detention.”31 D.C. Code § 23-110(g); see Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir. 

2009) (“Section 23-110(g)’s plain language makes clear that it only divests federal courts of 

jurisdiction to hear habeas petitions by prisoners who could have raised viable claims pursuant to 

section 23-110(a).”) , cert. denied, 559 U.S. 1042 (2010); Byrd v. Henderson, 119 F.3d 34, 36-37 

(D.C. Cir. 1997) (finding 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”). 

 To the extent that petitioner seeks review of claims arising from errors that may have 

occurred during criminal proceedings in the Superior Court and from trial counsel’s allegedly 

deficient performance, this Court cannot entertain them because petitioner does not show that his 

remedy under D.C. Code § 23-110 is inadequate or ineffective. See Williams, 586 F.3d at 998; 

Plummer v. Fenty, 321 F. App’x 7, 8 (D.C. Cir. 2009) (per curiam). Nor does “petitioner’s lack 

of success in the District of Columbia courts . . . render his local remedy inadequate or 

ineffective.” Blount v. Wilson, No. 11-0743, 2011 WL 1526945, at *1 (D.D.C. Apr. 19, 2011) 

(citations omitted); see Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986) (“It is the 

inefficacy of the remedy, not a personal inability to utilize it, that is determinative, and 

appellant's difficulty here is simply that his circumstances preclude him from invoking it.”). The 

only matter that this Court may address is petitioner’s ineffective assistance of appellate counsel 

claim under “the standard set forth in 28 U.S.C. § 2254.” Williams, 586 F.3d at 1002. 

 

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

110(a).” Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir. 2009), cert. denied, 559 U.S. 1042 

(2010). 
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 “Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) . 

. . impose[d] a 1-year period of limitation on motions brought under [28 U.S.C. § 2255],” United 

States v. Saro, 252 F.3d 449, 251 (D.C. Cir. 2001) (citation omitted), which runs from the latest 

of: 

(A) the date on which the judgment became final by the conclusion 

of direct review or the expiration of the time for seeking such 

review; 

(B) the date on which the impediment to filing an application 

created by State action in violation of the Constitution or laws of 

the United States is removed, if the applicant was prevented from 

filing by such State action; 

(C) the date on which the constitutional right asserted was initially 

recognized by the Supreme Court, if the right has been newly 

recognized by the Supreme Court and made retroactively 

applicable to cases on collateral review; or 

(D) the date on which the factual predicate of the claim or claims 

presented could have been discovered through the exercise of due 

diligence. 

28 U.S.C. § 2244(d)(1). “The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending 

shall not be counted toward any period of limitation under this subsection.” Id. § 2241(d)(2). 

“Courts have generally applied the same analysis to the time limitations in § 2254 and § 2255,” 

United States v. Cicero, 214 F.3d 199, 203 n.* (D.C. Cir. 2000), and, therefore, a one-year period 

of limitation applies to an application for a writ of habeas corpus by a person in custody pursuant 

to the judgment of the District of Columbia Superior Court. 28 U.S.C. § 2244(d)(1); see Wright 

v. Wilson, 930 F. Supp. 2d 7, 10-11 (D.D.C. 2013). 

Applying 28 U.S.C. § 2244(d)(1)(A), because petitioner did not seek a writ of certiorari 

within 90 days after the Court of Appeals affirmed his convictions on November 26, 2002, see

Sup. Ct. R. 13(1), his convictions became final on or about February 25, 2003. The one-year 
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limitation period would have ended on or about February 26, 2004. Thus, respondent argues, the 

habeas “petition is time-barred and should be dismissed.” 4 Gov’t Mot. at 10. 

 Petitioner raises two arguments in an attempt to establish the timely filing of his habeas 

petition. First, see Pet. at 13, he relies on Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309 (2012), 

which recognizes a single, narrow circumstance where a petitioner might overcome a procedural 

default so that his claim for ineffective assistance of counsel may proceed. See id. at 1320. 

Presumably petitioner is arguing that the filing of the instant petition within one year after the 

Martinez decision renders the petition timely. 

Martinez provides that, if a state collateral review scheme prevents a petitioner from 

raising an ineffective assistance of trial counsel claim on direct review, and instead allows him to 

raise such a claim for the first time in a collateral proceeding, “[i]nadequate assistance of counsel 

at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of 

a claim of ineffective assistance of counsel.” Id. at 1315. In the District of Columbia, petitioner 

is not so constrained. Petitioner could raise – and actually did raise – ineffective assistance of 

trial counsel claims on direct appeal. See Pet. at 2; Gov’t Mot., Ex. A. Furthermore, the instant 

petition is not petitioner’s first post-conviction filing, and here he is challenging the effectiveness 

of appellate counsel in addition to the effectiveness of trial counsel. “By its terms . . . , Martinez

does not apply . . . because [petitioner] raises a claim of ineffective assistance of appellate

 

4

 Petitioner cannot count on his second § 23-110 motion to toll the limitation period under 28 

U.S.C. § 2244(d)(2) because that motion was filed on October 24, 2006, more than two years 

after the limitation period expired. And even if the one-year limitation period were tolled 

between October 24, 2006 and March 21, 2011 (from the date petitioner filed his second § 23-

110 motion to the date on which the 90-day period for filing a petition for a writ of certiorari 

with respect to his successive § 23-110 motion considered in conjunction with his IPA motion 

expired), the instant petition still is untimely. The one-year limitation period would have 

commenced on or about March 12, 2011, and expired on or about March 12, 2012.
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counsel.” Baisey v. Stansberry, No. 10-0352, 2013 WL 360024, at *2 (D.D.C. Jan. 30, 2013) 

(citing Martinez, 132 S. Ct. at 1319) (emphasis in original); see Trevino v. Thaler, __ U.S. __, 

__, 133 S. Ct. 1911, 1918 (2013) (finding procedural default excusable under Martinez where 

“state collateral review proceeding was the ‘initial’ review proceeding in respect to the 

‘ineffective-assistance-of-trial-counsel claim’”) (quoting Martinez, 132 S. Ct. at 1318-21)). 

Martinez simply does not apply to petitioner’s case. 

 Petitioner next invokes the doctrine of equitable tolling. See, e.g., Pet’r’s Resp. to the 

Gov’t’s Mot. to Dismiss Pet’r’s Pet. for Writ of Habeas Corpus [ECF No. 9] (“Pet’r’s Opp’n”) at 

3-6. Equitable tolling applies “only if [petitioner] shows (1) that he has been pursuing his rights 

diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely 

filing.” Holland v. Florida, 560 U.S. 631, ___, 130 S. Ct. 2549, 2562 (2010) (citation and 

internal quotation marks omitted). Even if the Court were to consider the “filings of motions for 

a new trial based on ineffective assistance of trail [sic] counsel in the D.C. Superior Court and 

the D.C. Court of Appeals . . . as diligence in pursuing his rights,” Pet’r’s Opp’n at 5, petitioner 

does not demonstrate, and the Court on its review of the petition cannot identify, any 

extraordinary circumstance that would have prevented him from pursuing habeas relief in federal 

court within the applicable time limit. 

 The record reflects that petitioner did not pursue an ineffective assistance of appellate 

counsel claim by moving to recall the mandate of the District of Columbia Court of Appeals. 

See Watson v. United States, 536 A.2d 1056, 1060 (D.C. 1987) (en banc) (holding that “motion 

in this court to recall the mandate is the appropriate avenue to take in presenting” ineffective 

assistance of appellate counsel claim). Only a petitioner who has moved to recall the mandate 

may proceed with an ineffective assistance of appellate counsel claim in this Court. See 
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Williams, 586 F.3d at 999; Page v. Holland, No. 13-37, 2013 WL 3830166, at *3 (E.D. Ky. July 

23, 2013) (dismissing “contention that his appellate counsel was ineffective for failing to argue 

on direct appeal that petitioner’s trial counsel was ineffective” because “[n]owhere in the habeas 

petition does petitioner indicate that he filed a motion to recall the mandate (i.e., a motion 

alleging ineffective assistance of appellate counsel) in the D.C. Court of Appeals”); Chase v. 

Rathman, 765 F. Supp. 2d 1, 3 (D.D.C. 2011) (finding that petitioner’s “apparent failure to seek 

recall of the mandate does not allow this court to entertain his petition, and it does not render his 

remedy in the District of Columbia Court of Appeals inadequate or ineffective”); see also 

Gonzalez v. Stone, __ F. Supp. 2d __, __, 2013 WL 5811775, at *1 (D.D.C. Oct. 25, 2013) 

(dismissing without prejudice as premature a habeas petition raising ineffective assistance of 

appellate counsel claim where petitioner’s motion to recall mandate had been filed but not yet 

decided). 

III. CONCLUSION 

 None of petitioner’s ineffective assistance of counsel claims is properly before this Court. 

His challenges to the effectiveness of trial counsel are matters properly addressed in the District 

of Columbia courts, and his challenge to the effectiveness of appellate counsel not only is timebarred but also is precluded by petitioner’s failure to move to recall the mandate of the District of 

Columbia Court of Appeals. Accordingly, the government’s motion to dismiss will be granted. 

An Order accompanies this Memorandum Opinion. 

DATE: November 14, 2013 ROBERT L. WILKINS 

United States District Judge