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

____________________________________ ) VERNON NO RMAN EARL E, ) ) Petitioner, ) ) v. ) Civil Action No. 10-797 ( PL F) ) UNI TED STATES OF AMERI CA, ) ) Respondent. ) ____________________________________)
MEMORANDUM OPI

NI ON AND ORDER On September

9, 2011, the Court issued a Memora ndum Opinion and Orde r dismiss ing the petitioner’s pe tition for a writ of ha beas c orpus for la ck of subjec t matter jurisdiction. The petitioner has a ppeale d to the United States Court of Appea ls for the District of Columbi a Circuit. The c ourt of appe als has dire cted this Court to decide whether to issue a
cer tificate of appea lability . A ce rtificate of appe alability will be not be issued. “A c ertifica

te of a ppeala bility may issue . . . only

if the applica

nt has made a substantial showing of

the denial of

a constitutional rig ht.” 28 U.S.C. § 2253(c)( 2). “Where a district court has r ejec ted the constitutional claims on the merits,” to make such a showing , “[t] he petitioner must demonstrate that r easona ble jurists would find the district court’s a ssessment of the constitutional claims debatable or wrong .” Slack v . McD aniel , 529 U.S. 473, 484 (2000). “When the district cour

t denies a ha

beas pe tition on procedura l gr ounds without reac hing the prisoner’ s underlying c onstitut ional claim, a [cer tificate of appea lability ] shoul d issue when the prisoner shows, at least, that jurists of rea son would find it debatable whether the petition states avalid claim of the de nial of a c onstitut ional rig ht and that jurists of rea son would find it debatable

whether the district court wa s corr ect in its proce dural ruling .” Id. The de tention complained of in this case arises out of pr ocess issued by the Superior Court of the D istrict of Columbia. See Motion P ursuant to 28 U.S.C. § 2241, Habea s Corpus, to Vacate, Set Aside, and Corr ect Sentenc e, Pursuant to Violation of Six th Amendment Constitutional Rights, to Effe ctive Assistance of Appe als and Tr ial Counsel, Violation of 5th and 14th Amendment Due Proc ess and Equa l Protection of the L aw [Dkt. No. 1]. I t is settled that “whe n consideringa wr it of habea s corpus a prisoner of

the District of Columbia is considere d a State prisoner, when the pr isoner is held under a convic tion of the D.C. Superior Court.” Banks v. Smith , 377 F. Supp. 2d 92, 94 (D.D .C. 2005). The Court there fore evaluates whethe r a
cer tificate of appea lability

should issue under 28 U.S.C. § 2253(c) (1)( A). The Court dismissed the petitioner’s pe tition for a writ of ha beas c orpus on proce dural grounds, conc luding that the Court lac ked subjec t matter jurisdiction over the pe tition. Earle v. United States , No. 10-797, 2011 WL 4005327 (D.D.C. Sept. 9, 2011). Spec ifically , the Court held that a petitioner c halleng ing, in f eder al cour

t, detention arisingout of proce ss issued by the Superior Court of the District of Columbia could advanc e alleg ations of ineff ective assistance of appe llate counse l only if the petitioner f

irst exhausts s tate cour

t remedie s by
unsucce ssfully

appea ling his convic tion to the D.C. Court of Appeals and the n moving to re call the mandate of that cour

t, which this petitioner has not done. Id. at *3. The Court ther efor e conclude d that it lacked subjec t matter jurisdiction over the pe titioner’s claim of inef fec tive assistance of appe llate counse l. As to petitioner’s claim of ine ffe ctive assistanc e of tria l counsel, the petitioner simply

made no showingthat relief available in the courts of the District of
2Columbi a wa s inadequate or inef fec tive, as re quired unde r D.C. Code § 23-110. See Blair-Bey v

. Quick, 151 F.3d 1036, 1043 ( D.C. Cir. 1998).

For the fore g oing r easons, the Court doubts that re asonable jurists would find it debata ble whethe r this Court was corr ect in dismissing the pe tition for lack of subjec t matter jurisdiction. The Court theref ore w ill decline to issue a ce rtificate of appe alability . Acc ording ly , it is hereby ORDERED that a c ertificate of a ppeala bility shall not issue; and it is FURTHE R ORDERED that the Clerk of this Court shall transmit a copy of this Memorandum Opinion and O rder to the Clerk of the United States Court of Appea ls for the District of Columbia Circuit.

SO ORDERED.
/s/ PAULL . FRI EDMAN DATE: Oc tober 13, 2011 United States District J udg e

3