                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_______________________________________
                                       )
CHESTER WRIGHT,                        )
                                       )
            Petitioner,                )
                                       )
      v.                               )             Civil Action No. 09-2433 (CKK)
                                       )
PATRICIA STANSBERRY, Warden,           )
                                       )
            Respondent.                )
_______________________________________)


                                  MEMORANDUM OPINION

       Petitioner Chester Wright is a prisoner under criminal sentence by the Superior Court for

the District of Columbia. Confined at the Federal Correctional Complex in Petersburg, Virginia,

Wright has filed a habeas petition asserting that his remedy under D.C. Code § 23-110 is

ineffective and inadequate. The petition will be dismissed for lack of jurisdiction.

       Wright and several co-defendants were indicted on charges of premeditated murder,

conspiracy to commit murder and related crimes. Pet. at 1; Wright v. United States, 979 A.2d 26,

28 (D.C. 2009). After some co-defendants were tried and convicted in a separate trial, Wright

and one co-defendant were tried and convicted in 1997. Id. at 1, 4; Wright, 979 A.2d at 28.

Through appellate counsel, Wright appealed his conviction and sentence, and also collaterally

attacked them by motion under D.C. Code § 23-110 in June 2002, in which he alleged ineffective

assistance of counsel and prosecutorial misconduct. Id. at 1-2; Wright, 979 A.2d at 29. The trial

court denied relief on the § 23-110 motion. Id. at 2, Wright, 979 A.2d at 29. On direct criminal

appeal, the Court of Appeals for the District of Columbia affirmed the conviction but remanded
the case for re-sentencing, id.; Hammond v. United States, 880 A.2d 1066 (D.C. 2005)), and

Wright was re-sentenced on February 28, 2006. Id.

       On March 19, 2007, Wright filed a second motion under § 23-110, id., in which he

alleged “that the prosecutor had withheld material, exculpatory evidence under Brady v.

Maryland — specifically a transcript from the trial of Terry Pleasant (a co-defendant) and

information relating to Michael Tinch,” Wright, 979 A.2d at 29.1 Although Wright raises alleged

errors that date from his 1997 trial, he characterizes his second § 23-110 motion as an attack on

“the ‘fresh’ judgment” imposed February 28, 2006. Pet. at 3. He also argues that the grounds for

his motion were unknown to him until mid-2006. Wright contends that

       [t]he Superior Court denied relief because it was of the opinion that [Wright’s
       second § 23-110] motion was either second or successive or in any event
       procedurally barred. In reaching such a conclusion, the Superior Court contended
       that [Wright] had previously sought relief pursuant to D.C. Code § 23-110. On
       appeal the D.C. Court of Appeal affirmed the decision of the Superior Court. The
       findings by the two courts are clearly wrong and have made D.C. Code § 23-110
       inadequate or ineffective.




       1
          In his petition here, Wright alleges that the prosecutor used a “fraudulent photo array”
that included a 1993 photo of Pleasant, and that

       [t]his fraudulent photo [used in Pleasant’s trial] prejudiced [Wright] because at his
       trial, the fraudulent photo was alleged to be [Wright], even though the 1993 photo
       was never introduced into evidence. Kimberly Hays identified [Wright] only from
       that photo array; she was unable to identify him in court. Det[ective] Carl
       Gregory testified that he showed Kimberly Hayes the 1993 photo of Terry
       Pleasant in 1991. Det[ective] Carl Gregory also told a Superior court judge (in his
       affidavit in support of arrest warrant) that Kimberly Hayes selected Terry
       Pleasant’s photo of 1993 as the man who shot Ronald Richardson. Based on such
       information the Superior Court issued an arrest warrant, even though it was
       impossible for Ms. Hayes to have seen a 1993 photo in 1991. The foregoing
       information was never disclosed to [Wright] nor [sic] his attorney.

Pet. at 5. The petition does not adequately explain what prejudice is involved in the alleged
misconduct.

                                                -2-
Id. at 3. Relying on Ferriera v. Sec’y for the Dep’t of Corrections, 494 F.3d 1286 (11th Cir.

2007), Wright argues that he is

        entitled to file a first § 23-110 motion against the new judgment and commitment
        order requesting relief. This was the only statutory remedy available to [Wright].
        Since the local courts effectively made § 23-110 inadequate or ineffective,
        [Wright] is entitled to request relief under 28 U.S.C. § 2254 [sic].

Pet. at 3.

        Leaving aside the fatal flaws in Wright’s legal argument,2 Wright’s petition is based on

false factual predicates. That is, the petition misrepresents the facts in multiple respects.

Contrary to Wright’s assertion, see Pet. at 3, in fact, the Superior Court did not reject his second

§ 23-110 motion as successive, but denied it on the merits.

        The [trial] court denied the second motion without a hearing, ruling that appellant
        did not provide any factual support for his claims, and that he had failed to explain
        how the information which allegedly should have been disclosed was exculpatory
        or would undermine confidence in the jury's verdict.

Wright, 979 A.2d at 29. Moreover, and again contrary to Wright’s assertion, see Pet. at 3, the

Court of Appeals also rendered a decision on the merits. In its review of the trial court’s denial

of Wright’s second § 23-110 motion, the Court of Appeals found

        no error in the [trial] court’s denial of [Wright’s] second § 23-110 motion, which
        alleged that the prosecutor “intentionally suppressed exculpatory and
        impeachment evidence,” in violation of Brady v. Maryland. In the first place, the
        motion was procedurally barred as an abuse of the writ because appellant failed to
        meet the well-established “cause and prejudice” standard. Although he asserts
        that he did not receive or review the transcripts from Terry Pleasant’s trial until
        2006, and thus could not have raised these claims earlier, the record establishes
        that appellant’s trial counsel received the transcripts during the trial. Moreover,
        appellant raised claims relating to the testimony of Michelle Watson and Michael
        Tinch in his direct appeal. Thus appellant knew or should have known of his


        2
          Wright’s reliance on the case he cites is misguided. That case, and the decision in
Burton v. Stewart, 549 U.S. 147 (2007), cited and discussed therein, pertain specifically to the
one-year limitation period in 28 U.S.C. § 2244(d)(1) as it relates to state prisoners seeking
federal review under 28 U.S.C. § 2254. The provisions of 28 U.S.C. § 2244(d)(1) and§ 2254 do
not apply to persons convicted and sentenced in the Superior Court for the District of Columbia.

                                                 -3-
       Brady claims at the time his direct appeal was filed, and certainly by the time of
       his first § 23-110 motion, and he has not shown cause for his failure to raise them
       earlier. See Washington v. United States, 834 A.2d 899, 904 (D.C. 2003) (the fact
       that defendant did not receive materials from counsel did not constitute “cause”
       when defendant was present during trial and would be aware of errors as they
       occurred).

                Appellant also cannot show prejudice. None of the testimony from
       Pleasant’s trial exculpated appellant, who, at the very least, would still be
       implicated as part of the conspiracy. See Hammond [], 880 A.2d at 1106
       (evidence that appellant aided and abetted subjects him to liability). Thus the
       alleged Brady violations did not work to appellant’s actual disadvantage or infect
       his trial with error of constitutional dimensions. See Washington, 834 A.2d at
       902.

                Even if the motion were not procedurally barred, the [trial] court did not
       err in denying it on the merits because no Brady violation occurred. To establish
       a Brady violation, the defendant must show (1) that there was evidence favorable
       to him, (2) that it was suppressed or concealed by the prosecution, and (3) that
       prejudice resulted. Strickler v. Greene, 527 U.S. 263, 281-282 . . . (1999). To
       satisfy the prejudice requirement, the withheld evidence must be material. Id.
       at 280 . . . .

                In this case, the government did not suppress the materials or information
       on which appellant bases his claims. The transcripts from the Pleasant trial were
       supplied to defense counsel during appellant’s trial. Michelle Watson testified at
       the trial, so her testimony could not have been suppressed because appellant and
       his counsel were present, and counsel was able to cross-examine her about any
       inconsistencies in her testimony, or indeed about any subject at all that might have
       been relevant. Similarly, the government could not have suppressed Michael
       Tinch’s statement because it never possessed that document. “If the government
       does not possess the requested information, there can be no Brady violation.”
       Guest v. United States, 867 A.2d 208, 212 (D.C. 2005) (citations omitted).
       Furthermore, the court did not err in rejecting, for lack of factual support,
       appellant’s assertion that the government attempted to elicit false testimony
       because appellant proffered only an unsigned, undated “affidavit” purporting to be
       from Tinch. The court did not abuse its discretion when it found this document
       insufficient to prove that the prosecutor attempted to solicit perjury, nor was it an
       abuse of discretion to decline to hold a hearing on this issue. See Ready [v.
       United States], 620 A.2d [233,] 234 [(D.C. 1993)] (no hearing required for
       “palpably incredible” claims).

Wright, 979 A.2d at 31-32. It could not be more clear that Wright’s second § 23-110 motion was

entertained and decided on the merits in both the trial and appellate courts of the District of

Columbia, despite the fact that the courts could have treated his motion as procedurally barred.

                                                -4-
In addition, it could not be more clear that the courts of the District of Columbia found Wright’s

claims to be without merit.

       Denial of relief by the courts of the District of Columbia does not render inadequate or

ineffective the remedy provided by D.C. Code § 23-110. Garris v. Lindsay, 794 F.2d 722, 727

(D.C. Cir. 1986); Charles v. Chandler, 180 F.3d 753, 756-58 (6th Cir. 1999) (citing cases);

Wilson v. Office of the Chairperson, 892 F. Supp. 277, 280 (D.D.C. 1995). As Wright has failed

to show that his § 23-110 remedy was inadequate or ineffective, his petition will be dismissed for

want of jurisdiction.

       A separate order accompanies this memorandum opinion.


                                                              /s/
                                                     COLLEEN KOLLAR-KOTELLY
Date: January 7, 2010                                United States District Judge




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