                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


(Chief) Michael S. Owl Feather-Gorbey,                                               FILED
Petitioner Below, Petitioner                                                      April 15, 2019
                                                                                EDYTHE NASH GAISER, CLERK
vs) No. 17-0931 (Preston County 17-C-79)                                        SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

State of West Virginia;
Superintendent USP Hazelton;
Superintendent/Administrator WV
Regional Jails,
Respondents Below, Respondents


                               MEMORANDUM DECISION
       Petitioner (Chief) Michael S. Owl Feather-Gorbey, pro se, appeals the August 29, 2017,
order of the Circuit Court of Preston County dismissing his petition for a writ of habeas corpus.
Respondent State of West Virginia (“the State”), by counsel Scott E. Johnson, filed a summary
response in support of the circuit court’s order. Petitioner filed a reply.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        Petitioner is incarcerated by the Federal Bureau of Prisons (“BOP”) for convictions that he
received in the District of Columbia, including possession of an unregistered firearm, use and/or
transportation of explosives for an unlawful purpose, and attempted manufacture of a weapon of
mass destruction. See Gorbey v. United States, 54 A.3d 668, 699-707 (D.C. 2012). The BOP has
custody of petitioner pursuant to District of Columbia Official Code (“D.C. Code”) § 24-101(a),
which provides, in pertinent part, that “any person who has been sentenced to incarceration
pursuant to the [D.C. Code] . . . shall be designated by the [BOP] to a penal or correctional facility
operated or contracted for by the [BOP], for such term of imprisonment as the court may direct.”
D.C. Code § 24-101(a) further provides that “[s]uch persons shall be subject to any law or
regulation applicable to persons committed for violations of laws of the United States consistent
with the sentence imposed.”
                                                  1
       In 1970, Congress enacted D.C. Code § 23-110 to establish “a procedure for collateral
review of convictions in the Superior Court [of the District of Columbia].” Swain v. Pressley, 430
U.S. 372, 375 (1977); see Boumediene v. Bush, 553 U.S. 723, 775 (2008). In Swain, the Supreme
Court rejected a challenge to D.C. Code § 23-110 under the Suspension Clause of the United States
Constitution, finding that § 23-110 provided an effective substitute procedure to District of
Columbia prisoners, who previously filed habeas petitions in federal courts to challenge their
convictions. 430 U.S. at 384.1 D.C. Code § 23-110(g) provides, in pertinent part, as follows:

       [a]n application for a writ of habeas corpus in behalf of a prisoner who is authorized
       to apply for relief by motion pursuant to this section shall not be entertained by the
       Superior Court or by any Federal or State court if it appears that the applicant has
       failed to make a motion for relief under this section or that the Superior Court has
       denied him relief[2].

(Emphasis added.).

         On June 22, 2017, petitioner filed a petition for a writ of habeas corpus in the Circuit Court
of Preston County, West Virginia, attacking the convictions affirmed by the District of Columbia
Court of Appeals in Gorbey and raising claims against the BOP. Petitioner argued that the BOP
miscalculated his discharge date as June 8, 2027, and improperly accepted the filing of a detainer
against petitioner by the Commonwealth of Virginia. Petitioner further argued that the circuit court
had jurisdiction to consider his claims because, at the time that he filed his petition, the BOP was
holding him at United States Penitentiary, Hazelton (“USP Hazelton”), which is located in Preston
County. Petitioner and the State agree that the BOP is no longer holding petitioner within West
Virginia territory. According to petitioner, the BOP currently holds him at a federal correctional
institution in Cumberland, Maryland.

        On August 28, 2017, the State filed a motion to dismiss petitioner’s habeas petition, arguing
that the circuit court lacked jurisdiction to consider his claims. By order entered August 29, 2017,
the circuit court found that, as a West Virginia state court, it did not have jurisdiction over
petitioner’s claims and dismissed his petition.


       1
         The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Id. at 379-80 (quoting U.S. Const. article I, § 9, cl. 2).
       2
         D.C. Code § 23-110(g) includes a savings clause, pursuant to which a habeas petitioner
may seek relief in federal district court if the remedy provided under D.C. Code § 23-110 is
inadequate or ineffective. See Gorbey v. United States, 55 F.Supp.3d 98, 103 (D.D.C. 2014)
(denying habeas petition filed by petitioner pursuant to 28 United States Code § 2254, explaining
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”) (Internal quotations and
citations omitted.); Swain, 430 U.S. at 381 (finding that D.C. Code § 23-110(g)’s savings clause
precludes “any serious question about the constitutionality of the statute”).
                                                  2
        Petitioner now appeals the circuit court’s August 29, 2017, order dismissing the petition
for a lack of jurisdiction. We apply the following standard of review in habeas appeals:

               “In reviewing challenges to the findings and conclusions of the circuit court
       in a habeas corpus action, we apply a three-prong standard of review. We review
       the final order and the ultimate disposition under an abuse of discretion standard;
       the underlying factual findings under a clearly erroneous standard; and questions
       of law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va.
       417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, of Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).

        On appeal, petitioner argues that the circuit court had jurisdiction to consider his claims
because, at the time that he filed his habeas petition, the BOP was holding him at USP Hazelton
in Preston County. The State notes that the BOP no longer holds petitioner within West Virginia
territory and argues that the circuit court never had jurisdiction over petitioner’s claims because
he is in the custody of the BOP, a federal agency, pursuant to a sentence imposed by the Superior
Court of the District of Columbia. We agree with the State. In Cline v. Mirandy, 234 W.Va. 427,
432-33, 765 S.E.2d 583, 588-89 (2014), we found that a habeas petitioner must be “incarcerated”
within the meaning of the West Virginia Post-Conviction Habeas Corpus Act, West Virginia Code
§§ 53-4A-1 to -11, in order to “vest[ ] the circuit court with subject matter jurisdiction” over his
petition. (citing State ex rel. Richey v. Hill, 216 W.Va. 155, 160-61, 603 S.E.2d 177, 182-83
(2004)).3 Here, petitioner is not incarcerated by the State of West Virginia. Therefore, based on
our review of the record, we conclude that the circuit court did not err in dismissing petitioner’s
habeas petition for a lack of jurisdiction. See Syl. Pt. 1, Hinkle v. Bauer Lumber & Home Bldg.
Center, Inc., 158 W.Va. 492, 211 S.E.2d 705 (1975) (holding that “[w]henever it is determined
that a court has no jurisdiction to entertain the subject matter of a civil action, the forum court must
take no further action in the case other than to dismiss it from the docket”).

        For the foregoing reasons, we affirm the circuit court’s August 29, 2017, order dismissing
petitioner’s petition for a writ of habeas corpus.

                                                                                            Affirmed.

ISSUED: April 15, 2019

       3
         See also Ableman v. Booth, 62 U.S. (21 How.) 506, 515-16 (1858) (finding that “no State
can authorize one of its judges or courts to exercise judicial power, by habeas corpus or otherwise,
within the jurisdiction of another and independent Government”); In re Tarble, 80 (13 Wall.) U.S.
397, 411-12 (1872) (holding a state court has no power to issue a writ of habeas corpus to discharge
a petitioner within the custody of the United States Army); Special Pros. of State of New York v.
U.S. Atty. for Southern Dist. of New York, 375 F. Supp. 797, 804 (S.D.N.Y. 1974) (finding that,
“[s]ince Ableman and Tarble, there has been no serious challenge to the principle that state courts
possess no power to remove a person from the jurisdiction of federal courts or agencies by writ of
habeas corpus”).
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CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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