                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
LESTER CHEW,                        )
                                    )
               Petitioner,          )
                                    )
            v.                      ) Civil Action No. 11-1310 (RCL)
                                    )
R. IVES,                            )
                                    )
               Respondent.          )
____________________________________)


                                  MEMORANDUM OPINION

       Petitioner, proceeding pro se, seeks issuance of a writ of habeas corpus pursuant to 28

U.S.C. § 2241, but he is challenging the District of Columbia Court of Appeals’ (“DCCA”)

summary denial of his motion to recall the mandate. Respondent moves to dismiss this action as

untimely under 28 U.S.C. § 2244(d)(1) and for lack of jurisdiction. Because the gravamen of the

petition is a challenge to the DCCA’s summary decision, this Court, lacking jurisdiction to

review such a claim, will grant respondent’s motion to dismiss under Rule 12(b)(1) of the

Federal Rules of Civil Procedure and will dismiss this action without prejudice.

                                       I. BACKGROUND

       Petitioner is currently confined at the United States Penitentiary in Pine Knot, Kentucky.

He is serving an aggregate prison sentence of 1 to 51 years imposed by the Superior Court of the

District of Columbia on May 2, 2003, for second degree murder while armed and related counts.

See Resp’t’s Mot. to Dismiss the Pet. for Writ of Habeas Corpus, Ex. 2 (Judgment); Ex. 3 (Chew

v. United States of America, No. 03-CF-649, Brief for Appellant filed in the District of Columbia

Court of Appeals at 1-2). Following his jury trial and conviction, petitioner filed a timely notice
of appeal, but “[p]rior to proceeding on appellate review the petitioner filed a collateral attack

motion pursuant to D.C. Code § 23-110, before the sentencing court.” Mem. of P. & A. in

Support [of] Pet. for Writ of Habeas Corpus (“Pet.’r’s Mem.”) at 2. The § 23-110 motion was

denied on October 19, 2006, and petitioner noticed his appeal of that decision. Id. “Thereafter,

the [DCCA] affirmed the petitioner[’s] appeal.” Id. Petitioner then “sought relief by filing [a]

motion to Recall the Mandate asserting that his appellate counsel was [sic] ineffective assistance

of counsel.” Id. &. Ex. A. The DCCA summarily denied petitioner’s recall motion on February

6, 2008. Id. & Ex. B. Petitioner filed this action on July 18, 2011.

                                        II. DISCUSSION

       The extraordinary writ of habeas corpus is available to District of Columbia prisoners if

the petitioner shows that he is “in custody in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2241(c)(3). Section 2241 is reserved, however, for claims arising

out of the execution of a sentence not, as presented here, the imposition of a sentence. See

generally Blair-Bey v. Quick, 151 F.3d 1036, 1042-43 (D.C. Cir. 1998). Furthermore, this Court

would lack jurisdiction over petitioner’s claims brought under § 2241 because "a district court

may not entertain a habeas petition involving present physical custody unless the respondent

custodian is within its territorial jurisdiction," Stokes v. U.S. Parole Com’n, 374 F.3d 1235, 1239

(D.C. Cir. 2004), and petitioner’s warden is in Pine Knot, Kentucky. See Rooney v. Sec’y of

Army, 405 F.3d 1029, 1032 (D.C. Cir. 2005) (habeas “jurisdiction is proper only in the district in

which the immediate, not the ultimate, custodian is located") (internal citations and quotation

marks omitted).




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        Nevertheless, a collateral challenge to a Superior Court sentence, such as underlies this

action, must be brought in the Superior Court under D.C. Code § 23-110. See Blair-Bey, 151

F.3d at 1042 (explaining that § 23-110 is the exclusive remedy for such challenges). And “[a]n

application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief

by motion [under § 23-110] shall not be entertained by . . . any Federal . . . court if it appears . . .

that the Superior Court has denied him relief, unless it also appears that the remedy by motion is

inadequate or ineffective to test the legality of his detention.” D.C. Code § 23-110(g). It is

settled that unlike other prisoners convicted in state courts or those convicted in a United States

district court, “District of Columbia prisoner[s] ha[ve] no recourse to a federal judicial forum

unless [it is shown that] the local remedy is inadequate or ineffective to test the legality of his

detention.” Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986) (internal footnote and

quotation marks omitted); see Byrd v. Henderson, 119 F.3d 34, 36-37 (D.C. Cir. 1997) (“In order

to collaterally attack his sentence in an Article III court a District of Columbia prisoner faces a

hurdle that a federal prisoner does not.”). The mere denial of relief by the local courts does not

render the local remedy inadequate or ineffective. Garris, 794 F.2d at 727; 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).

        Petitioner states that he is entitled to the writ because “the appellate remedy of D.C. Code

23-110 failed to give[] the petitioner a factfinding [sic] and conclusion of law pertaining to his

claims raised before the appellate court.” Pet.’r’s Mem. at 3; see id. at 5 (“The question before

this court is whether [a thorough review and independent analysis of petitioner’s pleadings] took

place” in the DCCA). However, this Court is not a reviewing court and, therefore, lacks



                                                   3
jurisdiction to review the DCCA’s summary denial of petitioner’s motion to recall the mandate.

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983) (“Review of such

determinations can be obtained only in [the Supreme Court]”) (citing 28 U.S.C. § 1257); see 28

U.S.C. §§ 1331, 1332 (general jurisdictional provisions); Fleming v. United States, 847 F. Supp.

170, 172 (D.D.C. 1994), cert. denied 513 U.S. 1150 (1995). Hence, this case will be dismissed

without prejudice.1



                                             __________s/_______________
                                             Chief Judge Royce C. Lamberth
                                             United States District Court
Date: May 7, 2012




       1
          Because the ineffectiveness of appellate counsel is not a claim available to District of
Columbia prisoners under § 23–110, “D.C. prisoners who challenge the effectiveness of appellate
counsel through a motion to recall the mandate in the D.C. Court of Appeals [may] get a second
bite at the apple in federal court[,]” Williams v. Martinez, 586 F.3d 995, 1000 (D.C. Cir. 2009),
under the standard for reviewing habeas claims pursuant to 28 U.S.C. § 2254. Id. at 1002.
Petitioner has stated no facts in the instant petition to support an ineffective assistance of
appellate counsel claim; thus, the Court will not recharacterize his § 2241 petition as one for
relief under § 2254, of which petitioner must be forewarned and allowed to amend or withdraw
the petition. See Castro v. United States, 540 U.S. 375, 382-83 (2003). Furthermore, the Court
will not render what would amount to an advisory opinion on respondent’s nonjurisdictional
argument that the instant petition is untimely under 28 U.S.C. § 2244(d)(1). See Holland v.
Florida, 130 S.Ct. 2549, 2560 (2010) (“[W]e hold that § 2244(d) is subject to equitable tolling in
appropriate cases.”) (citations omitted); Payne v. Stansberry, 800 F. Supp, 2d 251, 258 (D.D.C.
2011) (rejecting government’s untimeliness claim under “either the statutory date of when the
impediment was removed [by the Williams decision] or principles of equitable tolling”).

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