                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA




 JAMES RICHARDSON,

        Petitioner,
        v.                                                 Civil Action No. 09-1513 (HHK)
 D. BERKEBILE, Warden,

        Respondent.



                                  MEMORANDUM OPINION

       Petitioner James Richardson has filed a pro se petition for writ of habeas corpus. For the

reasons explained below, the petition will be dismissed for lack of jurisdiction.

                                       I. BACKGROUND

       Richardson is serving a 50-year term of imprisonment imposed by the Superior Court for

the District of Columbia in September 2003 after he was convicted by a jury of six counts of

armed robbery and other offenses. See Pet. at 2, ¶¶ 3, 4. Richardson exercised his right to a

direct criminal appeal and moved under Superior Court Rule of Criminal Procedure 35(b) to

reduce his sentence, neither of which afforded him the relief he sought. See Pet.’s Mem. at 4-5.

In addition, he moved under D.C. Code § 23-110 to vacate his sentence, arguing that the trial

court erred when it denied his motion to try each robbery count separately and that his trial

counsel’s representation was constitutionally defective. See Pet. at 3, ¶ 7. The motion under

§ 23-110 was denied, and his appeal therefrom was unsuccessful. See id.; see also Mem. in

Supp. of Pet. (“Pet.’s Mem.”) at 4.
       Here Richardson makes a new argument,1 “not presented in any other court because such

ground was not discovered until subsequent to the disposition of the proceedings in all other

courts. The ground does not qualify as new evidence under the rules of the District of

Columbia.” Pet. at 6, ¶ 9. He argues that because he “does not qualify for litigating a second and

successive motion under [§ 23-110],” and the “[a]pplicable statutes of limitation preclude the

petitioner from pursuing any other remedies at this time,” “a writ of habeas corpus is the only

remedy available to the petitioner to test the legality of his incarceration.” Pet.’s Mem. at 17.

                                          II. DISCUSSION

       Collateral challenges to sentences imposed by the District of Columbia Superior Court

must be brought in that court under D.C. Code § 23-110, which has been described as a remedy

that is “analogous to 28 U.S.C. § 2255 for prisoners sentenced in D.C. Superior Court who

wished to challenge their conviction or sentence.” Blair-Bey v. Quick, 151 F.3d 1036, 1042

(D.C. Cir. 1998) (§ 23-110 is exclusive remedy for such collateral challenges). A motion for

relief under § 23-110 “may be made at any time.” D.C. Code § 23-110(b). The District of

Columbia Superior Court Rules Governing Proceedings Under D.C. Code § 23-110 (“D.C.R.G.

23-110 P.”) provide that “[t]he motion shall specify all the grounds of relief which are available

to the movant and of which he has or, by the exercise of reasonable diligence, should have

knowledge.” D.C.R.G. 23-110 P. 2 (emphasis added). Because the movant is obligated to

specify all grounds for relief, “[t]he court shall not be required to entertain a second or successive

motion for similar relief on behalf of the same prisoner.” D.C. Code § 23-110(e). A second or

successive motion under § 23-110 may be entertained, but also


       1
          Richardson alleges that his counsel failed to insist upon argument and a decision
regarding a submitted motion in limine to exclude a firearm, and argues for the first time here
that such a failure constitutes constitutionally ineffective assistance of counsel. See id. at 5; see
also Pet.’s Mem. at 12-13.

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       may be dismissed if the judge finds that it fails to allege new or different grounds
       for relief and the prior determination was on the merits or, if new and different
       grounds are alleged, the judge finds that the failure of the movant to assert those
       grounds in a prior motion constituted an abuse of the procedure governed by these
       rules.

D.C.R.G. 23-110 P. 9(b).

       This Court is prohibited from entertaining a habeas petition from a prisoner under

Superior Court sentence bringing a collateral challenge to his conviction and sentence “if it

appears that the applicant has failed to make a motion for relief under [§ 23-110] or 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). “[T]he

Supreme Court [has] held that the [federal] District Court lacks jurisdiction to entertain a habeas

corpus petition attacking the constitutional validity of a Superior Court sentence, even after the

local remedy, if adequate and effective, has been pursued unsuccessfully.” Garris v. Lindsay,

794 F.2d 722, 726 (D.C. Cir. 1986) (citing Swain v. Pressley, 430 U.S. 372, 377-78 (1977)).

Generally,“[s]ection 23-110 has been found to be adequate and effective because it is coextensive

with habeas corpus.” Saleh v. Braxton, 788 F. Supp. 1232 (D.D.C. 1992).

              In determining whether the local remedy is ‘inadequate or ineffective,’
      we are guided by judicial interpretations of the statutory provisions enabling
      federal prisoners to challenge their convictions. The federal and local statutes
      are nearly identical in language, and functionally they are equivalent. The
      remedy now available to District of Columbia prisoners was patterned after
      that conferred upon federal prisoners, and both remedies are commensurate
      with habeas corpus. That judges of the Superior Court do not have the tenure
      and salary protection afforded federal judges does not call for a different
      conclusion. “[T]he judges of the Superior Court of the District of Columbia
      must be presumed competent to decide all issues, including constitutional
      issues, that routinely arise in the trial of criminal cases.”

Garris v. Lindsay, 794 F.2d at 726 (quoting Swain v. Pressley, 430 U.S. at 382-83) (footnotes

omitted). The mere denial of relief by the local courts does not render the local remedy



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inadequate or ineffective. See id. 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).

       Assuming without deciding that Richardson is correct that he does not qualify for

litigating a second and successive motion under § 23-110, and that the applicable statutes of

limitation preclude him from pursuing any other remedies at this time, he has not shown that a

motion under § 23-110 is inadequate and ineffective to test the legality of his confinement.

Rather than showing an infirmity in the local remedy, the record before this Court shows that

Richardson did not pursue all the grounds that were available to him with “the exercise of

reasonable diligence” when he made his first motion under § 23-110, D.C.R.G. 23-110 P. 2, and

as a result may have forfeited his opportunity to do so.2 The new grounds that he seeks now to

put before this Court for consideration were part of the record from the trial court and readily

discoverable long before his first § 23-110 motion was considered and denied. Therefore,

Richardson has not shown that a motion under § 23-110 is inadequate or ineffective to test the

legality of his conviction and detention.

                                        III. CONCLUSION

       Because the petitioner has not shown that a motion under § 23-110 is inadequate or

ineffective to test the legality of his conviction and detention, the habeas petition before this

Court must be dismissed for lack of jurisdiction. An separate final order dismissing this petition

accompanies this memorandum opinion.


                                                       Henry H. Kennedy, Jr.
Date: November 2, 2009                                 United States District Judge




       2
           The Court reiterates that it is not deciding, but only assuming, that Richardson is correct
that he is foreclosed from making a successive § 23-110 motion. See Pet.’s Mem. at 17.

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