                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

MELVIN BAISEY,                                  :
                                                :
               Petitioner,                      :       Civil Action No.:        10-0352 (RMU)
                                                :
               v.                               :       Re Document Nos.:        7, 10
                                                :
PATRICIA R. STANSBERRY,                         :
                                                :
               Respondent.                      :

                                    MEMORANDUM OPINION

                  GRANTING THE RESPONDENT’S MOTION TO DISMISS;
          DENYING AS MOOT THE PETITIONER’S MOTION TO BE RELEASED ON BAIL

                                       I. INTRODUCTION

       This matter is before the court on the respondent’s motion to dismiss petitioner Melvin

Baisey’s petition for a writ of habeas corpus. Because the court lacks jurisdiction, it grants the

respondent’s motion to dismiss. 1



                     II. FACTUAL & PROCEDURAL BACKGROUND

       In October 1976, the petitioner was sentenced for various offenses, including first-degree

murder and armed robbery, in the Superior Court of the District of Columbia. Pet., Mem. in

Supp. (“Petr’s Mem.”) at 1. The petitioner appealed to the District of Columbia Court of

Appeals, which affirmed the conviction in February 1978. Respt’s Mot. at 2.

       In March 2010, the petitioner filed this petition for a writ of habeas corpus based on the

purported ineffective assistance of his appellate counsel. See generally Pet. The petitioner has

not filed any post-conviction motions in the Superior Court of the District of Columbia, nor has



1
       Accordingly, the petitioner’s motion to be released on bail is denied as moot.
he filed a motion to recall the mandate with the District of Columbia Court of Appeals. Petr’s

Mem. at 2, 9.



                                            III.    ANALYSIS

    A. The Court Lacks Jurisdiction Over the Petitioner’s Claim of Ineffective Assistance of
                            Appellate Counsel on Direct Appeal

         The respondent argues that this court lacks jurisdiction because the petitioner has not

demonstrated that his local remedy under District of Columbia law – specifically, D.C. Code §

23-110 – is inadequate or ineffective. Respt’s Mot. at 9. The respondent points out that

ineffective assistance of trial counsel claims are routinely brought under D.C. Code § 23-110,

which has proven adequate in providing relief in similar circumstances. Id. at 11. 2

         The petitioner counters that § 23-110 is not available as a remedy for his ineffective

assistance of appellate counsel claim. 3 Pet. ¶ 9; Petr’s Mem. at 2. He adds that he is currently

unable to file a motion to recall the mandate for ineffective assistance of appellate counsel


2
         The respondent also argues that the petition is time-barred under the Anti-Terrorism and Effective
         Death Penalty Act of 1996 (“AEDPA”), which established a one-year statute of limitations on the
         filing of habeas petitions pursuant to 28 U.S.C. § 2254. See Respt’s Mot. at 6-9. Because the
         court determines it lacks jurisdiction in this case, it does not consider respondent’s arguments
         under the AEDPA.
3
         The court notes that, despite the petitioner’s clear articulation that his claim is based on the
         ineffectiveness of his appellate counsel, see Pet. ¶¶ 8.A, 9; Petr’s Mem. at 3-4, the respondent
         focuses almost its entire argument on why D.C. Code § 23-110 applies to the petitioner’s alleged
         ineffective assistance of trial counsel, Respt’s Mot. at 9-15. The respondent did not file a reply
         addressing the petitioner’s clarification that his claim was based on the alleged ineffectiveness of
         his appellate representation. See Petr’s Opp’n at 2 (stating that “[the p]etitioner directs the
         [c]ourt’s attention to the fact that his claim in his petition relates to ineffective assistance of
         appellate counsel. It does not relate to ineffective assistance of trial counsel as asserted by [the]
         respondent”). In fact, the petitioner is correct that D.C. Code § 23-110 is not an available vehicle
         to bring claims of ineffective assistance of appellate counsel. Williams v. Martinez, 586 F.3d 995,
         319 (D.C. Cir. 2009) (explaining that because “the [District of Columbia] Superior Court lacks
         authority to entertain a [§] 23-110 motion challenging the effectiveness of appellate counsel . . . §
         23-110 does not bar [the petitioner’s] habeas petition”).



                                                      2
because the District of Columbia Court of Appeals has not maintained a docket connected with

his direct appeal. Petr’s Mem. at 9.

       A petitioner may not seek a writ of habeas corpus in a federal court until he has

exhausted his local remedies. 28 U.S.C. § 2254(c). Under District of Columbia law, an

individual claiming ineffective assistance of appellate counsel may seek relief by moving the

District of Columbia Court of Appeals to recall its mandate. Williams v. Martinez, 586 F.3d 995,

998-99 (D.C. Cir. 2009); Watson v. United States, 536 A.2d 1056, 1060 (D.C. 1987). “[S]uch a

motion – filed directly in the D.C. Court of Appeals—is obviously not a ‘remedy by [section 23-

110] motion,’ which is filed in the D.C. Superior Court.” Williams, 586 F.3d at 998.

Nevertheless, “[i]n light of the exhaustion requirement of 28 U.S.C. § 2254(c),” before seeking

habeas relief, “the prisoner will first have to file a motion to recall the mandate with the [District

of Columbia Court of Appeals].” Id., at 1005 (Brown, J., concurring). As a result, “[n]o writ of

habeas corpus may be granted by this court unless [the petitioner] can show that ‘circumstances

exist that render’ the remedy by motion to recall the mandate ‘ineffective to protect [his] rights.’”

Branch-El v. United States, 2010 WL 737337, at *1 (D.D.C. Mar. 2, 2010) (quoting 28 U.S.C. §

2254(b)). This “remedy is not made ineffective or inadequate by a [petitioner’s] procedural

default in availing himself of it.” Id. (dismissing a habeas petition for lack of jurisdiction

because the petitioner’s motion to the District of Columbia Court of Appeals to recall its

mandate was denied as untimely); see also Collier v. United States, 1999 WL 1336229, at *1

(D.C. Cir. Dec. 15, 1999) (per curiam) (concluding that a petitioner’s “[f]ailure to prevail in [the

District of Columbia Court of Appeals] does not render his local remedies inadequate or

ineffective”).




                                                  3
       In this case, the petitioner failed to file a motion to recall the mandate, timely or

otherwise, with the District of Columbia Court of Appeals. See generally Petr’s Mem. Thus, the

petitioner had an available avenue for relief available to him in the District of Columbia Court of

Appeals regarding his claim of ineffective assistance of appellate counsel. Moreover, the

petitioner has not demonstrated any inability to seek relief before the District of Columbia Court

of Appeals that was not caused by his own failure to file a timely motion. See Branch-El, 2010

WL 737337, at *1. Because the petitioner failed to show that he lacked an effective remedy

under District of Columbia law as required by 28 U.S.C. § 2254(c), the court lacks jurisdiction

over his petition for a writ of habeas corpus.



                                      IV.    CONCLUSION

       For the foregoing reasons the court grants the respondent’s motion to dismiss and denies

as moot the petitioner’s motion to be released on bail. An Order consistent with this

Memorandum Opinion is separately and contemporaneously issued this 4th day of March, 2011.



                                                       RICARDO M. URBINA
                                                      United States District Judge




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