                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

JIHAD CHASE,                                   )
                                               )
                       Petitioner,             )
                                               )
        v.                                     )       Civil Action No. 11-0075 (RJL)
                                               )
JOHN RATHMAN,                                  )
                                               )
                       Respondent.             )

                                     MEMORANDUM OPINION

        Petitioner has been convicted of various felony offenses in the Superior Court of the

District of Columbia. See Pet. at 2. On direct appeal to the District of Columbia Court of

Appeals, the court affirmed in part and reversed in part. !d. at 3. 1 Petitioner also filed a motion

in the Superior Court under the Innocence Protection Act claiming actual innocence and

requesting a new trial; after an evidentiary hearing, the motion was denied on October 4, 20lO?

!d. at 3-4.

        According to petitioner, he is actually innocent of the crimes for which he was convicted,

and the prosecutor secured his conviction based on "unsubstantiated allegations" which

"inflam[ ed] the jurors' passions." Id. at 5. In addition, petitioner claims ineffective assistance of

both trial counsel and appellate counsel. See id. at 5-6.




              The Court of Appeals decided petitioner's appeal without a published opinion.
See Chase v. United States, 930 A.2d 267 (D.C. 2007) (table), cert. denied, 129 S. Ct. 185
(2008).

       2       A person convicted in the Superior Court "may move the court to vacate the
conviction or to grant a new trial on grounds of actual innocence based on new evidence." D.C.
Code § 22-4135(a).

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        Under District of Columbia law, a prisoner convicted and sentenced in the Superior Court

may file a motion in that court to vacate, set aside, or correct his sentence "upon the ground that

(1) the sentence was imposed in violation of the Constitution of the United States or the laws of

the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the

sentence was in excess of the maximum authorized by law, [or] (4) the sentence is otherwise

subject to collateral attack[.]" D.C. Code § 23-110(a). Although habeas relief in federal court is

available to a District of Columbia Code offender who "is in custody in violation of the

Constitution ... of the United States," 28 US.c. § 2241(c)(3), his habeas petition "shall not be

entertained by ... any Federal ... court ifit appears that the [petitioner] has failed to make a

motion for relief under [D.C. Code § 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."3 D.C. Code § 23-110(g); Byrd v. Henderson, 119 F.3d 34,36-37 (D.C. Cir. 1997)

(finding 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").

        Petitioner states that he has not filed a motion in the Superior Court under D.C. Code §

23-110 because appellate counsel "wrongly advised ... that he could not file" such a motion, and

as a result he "was foreclosed from seeking relief' under that provision. Pet. at 6. "It is the

inefficacy of the remedy, not a personal inability to utilize it, that is determinative." Garris v.

Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986). That petitioner may be barred procedurally from

filing a motion under D.C. Code § 23-110 does not render this local remedy inadequate or


        3      The phrase '''[r]emedy by motion' plainly refers to motions filed pursuant to
section 23-110(a)." Williams v. Martinez, 586 F.3d 995,998 (D.C. Cir. 2009), cert. denied, 130
S. Ct. 2073 (2010).

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ineffective. See id; see also Morton v. United States, No. 07-5253, 2008 WL 4726051, at *1

(D.C. Cir. June 12,2008) (denying request for certificate of appealability on the ground that

appellant "may not challenge his District of Columbia convictions in federal court unless his

remedy under D.C. Code § 23-110 is inadequate or ineffective to test the legality of his detention

... , and [t]he § 23-110 remedy ... is not considered inadequate or ineffective simply because the

requested relief has been denied").

       D.C. Code § 23-110 does not bar a District of Columbia Code offender from bringing in

federal district court a claim of ineffective assistance of appellate counsel. Williams v. Martinez,

586 F.3d 995, 998-99 (D.C. Cir. 2009), cert. denied, 130 S.Ct. 2073 (2010). In this case,

petitioner neither alleges that he has challenged the Superior Court's ruling on remand nor has

filed a motion in the District of Columbia Court of Appeals to recall its mandate. 4 His apparent

failure to seek recall of the mandate does not allow this court to entertain his petition, and it does

not render his remedy in the District of Columbia Court of Appeals inadequate or ineffective.

See Collier v. United States, No. 99-5120,1999 WL 1336229, at *1 (D.C. Cir. Dec. 15, 1999)

(per curiam) (concluding that a petitioner's "[ fJ ai lure to prevail in [the District of Columbia

Court of Appeals] does not render his local remedies inadequate or ineffective"), cert. denied,

529 U.S. 1118 (2000); Hunter v. Middlebrooks, No. 10-1621,2010 WL 3926075, at *2 (D.D.C.

Oct. 5,2010) ("[Petitioner's] failure to file a motion to recall the mandate does not render his


       4        The Superior Court cannot entertain a claim of ineffective assistance of appellate
counsel on a motion under D.C. Code § 23-110. Williams v. Martinez, 586 F.3d at 998. The
proper means for presenting a claim of ineffective assistance of appellate counsel is by motion in
the District of Columbia Court of Appeals to recall its mandate. Watson v. United States, 536
A.2d 1056,1060 (D.C. 1987); Wu v. United States, 798 A.2d 1083, 1090 (D.C. 2002) (stating
than an ineffective assistance of appellate claim "must be raised by filing a motion to rccall thc
mandate in the direct appeal").

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remedy in the District of Columbia Court of Appeals inadequate."); Briscoe v. Wagner, No.

10-0710,2010 WL 1904925, at *1 (D.D.C. May 5, 2010) (dismissing ineffective assistance of

appellate counsel claim where plaintiff did not allege that he had moved to recall the mandate);

Johnson v. Stansberry, No. 10-0178,2010 WL 358521, at *2 (D.D.C. Jan. 29,2010) (denying

habeas petition where petitioner "did not move to recall the mandate [and had] not exhausted his

local remedies").

        For these reasons, the petition for a writ of habeas corpus will be denied. An Order

accompanies this Memorandum Opinion.




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