                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
MELVIN BAISEY,                      )
                                    )
      Petitioner,                   )
                                    )
      v.                            )                Civil Action No. 10-0352 (PLF)
                                    )
PATRICIA R. STANSBERRY,             )
                                    )
      Respondent.                   )
____________________________________)


                          MEMORANDUM OPINION AND ORDER

               Petitioner Melvin Baisey’s petition for a writ of habeas corpus was dismissed for

lack of jurisdiction, see Order (Mar. 4, 2011) [Dkt. No. 11], and Mr. Baisey’s request for a

certificate of appealability was denied. See Order (July 13, 2011) [Dkt. No. 17]. Mr. Baisey then

sought a certificate of appealability from the court of appeals, which denied his request and

dismissed his appeal. See Order, Baisey v. Stansberry, No. 11-5006 (D.C. Cir. Feb. 29, 2012)

(“D.C. Cir. Order”) [Dkt. No. 26]. This action subsequently was reassigned to the undersigned

upon the retirement of the presiding judge.

               Still pending is Mr. Baisey’s motion under Rule 60(b) of the Federal Rules of

Civil Procedure for relief from the March 4, 2011 Order dismissing his habeas corpus petition for

lack of jurisdiction. See Motion for Relief from Judgment/Order (“Mot.”) [Dkt. No. 21]. Mr.

Baisey has filed a supplemental memorandum in support of that motion. See Memorandum of

Points & Authorities (“Mem.”) [Dkt. No. 27]. For the reasons explained below, the Court will

deny the motion.
                The habeas petition submitted by Mr. Baisey — who was convicted in 1976 of

first degree felony murder, armed robbery, and other offenses in the Superior Court of the

District of Columbia — is based on purported ineffectiveness of appellate counsel.

Memorandum Opinion at 1 (Mar. 4, 2011) [Dkt. No. 12]. The petition was dismissed for lack of

jurisdiction because Mr. Baisey failed to exhaust his local remedies, as required by 28 U.S.C.

§ 2254(c), by moving the District of Columbia Court of Appeals to recall its mandate, which is

the method for raising a claim of ineffective assistance of appellate counsel in the D.C. courts.

See id. at 3 (citing Williams v. Martinez, 586 F.3d 995 (D.C. Cir. 2009)).

                In his Rule 60(b) motion, Mr. Baisey contends that he attempted to file a motion

to recall the mandate with the District of Columbia Court of Appeals, but that he was informed

by the clerk that because his case was over thirty years old, there is no docket relating to his

direct appeal and therefore no action would be taken on his motion. Mot. at 1.

                Mr. Baisey presented the same argument to the D.C. Circuit as part of the briefing

on his request for a certificate of appealability, specifically calling the court’s attention to his

Rule 60(b) motion, which was already pending at the time. See Reply to Government’s

Opposition to Appellant’s Request for a Certificate of Appealability ¶¶ 1-6, Baisey v. Stansberry,

No. 11-5006 (D.C. Cir. Jan. 20, 2012). The appellate court rejected his argument, concluding

that he “has not shown that he exhausted his available remedies in the District of Columbia

courts,” and that he “fails to demonstrate any inability to seek relief in the District of Columbia

courts that was not caused by his own failure to file a timely motion to recall the mandate.” D.C.

Cir. Order at 1.




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                Because the court of appeals has rejected the precise argument that Mr. Baisey

advances in his Rule 60(b) motion, the Court concludes that he is not entitled to relief on the

basis of that argument.

                In his supplemental memorandum, Mr. Baisey contends that the Supreme Court’s

decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), entitles him to relief. Martinez held that

where a state allows a prisoner to raise a claim of ineffective assistance at trial only in a collateral

proceeding, and not on direct review, the prisoner’s pro se status can establish “cause” to excuse

his procedural default of that claim, a default that otherwise would bar federal habeas review

under Coleman v. Thompson, 501 U.S. 722 (1991). See Martinez v. Ryan, 132 S. Ct. at 1318.

By its terms, however, Martinez does not apply to Mr. Baisey’s situation, because he raises a

claim of ineffective assistance of appellate counsel. Id. at 1319 (explaining that Coleman’s

holding “remains true except as to initial-review collateral proceedings for claims of ineffective

assistance of counsel at trial”) (emphasis added). Martinez therefore offers no assistance to

Mr. Baisey.

                Accordingly, it is hereby

                ORDERED that the petitioner’s motion for relief under Rule 60(b) [Dkt. No. 21]

is DENIED.

                SO ORDERED.


                                                        /s/________________________
                                                        PAUL L. FRIEDMAN
DATE: January 30, 2013                                  United States District Judge




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