                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
VERNON NORMAN EARLE,                )
                                    )
      Petitioner,                   )
                                    )
      v.                            )                  Civil Action No. 10-797 (PLF)
                                    )
UNITED STATES OF AMERICA,           )
                                    )
      Respondent.                   )
____________________________________)


                           MEMORANDUM OPINION AND ORDER

               On September 9, 2011, the Court issued a Memorandum Opinion and Order

dismissing the petitioner’s petition for a writ of habeas corpus for lack of subject matter

jurisdiction. The petitioner has appealed to the United States Court of Appeals for the District of

Columbia Circuit. The court of appeals has directed this Court to decide whether to issue a

certificate of appealability. A certificate of appealability will be not be issued.

               “A certificate of appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a

district court has rejected the constitutional claims on the merits,” to make such a showing, “[t]he

petitioner must demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

“When the district court denies a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claim, a [certificate of appealability] should issue when the

prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id.

               The detention complained of in this case arises out of process issued by the

Superior Court of the District of Columbia. See Motion Pursuant to 28 U.S.C. § 2241, Habeas

Corpus, to Vacate, Set Aside, and Correct Sentence, Pursuant to Violation of Sixth Amendment

Constitutional Rights, to Effective Assistance of Appeals and Trial Counsel, Violation of 5th and

14th Amendment Due Process and Equal Protection of the Law [Dkt. No. 1]. It is settled that

“when considering a writ of habeas corpus a prisoner of the District of Columbia is considered a

State prisoner, when the prisoner is held under a conviction of the D.C. Superior Court.” Banks

v. Smith, 377 F. Supp. 2d 92, 94 (D.D.C. 2005). The Court therefore evaluates whether a

certificate of appealability should issue under 28 U.S.C. § 2253(c)(1)(A).

               The Court dismissed the petitioner’s petition for a writ of habeas corpus on

procedural grounds, concluding that the Court lacked subject matter jurisdiction over the petition.

Earle v. United States, No. 10-797, 2011 WL 4005327 (D.D.C. Sept. 9, 2011). Specifically, the

Court held that a petitioner challenging, in federal court, detention arising out of process issued

by the Superior Court of the District of Columbia could advance allegations of ineffective

assistance of appellate counsel only if the petitioner first exhausts state court remedies by

unsuccessfully appealing his conviction to the D.C. Court of Appeals and then moving to recall

the mandate of that court, which this petitioner has not done. Id. at *3. The Court therefore

concluded that it lacked subject matter jurisdiction over the petitioner’s claim of ineffective

assistance of appellate counsel. As to petitioner’s claim of ineffective assistance of trial counsel,

the petitioner simply made no showing that relief available in the courts of the District of


                                                  2
Columbia was inadequate or ineffective, as required under D.C. Code § 23-110. See Blair-Bey v.

Quick, 151 F.3d 1036, 1043 (D.C. Cir. 1998).

               For the foregoing reasons, the Court doubts that reasonable jurists would find it

debatable whether this Court was correct in dismissing the petition for lack of subject matter

jurisdiction. The Court therefore will decline to issue a certificate of appealability. Accordingly,

it is hereby

               ORDERED that a certificate of appealability shall not issue; and it is

               FURTHER ORDERED that the Clerk of this Court shall transmit a copy of this

Memorandum Opinion and Order to the Clerk of the United States Court of Appeals for the

District of Columbia Circuit.

               SO ORDERED.


                                                  /s/
                                                  PAUL L. FRIEDMAN
DATE:     October 13, 2011                        United States District Judge




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