                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
MARCEL JOHNSON,                     )
                                    )
                  Petitioner,       )
                                    )
      v.                            )                       Civil Action No. 13-1934 (RC)
                                    )
ERIC D. WILSON,                     )
                                    )
                  Respondent.       )
___________________________________ )


                                 MEMORANDUM OPINION

       This matter is before the Court on Marcel Johnson’s Petition for a Writ of Habeas Corpus

by a Person in Custody in the District of Columbia. For the reasons discussed below, the petition

will be denied.

                                       I. BACKGROUND

       On September 10, 2010, in the Superior Court of the District of Columbia, a jury found

petitioner guilty of conspiracy and robbery. United States’ Opp’n to Pet’r’s Pet. for Writ of

Habeas Corpus (“Resp’t’s Opp’n”) at 5; Pet. at 2. The Superior Court sentenced petitioner to a

36-month term of imprisonment followed by a 3-year term of supervised release on the

conspiracy conviction, and sentenced him to a 120-month term of imprisonment followed by a

three-year term of supervised release for robbery. Resp’t’s Opp’n at 5. The sentences were to be

served concurrently to each other and consecutively to any other sentence. Id. Petitioner filed a

notice of appeal on December 23, 2010, and counsel was appointed to represent him before the

District of Columbia Court of Appeals. See Resp’t’s Opp’n, Ex. B (docket sheet, Johnson v.

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United States, No. 10-CF-1610 (D.C. Ct. of App. filed Dec. 23, 2010) at 2. The Court of

Appeals affirmed petitioner’s conviction on September 23, 2011, and issued its mandate on

October 28, 2011. Id., Ex. A (Judgment, Johnson v. United States, No. 10-CF-1610 (D.C. Ct. of

App. filed Sept. 23, 2011)); see id., Ex. B at 1.

       Petitioner, who then was proceeding pro se, filed a motion to recall the mandate, see id.,

Ex. C (Defendant’s Motion to Recall the Mandate Pursuant to D.C. App. R. 41(f)), which the

Court of Appeals denied on the merits, id., Ex. D (Order, Johnson v. United States, No. 10-CF-

1610 (D.C. Ct. of App. filed Oct. 25, 2012)). Undaunted, petitioner now seeks relief in federal

district court under 28 U.S.C. § 2254.

                                         II. DISCUSSION

                         A. Ineffective Assistance of Trial Counsel Claim

       According to petitioner, trial counsel rendered deficient performance by failing to file a

motion for a mistrial and a motion for a new trial after the jury’s verdict. Pet. at 5 (Ground

Three). Respondent argues that the ineffective assistance of trial counsel claim “must be

dismissed because the petitioner has not, and cannot, show that his remedy under . . . D.C. Code

§ 23-110 . . . is ‘adequate or ineffective.’” Resp’t’s Opp’n at 11.

       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

may be available to a District of Columbia offender who “is in custody in violation of the



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Constitution . . . of the United States,” 28 U.S.C. § 2241(c)(3), his habeas petition “shall not be

entertained by . . . any Federal . . . court if it appears that [he] 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.” 1 D.C. Code § 23-110(g); see Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir.

2009) (“Section 23-110(g)’s plain language makes clear that it only divests federal courts of

jurisdiction to hear habeas petitions by prisoners who could have raised viable claims pursuant to

section 23-110(a).”), cert. denied, 559 U.S. 1042 (2010); Byrd v. Henderson, 119 F.3d 34, 36

(D.C. Cir. 1997) (per curiam) (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 insists his direct appeal was the vehicle used to challenge [trial] counsel’s

effectiveness,” Pet.’s Reply at 5, but he has chosen the incorrect remedy. A District of Columbia

offender “seeking to collaterally attack his sentence must do so by motion in the sentencing court

– the Superior Court – pursuant to D.C. Code § 23-110,” Byrd, 119 F.3d at 36, and “a motion to

vacate sentence under section 23-110 is the standard means of raising a claim of ineffective

assistance of trial counsel,” Garmon v. United States, 684 A.2d 327, 329 n.3 (D.C. 1996)

(citation omitted). The local remedy is neither inadequate nor ineffective simply because

petitioner has not pursued it. See Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986) (“It is

the inefficacy of the remedy, not a personal inability to utilize it, that is determinative, and

appellant's difficulty here is simply that his circumstances preclude him from invoking it.”);


1
 The phrase “‘[r]emedy by motion’ plainly refers to motions filed pursuant to [§] 23-110(a).”
Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir. 2009), cert. denied, 559 U.S. 1042 (2010).


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Hopkins v. Anderson, No. 09-1179, 2009 WL 1873041, at *2 (D.D.C. June 29, 2009) (“The mere

denial of relief by the local courts does not render the local remedy inadequate or ineffective.”).

       Petitioner argues that, pursuant to Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309 (2012),

this Court can “entertain [the ineffective assistance of trial counsel] claim because petitioner was

not appointed counsel to file a collateral motion pursuant to D.C. Code § 23-110.” Pet. at 5.

Again, petitioner is mistaken. Martinez applies only “where state procedural law said that

‘claims of ineffective assistance of trial counsel must be raised in an initial-review collateral

proceeding,’” Trevino v. Thaler, __ U.S. __, __, 133 S. Ct. 1911, 1914-15 (2013) (citing

Martinez, 132 S. Ct. at 1320) (emphasis removed), and a District of Columbia offender “is not so

constrained,” see Richardson v. United States, 999 F. Supp. 2d 44, 49 (D.D.C. 2013). Moreover,

a prisoner “lack[s] a constitutional entitlement to effective assistance of counsel in state

collateral proceedings.” Williams, 586 F.3d at 1001.

                       B. Ineffective Assistance of Appellate Counsel Claim

       A District of Columbia prisoner “who challenge[s] the effectiveness of appellate counsel

through a motion to recall the mandate in the [District of Columbia] Court of Appeals will get a

second bite at the apple in federal court . . . under the standard set forth in 28 U.S.C.

§ 2254.” Coleman v. Ives, 841 F. Supp. 2d 333, 335 (D.D.C. 2012) (internal quotation marks

and citations omitted). In relevant part, § 2254 provides:

               An application for a writ of habeas corpus on behalf of a person in
               custody pursuant to the judgment of a State court shall not be
               granted with respect to any claim that was adjudicated on the
               merits in State court proceedings unless the adjudication of the
               claim—
               (1) resulted in a decision that was contrary to, or involved an
               unreasonable application of, clearly established Federal law, as
               determined by the Supreme Court of the United States; or


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               (2) resulted in a decision that was based on an unreasonable
               determination of the facts in light of the evidence presented in the
               State court proceeding.

28 U.S.C. § 2254(d). A federal court does not grant a habeas petition unless it appears that:

               (A) the applicant has exhausted the remedies available in the courts
               of the State; or
               (B) (i) there is an absence of available State corrective process; or
               (ii) circumstances exist that render such process ineffective to
               protect the rights of the applicant.

Id. § 2254(b)(1).

       An individual convicted in and sentenced by the Superior Court of the District of

Columbia is considered a state prisoner for purposes of § 2254. See Smith v. United States, No.

00-5181, 2000 WL 1279276, at *1 (D.C. Cir. Aug. 23, 2000) (per curiam) (A “conviction in the

Superior Court of the District of Columbia is considered a state court conviction under federal

habeas law,” and a challenge to a Superior Court conviction is “properly brought under 28

U.S.C. § 2254.”).

       “Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) .

. . impose[d] a 1-year period of limitation on motions brought under [28 U.S.C. § 2255].” United

States v. Saro, 252 F.3d 449, 251 (D.C. Cir. 2001) (citation omitted). And “[c]ourts have

generally applied the same analysis to the time limitations in § 2254 and § 2255.” United States

v. Cicero, 214 F.3d 199, 203 n.* (D.C. Cir. 2000) (citations omitted). The limitation period for

the filing of a petition under § 2254 is set forth in § 2244. See Wright v. Wilson, 930 F. Supp. 2d

7, 9 (D.D.C. 2013). It runs from the latter of four possible dates:

                      (A) the date on which the judgment became final by the
               conclusion of direct review or the expiration of the time for
               seeking such review;
                      (B) the date on which the impediment to filing an
               application created by State action in violation of the Constitution

                                                 5
                or laws of the United States is removed, if the applicant was
                prevented from filing by such State action;
                         (C) the date on which the constitutional right asserted was
                initially recognized by the Supreme Court, if the right has been
                newly recognized by the Supreme Court and made retroactively
                applicable to cases on collateral review; or
                         (D) the date on which the factual predicate of the claim or
                claims presented could have been discovered through the exercise
                of due diligence.

28 U.S.C. § 2244(d)(1). Petitioner does not assert that any of the provisions of § 2244(d)(1)(B)-

(D) apply in this case, nor does it appear to the Court that he could successfully make any such

assertion. Where, as here, a petitioner does not file a petition for a writ of certiorari, “his state-

court judgment becomes final ‘when the time for filing a certiorari petition expires,’” Davis v.

Cross, 774 F. Supp. 2d 62, 65 (D.D.C. 2011) (citing Clay v. United States, 537 U.S. 522, 527

(2003)), that is, 90 days after the state court judgment, see S. Ct. R. 13(1) (setting 90-day

deadline for filing a petition for writ of certiorari).

        The Court of Appeals affirmed petitioner’s conviction on September 23, 2011, and the

time for filing a petition for a writ of certiorari expired 90 days later, on December 22, 2011.

Accordingly, the time for filing a § 2254 petition in this Court expired one year later, on

December 22, 2012 (or the next business day, Monday, December 24, 2012). Petitioner filed his

petition on October 3, 2013, nearly 10 months after the limitations period expired. 2

        Petitioner attempts to avoid the time limitation by arguing his actual innocence. See

Pet’r’s Reply at 5. “[A]ctual innocence, if proved, serves as a gateway through which a

petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of the


2
   Petitioner signed his petition on October 3, 2013. See Pet. at 7. The Clerk of Court received
the petition on October 15, 2013, and officially entered the petition on the Court’s electronic
docket on December 5, 2013. See id. at 1. Both the respondent, see Resp’t’s Opp’n at 7, and the
Court treat the petition as if it were filed on October 3, 2013.
                                                    6
statute of limitations.” McQuiggen v. Perkins, __ U.S. __, __, 133 S. Ct. 1924, 1928 (2013). In

this case, his “underlying claim of ineffective assistance of appellate counsel . . . is . . . based on .

. . wholly different issues that were not presented to the [Court of Appeals] in [his motion to]

recall [the] mandate,” Mackall v. Wilson, __ F. Supp. 2d __, __, 2014 WL 1272740, at *3

(D.D.C. Mar. 29, 2014), and because the 180-day period for the filing of a motion to recall the

mandate has expired, see D.C. App. R. 41(f), petitioner is procedurally barred from raising

ineffective assistance of appellate counsel claims that differ from those presented to the Court of

Appeals, see id.; Richardson v. Stephens, No. 11-5004, 2011 WL 8363538, at *1 (D.C. Cir.

2011) (per curiam). And petitioner cannot overcome this procedural bar because he neither

“demonstrate[s] cause for the default and actual prejudice as a result of the alleged violation of

federal law, [nor] demonstrate[s] that failure to consider the claims will result in a fundamental

miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

                                         III. CONCLUSION


        The Court concludes that the claims raised in the petition for a writ of habeas corpus are

either time-barred, not properly raised in this court, or procedurally defaulted. Accordingly, the

Court will deny the petition and dismiss this civil action. An Order is issued separately.


                                                        /s/
                                                        RUDOLPH CONTRERAS
                                                        United States District Judge

DATE: November 5, 2014




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