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FILED

SEP 15 2011

Clerk, U.S. District & Bankruptcy
Courts for the District ot Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Tyrone Briscoe,
Plaintiff,
v. Civil Action No.  lb.?;[
' c

Chief Judge Annice M. Wagner et al.,

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Defendants.

MEMORANDUM OPINION

This action, brought pro se, is before the Court on its initial review of the complaint,
which is accompanied by an application to proceed in forma pauperis. Because the instant
complaint presents claims that were or could have been raised in a previous action, the Court will
dismiss this action on the ground that it is procedurally barred.

Under the doctrine of res judicata, a final judgment on the merits in one action "bars any
further claim based on the same ‘nucleus of facts’ . . . ." Page v. United States, 729 F.2d 818,
820 (D.C. Cir, 1984) (quoting Expert Elec., Inc. v. Levl`ne, 554 F.2d l227, 1234 (D.C. Cir.
1977)). Res judicata bars the relitigation "of issues that were or could have been raised in [the
prior] action" by the same parties or their privies. Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir.
2002) (emphasis in original) (quoting Allen v. McCurry, 449 U.S. 9(), 94 (1980)); see I.A.M
Nat’l Pensz`on Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 949 (D.C. Cir. 1983) (noting that res
judicata "forecloses all that which might have been litigated previously"); accord Crowder v.
Bz'erman, Geesz`ng, and Ward LLC, 713 F. Supp. 2d 6, 10 (D.D.C. 20lO).

Plaintiff is a District of Columbia prisoner confined at the United States Penitentiary
McCreary in Pine Knot, Kentucky. Invoking 42 U.S.C. § 1983, plaintiff sues former Chief Judge

Annice M. Wagner of the District of Columbia Court of Appeals, former Assistant United States

Attorney ("AUSA") John Fisher, AUSA J ames Sweeney, and attorneys Kenneth A. Rosenau and
Susan H. Rosenau, both of whom were appointed in 2001 to represent the plaintiff in his criminal
appeal before the D.C. Court of Appeals. See Complaint ("Compl.") Attachment (Nov. 21, 2001
Order). ln addition, plaintiff sues the "Clerk, United States Court of Appeals," Compl. Caption,
who is identified in the body of the complaint as the "Chief Clerk" of the District of Columbia
Court of Appeals, Compl. at 6, alleging only that "individuals working as assistant clerk [sic]
discarded and destroyed motions file[d] by [plaintiff] in a timely fashion." Compl. at 5. Plaintiff
"seeks to have the original indictment dismissed [and] feel[s] strongly that he is entitled to obtain
his liberty." 1d. at 6.

The instant complaint presents the same claims that were raised, or could have been
raised, in the prior civil action dismissed on May 5, 2010. See Brz'scoe v. Wagner, Civ. Action
No. 10-07l0 (UNA) (D.D.C., May 5, 20l0) (Order and accompanying l\/Iemorandum Opinion
dismissing case pursuant to 28 U.S.C. § l9l5A(b)(1)). Therefore, this case will be dismissed

with prejudice.' A separate Order accompanies this Memorandum Opinion.

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September  , 2011 United States District Judge

' ln the dismissed action, the Court, in denying plaintiffs motion to reconsider, stated that
plaintiff was free to file a habeas corpus action after he had exhausted his local remedies.
Briscoe v. Wagner, Civ. Action No. 10-0710 (Order) [Dkt. # 8]; see also id. Mem. Op. [Dkt. # 3]
at 2 (concluding that the court lacked jurisdiction to entertain a habeas claim based on ineffective
assistance of appellate counsel when "plaintiff ha[d] not stated that he moved in the D.C. Court
of Appeals to recall the mandate[.]") (citing Willz`ams v. Martinez, 586 F.3d 995, 999 (D.C. Cir.
2009)). Presumably, the dismissal of this civil action does not foreclose plaintiff from seeking
habeas relief through a properly styled and supported petition under 28 U.S.C. § 2254, mindful of
the limited review that statute perrnits. See Williams, 586 F.3d at 1002 (remanding with
instructions for the district court "to consider the merits [of petitioner’s ineffective assistance of
appellate counsel claim] in light of the standard set forth in 28 U.S.C. § 2254.") (citations
omitted). Because the named defendants in this action are not proper respondents to a habeas
action, see 28 U.S.C. § 2243 ("[t]he writ, or order to show cause shall be directed to the person
having custody of the person detained"), the stated facts are sketchy, and plaintiff presumably is
not foreclosed from filing a habeas action, the C ourt does not find it in the interests of justice to
construe this action as brought in habeas.

