                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
ANTONIO DUPREE REED,                      )
                                          )
       Petitioner,                        )
                                          )
              v.                          )                    Case No. 17-cv-00379 (APM)
                                          )
J.E. THOMAS,                              )
                                          )
       Respondent.                        )
_________________________________________ )

                                  MEMORANDUM OPINION

I.     INTRODUCTION

       Petitioner Antonio Dupree Reed filed a petition for writ of habeas corpus under 28 U.S.C.

§ 2254, seeking to vacate his 2007 conviction in the Superior Court of the District of Columbia for

first-degree murder. Petitioner claims that he is entitled to such relief for three reasons: (1) he was

denied the right to effective assistance of trial counsel; (2) his Confrontation Clause rights were

violated by the admission of certain out-of-court statements that were not subject to meaningful

cross-examination; and (3) his due process rights were violated when the District of Columbia

courts failed to consider the cumulative effect of the errors committed at trial and in collateral

proceedings.

       Before the court is Respondent’s Motion to Dismiss for lack of subject matter jurisdiction.

Respondent asserts that D.C. Code § 23-110 divests this court of jurisdiction to hear Petitioner’s

three claims. Section 23-110 provides that a prisoner convicted in the Superior Court of the

District of Columbia may raise a collateral challenge to his sentence by motion in that court, see

D.C. Code § 23-110(a), but may not petition for a writ of habeas corpus “unless it . . . appears that
the remedy by motion is inadequate or ineffective to test the legality of his detention,” id. § 23-

110(g). For the reasons stated below, the court finds that it lacks jurisdiction to hear the habeas

petition because the remedy under D.C. Code § 23-110 is neither inadequate nor ineffective to test

the legality of Petitioner’s detention. Accordingly, the court grants Respondent’s Motion to

Dismiss.

II.     BACKGROUND

        In 2006, Petitioner was indicted in the Superior Court of the District of Columbia

(“D.C. Superior Court”) on charges of first-degree murder while armed, assault with intent to kill

while armed, and two counts of possession of a firearm during the commission of a crime of

violence. See Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State

Custody, ECF No. 1 [hereinafter Pet.], Ex. G, Appellant’s Br. 4/9/09, ECF No. 1-15 [hereinafter

Pet. Ex. G], at 2; Pet., Ex. A, Trial Ct. Order 6/10/14, ECF No. 1-9, at 1. These charges arose out

of a 2005 shooting that occurred at gas station in Washington, D.C., which resulted in the death of

Dwayne James. Pet., Mem. of Law in Support of Pet. for Writ of Habeas Corpus, ECF No. 1-8

[hereinafter Mem. in Support of Pet.], at 2. At trial, the government presented eight witnesses and

pursued two theories with respect to the first-degree murder charge. Id. The first theory was that

Petitioner actually shot the decedent. Id. The second theory was that Petitioner aided and abetted

the shooter. Id. The defense presented no witnesses, and Petitioner did not testify on his own

behalf. Id. at 3.

        On February 9, 2007, a jury convicted Petitioner on all counts. See Pet. at 1. Petitioner

was sentenced to 56 years of incarceration. Id. Petitioner then directly appealed his murder and

assault convictions. Mem. in Support of Pet. at 3. In his appeal, he challenged the sufficiency of

the evidence and argued, among other things, that “the use of a prior inconsistent statement of a



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witness who no longer has a memory of the events related to the statement . . . constitutes a

violation of [the] Sixth Amendment right to cross-examination and is insufficient to sustain a

conviction.” Id. at 3–4; see Pet. Ex. G at 12–16. The D.C. Court of Appeals upheld Petitioner’s

conviction in 2010. See Mem. in Support of Pet. at 3–4; Pet., Ex. F, App. Ct. Order 8/5/10, ECF

No. 1-14 [hereinafter Pet. Ex. F]. His petition for rehearing en banc and for writ of certiorari also

were denied. See Mem. in Support of Pet. at 4.

       While his direct appeal was pending, Petitioner filed a collateral challenge to his conviction

and sentence in the D.C. Superior Court under D.C. Code § 23-110, alleging that his trial counsel

was constitutionally ineffective and that he should receive a new trial based on newly discovered

evidence. See id.; Pet., Ex. J, 23-110 Mot., ECF No. 1-18. Following an evidentiary hearing, the

trial court denied his motion. See Mem. in Support of Pet. at 5. The D.C. Court of Appeals

affirmed the denial of the motion on appeal. See id. at 5–6. Again, Petitioner’s petition for

rehearing en banc and for writ of certiorari were denied. See id. at 6–7.

       On March 2, 2017, Petitioner timely filed the instant petition for writ of habeas corpus

under 28 U.S.C. § 2254. Id. at 1–2; see United States’ Mot. to Dismiss Pet. Under 28 U.S.C.

§ 2254 for Writ of Habeas Corpus by a Person in State Custody, ECF No. 12 [hereinafter Mot. to

Dismiss], at 4. The habeas petition challenges Petitioner’s first-degree murder conviction on three

separate constitutional grounds. Mem. in Support of Pet. at 1. First, Petitioner claims he was

denied the right to effective assistance of trial counsel under the Sixth Amendment. Id. Second,

he asserts that his rights under the Confrontation Clause of the Sixth Amendment were violated by

the admission of out-of-court statements that were not subject to meaningful cross-examination.

Id. at 1, 18. Finally, Petitioner maintains that he was deprived of a fair trial, and thus due process,




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when the District of Columbia courts failed to consider the cumulative effect of the errors

committed at trial and in post-conviction proceedings. Id. at 1.

       On July 17, 2017, Respondent moved to dismiss the petition for lack of subject-matter

jurisdiction pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure,

arguing that Petitioner’s claims are foreclosed under D.C. Code § 23-110. Mot. to Dismiss at 1.

III.   LEGAL STANDARD

       “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.’” Wright v. Wilson, 930 F. Supp. 2d 7, 10 (D.D.C. 2013) (quoting

Smith v. United States, No. 00-5181, 2000 WL 1279276, at *1 (D.C. Cir. Aug. 23, 2000)). District

of Columbia prisoners, however, face a unique jurisdictional hurdle in seeking habeas relief in

federal court: D.C. Code § 23-110.

       Congress enacted D.C. Code § 23-110 “to vest the Superior Court with exclusive

jurisdiction over most collateral challenges by prisoners sentenced in that court.” Williams v.

Martinez, 586 F.3d 995, 1000 (D.C. Cir. 2009). The statute achieves this result by establishing a

procedure for collateral review of convictions in the D.C. Superior Court and creating exclusive

jurisdiction in that court unless the prisoner’s claims fall within the statute’s “safety valve.” See

id. at 996; Ibrahim v. United States, 661 F.3d 1141, 1142 (D.C. Cir. 2011). Specifically, section

23-110(a) authorizes a prisoner convicted and sentenced in D.C. Superior Court to “move the court

to vacate, set aside, or correct [his] sentence” on grounds that it was imposed in violation of the

U.S. Constitution or is otherwise subject to collateral attack. D.C. Code § 23-110(a). Importantly,

however, the statute goes on to provide that such prisoners may not petition for a writ of habeas

corpus in federal court “unless it . . . appears that the remedy by motion is inadequate or ineffective



                                                  4
to test the legality of his detention.” Id. § 23-110(g). The “remedy by motion” referenced in

section 23-110(g) refers to “motions filed pursuant to section 23-110(a).” Ibrahim, 661 F.3d at

1142 (quoting Williams, 586 F.3d at 998).

IV.     DISCUSSION

        Respondent moves to dismiss the habeas petition for lack of subject-matter jurisdiction

under D.C. Code § 23-110. Petitioner, on the other hand, contends that section 23-110 does not

provide him with an adequate or effective remedy. Thus, Petitioner argues that his claims fall

within the “safety valve” exception of section 23-110(g).          The court will address each of

Petitioner’s grounds for habeas relief in turn.

        A.     Ineffective Assistance of Counsel Claim

        The court begins with, and quickly dismisses, Petitioner’s ineffective assistance of trial

counsel claim. Petitioner claims that his counsel made multiple errors during trial, chief of which

was her decision to change the theory of the case to self-defense during closing arguments, after

initially telling the jury that Petitioner brought a gun to the scene, but did not shoot the decedent.

See Mem. in Support of Pet. at 8–15. According to Petitioner, the inconsistencies in his counsel’s

opening and closing arguments—coupled with the fact that there was no evidence to support a

self-defense theory—confused and alienated the jury. See id. at 12–15. In the aggregate, Petitioner

argues that his trial counsel’s deficient performance resulted in prejudicial error that affected the

outcome of the case and therefore rendered his representation unconstitutionally ineffective under

the Sixth Amendment. See id. at 7–16; see also Mem. of Points & Authorities in Opp’n to

Government’s Mot. to Dismiss Pet. for Writ of Habeas Corpus, ECF No. 14 [hereinafter Opp’n],

at 1.




                                                  5
        Petitioner’s ineffective assistance of trial counsel claims, however, clearly fall within the

scope of section 23-110. Moore v. United States, 253 F. Supp. 3d 131, 133 (D.D.C. 2017); Mackall

v. Wilson, 32 F. Supp. 3d 76, 79 (D.D.C. 2014); cf. Williams, 586 F.3d at 996 (“Because the D.C.

Court of Appeals has held that challenges to the effectiveness of appellate counsel may not be

brought pursuant to section 23-110 . . . we hold that section 23-110 does not provide federal courts

of jurisdiction over habeas petitions” alleging such challenges. (emphasis added)). “[T]he mere

fact that the D.C. courts denied [Petitioner’s] § 23-110 motion does not render the remedy

inadequate or ineffective, particularly since he was provided ‘a full and fair opportunity to litigate

a colorable claim in the District of Columbia courts.’” Johnson v. Matevousian, No. 16-0757, 2016

WL 2930891, at *2 (D.D.C. May 19, 2016) (internal citation omitted) (quoting Garris v. Lindsay,

794 F.2d 722, 727 (D.C. Cir. 1986)). Thus, the court lacks jurisdiction to consider his claim of

ineffective assistance of trial counsel.

        B.      Cumulative Errors Claim

        Next, Petitioner argues that the cumulative effect of individual errors committed at trial by

his counsel and by the trial court in his section 23-110 proceedings denied him the right to due

process. See Mem. in Support of Pet. at 28; Opp’n at 4. Those errors are as follows: (1) his

counsel’s “multiple errors at trial, including admitting in her opening statement that [Petitioner]

brought a gun to the crime scene but was not the shooter and did not have any intent to commit

murder, but then asserting in her closing . . . that [Petitioner] did not possess a gun and acted in

self-defense”; (2) the government’s post-trial concession that Petitioner “was not the shooter,

eliminating the theory that [he] was the principal shooter”; (3) the trial court’s decision, when

evaluating his petition under section 23-110, to “erroneously discredit[] newly discovered

eyewitness testimony that proves that [Petitioner] was not working in cooperation with the



                                                  6
shooter”; and (4) in that same proceeding, the trial court’s “erroneous[] assign[ment] of weight to

the out-of-court statement of the only witness who provided any evidence of [Petitioner’s] intent

to commit murder, despite the witness’s newly discovered history of testifying against [Petitioner]

and then recanting her testimony, including in this case.” Opp’n at 4. Petitioner contends that the

accumulation of errors was not considered by the D.C. Superior Court in denying his section 23-

110 motion and was dismissed only in passing by the D.C. Court of Appeals. Id. According to

Petitioner, these decisions were “contrary to clearly established Supreme Court law,” which states

that “the combined effect of multiple trial court errors violates due process where it renders the

resulting criminal trial fundamentally unfair.” Id. at 4–5 (quoting Parle v. Runnels, 505 F.3d 922,

927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284, 298, 302–03 (1973)). And,

because such decisions, in the aggregate, were “contrary to clearly established Supreme Court

law,” and not paid sufficient consideration by the D.C. courts, Petitioner argues that the relief

provided by the section 23-110 motion was inadequate or ineffective to test the legality of his

detention. The court disagrees.

       To support his argument, Petitioner quotes from a portion of Morrison v. United States

Parole Commission, in which the court stated: “Relief is ‘inadequate or ineffective’ if it 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.’” 68 F. Supp. 3d 92, 96

(D.D.C. 2014) (quoting Gorbey v. United States, 55 F. Supp. 3d 98, 103 (D.D.C. 2014)).

Petitioner, however, reads the quoted passage from Morrison out of context. The court in Morrison

relied on Gorbey v. United States, and in Gorbey, the district court correctly observed 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.’” 55 F. Supp. 3d at 103 (quoting



                                                 7
Garris, 794 F.2d at 726). Once a D.C. prisoner “clears this unique bar,” the court went on to

explain, “the ordinary habeas standard applies.” Id. In the context of discussing this “ordinary

habeas standard,” the court noted that it could grant the petitioner relief “only if the D.C. court’s

adjudication of his claim ‘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.’” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Thus, as Respondent

correctly points out, Gorbey refers to “the standard for relief on the merits after the petitioner

clears the unique jurisdictional bar—not the standard for overcoming the bar.” United States’

Reply Mem. to Pet’r’s Mem. of Points & Authorities in Opp’n to Government’s Mot. to Dismiss

Pet. For Writ of Habeas Corpus, ECF No. 17, at 6 (emphasis added). Indeed, in Gorbey, the court

only had occasion to apply the “ordinary habeas standard” because, after the Circuit’s decision in

Williams, the petitioner’s claim of ineffective assistance of appellate counsel “f[ell] into a narrow

exception to § 23-110(g)’s bar on habeas petitions.” Gorbey, 55 F. Supp. 3d at 103–04. Thus,

Morrison and Gorbey, when properly understood, do not help Petitioner.

       Petitioner also avers that the remedy provided by section 23-110 was inadequate or

ineffective because “the facts of this case present the rare case where a defendant has been denied

any opportunity for judicial rectification of a fundamental defect in his conviction.” Opp’n at 5

(citing In re Smith, 285 F.3d 6, 8 (D.C. Cir. 2002); Byrd v. Henderson, 119 F.3d 34, 37–38 (D.C.

Cir. 1997)). Specifically, Petitioner points to the government’s concession that he did not shoot

the decedent, as well as new evidence that he claims disproves the alternative theory that he aided

and abetted the shooter. See id. at 5–6. But Petitioner’s dissatisfaction with the outcome of his

collateral attack in the D.C. courts does not mean he lacked “any opportunity for judicial

rectification.” As the record shows, Petitioner did bring his due process claim premised on



                                                 8
individual and cumulative trial errors and new evidence pursuant to section 23-110 before the

D.C. Superior Court and then raised those claims on appeal. The D.C. Court of Appeals simply

rejected them. The court unequivocally stated that, in light of its denials of Petitioner’s ineffective

assistance of counsel and “new evidence” claims, the court “also reject[s] [his] argument that his

convictions should be vacated because of the cumulative prejudice of the alleged errors.” See Pet.,

Ex. L, App. Ct. Order 1/7/16, ECF No. 1-20 [hereinafter Pet. Ex. L], at 7 n.8. Thus, Petitioner had

ample “opportunity for judicial rectification.” He simply did not succeed.

       Moreover, Petitioner’s reliance on Smith and Byrd is misplaced. In Smith, the defendant

petitioned for habeas relief under 28 U.S.C. § 2255, seeking to vacate his conviction under

18 U.S.C. § 924(c) on the ground that the act of trading drugs for guns did not violate the statute.

285 F.3d at 7; see also Ibrahim, 661 F.3d at 1141 (noting that 28 U.S.C. § 2255, which establishes

collateral challenge procedures for federal prisoners, parallels D.C. Code § 23-110). The district

court denied the motion and the D.C. Circuit denied his request for a certificate of appealability.

Smith, 285 F.3d at 7. Thereafter, the Supreme Court decided Bailey v. United States, 516 U.S. 137

(1995), and the D.C. Circuit decided United States v. Stewart, 246 F.3d 728 (D.C. Cir. 2001). In

Stewart, the court held that in light of Bailey the “receipt of a gun during a drug transaction is not

an offense under § 924(c).” Smith, 285 F.3d at 7 (citing Stewart, 246 F.3d at 733). These new

authorities prompted the defendant in Smith to file a request for authorization to file a second

§ 2255 motion in the district court. Id. Although there was “no question” that his § 924(c)

conviction was no longer valid, the defendant in Smith was unable to make the prima facie showing

required to obtain authorization to file a second § 2255 motion. Id. at 7–8. Thus, the court turned

to the “savings clause” of § 2255, which, like D.C. Code § 23-110, turns on whether the “remedy




                                                  9
by motion is inadequate or ineffective to test the legality of his detention.” See id. at 8. The court

continued:

               Varying standards have been adopted by the circuits for determining
               when § 2255 is “inadequate or ineffective.” Suffice it for the instant
               case, the Seventh Circuit has explained that § 2255 “can fairly be
               termed inadequate when it is so configured as to deny a convicted
               defendant any opportunity for judicial rectification of so
               fundamental a defect in his conviction as having been imprisoned
               for a nonexistent offense.” The government states that this is just
               such a case. Smith is actually innocent, having been convicted on
               the basis of an incorrect understanding of § 924(c), and § 2255 relief
               is unavailable to him.

Id. (internal citations omitted) (quoting In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998)).

Stated differently, the court concluded that the remedy under § 2255 was “inadequate or

ineffective” because it foreclosed Smith from petitioning a federal court to vacate a conviction of

which he was innocent as a matter of law.

       Here, Petitioner asserts that he has similarly been convicted of a “nonexistent offense”

because the government concedes he was not the actual shooter and the new evidence forecloses

the government’s aiding and abetting theory. Cf. Opp’n at 5–6. But, unlike in Smith, Petitioner

did have an “opportunity for judicial rectification.” As noted, Petitioner presented his claims to

the D.C. Superior Court by motion under section 23-110 and then to the D.C. Court of Appeals,

which affirmed the trial court’s denial of his motion. See, e.g., Mem. in Support of Pet. at 29 (“The

D.C. Court of Appeals incorrectly assumed that the government’s admission that [Petitioner] was

not the shooter ‘does not undermine the verdict since the government’s theory was that [Petitioner]

aided and abetted the murder even if he was not the actual shooter.’” (quoting Pet. Ex. L at 7 n.8));

id. at 30–31 (noting that the D.C. Court of Appeals “misapprehended the critical nature” of the

new eyewitness testimony by incorrectly crediting the trial court’s judgment in several respects).

Smith therefore does not help Petitioner.

                                                 10
       That leaves Byrd. In Byrd, a D.C. prisoner filed a petition for writ of habeas corpus in

federal court on the ground that the D.C. Court of Appeals’ “application of the harmless error test

to his misjoinder claim was so arbitrary and capricious as to constitute a violation of his right to

due process.” 119 F.3d at 37 (internal citation omitted). The D.C. Circuit reviewed the petitioner’s

assertion and concluded that his due process claim was without merit because the D.C. Court of

Appeals had properly applied the harmless error test. Id. The Circuit then stated that the

petitioner’s claim was, at most, a non-constitutional one, which could not be reviewed under

section 23-110, because the D.C. Superior Court cannot review the proceedings of the D.C. Court

of Appeals. Notwithstanding the unavailability of section 23-110 to review the purported non-

constitutional error, the court found such legal reality “d[id] not . . . render Byrd’s remedy by

motion inadequate or ineffective to test the legality of his detention.” Id. at 38.

       As the foregoing makes clear, although the Circuit in Byrd discussed the merits of the

petitioner’s claims before affirming the district court’s denial of his habeas petition, it did so

primarily to characterize the petitioner’s only viable claim as a non-constitutional one. That the

petitioner could not challenge such a ruling in the Superior Court, the court held, did not render

his remedy under section 23-110 inadequate or ineffective. See id. Thus, Byrd does not establish

that review is available in this court to consider a claimed constitutional error rejected by the

D.C. courts.

       Finally, to the extent Petitioner’s cumulative error claim raises a claim of actual innocence,

see, e.g., Mem. in Support of Pet. at 22, the law is clear that Petitioner may bring such a claim by

motion under D.C. Code § 23-110, see Ibrahim, 661 F.3d 1141. “[T]his local remedy forecloses

petitioner’s opportunity to have his claim adjudicated in federal court.” Bailey v. Ebbert, 218

F. Supp. 3d 60, 64 (D.D.C. 2016); see also Moore, 253 F. Supp. 3d at 133 (“The Court of Appeals



                                                 11
has concluded ‘that the § 23-110 remedy is neither inadequate nor ineffective to test the legality’

of a D.C. prisoner’s conviction where he has raised a claim of actual innocence.” (quoting Ibrahim,

661 F.3d at 1146)). If the D.C. Court of Appeals has not already effectively denied Petitioner’s

claim of actual innocence, then Plaintiff can bring that claim in the first instance in the D.C.

Superior Court.

       C.      Confrontation Clause Claim

       Finally, Petitioner argues that his rights under the Confrontation Clause of the Sixth

Amendment were violated by the admission of out-of-court statements that were not subject to

meaningful cross-examination. Opp’n at 1, 6–7. As raised in his habeas petition, this claim

essentially challenges the D.C. Court of Appeals’ decision in his direct appeal. See id. at 7 (citing

Pet. Ex. F).

       In response to the Motion to Dismiss, Petitioner contends that his remedy under section

23-110 is inadequate as to his Confrontation Clause claim for two reasons. First, Petitioner argues

that relief under section 23-110 would be inadequate because the D.C. Court of Appeals

“unreasonabl[y] appli[ed] . . . established federal law.” See id. But for reasons already discussed,

section 23-110(g) presumptively precludes him from re-litigating a constitutional claim in federal

court that the D.C. Court of Appeals considered and rejected.

       Second, Petitioner relatedly insists that his remedy under section 23-110 is inadequate

because he is “unable to challenge the Court of Appeals’ decision through a § 23-110 proceeding,”

since the Superior Court cannot, absent special circumstances, countermand a decision of the D.C.

Court of Appeals. Id.; see also Diamen v. United States, 725 A.2d 501, 509 (D.C. 1999), abrogated

on other grounds, Poth v. United States, 150 A.3d 784 (D.C. 2016). This argument, however, is

directly foreclosed by Garris. As Petitioner does here, the petitioner in Garris argued “that th[e]



                                                 12
very inability to” to challenge the D.C. Court of Appeals’ review of his Sixth Amendment claim

“rendered the remedy by motion [under section 23-110] inadequate, and enabled the [d]istrict

[c]ourt to consider his habeas corpus petition.” 794 F.2d at 724 (footnote omitted). The D.C.

Circuit rejected this argument. Id. at 724, 727. The court explained that “[i]t is the inefficacy of

the remedy, not a personal inability to utilize it, that is determinative, and [the petitioner’s]

difficulty here is simply that his circumstances preclude him from invoking it.” Id. at 727. So it

is here. Petitioner “pressed his [constitutional] argument on appeal to the District of Columbia

Court of Appeals, although he did not prevail.” Id. Under Garris, the fact that Petitioner cannot

now challenge that direct review decision under D.C. Code § 23-110(a) does not afford him

recourse in federal court. See id.

V.     CONCLUSION

       For the foregoing reasons, Respondent’s Motion to Dismiss is granted. A separate Order

accompanies this Memorandum Opinion.




Dated: February 15, 2018                             Amit P. Mehta
                                                     United States District Judge




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