Johnson v. Stansberry ( 2010 )


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  • FILED
    JAN 29 2010
    
    Clerk, U.S. District and
    
    UNITED STATES DISTRICT COURT
    bankruptcy Courts
    
    FOR THE DISTRICT OF COLUMBIA
    
    Duane Joseph Johnson,
    
    Petitioner,  0  8
    
    v. Civil Acti0n No.
    
    Patricia Stansberry, Warden,
    
    Resp0ndent.
    
    MEMORANDUM OPINION
    
    Petitioner Duane Joseph Johnson has filed an application to proceed in forma pauperis
    and a pro se petition for a writ of habeas corpus. The application will be granted and the petition
    will be dismissed without prejudice.
    
    Johnson is a prisoner under sentence imposed by the Superior Court of the District of
    Columbia who is currently confined in a prison outside the District of Columbia. His petition
    establishes that at least twice he challenged his conviction and sentence by filing a motion under
    D.C. Code § 23-110 with the Superior Court. Pet. at 3. His motions were denied, and his
    appeals to the Court of Appeals for the District of Columbia from those denials were also
    unsuccessful. Id. at 3-4. The petition also refers to Johnson’s direct criminal appeal, that is, his
    first appeal of right. Ia'. at 5.
    
    The petition seeks declaratory relief with respect to claims of ineffective assistance of
    trial counsel, prosecutorial misconduct, misrepresentations by post-conviction counsel, an illegal
    sentence imposed by the Superior Court, fraud upon the court by trial counsel, and suppression of
    
    exculpatory and impeachment evidence. Id. at 6. The petition also asserts that Johnson had
    
    "ineffective assistance of appellate counsel," and specifically faults appellate counsel for failure
    to consult, failure to make three specific arguments on appeal, conflict of interest, and failure to
    notice an appeal after re-sentencing. Id. at 5. In addition, the petition claims that appellate
    counsel failed to assist Johnson with a § 23-110 motion. Johnson argues that this court has
    jurisdiction under 28 U.S.C. § 2254 to entertain this collateral attack because claims of
    ineffective assistance of appellate counsel cannot be heard on a § 23-110 motion addressed to the
    Superior Court. Id.
    
    With the exception of the ineffective assistance of appellate counsel claim, all of the
    claims Johnson asserts in this petition must be presented first to the Superior Court by motion
    made under D.C. Code § 23-110. Blair-Bey v. Quick, 
    151 F.3d 1036
    , 1042 (D.C. Cir. 1998)
    (holding that § 23-110 is exclusive remedy for such challenges). This court does not have
    jurisdiction to entertain claims that were or could have been presented to the Superior Court on a
    § 23-110 motion, unless the petitioner can show that his remedy under § 23-110 is "ineffective or
    inadequate to test the legality of his conviction." D.C. Code § 23-1 l0(g). Because the petition
    does not claim or demonstrate that Johnson’s § 23-110 remedy was ineffective or inadequate,
    these claims will be dismissed for lack of jurisdiction.
    
    The Supreme Court has made clear that defendants lack a constitutional right to effective
    assistance of counsel in state collateral proceedings. See Williams v. Martz`nez, 
    586 F.3d 995
    ,
    1001 (D.C. Cir. 2009) (citing Coleman v. Thompson, 
    501 U.S. 722
    , 752 (1991)). The
    constitutional right that may be enforced applies to counsel’s representation on the defendant’s
    first appeal of right. Id. (citing Evitts v. Lucey, 
    469 U.S. 387
    , 396 (1985)). To the extent that
    
    Johnson’s claim of ineffective assistance of counsel extends to counsel’s performance in
    
    -2-
    
    representing Johnson in a § 23-110 motion, or counsel’s refusal to assist in the § 23-110 motion,
    the claim must fail. See id. (finding that plaintiff asserted a constitutional claim because he
    asserted that counsel for his direct appeal rendered ineffective assistance). Accordingly, the
    claim of ineffective assistance of appellate counsel for failing to assist Johnson on his § 23-110
    motion will be dismissed with prejudice for failure to state a claim upon which relief may be
    granted.
    
    A prisoner under sentence imposed by the Superior Court of the District of Columbia
    who seeks to challenge his conviction on the basis of a claim that his counsel on direct appeal
    rendered ineffective assistance may do so by filing a motion with the Court of Appeals for the
    District of Columbia requesting that court to recall its mandate. Watson v. United States, 536
    A.2d l056, 1060 (D.C. 1987) (noting that ineffective assistance of appellate counsel claims
    cannot be heard by the Superior Court on a motion made under D.C. Code § 23-110 and
    instructing that a motion to recall the mandate is the proper procedure for presenting a claim of
    ineffective assistance of appellate counsel of right); Willz'ams v. Martinez, 586 F.3d at 998
    (same). If Johnson did not move to recall the mandate, he has not exhausted his local remedies
    and therefore no writ of habeas corpus may be granted. 28 U.S.C. § 2254(b)(1)(A) ("An
    application for a writ of habeas corpus  shall not be granted unless it appears that  the
    applicant has exhausted the remedies available [in the local courts]."). If, on the other hand,
    Johnson did move to recall the mandate and did not succeed on his claim for ineffective
    assistance of appellate counsel, no writ of habeas corpus may be granted unless Johnson can also
    show "circumstances exist that render" the remedy by motion to recall the mandate "ineffective
    
    to protect [his] rights." 28 U.S.C. § 2254(b)(1)(B)(ii). The instant petition does not allege either
    
    _3-
    
    that Johnson moved to recall the mandate or that the available remedy was ineffective to protect
    his rights under the circumstances. Therefore, there is no possibility that a writ of habeas corpus
    may be issued by this court, and further consideration of the petition would be futile. 28 U.S.C.
    § 2254(b). Because, on its face, the petition does not state a claim upon which relief may be
    granted, the claim that counsel rendered ineffective assistance on Johnson’s first appeal of right
    will be dismissed without prejudice.
    A separate order accompanies this memorandum opinion.
    
    C)%Ls)f,éa, §§
    
    Date:  1 L// 120 /¢3 United States District Jud
    
    

Document Info

DocketNumber: Civil Action No. 2010-0178

Judges: Judge Colleen Kollar-Kotelly

Filed Date: 1/29/2010

Precedential Status: Precedential

Modified Date: 3/3/2016