UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DONALD J. HATCH,
Petitioner,
v. Civil Action No. 09-116 (RJL)
B.R. JETT, Warden,
Respondent.
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RANDUM OPINION
March ,2012 [Dkt. #1, 30, 37]
This action arises from Donald J. Hatch's ("petitioner") petition for writ of habeas
corpus. This matter is before the Court on the government's ("respondent") motion to
dismiss the petition for a writ of habeas corpus and petitioner's opposition thereto. For
the reasons discussed below, respondent's motion to dismiss will be GRANTED, the
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petition will be DENIED, and this action will be DISMISSED.
1. BACKGROUND
On August 24, 1988, a jury in the Superior Court of the District of Columbia
found petitioner guilty of three counts of armed kidnapping (Counts C, H, and M); three
counts of armed robbery (Counts D, I, and N); two counts of armed rape (Counts F
and J); one count of assault with intent to commit armed rape (Count 0); two counts of
1In addition, petitioner's Motion to Clarify the Record [Dkt. #37], which the
Court construes as a motion for leave to supplement his opposition to the government's
motion to dismiss, will be granted nunc pro tunc.
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sodomy (Counts E and K); and two counts of threats (Counts G and L). Respondent's
Motion to Dismiss Petitioner's Petition for a Writ of Habeas Corpus ("Resp't's Mot.")
[Dkt. #30] at 2-3; Memorandum of Points and Authorities in Support of: Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2241 and 16 D.C. Code
§ 1901 ("Pet'r's Mem.") [Dkt. #1] at 5. On September 21, 1988, petitioner filed apro se
motion under D.C. Code § 23-110 to vacate and set aside his conviction. Resp't's Mot.
at 3. Counsel supplemented this motion on February 23, 1989. Id. The Superior Court
held hearings on petitioner's Motion for a New Trial on Grounds oflneffective
Assistance of Counsel on March 19 and March 21,1989. Id. On March 21, 1988, the
court denied the motion. Id.; Ex. 1 to Resp't's Mot. at 16 ("motion for new trial due to
ineffective assistance of counsel is heard and denied").
On March 28, 1989, the Superior Court sentenced petitioner to fifteen to forty-five
years each as to Counts D, F, I, J, and N, to run consecutively; fifteen to forty-five years
each as to Counts C, H, M, and 0, to run concurrently; three to nine years each as to
Counts E and K, to run consecutively; and two to six years each as to Counts G and L, to
run concurrently. Resp't's Mot. at 25; Ex. 2 to Resp't's Mot. Petitioner filed a notice of
appeal on April 10, 1989 challenging both his conviction and the ruling on his
September 21, 1988 § 23-110 motion. Resp't's Mot. at 4; Ex. 3 to Resp't's Mot. at 3;
Ex. 9 to Resp't's Mot. at 2.
On August 17, 1993, petitioner filed a second pro se motion under D. C. Code
§ 23-110 challenging his convictions as to one victim, N.T. Resp't's Mot. at 4; Ex. 4 to
Resp't's Mot. at 3. According to petitioner, "he was denied his Sixth Amendment right
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to the effective assistance of counsel during his trial" because counsel "fail[ed] to retain a
forensic serologist to inspect the items of physical evidence in the [N. T.] incident to
determine the feasibility of conducting DNA testing." Ex. 4 to Resp't's Mot. at 3. Based
on the government's discovery of "an undisclosed FBI serology report that was
performed on physical evidence obtained from one of the ... victims, [N.T.]" and
analysis concluding that "the seminal stains could not have been secreted by petitioner,"
counsel appointed to represent petitioner on direct appeal moved, on March 4, 1994, "for
a new trial on all of petitioner's convictions." Resp't's Mot. at 4. On October 25, 1994,
the trial court held an evidentiary hearing on both the pro se motion under D.C. Code
§ 23-110 and counsel's motion for a new trial under D.C. Superior Court Rule of
Criminal Procedure 33. Id. On March 3, 1995, the court granted the motion for a new
trial as to the conviction "relating to the [N.T.] incident," (Counts C, D, E and F), denied
the motion for a new trial in all other respects, and denied petitioner's pro se § 23-110
motion claiming ineffective assistance of counsel. Id. at 4-5; Ex. 4 to Resp't's Mot. at
24-25. On March 11, 1995, petitioner appealed both denials. Resp't's Mot. at 5.
On August 29,2002, the District of Columbia Court of Appeals affirmed
petitioner's convictions on direct appeal, denied the pro se § 23-110 motion filed on
February 23, 1989,2 and denied his challenge to the partial denial of his Rule 33 motion
2 The motion was originally filed by petitioner on September 21, 1988, but was
supplemented by counsel on February 23, 1989. See supra p. 2.
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for a new trial. 3 Resp't's Mot. at 6; Ex. 7 to Resp't's Mot. at 7. The mandate issued on
November 20,2002, Resp't's Mot. at 7; Ex. 9 to Resp't's Mot. at 19, and the D.C. Court
of Appeals denied his petition for rehearing en bane on February 27, 2003. 4 Resp't's
Mot. at 7.
On April 6, 2004, petitioner filed a pro se motion in the Superior Court requesting
reconsideration of the denial of the § 23-110 motion. Resp't's Mot. at 7. The court
denied this motion on April 26, 2004, and the petitioner appealed that decision on
May 24,2004. Id. On March 28,2007, the D.C. Court of Appeals dismissed the appeal
for lack of jurisdiction. Resp't's Mot. at 7-8; Ex. 10 to Resp't's Mot. at 8. The mandate
issued on May 14,2007. Resp't's Mot. at 8; Ex. 10 to Resp't's Mot. at 9.
During the pendency of his direct appeal, petitioner filed a Motion for a New Trial
pursuant to D.C. Code § 23-110 on December 4,2001 and supplemented the motion on
3 The D.C. Court of Appeals docket reflects that petitioner submitted a letter dated
November 29, 1995 that the Court "construed as a notice of appeal from the October 26,
1995 order, and docketed as appeal no. 95-CF-1735," and directed that the "appeal shall
include all issues, both direct and collateral, arising from all non-vacated convictions."
Ex. 9 to Resp't's Mot. at 2. Accordingly, the Clerk of Court "transfer[red] and file[d] the
records previously filed in appeal nos. 88-CF-1229, 89-CF-438 and 95-CF-431 as the
record in appeal no. 95-CF-1735." Id.
4Petitioner subsequently moved to recall the mandate on September 16, 2004, but
the D.C. Court of Appeals denied that motion on October 4,2004. Resp't's Mot. at 7.
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April 8,2002. 5 Resp't's Mot. at 5-6. On August 26,2002, the Superior Court denied
petitioner's § 23-110 motion, noting that all of the issues pertaining to petitioner's
ineffective assistance claims had been raised, or could have been raised, in his prior § 23-
110 motions. Resp't's Mot. at 6; Ex. 6 to Resp't's Mot. at 2. Petitioner did not appeal
this ruling until March 4,2008. Resp't's Mot. at 6 n.4; Ex. 8 to Resp't's Mot. at 1. The
D.C. Court of Appeals dismissed the appeal as untimely on April 23, 2008, denied
petitioner's motion for reconsideration on May 7, 2008, and the mandate issued on May
16,2008. Resp't's Mot. at 6 n. 4; Ex. 8 to Resp't's Mot. at 2.
Undaunted, petitioner filed additional motions in the Superior Court in 2007, 2008
and 2009 and appeals to the D.C. Court of Appeals, all without success. See Resp't's
Mot. at 8, 28-30; see generally Exs. 11-13 & 17 to Resp't's Mot. On January 16,2009,
petitioner filed the petition for a writ of habeas corpus presently before the Court.
II. DISCUSSION
In the instant action, petitioner raises several issues, most of which pertain to
alleged errors committed by trial counsel, see Pet'r's Mem. at 13-15,21-22; the
prosecutors, see id. at 19-21 & 23; the Superior Court, see id. at 23-30; and the D.C.
Court of Appeals, see id. at 15-19. The only matter over which this Court has
jurisdiction, however, is petitioner's claim of ineffective assistance of appellate counsel;
5 In an Order filed August 22, 2001 the D.C. Court of Appeals stated that if
petitioner filed his § 23 -11 0 motion "within 60 days from the date of this order, the trial
court shall consider the merits of the motion without first analyzing whether appellant has
met the 'cause' requirement articulated in Shepard v. United States, 5[3]3 A.2d 1278
(D.C. 1987)." Ex. 5 to Resp't's Mot. Petitioner filed his motion beyond this sixty-day
time limit.
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and this claim is time-barred. Therefore, for the reasons that follow, the Court grants
respondent's motion to dismiss.
A. Claims ofError by the District of Columbia Courts
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 § 23-11O(a). Although habeas relief in federal court is available to a District of
Columbia Code offender who "is in custody in violation of the 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 the [petitioner] 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.,,6 D.C. Code § 23-110(g); Garris v. Lindsay, 794 F.2d 722, 726
(D.C. Cir. 1986) (per curiam) ("[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.") (internal quotation marks and citation omitted).
6 The phrase "'[r]emedy by motion' plainly refers to motions filed pursuant to
section 23-11O(a)." Williams v. Martinez, 586 F.3d 995,998 (D.C. Cir. 2009), cert.
denied, 130 S. Ct. 2073 (2010).
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"It is well-established that the mere denial of relief by the local courts does not
render the local remedy inadequate or ineffective." Joyner v. O'Brien, No. 09-0913,
2010 WL 199781, at *2 (D.D.C. Jan. 15,2010) (citations omitted); see Corley v. u.s.
Parole Comm'n, No. 08-1342, 2009 WL 2606554, at *3 (D.D.C. Aug. 26, 2009) (citing
Garris, 794 F.2d at 727); see also Morton v. United States, No. 07-5253, 2008 WL
4726051, at *1 (D.C. Cir. June 12,2008) (per curiam) (denying request for certificate of
appealability on the ground that appellant "may not challenge his District of Columbia
convictions in federal court unless his remedy under D.C. Code § 23-110 is inadequate or
ineffective to test the legality of his detention" and explaining that "[t]he § 23-110
remedy ... is not considered inadequate or ineffective simply because the requested
relief has been denied").
Petitioner has vigorously contested his convictions, both in the Superior Court by
filing motions under D.C. Code § 23-110 and by appealing unfavorable rulings to the
D.C. Court of Appeals. His assertions that the D.C. Court of Appeals "denied [him] the
right to file claims of ineffective assistance of trial counsel" and that the Superior Court
"refused to consider any claims of ineffective assistance of counsel and other meritorious
claims," Pet'r's Mem. at 2, are hardly persuasive. Review of the record demonstrates not
only that petitioner has raised ineffective assistance of counsel claims on more than one
occasion, but also that he had ample opportunity to raise any other claim since his
conviction in 1988. Moreover, his allegations of error by the Superior Court were
properly raised in and decided by the D.C. Court of Appeals, and this Court is without
jurisdiction to review or overturn these rulings. In short, petitioner cannot avail himself
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of this federal forum merely because his prior attempts to challenge his conviction in the
District of Columbia courts have not been successful.
B. The Petition is Treated as if Filed Under 28 Us. C. § 2254
Generally, a district court may grant a writ of habeas corpus, 28 U.S.C. § 2241(a),
if the petitioner "is in custody in violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2241(c)(3). A district court also may "entertain an
application for a writ of habeas corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Respondent
submits that where, as here, the petition "does not challenge the conditions
of ... confinement but rather the legality of [petitioner's] conviction and sentence," the
petition "should more properly be captioned, and addressed, as having been filed
pursuant to 22 U.S.C. § 2254." Resp't's Mot. at 2 n.1. Ample authority supports the
proposition that a person serving a criminal sentence imposed by the Superior Court of
the District of Columbia is considered a state prisoner for purposes of federal habeas
relief. See, e.g., Hazel v. Lves, No. 11-1100,2011 WL 5022899, at *1 (D.D.C. Oct. 20,
2011) (recognizing that a District of Columbia prisoner is considered a state prisoner);
Banks v. Smith, 377 F. Supp. 2d 92,94 (D.D.C. 2005) ("The D.C. Circuit has consistently
held 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.") (citation omitted); cf Madley v. Us. Parole Comm 'n, 278 F .3d 1306,
1308-09 (D.C. Cir. 2002) (holding that District of Columbia courts are deemed to be state
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courts for purposes of28 U.S.C. § 2253(c». Neither petitioner's characterization of his
pleading, see Petitioner's Response to Respondent's Motion to Dismiss Petitioner's
Petition for a Writ of Habeas Corpus ("Pet'r's Opp'n) [Dkt. #36] at 11, nor the fact that
petitioner is serving his sentence in a federal correctional institution, see id. at 8-9, is
dispositive. Petitioner clearly is challenging the Superior Court convictions, and,
therefore, the Court construes his petition as that of a state court prisoner filed under
28 U.S.C. § 2254. See Adams v. Middlebrooks, 810 F. Supp. 2d 119, 122-23 (D.D.C.
2011 ) (construing petition as one filed under § 2254, not § 2241, where petitioner
challenged Superior Court judgment); Davis v. Cross, 774 F. Supp. 2d 62,64 (D.D.C.
2011) ("Because petitioner is in custody pursuant to a judgment of a state court, he makes
his petition under 28 U.S.C. § 2254.").
C. The Petition is Time-Barred
"A I-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. §
2244(d)(l). In this case, "[t]he limitation period ... run[s] from ... the date on which the
judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review." 28 U.S.C. § 2244(d)(l)(A). The limitation period is tolled,
however, while "a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending," 28 U.S.C. §
2244(d)(2); that is, until the completion of the ordinary state collateral review process.
See Carey v. Saffold, 536 U.S. 214, 219-20 (2002).
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In petitioner's case, the limitations period began to run on May 28, 2003-"the
date on which the time to file a petition for a writ of certiorari from the February 27,2003
denial of petitioner's petition for rehearing en banc elapsed." Resp't's Mot. at 33
(emphasis removed); see Clay v. United States, 537 U.S. 522, 527 (2003) ("Finality [ofa
conviction] attaches when [the Supreme] Court affirms a conviction on the merits on
direct review or denies a petition for a writ of certiorari, or when the time for filing a
certiorari petition expires.") (citations omitted). The limitations period continued to run
through April 6, 2004-the date on which petitioner filed his motion for reconsideration
of the denial of his § 23-110 motion. See Resp't's Mot. at 33,35. By then, 312 days had
elapsed. The limitations period was tolled for twenty days to April 26, 2004-the date
the trial court denied his motion for reconsideration-resumed the following day, and
tolled again on May 24, 2004-the date on which petitioner filed a notice of appeal of the
denial of his motion for reconsideration. Id. at 35-36. By then, 340 days had elapsed,
leaving twenty-five days of the one-year limitation period remaining. The limitation
period was tolled until May 14, 2007-the date on which the D.C. Court of Appeals
issued its mandate dismissing petitioner's last relevant appeal-resumed on May 15,
2007, and expired twenty-five days later, on June 8, 2007. Id. Petitioner filed the instant
petition on January 16,2009. Respondent argues that it must be dismissed as untimely.
See Resp't's Mot. at 1, 31-37; Ex. 23 to Resp't's Mot.
Petitioner responds that the government "ignore[s] the obvious fact that a time-
triggering requirement had not been initiated." Petitioner's Addendum to Petitioner's
Response to Respondent's Motion to Dismiss Petitioner's Petition for a Writ of Habeas
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Corpus ("Pet'r's Addendum") [Dkt. #38] at 2. He asserts that the limitations period did
not begin to run in 2003 because "the direct review herein has yet to be finalyzed [sic],
since the D.C. Court of Appeals ... put off ... consideration of any of the claims of
ineffective assistance of counsel." Id. at 5. Petitioner appears to argue, then, that the
limitations period did not begin to run or should not have begun until such time as the
D.C. Court of Appeals entertained his motions, regardless of whether his motions were
meritorious or timely filed. See id. at 6-7. Additionally, petitioner points to his status as
a pro se incarcerated litigant who "does not have adequate access to his legal papers" due
in part to his physical limitations and the prison's "refus[al] to provide anyone to assist
[him]." Id. at 7. Further, he claims that the government's failure to respond timely to his
Freedom of Information Act requests "hampered this endeavor" such that the limitations
period should not have started to run until May 20, 2008-the date his last motion for a
new trial was denied. Id. at 8. None of these arguments is meritorious.
The running of the limitations period is not determined by petitioner's satisfaction
with the collateral proceedings in the Superior Court and the D.C. Court of Appeals, the
speed with which he obtained government records, or the assistance received from staff at
the correctional facilities where he has been incarcerated. Nor is his status as a pro se
litigant "a circumstance in which it is appropriate to toll the statute of limitations."
United States v. Lawson, 608 F. Supp. 2d 58, 62 (D.D.C. 2009). Petitioner's hurdles
were procedural, and his failure to timely file documents or raise claims in the District of
Columbia courts does not deprive him of a vehicle for adjudication of his claims.
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Petitioner filed this action on January 16,2009, approximately eighteen months
after the limitations period expired. "[T]he threshold issue is whether more than one year
passed between the final conviction date and the habeas petition filing date, excluding
any time during which state post-conviction or other collateral proceedings were
pending." Davis v. Cross, No. 10-0761,2011 WL 5865886, at *2 (D.D.C. Nov. 20,
2011). Even accounting for the periods during which the limitations period was tolled,
the instant petition was not timely filed.
III. CONCLUSION
Accordingly, the Court will GRANT respondent's motion to dismiss, DENY the
petition, and DISMISS this action. An Order consistent with this decision accompanies
this Memorandum Opinion. \
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