UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
HARVEY J. HUDSON, )
)
Petitioner, )
)
v. ) Civil Action No. 11-0657 (BAH)
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CRAIG APKER, )
)
)
Respondent. )
__________________________________________)
MEMORANDUM OPINION
In this habeas corpus action transferred from the United States District Court for the
District of Arizona, the Petitioner, proceeding pro se, challenges his conviction entered by the
Superior Court of the District of Columbia. For the following reasons, the Court finds that it
lacks jurisdiction over the petition and, thus, will dismiss the case.
I. BACKGROUND
Confined at the United States Penitentiary in Tucson, Arizona, the Petitioner is serving a
prison sentence of 112 years to life imposed by the Superior Court on March 23, 1988. Petition
for Writ of Habeas Corpus (“Pet.”) [Dkt. # 1] at 1. The Petitioner claims that he “has filed
numerous petitions, applications, and motions for relief with respect to the sentence and
convictions, in the State and Federal Courts.” Id. ¶ 9. On February 7, 2011, the Petitioner filed
the instant habeas petition in the District of Arizona, which construed the petition as brought
under 28 U.S.C. § 2254 and transferred it to this Court. See Order [Dkt. # 5]. As grounds for
relief, the Petitioner claims that the Superior Court “lack[ed] subject matter jurisdiction” over the
criminal case, Pet. at 3, and that he was deprived of a fair trial in violation of the due process and
equal protection clauses of the Constitution. Id. at 3-7.
II. DISCUSSION
Unlike prisoners convicted in state courts or those convicted in a United States District
Court, "a District of Columbia prisoner has no recourse to a federal judicial forum [under either
§ 2254 or § 2255] unless [he shows that] the local remedy is inadequate or ineffective to test the
legality of his detention.” Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir.), cert. denied, 479
U.S. 993 (1986) (internal footnote and quotation marks omitted); see Byrd v. Henderson, 119
F.3d 34, 37 (D.C. Cir. 1997) ("In order to collaterally attack his sentence in an Article III court a
District of Columbia prisoner faces a hurdle that a federal prisoner does not."). It is established
that challenges to a Superior Court judgment of conviction must be pursued in that court under
D.C. Code § 23-110. See Blair-Bey v. Quick, 151 F.3d 1036, 1042-43 (D.C. Cir. 1998). Under
that local statute, a District of Columbia prisoner may move to vacate, set aside, or correct his
sentence on grounds, among others, that “(1) the sentence was imposed in violation of the
Constitution . . . [and] (2) the court was without jurisdiction to impose the sentence[.]” D.C.
Code § 23-110(a). The statute further provides that
[an] application for a writ of habeas corpus in behalf of a prisoner who is authorized to
apply for relief by motion pursuant to this section shall not be entertained by . . . any
Federal . . . court if it appears . . . 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.
D.C. Code § 23-110(g). “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).” Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir.
2009); see id. at 999 (concluding that this Court could review a “federal habeas petition asserting
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ineffective assistance of appellate counsel after [the petitioner has] moved to recall the mandate
in the D.C. Court of Appeals” because such a claim is not available via a § 23-110 motion).
The Petitioner acknowledges that the grounds asserted in the instant petition have been
addressed by the local courts on multiple occasions. See Pet. ¶¶ 9-10; Appendix in Supp. of Pet.
for Writ of Habeas Corpus [Dkt. # 1-2], Superior Court Order of July 14, 2009 (observing that
the Petitioner “has filed at least eleven previous pro se motions for a new trial or to vacate his
sentence, most of which were analyzed under § 23-110,” and denied). His lack of success in the
District of Columbia courts -- which appears to be his only reason for petitioning the federal
court -- does not render the local remedy under § 23-110 inadequate or ineffective. See Garris,
794 F.2d at 727 (“[M]ere lack of success on [direct] appeal does not pave the way for collateral
attack.”) (footnote and citations omitted); Bruton v. Ashcroft, 48 Fed. Appx. 336 (D.C. Cir. 2002)
(“The [28 U.S.C.] § 2255 remedy is not inadequate or ineffective simply because § 2255 relief
has already been denied.”) (citing Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999)
(collecting cases)); Wilson v. Off. of the Chairperson, 892 F. Supp. 277, 280 (D.D.C. 1995) (“A
petitioner may not complain that the remedies provided him by D.C. Code § 23-110 are
inadequate merely because he was unsuccessful when he invoked them.”).
For the foregoing reasons, the Court concludes that it lacks authority to entertain the
habeas petition and, therefore, will dismiss the case. A separate Order accompanies this
Memorandum Opinion.
/s/ Beryl A. Howell
United States District Judge
DATE: April 18, 2011
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