Briscoe v. Jarvis

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TYRONE BRISCOE,

Petitioner,
v. Civil Action No. 14-505 (JEB)
TAMYRA JARVIS,

Respondent.

MEMORANDUM OPINION

Pro se Petitioner Tyrone Briscoe was convicted of multiple murders and several related

crimes in two D.C. Superior Court trials in 1997. Since that time, he has besieged courts with

collateral attacks, challenging virtually every aspect of his convictions and sentences. In this, his

most recent Petition for a Writ of Habeas Corpus, Briscoe alleges prosecutorial misconduct at his

trials, and he also raises several issues stemming from one of his criminal appeals. Because the

Court lacks jurisdiction over all but one of these claims, and because the remaining challenge is

barred by the statute of limitations, the Court will dismiss the Petition.

I. Background

The background of Briscoe’s case is relatively straightforward. In 1997, a jury found him

guilty of two counts of armed first-degree murder and two counts of assault with intent to kill

(AWIK) while armed. See Opp., Exh. C (Briscoe v. United States, No. 97-1809, slip. op. (D.C.

Apr. 25, 2005)) at 1. He was given consecutive indeterminate sentences of thirty years to life for

each murder count, and ten to thirty years for each count of AWIK. See id. at 2. The D.C. Court

of Appeals affirmed these convictions on April 25, 2005. See id. at 5.

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 In a second, unrelated trial in 1997, Briscoe was again convicted of first-degree murder,

as well as conspiracy to commit murder, obstruction of justice, and possession of a firearm

during a crime of violence. See id., Exh. K (United States’ Opposition to Motion to Vacate or

Set Aside Convictions) at 3. He was sentenced to thirty years to life for murder, fifteen years to

life for obstruction, twenty to sixty months for conspiracy, and five to fifteen years for the

firearm offense, all of which terms were to run consecutively to each other. See id. at 4. This

conviction, too, was affirmed by the D.C. Court of Appeals on November 3, 2004. See id., Exh.

H (Briscoe v. United States & Proctor v. United States, Nos. 98-284, 02-1411, 98-625, & 03-72,

slip. op. (D.C. Nov. 3, 2004)) at 4.

These proceedings, unfortunately, represent only a fraction of the litigation surrounding

Briscoe’s cases. Since 1998, he has barraged courts, both local and federal, with collateral

attacks on his convictions and sentences. To date, he has filed at least half a dozen § 23-110

motions in D.C. Superior Court, the most recent of which was denied in 2013. See id., Exh. A

(Docket in 1994-FEL-1478). He brought a § 1983 suit against judges and attorneys involved in

his case in another court in this District. See Briscoe v. Wagner, No. 10-710, 2010 WL 1904925

(D.D.C. May 5, 2010). And he has previously brought no fewer than three other petitions for

habeas relief in federal court. See Briscoe v. Conners, No. 02-157, slip op. (D.D.C. Sep. 24,

2002); Briscoe v. Rios, No. 07-75, 2007 WL 1577778 (E.D. Ky. May 31, 2007); Briscoe v.

Withers, No. 12-213, 2012 WL 5198470 (E.D. Ky. Oct. 19, 2012). Petitioner did not prevail in

any of these actions.

Notwithstanding these failures, and apparently not one to be easily dissuaded, he enters

court once again, seeking yet another Writ of Habeas Corpus. The result, however, will be the

same.

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II. Analysis

D.C. prisoners, like any others, are entitled to habeas relief if they establish that their

“custody [is] in violation of the Constitution or laws or treaties of the United States . . . .” 28

U.S.C. § 2241(c)(3). In this Petition, Briscoe raises three issues. First, he claims that

prosecutors threatened a witness against him at trial and did not disclose those threats to him as

required under Brady v. Maryland, 373 U.S. 83 (1963). Second, he argues that procedural errors

in the D.C. Court of Appeals – namely, the government’s failure to timely file a brief in one of

his criminal appeals and the court’s revocation of his pro se status – require the vacating of one

of his convictions. Finally, he asserts that counsel appointed on appeal was inadequate. The

Court treats each in turn.

A. Prosecutorial Misconduct

Petitioner first alleges that “FBI [and] D.C. police[] and prosecutors . . . threaten[ed] a

witness” against him in his criminal trials, but these threats were never revealed to him. See Pet.

at 3. Prosecutors must disclose threats or promises made to government witnesses, see Giglio v.

United States, 405 U.S. 150, 154-55 (1972), and their failure to tell him about them, Briscoe

claims, tainted his convictions. Generally, a prisoner in custody pursuant to the judgment of a

State court may challenge the legality of his conviction and sentence in federal court under 28

U.S.C. § 2254. In this case, however, the Court lacks jurisdiction to entertain such a petition.

Under D.C. Code § 23-110(a), “[a] prisoner in custody under sentence of the Superior

Court claiming the right to be released upon the ground that . . . the sentence is . . . subject to

collateral attack, may move the court to vacate, set aside, or correct the sentence.” A federal

court cannot entertain such a petition, however, “if it appears that the applicant has failed to

make a motion for relief under this section . . . unless it also appears that the remedy by motion is

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inadequate or ineffective to test the legality of his detention.” Id. § 23-110(g). In other words,

“a [D.C.] prisoner seeking to collaterally attack his sentence must do so by motion in the

sentencing court – the Superior Court – pursuant to D.C. Code § 23-110.” Byrd v. Henderson,

119 F.3d 34, 36 (D.C. Cir. 1997) (emphasis added). “[W]hen Congress enacted section 23-110 .

. . , it sought 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); see also Swain v. Pressley, 430 U.S. 372, 377-78 (1977) (finding parallel

between changes introduced to federal habeas process by 28 U.S.C. § 2255 and new post-

conviction procedure envisaged by Congress when it implemented § 23-110). The only way

Briscoe could bring his Petition in this Court is if he could show that § 23-110 were somehow

“inadequate or ineffective to test the legality of his detention.” Garris v. Lindsay, 794 F.2d 722,

726 (D.C. Cir. 1986).

Briscoe has failed to make this showing, and the Court, accordingly, lacks jurisdiction

over his Petition. See Briscoe v. Conners, No. 02-1578, at 2-3 (coming to the same conclusion

regarding previous allegations of prosecutorial misconduct and ineffective assistance of counsel);

Hatch v. Jett, 847 F. Supp. 2d 88, 91-92 (D.D.C. 2012) (no jurisdiction over claims of

prosecutorial error); see also Martinez, 586 F.3d at 998 (Section 23-110(g) “divests federal

courts of jurisdiction to hear habeas petitions by prisoners who could have raised viable claims

pursuant to § 23-110(a).”); Garris, 794 F.2d at 727 (“It is the inefficacy of the remedy, not a

personal inability to utilize it, that is determinative” of whether the § 23-110 process is

“inadequate or ineffective.”). Petitioner’s first attack on his conviction, therefore, fails at the

outset.

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 B. Challenges to the D.C. Court of Appeals

Briscoe’s next two challenges go to actions taken by the D.C. Court of Appeals. First, he

alleges that that court “took” him “off . . . pro se and denied [him] the [r]ight to choice of

counselors.” Pet. at 2. Second, he claims that when he appealed his second set of convictions,

the government failed to meet a court-mandated briefing deadline. See id. He “then filed a

default Motion for the Government[’s] failure to file,” id., and now asks this Court to “grant [his]

default Motion[] for the . . . failure to answer[] the [C]ourt of Appeal[s’] order . . . .” Id. at 3.

Whatever the merits of these claims, the Court cannot entertain them because it lacks the

authority to do so. This should be news to no one, least of all Briscoe. Indeed, he offered the

same allegations in the guise of a § 1983 suit and met the same obstacle there: “This court does

not have authority to review orders issued by the D.C. Court of Appeals and, thus, cannot direct

the D.C. Court of Appeals to restore the plaintiff’s pro se status.” Briscoe v. Wagner, 2010 WL

1904925, at *1 (citing Fleming v. United States, 847 F. Supp. 170, 172 (D.D.C. 1994)). Nor can

this Court direct the D.C. Court of Appeals to enter a default judgment in Briscoe’s favor. See

id. In his criminal appeal, Petitioner moved to vacate his convictions on the ground that the

Government had defaulted. See Opp., Exh. G (Docket Sheet in 98-CF-284) at 6 (Briscoe’s

motion of June 30, 2003). The Court of Appeals denied this motion. See id. To grant the relief

Briscoe requests, therefore, this Court would have to reverse the judgment of that court, an action

it cannot take. “‘Only the United States Supreme Court has [the] power’ to review the final

judgment of a state or District of Columbia court.” Briscoe v. Wagner, 2010 WL 1904925, at *1

(quoting Fleming, 847 F. Supp. at 172). The Court is thus similarly without jurisdiction to

entertain the challenges Briscoe levels against the D.C. Court of Appeals.

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 C. Ineffective Assistance of Counsel

Finally, Briscoe alleges that his appointed counsel on appeal was ineffective. See Pet. at

2. Specifically, he faults his lawyers for failing to file a supplementary brief on the default issue.

See Supp. Mot. at 4. Unlike his other claims, this one is properly brought in this Court: it does

not require review of a decision of the D.C. Court of Appeals, and it is not barred by § 23-110. It

nonetheless runs aground on a different shoal – the statute of limitations. Because Briscoe is “in

custody pursuant to the judgment of a State court,” his Petition is subject to a one-year

limitations period, which begins to run on the latest of: (1) “the date on which the judgment

became final . . . ;” (2) “the date on which the impediment to filing an application created by

State action in violation of the Constitution or laws of the United States is removed . . . ;” (3)

“the date on which the constitutional right asserted was initially recognized by the Supreme

Court . . . ;” or (4) “the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1). In

Briscoe’s case, his convictions became final long ago, and he has made no showing that his

claim is based on either a newly recognized constitutional right or facts that could not have been

discovered in a timely manner. Cf. id. §§ 2244(d)(1)(A), (C), (D). Petitioner’s only chance

arises under the second option – to wit, “the date on which [an] impediment to filing . . . [was]

removed . . . .” Id. § 2244(d)(1)(B).

On this theory, the period would run from the date the D.C. Circuit decided Williams v.

Martinez, 586 F.3d 995 (D.C. Cir. 2009), a case that held that Superior Court defendants are not

precluded by § 23-110 from bringing ineffective-assistance claims regarding appellate counsel in

federal court. Id. at 998. Assuming that this decision constituted the removal of an

“impediment” to filing such a claim, several courts in this District have counted the limitations

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period as starting on this 2009 date. See, e.g., Coleman v. Ives, 841 F. Supp. 2d 333, 336

(D.D.C. 2012); Anderson v. United States, No. 11-1672, 2011 WL 4351802, at *1 (D.D.C.

2011). Even if this analysis were correct, however, it would be no help to Briscoe; his petition

was filed four years after Martinez came down. See Coleman, 841 F. Supp. 2d at 336 (noting

that Martinez was decided on December 23, 2009, and thus the petitioner had until December 24,

2010, to seek relief). Because Briscoe’s final claim is far out of time, and because he has shown

no reason that the applicable period ought to be tolled, the Court will dismiss it as well.

III. Conclusion

For the reasons articulated herein, the Court will deny the Petition. An Order consistent

with this Opinion shall issue this day.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 9, 2015

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