United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 2011 Decided November 29, 2011
No. 09-5052
JIBRIL L. IBRAHIM, ALSO KNOWN AS GRANT ANDERSON,
APPELLANT
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-02130)
Rosanna M. Taormina, Assistant Federal Public
Defender, argued the cause as amicus curiae in support of
appellant. With her on the briefs was A.J. Kramer, Federal
Public Defender.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellees. On the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Roy W. McLeese, III and John P.
Mannarino, Assistant U.S. Attorneys. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
Before: SENTELLE, Chief Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
2
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: A prisoner convicted in
D.C. Superior Court may raise a collateral challenge to his
sentence by motion in that court, D.C. Code § 23-110(a), but
may not apply 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). Because
the Supreme Court has found that the District of Columbia
judges’ lack of life tenure and constitutional salary protection
do not render the § 23-110 remedy “inadequate or
ineffective,” see Swain v. Pressley, 430 U.S. 372, 377-84
(1977), the availability of relief by motion under § 23-110
typically precludes the challenger from seeking habeas relief
in federal court. In this respect, § 23-110 parallels 28 U.S.C.
§ 2255, which establishes the collateral challenge procedures
for federal prisoners and similarly allows those prisoners to
proceed by way of habeas (rather than § 2255) only when the
avenue provided by § 2255 is “inadequate or ineffective.” See
28 U.S.C. § 2255(e).
In Williams v. Martinez, 586 F.3d 995 (D.C. Cir. 2009),
however, we held that the “remedy by motion” referred to in
§ 23-110(g) meant only “motions filed pursuant to section 23-
110(a).” Id. at 998. Thus, since the D.C. Court of Appeals
(“DCCA”) had held in Watson v. United States, 536 A.2d
1056, 1060 (D.C. 1987) (en banc), that claims of ineffective
appellate counsel could be raised solely by a motion to the
DCCA to recall the mandate (i.e., not under § 23-110 itself),
such a claim triggered the safety valve provided by § 23-110’s
“inadequate or ineffective” language, and therefore federal
courts had habeas jurisdiction over such a challenge.
Williams, 586 F.3d at 998-1001.
3
As a result of multiple convictions, appellant Jibril L.
Ibrahim (a.k.a. Grant Anderson) is serving an aggregate life
sentence imposed by the D.C. Superior Court and affirmed by
the DCCA. He has often challenged these convictions in D.C.
and federal courts. On October 23, 2008 he filed a petition for
writ of habeas corpus in the district court for the District of
Columbia, “based on actual innocence coupled with a
constitutional violation and miscarriage of justice claims . . .
and other due process and equal protection of law claims.”
Appendix for Amicus/Appellant (“App.”) 6. The district
court dismissed the petition for want of jurisdiction, reasoning
that Ibrahim was required to pursue his challenge in D.C.
Superior Court rather than federal court because his § 23-110
remedy was not inadequate or ineffective. Ibrahim v. United
States, No. 08-cv-2130, 2008 WL 5169121, at *1 (D.D.C.
Dec. 8, 2008).
Under 28 U.S.C. § 2253(c)(1), an appeal can be taken
from a habeas corpus or § 2255 proceeding before a district
court only if a certificate of appealability (“COA”) is issued
by a circuit justice, or a circuit or district judge. See United
States v. Mitchell, 216 F.3d 1126, 1129-30 (D.C. Cir. 2000);
FED. R. APP. P. 22(b). The certificate may issue only if “the
applicant has made a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), and the Supreme
Court held in Slack v. McDaniel, 529 U.S. 473 (2000), that
this criterion is satisfied if “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right,” id. at 484. Where (as here)
there is an anterior jurisdictional issue, the Slack inquiry first
requires us to address whether jurists of reason would find it
debatable whether the district court was correct in dismissing
the petition for lack of jurisdiction. Williams, 586 F.3d at 997.
The district court denied Ibrahim’s initial request for a
COA. See Notice to Court of Appeals (July 7, 2009),
4
App. 23. Ibrahim applied to this court for a COA on July 29,
2009, and we held the application in abeyance pending our
decision in Williams. We then appointed amicus curiae to
address whether our holding in Williams had any bearing on
Ibrahim’s effort to pursue his claims in federal court.
Through able amicus, Ibrahim now argues that the district
court had jurisdiction to hear his petition under 28 U.S.C.
§ 2254 on the theory that, as with the appellant in Williams, a
prior DCCA decision—in Ibrahim’s case Diamen v. United
States, 725 A.2d 501 (D.C. 1999)—prevents Ibrahim from
bringing his challenge in D.C. Superior Court under § 23-110.
More specifically, Ibrahim reads Diamen as locating the D.C.
remedy for his “actual innocence” claims exclusively under
the Innocence Protection Act, D.C. Code § 22-4131 et seq.
(“IPA”)—a separate statutory avenue for collateral
challenges—which is outside § 23-110.
As we explain below, we conclude that jurists of reason
would not find his claim that the district court had jurisdiction
“debatable.” In essence this is because Diamen cannot
reasonably be read to bar Ibrahim from bringing his federal
constitutional claims in D.C. Superior Court under § 23-110.
Accordingly we deny the COA.
* * *
Section 23-110(a)(1) allows a D.C. prisoner to challenge
his sentence “upon the ground that . . . the sentence was
imposed in violation of the Constitution of the United States.”
Although the exact nature of Ibrahim’s constitutional claims is
not clear, they involve “actual innocence coupled with a
constitutional violation and miscarriage of justice” and “other
due process and equal protection of law claims.” Amicus’s
Br. 7; App. 6. The reason Ibrahim provides for not being able
to bring these constitutional claims under § 23-110(a) is that
“his actual innocence allegations are tethered to alleged
5
constitutional violations,” Amicus’s Br. 13, and accordingly,
in light of Diamen, the IPA “provides the exclusive judicial
remedy for District of Columbia offenders who . . . obtain
new evidence of actual innocence more than three years after
they are convicted,” see id. at 19-20. This is, quite simply, a
misreading of Diamen.
There are theoretically two recognized types of
constitutional claims for which newly discovered evidence of
actual innocence has been found relevant: “stand-alone”
innocence claims associated with Herrera v. Collins, 506 U.S.
390 (1993), and “gateway” innocence claims associated with
Schlup v. Delo, 513 U.S. 298 (1995), and kindred Supreme
Court decisions. We explain why it is clear that Ibrahim
could bring either claim in Superior Court under § 23-110,
i.e., the notion that he cannot do so is not “debatable.” We of
course focus solely on Ibrahim’s constitutional claims because
any denial of non-constitutional claims (such as the statutory
protections afforded by the IPA itself) cannot amount to a
“substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
In Diamen, as here, the appellants sought to vacate their
convictions based on newly discovered evidence
demonstrating actual innocence and constitutional errors
committed at trial. See Diamen, 725 A.2d at 503-04. Their
claims were brought by motion under § 23-110. See id. The
DCCA divided its discussion into two segments: “II: Newly
Discovered Evidence and the Claim of Actual Innocence,”
largely revolving around the Supreme Court’s decision in
Herrera, and “III: The Alleged Constitutional Violation,”
largely revolving around Schlup. We follow Diamen in using
those two categories to analyze the decision’s meaning.
6
* * *
Herrera. As to claims along the lines of Herrera, the
Diamen court held that such claims were barred by Rule 33 of
the Superior Court’s Rules of Criminal Procedure, which
required them to be brought within two years of the verdict.
See Diamen, 725 A.2d at 505-06 (citing D.C. Super. Ct. Crim.
R. 33, which was later amended to extend the time limit to
three years). The court found that Rule 33’s two-year time
limit was jurisdictional and applied to the claims,
notwithstanding § 23-110(b)(1)’s provision that motions
under § 23-110 could be filed “at any time.” See Diamen, 725
A.2d at 507. At no point did the Diamen court hold that these
Herrera-type claims were not “cognizable” under § 23-110.
The Diamen court additionally concluded that applying
Rule 33’s two-year limit to the claims did not hinder the
appellants’ federal constitutional rights under Herrera. In that
case, the Supreme Court “assume[d],” without deciding, “that
in a capital case a truly persuasive demonstration of ‘actual
innocence’ made after trial would render the execution of a
defendant unconstitutional, and warrant federal habeas relief
if there were no state avenue open to process such a claim.”
506 U.S. at 417. The Diamen court found its application of
Rule 33’s time limit to be consistent with that standard, noting
that Herrera itself found no deficiency in the relevant state
statute, which had afforded only 60 days (as opposed to two
years) to bring an “actual innocence” claim, and further, that
Herrera’s reference to a “state avenue” included the
opportunity to seek a pardon, which also was available to the
Diamen appellants in the District of Columbia. See Diamen,
725 A.2d at 507-08 & nn.15, 17-18. Cf. United States v.
Kaplan, 101 F. Supp. 7, 14 (S.D.N.Y. 1951) (Weinfeld, J.)
(after concluding that the two-year limit in Federal Rule of
Criminal Procedure 33 precluded an otherwise meritorious
claim of actual innocence, and noting that the Assistant
7
United States Attorney had recommended favorable action on
the defendant’s petition for executive clemency, court
expressed hope for “prompt consideration” thereof).
Although Ibrahim’s position on whether he is even
bringing a Herrera-type claim is rather muddled, and the
record is not developed enough to be sure of the exact
dimensions of any such claim, Diamen cannot reasonably be
read to bar a Herrera-type claim from being brought under
§ 23-110.
To counter Diamen’s careful effort to conform to Herrera
itself, Ibrahim points to the following language from
Diamen’s conclusion:
One who reads Super. Ct. Crim. R. 33 in conjunction with
the Supreme Court’s decision in Herrera is led to the
uncomfortable sense that an innocent defendant may be
executed or left to rot in jail because conclusive
exculpatory evidence, through no fault of his own, came
to his attention too late. Such a defendant is, of course,
free to apply for executive clemency, but pardons are
discretionary, and often politically unpopular as well.
Moreover, a defendant cannot fairly be blamed if he
regards executive clemency as an insufficient remedy
when he did not in fact commit the crime for which he is
being pardoned. An innocent man asks for justice, not for
mercy. . . . Under Rule 33 as written, however, passage
of a relatively short time—two years—acts as an absolute
bar, no matter how compelling the showing of innocence
may be.
Amicus’s Reply Br. 11-12 n.6 (quoting Diamen, 725 A.2d at
513-14 (emphasis added by Ibrahim)). But this passage gives
no support to Ibrahim’s idea that the DCCA “has already held
that claims of actual innocence based on newly discovered
8
evidence are not cognizable under § 23-110.” Id. at 11
(emphasis in original). To the contrary, the court explicitly
held that Superior Court Rule 33’s (then) two-year limit was
consistent with the Herrera standard, and in this passage
expressed regret that some innocent prisoners would
accordingly go unprotected. The practical result may be that
Herrera claims cannot be brought under § 23-110 after the
running of Rule 33’s time limit; that is not a denial of the
existence of such claims, but rather an interpretation of the
protection Herrera affords.
Schlup. The Diamen court found that Schlup was not
“contrary to [its] analysis.” 725 A.2d at 512. In Schlup, the
Supreme Court had reaffirmed that “in an extraordinary case,
where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas
court may grant the writ even in the absence of a showing of
cause for [the prisoner’s] procedural default.” 513 U.S. at 321
(quoting Murray v Carrier, 477 U.S. 478, 496 (1986)). Thus
the term “‘gateway’ innocence.” Diamen explicitly
“assume[d] . . . that at least where newly discovered evidence
of actual innocence is relevant to a defendant’s claim that his
constitutional rights have been violated, that evidence may be
presented and considered more than two years after final
judgment.” 725 A.2d at 511. But it ultimately held that the
newly discovered evidence presented by the appellants did not
“meet the substantive standard articulated in Schlup and in the
authorities on which Schlup relies.” Id. at 512. Thus what
defeated the Diamen appellants was simply the quality of their
newly discovered evidence. The ultimate holding, and the
whole tenor of the Diamen case, preclude any reasonable
finding that § 23-110 provides no forum for Schlup “gateway”
claims.
The district court’s decision in Eastridge v. United States,
372 F. Supp. 2d 26 (D.D.C. 2005), does not persuade us
9
otherwise. There the court did find that “Diamen had
misapplied Schlup,” and then found that such misapplication
rendered § 23-110 “inadequate and ineffective.” Id. at 45.
But the only specific “misapplication” identified in the
published opinion was the DCCA’s supposed imposition of
the “local statute of limitations.” See id. Given that the
DCCA explicitly assumed that Rule 33’s two-year limit would
not apply to Schlup claims, Eastridge’s conclusion is
untenable.
Ibrahim argues that § 23-110 is inadequate and
ineffective as to his “gateway” claims for an additional
reason. He contends that Diamen interpreted Schlup more
narrowly than have some federal district courts that have
regarded the “fundamental miscarriage of justice” exception
to procedurally barred constitutional claims as applicable even
when there is no direct nexus between newly discovered
evidence and the claims. See Amicus’s Br. 28 n.21 (citing
United States v. Roman, 938 F. Supp. 288, 292 (E.D. Pa.
1996)). In contrast, the Diamen court observed that in Schlup
cases “the evidence must be relevant to the constitutional
issue sought to be relitigated, and not just to the question of
guilt or innocence.” 725 A.2d at 511. We do not find federal
jurisdiction to be debatable under this theory.
First, the entire discussion of a necessary relation
between the new evidence and the constitutional error was
dictum, because, as we’ve already noted, the Diamen court’s
decision ultimately rested on the failure of the newly
discovered evidence in question to meet “the substantive
standard articulated in Schlup and in the authorities on which
Schlup relies.” Id. at 512. In other words, the appellants had
a poor Schlup claim, not one that could not be brought at all.
Second, even if Diamen had interpreted an unresolved aspect
of Schlup somewhat more narrowly than one or more district
courts, any such divergence of opinion would not take the
10
constitutional claim “outside [§ 23-110’s] scope,” Williams,
586 F.3d at 1000, which is essential to triggering the
“inadequate or ineffective” exception under § 23-110(g).
Mere differences in interpretation of habeas rights are a
natural result of entrusting adjudication of such claims to
hundreds of district and circuit court judges, plus the courts of
the District of Columbia, and do not implicate the “safety
valve” function intended for § 23-110(g). Compare Garris v.
Lindsay, 794 F.2d 722, 725-26 (D.C. Cir. 1986) (D.C.
prisoner who is merely “unsuccessful” with collateral
challenge has no recourse to federal forum), with Williams,
586 F.3d at 998-1000 (citing cases) (federal jurisdiction
proper where § 23-110 “unavailable”). Diamen cannot be
read as executing a carve-out of Schlup claims from § 23-110,
and that is what is needed to trigger § 23-110(g)’s provision
for federal habeas.
Finally, Ibrahim argues that a D.C. prisoner can pursue a
Schlup-based habeas claim in federal district court regardless
of whether the claim can be pursued under § 23-110. Under
this theory, § 23-110(g) itself constitutes a “procedural bar” as
envisioned in Schlup, see 513 U.S. at 326-27, which a
showing of actual innocence under the Schlup standard can
overcome. On this theory an actual innocence claim provides
a “gateway” through § 23-110. One district court appears to
have adopted this view, although it found the habeas
petitioner’s alleged evidence of innocence insufficient. See
Bonilla v. Wainwright, No. 10-cv-0224, 2011 WL 2938125, at
*4 (D.D.C. July 22, 2011).
But § 23-110(g) is not a procedural bar to otherwise
available federal habeas claims; it is Congress’s deliberate
channeling of constitutional collateral attacks on Superior
Court sentences to courts within the District’s judicial system
(subject to Supreme Court review), with federal habeas
available only as a safety valve. If Bonilla’s interpretation
11
were correct, it would read § 23-110(g) out of the statute as
applied to Schlup claims. That is not a reasonably debatable
construction.
* * *
We thus conclude that the § 23-110 remedy is neither
inadequate nor ineffective to test the legality of Ibrahim’s
claims. Accordingly § 23-110(g) presented the sort of “plain
procedural bar” that justifies dismissal of the case. Slack, 529
U.S. at 484. Therefore, “a reasonable jurist could not
conclude either that the district court erred in dismissing the
petition or that the petitioner should be allowed to proceed
further.” Id.
The request for a certificate of appealability is
Denied.