United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM U.S. District Judge.
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner was convicted in the District of
Columbia and is incarcerated at the United States
Penitentiary, Leavenworth, Kansas. He proceeds pro se, and
the Court grants leave to proceed in forma pauperis.
was convicted in the Superior Court of the District of
Columbia of one count of armed robbery. In November 2014, he
was sentenced to a term of 120 months. See El-Amin v.
United States, 2016 WL 2866852 (Ct. Fed.Cl. May 11,
2016); El-Amin v. Downs, 272 F.Supp.3d 147 (D.D.C.
Aug. 9, 2017).
September 2017, petitioner filed a petition for habeas corpus
under 28 U.S.C. § 2241 in the District of Columbia. The
matter was transferred to the U.S. District Court for the
Southern District of West Virginia, where petitioner then was
confined. In that action, petitioner sought relief on the
grounds (1) the District of Columbia Court of Appeals did not
have jurisdiction because the government failed to file a
jurisdictional statement; (2) there was a conspiracy to deny
his Sixth Amendment right to a jury trial; (3) there was a
failure to provide beyond a reasonable doubt the element of
armed robbery; (4) there was a violation of due process; (5)
ineffective assistance of counsel; and (6) lack of
jurisdiction. In addition, he argued that the remedy under
D.C. Code § 23-110, a statute equivalent to 28 U.S.C.
§2255, was inadequate on three grounds: (1) a federal
court's jurisdiction is not defeated by state court
proceedings; (2) the District of Columbia Court of Appeals
lacks jurisdiction; and (3) ineffective assistance of
5, 2018, the District Court for the Southern District of West
Virginia held that petitioner had shown no grounds to proceed
under 28 U.S.C. § 2241 and dismissed the petition
without prejudice. El-Amin v. United States, 2018 WL
2728034 (S.D.W.Va. June 5, 2018).
20, 2018, petitioner commenced the present action. He again
argues that D.C. Code § 23-110 is inadequate, and he
challenges his confinement based upon ineffective assistance
of appellate counsel. He seeks an evidentiary hearing and
release from custody.
Court must review a petition for habeas corpus promptly and
must summarily dismiss a petition where “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court.” Rule 4, Rules Governing § 2254 Cases
in the U.S. District Courts.
petition under 28 U.S.C. § 2241 generally is filed to
challenge the execution of a sentence and is filed in the
district of the petitioner's confinement. Brace v.
United States, 634 F.3d 1167, 1169 (10th Cir.
2011). In addition, under limited circumstances, a federal
prisoner may file a petition under § 2241 if the motion
remedy under 28 U.S.C. § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e).
prisoner convicted in the District of Columbia, petitioner
may seek relief from his conviction under D.C. Code §
23-110. Section 23-110(g) is recognized as “nearly
identical and functionally equivalent to [28 U.S.C.] §
2255” and, accordingly, courts may “rely on cases
construing the federal rule” when applying that
provision. Butler v. United States, 388 A.2d 883,
886 n. 5 (D.C. Cir. 1978). That section provides:
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 the
Superior Court or by any Federal or State court if it appears
that the applicant has failed to make a motion for relief
under this section 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
D.C. Code § 23-110(g).
petitioner correctly argues that he cannot present his claim
of ineffective assistance of appellate counsel under §
23-110. See Watson v. United States, 536 A.2d 1056,
1060 (D.C. 1987)(en banc)(stating that trial judges may not
review appellate proceedings under § 23-110 because
“the Superior Court should not have authority to rule
on the constitutionality of an appellate proceeding”).
Instead, “[i]n the District of Columbia, challenges to
the effectiveness of appellate counsel are properly raised
through a motion to recall the Court of Appeals'
mandate.” Reyes v. Rios, 432 F.Supp.2d 1, 3
(D.D.C. 2006)(citing Watson, 536 A.2d at 1060-61;
D.C. App. R. 41(c)). Such a motion is the ...