El-Amin v. English

Filing 7

MEMORANDUM AND ORDER ENTERED: The petition is dismissed. Petitioner's motions for leave to proceed in forma pauperis 2 & 6 are granted. Petitioner's motion for release on recognizance bond 3 is denied. Signed by District Judge John W. Lungstrum on 07/02/18. Mailed to pro se party Saleem El-Amin by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SALEEM EL-AMIN,
Petitioner,
v.

CASE NO. 18-3152-JWL

N.C. ENGLISH,
Respondent.

MEMORANDUM AND ORDER
This 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.
Background
Petitioner 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).
In 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 appellate counsel.
On June 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).
On June 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.
Analysis
The 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.”1 Rule 4, Rules Governing § 2254 Cases
in the U.S. District Courts.
A 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

Under Rule 1(b), the district courts may apply the Rules Governing 28 U.S.C. §2254
Cases to a petition filed under 28 U.S.C. § 2241.
1

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).
As a 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
detention.
D.C. Code § 23-110(g).
Here, 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 “recognized route to obtaining
federal court review of challenges to appellate counsel’s
performance.” Graham v. FCC Coleman USP II Warden, 2016 WL 2962190
*4 (D.D.C. May 20, 2016).
In Williams v. Martinez, 586 F.3d 995 (D.C. Cir. 2009), the
District of Columbia Circuit held that a prisoner alleging ineffective
assistance of appellate counsel may proceed in federal court under
“the standard set forth in 28 U.S.C. § 2254” because that claim is
not cognizable under D.C. Code § 23-110. Williams, 586 F.3d at 1002.
Therefore, petitioner may present the claim of ineffective assistance
of appellate counsel in a petition under 28 U.S.C. § 2254. See Smith
v. United States, 2000 WL 1279276, *1 (D.C. Cir. Aug. 23, 2000)(per
curiam)(A “conviction in the Superior Court of the District of
Columbia is considered a state court conviction under federal habeas
law” and a challenge to that conviction is “properly brought under
28 U.S.C. § 2254.”). Petitioner may proceed in the District Court for
the District of Columbia. See, e.g., McCoy v. Thomas, 195 F.Supp. 3d
1 (D.D.C. 2016)(§ 2254 petition alleging ineffective assistance of
appellate counsel brought by D.C. offender housed in Lewisburg, PA)
and Lane v. United States, 2015 WL 6406398 (D.D.C. Oct. 21, 2015)(same
filed by D.C. offender housed in Inez, KY).
Conclusion
Petitioner may pursue his claim alleging ineffective assistance
of appellate counsel in a habeas corpus petition filed under 28 U.S.C.
§2254 in the district of his conviction. Because he has an available

remedy, this action filed under 28 U.S.C. § 2241 must be dismissed.
IT IS, THEREFORE, BY THE COURT ORDERED the petition is dismissed.
IT IS FURTHER ORDERED petitioner’s motions for leave to proceed
in forma pauperis (Docs. #2 and #6) are granted.
IT IS FURTHER ORDERED petitioner’s motion for release on
recognizance bond (Doc. #3) is denied.
IT IS SO ORDERED.
DATED:

This 2nd day of July, 2018, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
U.S. District Judge