Gorbey v. Warden, USP Lee
MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 11/15/2017. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
WARDEN, USP LEE,
CASE NO. 7:17CV00218
By: Norman K. Moon
Senior United States District Judge
Michael S. Owlfeather-Gorbey,1 a federal inmate proceeding pro se, filed this petition for
a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his
confinement on a judgment by the Superior Court of the District of Columbia. Respondent filed
a motion to dismiss Gorbey’s § 22542 petition, and Gorbey failed to respond, making the matter
ripe for disposition. After review of the record, I grant the motion to dismiss.
The facts are taken from Gorbey’s habeas petition in the United States District Court for
the District of Columbia, Gorbey v. United States:
On the afternoon of January 18, 2008, Gorbey approached a woman near the U.S.
Capitol and asked for directions to the Supreme Court. He carried a shotgun in
his hand, a sword on his back, a bulletproof vest across his chest, and several
shotgun shells and hunting knives in his backpack. Gorbey explained that he was
on his way to a meeting with Chief Justice John Roberts.
The woman reported Gorbey to the police, who arrested him. They
searched his truck, parked illegally nearby, where they found hundreds of rounds
of ammunition, a rifle scope, and a homemade bomb. Gorbey was subsequently
charged and convicted on multiple weapons-related counts in D.C. Superior
Court. He is currently served a twenty-year prison sentence.
55 F. Supp. 3d 98, 100-01 (D.D.C. 2014) (citations removed).
Petitioner’s other moniker is Michael Steven Gorbey.
Gorbey initially filed a § 2241 petition, but the case is properly construed pursuant to § 2254, and Gorbey
has acknowledged it as such.
After a jury trial where Gorbey acted as his own attorney, the District of Columbia
Superior Court convicted Gorbey of multiple weapons-related offenses. He was sentenced to
264 months in prison and five years of supervised release.
Shortly after he was sentenced, Gorbey filed a notice of direct appeal. He also filed two
pro se motions under D.C. Code § 23-110 seeking a new trial and vacatur of his conviction and
sentence, which his new attorney supplemented.3 The trial court denied those motions, leading
Gorbey to appeal that decision as well. The District of Columbia Court of Appeals subsequently
consolidated Gorbey’s direct appeal with the appeal from the denial of his § 23-110 motions.
In a lengthy and detailed opinion, the District of Columbia Court of Appeals rejected
Gorbey’s challenges to his convictions, but found that the trial court had erred at sentencing by
failing to inquire into his decision to waive an insanity defense under Frendak v. United States,
408 A.2d 364 (D.C. 1979). On remand, the Superior Court concluded that Gorbey had validly
waived the insanity defense and resentenced him to 254 months in prison.
On March 21, 2017, Gorbey filed a petition for a writ of habeas corpus in the Lee County
Circuit Court, alleging that his incarceration is illegal and unconstitutional because he no longer
has any sentence to serve and he is actually innocent. On May 10, 2017, the United States
Attorney removed Gorbey’s petition from state court to the United States District Court for the
Western District of Virginia.
“Collateral challenges to sentences imposed by the Superior Court of the District of
Columbia must be brought in that court under D.C. Code § 23-110.” Bassil v. O’Brien, 2009
Since his 2008 conviction, Gorbey has become “quite an active litigant.” Id. at 101. “In addition to
several appeals, he has filed numerous post-conviction motions in Superior Court and in multiple federal district
courts around the country,” including Washington, D.C., West Virginia, Virginia, the Fourth Circuit Court of
Appeals, Alabama, the Tenth Circuit Court of Appeals, Oklahoma, Florida, and South Carolina. Id.
WL 113583, at *1 (W.D. Va. Jan. 16, 2009).
Section 23-110 states:
An application for a writ of habeas corpus [o]n behalf of a prisoner . . . 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.
To show that the remedy under § 23-110 is inadequate or ineffective, the inmate must
demonstrate that the remedy “is so configured as to deny a convicted defendant any opportunity
for judicial rectification of so fundamental a defect in his conviction as having been imprisoned
for a nonexistent offense. In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). However,
“[s]ection 23-110 has been found to be adequate and effective because it is coextensive with
habeas corpus.” Saleh v. Braxton, 788 F. Supp. 1232, 1232 (D.D.C. 1992).
Here, Gorbey has not shown that his proceedings under D.C. Code § 23-110 were
inadequate or ineffective. In his collateral proceedings, Gorbey argued that both trial counsel
and appellate counsel were ineffective, along with other constitutional claims.
Columbia courts addressed his contentions at length; therefore, he cannot bypass the
requirements of § 23-110 with conclusory and factually unfounded allegations. See Ashcroft v.
Iqbal, 556 U.S. 662, 681 (2009) (Allegations that are conclusory are not entitled to be true.).
Since Gorbey has not shown that the remedy available to him under § 23-110 was
inadequate or ineffective, I conclude that his § 2254 petition must be dismissed for lack of
subject matter jurisdiction.
For the reasons stated, I GRANT the motion to dismiss.
Gorbey’s petition is
unreviewable. An appropriate order will enter this day.
The Clerk is directed to send copies of this memorandum opinion and accompanying
order to Gorbey and to counsel of record for Respondent. Further, concluding that petitioner has
failed to make a substantial showing of the denial of a constitutional right as required by 28
U.S.C. § 2253(c)(1), a certificate of appealability is DENIED.
ENTER: This _____ day of November, 2017.
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