Butler, Sean v. Huibregtse, Peter

Filing 3

ORDER dismissing 1 Petition for Writ of Habeas Corpus for lack of jurisdiction. Signed by District Judge Barbara B. Crabb on 3/25/2010. (eds),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN

S EA N BUTLER, P e ti ti o n e r , v. P ET E R HUIBREGTSE, Warden, W isconsin Secure Program Facility, R espo nd ent. O P IN IO N AND ORDER 1 0 - cv -0 1 2 8 - b b c

S ean Butler, an inmate at the Wisconsin Secure Program Facility in Boscobel, W iscon sin, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2 2 5 4. He has paid the five dollar filing fee. The subject of the petition is petitioner's 1989 con viction in the Superior Court for the District of Columbia, for which he was sentenced to a term of 30 years to life. So far as it appears, petitioner is being housed at the Wisconsin Secure Program Facility under an agreement between Wisconsin corrections officials and the U nited States Bureau of Prisons, which has custody over District of Columbia offenders p ursu an t to the National Capital Revitalization and Self-Government Improvement Act of 19 97 , Pub. L. No. 105-33, § 11201, 111. Stat. 251, 734. (A search of Wisconsin's database of circuit court cases shows no Wisconsin convictions for petitioner.) T he petition is before the court for preliminary review under Rule 4 of the Rules G o vern in g Section 2254 Cases in the United States District Courts. Because it is plain from

the petition that this court cannot entertain petitioner's claims, the petition will be dism issed. The following facts are drawn from the petition and its attachments.

FA CT S In 1989, Sean Butler was convicted in the District of Columbia Superior Court for felony murder while armed, second-degree murder while armed, kidnaping while armed, assault with a dangerous weapon and carrying a pistol without a license. He was sentenced to an indeterminate term of 30 years to life. On July 21, 1992, the Court of Appeals for the D istrict of Columbia affirmed the conviction, Butler v. United States, 614 A. 2d 875 (D.C. 19 92 ), and on November 30, 1992, the United States Supreme Court denied certiorari. In approximately 2006, petitioner filed a collateral attack on his conviction under D .C. Code § 23-110, alleging that his trial lawyer had been ineffective in a number of ways an d that the trial court had failed to conduct an adequate colloquy with petitioner to determ ine whether he had validly waived his right to testify. The Superior Court for the D istrict of Columbia denied the motion on November 16, 2006. That judgment was affirm ed by the District of Columbia Court of Appeals on December 5, 2007. Petitioner th en filed a second motion for collateral attack, which was denied by the superior court on S eptem ber 14, 2009 and affirmed by the appellate court on February 26, 2010. The District o f Columbia courts determined that petitioner's second collateral attack was procedurally

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barred as a successive claim under D.C. Code § 23-110 and not cognizable on collateral attack because the claims had been rejected on petitioner's direct appeal. Petition er has now filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 .1 He contends that he is in custody in violation of the laws or Constitution of the U nited States. Specifically, he contends that his 1989 conviction is unlawful because 1) the go vernm ent was allowed to introduce a coerced statement by petitioner against him at trial; 2 ) petitioner's trial lawyer was ineffective for failing to seek suppression of the statement on pro per grounds; and 3) petitioner is actually innocent.

OPINION In 1970, Congress enacted the District of Columbia Court Reform and Criminal Procedure Act, 84 Stat. 473, which transferred general jurisdiction of local matters from the fed eral courts located in that district to the local courts. Swain v. Pressley, 430 U.S. 372, 3 7 5 & n. 4 (1977) (discussing background of Act); Palmore v. United States, 411 U.S. 389, n.2 (1973) (same). Under the current court system, which is "analogous to those found in th e States," id. at n.4, all local matters are heard by the Superior Court of the District of

Although the District of Columbia's local court system is analogous to those in the states, the district is not technically a "state." Therefore, a question exists whether the p etitio n should have been filed under the general habeas corpus statute, 28 U.S.C. § 2241, rather than § 2254, which is reserved for prisoners in custody pursuant to a state court judgm ent. Because the statutory distinction makes no difference to the outcome of the petition , I will accept it as filed under § 2254. 3

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C o lu m b ia and all appeals from that court are heard by the District of Columbia Court of A p peals, whereas the United States Courts in the District of Columbia exercise jurisdiction concurrent with that exercised by the federal courts in the various states. Id. As part of the 1970 legislation, Congress established a procedure for collateral review of convictions imposed by the Superior Court of the District of Columbia that mirrors that au th orized by 28 U.S.C. § 2255 for the United States district courts. D.C. Code § 23-110 pro vides, in relevant part, as follows: (a) A prisoner in custody under sentence of the Superior Court claiming the r ig h t to be released upon the ground that (1) the sentence was imposed in violation of the Constitution of the United States or the laws of the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, (4) the sentence is otherwise subject to collateral attack, may move the court to vacate, set aside, or correct the sentence. * * *

(g) 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 app ears 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 th at the remedy by motion is inadequate or ineffective to test the legality of h is detention. D .C. Code § 23-110. Thus, even though the District of Columbia court system may be the functional equ ivalent of a state court system, District of Columbia prisoners are more circumscribed than their state counterparts in their ability to obtain federal habeas corpus relief. Whereas

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a state prisoner may resort to federal habeas corpus after exhausting his state remedies, a D istrict of Columbia prisoner can do so only if the local remedy is "inadequate or ineffective to test the legality of his detention." Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986). S ee also Swain, 430 U.S. at 381-382 (upholding § 23-110 against suspension clause challenge) ; Byrd v. Henderson, 119 F.3d 34, 36-37 (D.C. Cir. 1997) ("In order to collaterally attack his sentence in an Article III court a District of Columbia prisoner faces a hurdle that a federal prisoner does not."). Absent a showing that the § 23-110 remedy is inadequate or ineffective, the federal court lacks jurisdiction and the petition must be d i s m i ss ed . In this case, the Superior Court for the District of Columbia has denied petitioner relief on his claims that his statement was involuntary and his trial lawyer was ineffective. This court cannot consider his habeas petition unless petitioner can show that his remedy by motion under § 23-110 is inadequate or ineffective. To qualify for this "safety valve" pro visi o n , a petitioner must do more than show that his own circumstances prevent him from invoking the § 23-110 remedy. Garris, 794 F.2d at 727. The mere fact that he has b een unsuccessful in his previous attempts to attack his conviction and sentence by means of a motion under D.C.Code § 23-110 does not render the remedy inadequate or ineffective. R ather, he must show that he has viable claims that fall outside the scope of § 23-110. E.g., W illiam s v. Martinez, 586 F.3d 995, 998 (D.C. Cir. 2009) (finding that § 23-110 presented n o bar to habeas action raising ineffective assistance of appellate counsel claim because

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D istrict of Columbia Court of Appeals had determined that such claims must be raised only throu gh motion to recall mandate), pet. for cert. filed (Feb. 5, 2010). Petitioner does not attempt to show that the § 23-110 procedure is ineffective or inad equ ate and nothing in the petition suggests that such a finding could be made. Petitioner's claims that his statement was involuntary and his trial lawyer was ineffective are p lain ly within the scope of § 23-110 and in fact, he has presented different variations of those claims in previous motions. Petitioner does assert a claim of "actual innocence," but he presents nothing to show that he could not have made that claim during the criminal pro secution , on direct appeal or in his successive § 23-110 motions. In the § 2255 context, a claim of "actual innocence" has been found to qualify for the safety valve only if the Suprem e Court interprets the statute underlying the conviction in a way that shows that the defendan t did not commit the crime and the defendant's opportunity to seek relief under § 2255 has already been used or lost. Unthank v. Jett, 549 F.3d 534, 536 (7th Cir. 2008); In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Petitioner's "actual innocence" claim do es not rest on any retroactive change in the law that he could not have raised earlier. It is simply his own claim that he was wrongly convicted. The local courts in the District of C o lum bia are the only courts with jurisdiction over this claim.

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OR DER IT IS ORDERED that the petition of Sean Butler for a writ of habeas corpus is D IS M IS S ED for lack of jurisdiction. I decline to issue a certificate of appealability because reason able jurists would not debate the correctness of the procedural ruling in this case. S lack v. McDaniel, 529 U.S. 473, 484 (2000). If he wishes, petitioner may ask a circuit judge to issue the certificate under Fed. R. App. P. 22(b). E n tered this 25t h day of March, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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