Butler, Sean v. Huibregtse, Peter

Filing 6

ORDER denying 5 Motion for Reconsideration. Signed by District Judge Barbara B. Crabb on 5/11/2010. (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 -1 2 8 - b b c

B efore the court is Sean Butler's motion for reconsideration of an order entered M arch 25, 2010, dismissing his application for a writ of habeas corpus because he failed to show that the remedy afforded him by D.C. Code § 23-110 was ineffective or inadequate, so that he would be entitled to pursue post conviction relief in federal court. Nothing in p etitio n er's motion for reconsideration convinces me that I erred in dismissing his petition. As petitioner points out, the Superior Court for the District of Columbia has denied his motions under § 23-110 on the ground that they were procedurally barred, either because p etitio n er had raised the claims in an earlier motion or on direct appeal. Pet., dkt. #1, exh.2. In petitioner's view, this means that the District of Columbia courts "lack authority" under § 23-110 to consider his claims and therefore the § 23-110 remedy is inadequate or i n e f f e c ti v e .

P etitio n er is mistaken. As explained by the Court of Appeals for the District of C olum bia: It is well established in the federal circuits that a federal prisoner cannot raise collaterally any issue litigated and adjudicated on a direct appeal fro m his conviction, absent an intervening change in the law. Any other rule would frustrate policies strongly favoring conservation of judicial resources and finality of judicial decisions. The District of Columbia Court of Appeals has sim ilarly held that resolution of an issue on direct review bars relitigation of th at issue in a District of Columbia court. Because the local statutory motion for vacatur of sentence is thus unavailable to appellant, he insists that the local rem edy was inadequate and ineffective, and that therefore his habeas corpus petition in the District Court was proper. T his is not a case in which a District of Columbia prisoner has been deprived of a full and fair opportunity to litigate a colorable claim in the D istrict of Columbia courts. On the contrary, appellant pressed his Sixth A m en dm en t argument on appeal to the District of Columbia Court of Ap peals, although he did not prevail. Collateral review may be available to rectify an error not correctable on direct appeal, or when exceptional circum stances excuse a failure to assert the error on appeal. But "it must be rem em b ered that direct appeal is the primary avenue for review of a conviction or sentence," and mere lack of success on that appeal does not pave the way fo r collateral attack. Habeas corpus is available to appellant, we repeat, only if "the remedy by motion is inadequate or ineffective to test the legality of his detention ." It is the inefficacy of the remedy, not a personal inability to utiliz e it, that is determinative, and appellant's difficulty here is simply that his circumstances preclude him from invoking it. G arris v. Lindsay, 794 F.2d 722, 726-727 (D.C. Cir. 1986) (footnotes omitted). L ike the petitioner in Garris, petitioner in this case pursued a direct appeal in which he litigated and lost his claim that the trial court had erred in denying his motion to suppress a videotaped statement that he gave to police. Petitioner's new claim that his trial lawyer w as ineffective in arguing the suppression motion is simply a re-packaging of that same

2

claim . Therefore, the District of Columbia courts properly found that the claims could not be raised in a § 23-110 motion because they had previously been resolved on petitioner's d irect appeal. As in Garris, then, it is petitioner's circumstances, not the inefficacy of the rem edy itself, that prevent him from obtaining relief under § 23-110. Therefore, § 23-110(g) b ars this court from entertaining the petition.

OR DER IT IS ORDERED that petitioner Sean Butler's motion for reconsideration of the M arch 25, 2010 order is DENIED. E n tered this 11t h day of May, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

3