United States District Court, N.D. West Virginia, Elkins
ANTHONY L. DAVIS, Petitioner,
WARDEN JOE COAKLEY, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNITED STATES DISTRICT JUDGE.
day, the above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge James E. Seibert [Doc. 8]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Seibert for submission of a proposed report
and a recommendation (“R&R”). Magistrate
Judge Seibert filed his R&R on October 17, 2017, wherein
he recommends this Court dismiss the petitioner's §
2254 petition with prejudice.
Standard of Review
to 28 U.S.C. § 636(b)(1)(c), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
In addition, failure to file timely objections constitutes a
waiver of de novo review and the right to appeal
this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984). Here, objections to Magistrate Judge
Seibert's R&R were due within fourteen (14) days of
receipt, pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b). Petitioner filed objections on November
7, 2017 [Doc. 10]. Accordingly, this Court will review the
portions of the R&R to which objections were filed under
a de novo standard of review. The remainder will be
reviewed for clear error.
Factual and Procedural History
1995, petitioner Davis was found guilty by a jury in the
Superior Court of the District of Columbia of First Degree
Murder While Armed, Possession of a Firearm During a Crime of
Violence, and Carrying a Pistol Without a License. He was
then sentenced to a term of 30 years to life imprisonment.
Since then, petitioner has filed two motions for a new trial,
which were denied and affirmed on appeal, and several §
23-110 motions, which were denied and affirmed on appeal.
Petitioner now raises the instant Petition Under 28 U.S.C.
§ 2254, wherein he alleges that he has been denied his
Fifth and Fourteenth Amendment rights to a fair trial because
the prosecuting attorney did not turn over Jencks material of
his primary witness despite her later admitting to having it
after he initially claimed that it did not.
particular § 2254 is a different breed than most because
convictions in the District of Columbia Superior Court for
offenses under the D.C. Criminal Code are considered
“state” convictions. Garris v. Lindsay,
794 F.2d 722 (D.C. Cir.), cert. denied, 479 U.S. 993
(1986) (citing Swain v. Pressley, 430 U.S. 372
(1977)). D.C. Code § 23-110, however, prohibits a
prisoner convicted in the D.C. Superior Court from pursuing
federal habeas relief if he 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. St. § 23-110(g).
Swain v. Pressley, the United States Supreme Court
found that D.C. prisoners, unlike other state prisoners,
could not utilize § 2254 to challenge the validity of a
conviction and sentence without first showing that §
23-110 was inadequate or ineffective. Swain,
supra (finding that § 23-110 divests federal
courts of jurisdiction over such claims without a showing
that the remedy under § 23-110 is inadequate or
ineffective). Moreover, to gain recourse in a federal
judicial forum, a D.C. prisoner cannot simply rely on an
unsuccessful attempt to obtain relief under § 23-110 as
a basis for federal habeas relief. See Garris v.
Lindsay, 794 F.2d at 726.
effect, § 23-110 is an exclusive remedy that precludes
federal habeas review unless found to be inadequate or
ineffective. Blair-Bey v. Quick, 151 F.3d 1036, 1042
(D.C. Cir. 1998). In order to show that the remedy under
§ 23-110 is inadequate or ineffective, the inmate must
meet a high burden of showing that “it 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 Smith, 285 F.3d 6, 8 (D.C.
Cir. 2002) (quoting In re Davenport, 147 F.3d 605,
611 (7th Cir. 1998) (emphasis in original). “It is the
inefficacy of the remedy, not a personal inability to utilize
it, that is determinative . . ..” Garris, 794
F.2d at 727; see also David v. Bragg, 1991 WL 21563,
at *3 (D.D.C. Feb. 14, 1991)(“[T]he focus is on the
efficacy of the remedy itself, and a federal court will
therefore have jurisdiction only in extraordinary cases,
especially given the similarity between D.C. and federal
mentioned above, petitioner has filed four motions under
§ 23-110. The D.C. Circuit Court of Appeals reviewed
those petitions pursuant to the authority outlined in §
23-110, and affirmed the Superior Court's ruling.
Therefore, as stated in the R&R, the petitioner has
received the benefit of collateral review by courts with the
constitutional authority to grant the relief sought by the
petitioner. Similarly, petitioner's objections [Doc. 10]
simply rehash that which the R&R has recognized as this
petition's shortcomings; that is, “his
dissatisfaction with the results of such review do not make
the remedial process inadequate or ineffective.” [Doc.
8 at 8].
to the prohibition of § 23-110(g), this Court is simply
precluded on jurisdictional grounds from entertaining this
petition. See Pack v. Yusuff, 218 F.3d 448, 452 (5th
Cir. 2000) (stating, in the analogous context of 28 U.S.C.
§ 2255, that “[t]his Court and other Courts of
Appeals have consistently noted that a prior unsuccessful
[section] 2255 motion is insufficient, in and of itself, to
show the inadequacy or ineffectiveness of the
remedy”)(internal quotations omitted); Perkins v.
Henderson, 881 F.Supp. 55, 59 n. 5 (D.D.C. 1995)
(“A petitioner may not complain that the remedies
provided him by . . . § 23-110 are inadequate merely
because he was unsuccessful when he invoked them.”).
Objections [Doc. 10], the petitioner continues to fail to
show that the remedy under § 23-110 was inadequate or
ineffective. Instead, the petitioner merely asks this Court
to examine issues previously denied by the D.C. Courts upon
§ 23-110 review. The petitioner simply disagrees with
the disposition of his case. Such an argument is insufficient
to show that his proceedings under § 23-110 were
inadequate or ineffective.