United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE
before the court are petitioner's (1) petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241, (ECF No.
1); (2) application to proceed in forma pauperis, (ECF No.
2); and (3) emergency motion for release, (ECF No. 12). By
Standing Order, this matter was referred to United States
Magistrate Judge Omar J. Aboulhosn for submission of proposed
findings and recommendations for disposition pursuant to 28
U.S.C. 636(b)(1)(b). ECF No. 6. The magistrate judge
submitted his proposed findings and recommendation
(“PF&R”) on March 2, 2018. ECF No. 16. In the
PF&R, Judge Aboulhosn recommended that the court dismiss
petitioner's petition for a writ of habeas corpus; deny
petitioner's application to proceed in forma pauperis;
and deny petitioner's emergency motion for release.
accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days, plus three mailing
days, in which to file any objections to the PF&R.
Petitioner timely filed objections to the PF&R on March
9, 2018. ECF No. 19. Because petitioner's objections are
without merit, the court dismisses his petition.
2014, Saleem El-Amin was indicted on charges of armed robbery
in the Superior Court of the District of Columbia. In July,
the grand jury returned a superseding indictment, charging
him with a second count of assault with a deadly weapon
(“ADW”). In September, a jury trial was held
before Judge William M. Jackson in the Superior Court of the
District of Columbia. After the trial, Judge Jackson
dismissed the ADW charge, determining that this offense was
encapsulated within the offense of armed robbery.
Additionally, Judge Jackson declined defense counsel's
request to instruct the jury on the ADW charge.
November 14, 2014, petitioner was convicted of armed robbery
and sentenced to ten (10) years imprisonment. El-Amin v.
United States, 2016 WL 2866862 (May 11, 2016); see
also El-Amin v. Downs, 272 F.Supp.3d 147 (D.D.C. Aug. 9,
2017). On May 11, 2017, the District of Columbia Court of
Appeals affirmed the conviction. Elamin v. United
States, 164 A.3d 118 (D.C. Ct. App. May 11, 2017).
filed the instant petition seeking relief under 28 U.S.C.
§ 2241 on September 11, 2017,  challenging the validity of
his conviction. ECF No. 1. As grounds for relief, petitioner
asserts that (1) the District of Columbia Court of Appeals
did not have jurisdiction because the government failed to
file a “jurisdictional statement;” (2)
“Conspiracy to deprive [petitioner] of due process of
the Sixth Amendment right to a jury trial;” (3)
“Failure to prove beyond reasonable doubt the ADW
element of armed robbery;” (4) “Violation of due
process in violation;” (5) “Ineffective
assistance” of counsel; and (6) lack of
“[j]urisdiction.” ECF No. 1 at p.1. Petitioner
also argues that D.C. Code § 23-110, a sister statute
and functional equivalent to 28 U.S.C. § 2255 discussed
infra, is ineffective to challenge the
petitioner's conviction because (1) a federal court's
jurisdiction is not defeated by state proceedings; (2) the
District of Columbia Court of Appeals “lacked
jurisdiction absent jurisdictional statement in appellant
brief;” and (3) ineffective assistance of appellate
counsel. Id. at pp. 11-12.
magistrate judge concluded that the claims raised by
petitioner fail to demonstrate that D.C. Code § 23-110
is inadequate or ineffective to allow petitioner to claim
relief under 28 U.S.C. § 2241. Specifically, petitioner
failed to allege any intervening change in the law that
establishes his innocence. ECF No. 16 at p.8; In re
Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
only objection to the PF&R is that “the acquired
rights doctrine grants me the Bill of Right Sec. 1 to writ of
habeas corpus and cannot be reduced by legislation of [D.C.
Code §] 23-110.” ECF No. 19 at p.2.
acquired rights doctrine is defined by Black's Law
Dictionary as “the principle that once a right has
vested, it may not be reduced by later legislation.”
Black's Law Dictionary 28 (10th ed. 2014). The basis of
petitioner's objection is difficult to fully grasp,
nevertheless, the court construes it as an objection to the
application of D.C. Code § 23-110 instead of a writ of
habeas corpus under 28 U.S.C. § 2255. Even though
petitioner makes no attempt to remedy his failure to assert
any intervening change in the law establishing his innocence,
as required by In re Jones in order to seek redress
under 28 U.S.C. § 2241, the court briefly compares the
protections embodied in D.C. Code § 23-110 and 28 U.S.C.
federal criminal defendants may seek habeas corpus relief
under 28 U.S.C. § 2255, a petitioner convicted under the
laws of the District of Columbia may only seek to invalidate
his conviction under D.C. Code § 23-110. D.C. Code
§ 23-110(g), written almost identically to 28 U.S.C.
§ 2255(g),  reads as follows:
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 ...