BERYL A. HOWELL, District Judge.
In this habeas corpus action brought pro se, the Petitioner seeks issuance of the writ under 28 U.S.C. § 2241 or § 2254 "to vacate the July 2, 2009, JUDGMENT of the District of Columbia Court of Appeals in Sanders v. United States, No. 05-CO-1580...." Pet., ECF No. 1, at 1 (capitalization in original). Because this Court is not a reviewing court, it cannot grant such relief. Rather, as discussed below, this Court's habeas jurisdiction over convictions entered by the Superior Court of the District of Columbia and reviewable by the D.C. Court of Appeals is limited to certain claims analyzed under 28 U.S.C. § 2254. The Respondent, through counsel, has filed an opposition to the instant habeas petition, and the Petitioner has filed a reply. Upon consideration of the parties' submissions, the Court finds no basis for issuing the writ and, therefore, will deny the petition and dismiss this case.
The Petitioner is currently confined at the Federal Correctional Institution in Cumberland, Maryland, serving a Superior Court sentence of 61 years to life imprisonment for his 1994 convictions "on nineteen counts stemming from the violent robbery of a jewelry store" following a jury trial. Saunders v. U.S., 975 A.2d 165, 166 (D.C.2009).
Sanders v. U.S., 809 A.2d 584, 588-89 (D.C.2002) (footnotes omitted). The court affirmed the Petitioner's convictions but remanded the case to the trial court for "resentencing to correct certain sentence enhancements [for prior convictions] which had been improperly imposed under D.C Code § 23-111." Saunders, 975 A.2d at 166; see also Sanders, 809 A.2d at 600-02 (discussing "The § 23-111 Issue"). On remand, the enhancement issue was rendered moot by the government's decision not to seek enhancements, but the Petitioner had also filed a motion to reduce his sentence under Rule 35(b) of the Superior Court Criminal Rules, which was granted. Saunders, 975 A.2d at 166-67.
The Superior Court reduced the Petitioner's initial prison sentence of 117 years to life to 61 years to life, a decision the D.C. Court of Appeals affirmed. Id. at 167. In affirming the resentencing decision, the court reasoned that "[b]ecause appellant has not shown that his new sentence is based on materially false or misleading evidence, no due process concerns arise...." Id. at 168. The appellate court issued its mandate on July 27, 2009, and the Petitioner moved to recall the mandate on November 24, 2009. Pet. at 4. The Petitioner's motion was denied on December 10, 2009, and he filed this habeas action on November 22, 2010.
Unlike prisoners convicted in state courts or those convicted in a United States district court, "a District of Columbia prisoner has no recourse to a federal judicial forum unless [he shows that] 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.), cert. denied, 479 U.S. 993, 107 S.Ct. 595, 93 L.Ed.2d 595 (1986) (internal footnote and quotation marks omitted); see Byrd v. Henderson, 119 F.3d 34, 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."). It is established that challenges to a Superior Court judgment of conviction must be pursued in that court under D.C.Code § 23-110. See Blair-Bey v. Quick, 151 F.3d 1036, 1042-43 (D.C.Cir.1998).
Under § 23-110, a District of Columbia prisoner may move to vacate, set aside, or correct his sentence on grounds, among others, that "(1) the sentence was imposed in violation of the Constitution... [and] (2) the court was without jurisdiction to impose the sentence[.]" D.C. Code § 23-110(a). The statute further provides that
D.C. Code § 23-110(g). "Section 23-110(g)'s plain language makes clear that it only divests federal courts of jurisdiction to hear habeas petitions by prisoners who could have raised viable claims pursuant to
The Sixth Amendment guarantees the right of competent counsel for the criminally accused. Both appellate and trial counsel are held to the same performance standards. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Absent an actual conflict or a presumed per se violation due to counsel's failure "entirely ... to subject the prosecution's case to meaningful adversarial testing," Bell v. Cone, 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (quoting U.S. v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)), the Petitioner may prevail on an ineffective assistance claim by showing that counsel's representation fell below an objective standard of reasonableness and demonstrating that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.
A court's evaluation of an attorney's performance "must be highly deferential," id. at 689, 104 S.Ct. 2052, and courts "must indulge a strong presumption that an attorney's conduct fell within the wide range of reasonable professional assistance." United States v. Toms, 396 F.3d 427, 432 (D.C.Cir.2005) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). This is so because "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
The Petitioner argues that his appellate counsel was ineffective for (1) failing to review the resentencing record, Pet. at 7-8; (2) filing a brief that "raised a single frivolous issue," id. at 8-9; (3) failing "to challenge [the] imposition of consecutive sentences for armed robbery and armed burglary on appeal," id. at 13; and (4) failing to reargue the sufficiency of the evidence supporting his conviction of armed robbery of Thuy Nguyen and Ganh Ngo, id. at 13-15. The Petitioner asserts that but for those alleged acts and omissions, the outcome of his second appeal would have been different. Pet. at 15.
Petitioner agrees with the Respondent that Strickland is the applicable standard. Pet'r's Opp'n to Reply to Pet'r's Pet. for Writ of Habeas Corpus ("Pet'r's Opp'n"), ECF No. 16, at 1. The Petitioner's claim predicated on appellate counsel's omissions fails on the first prong of Strickland's standard. As an initial matter, the Petitioner's unsubstantiated claim that appellate counsel failed to review the resentencing record is belied by counsel's citations to that record in the appellate brief filed on the Petitioner's behalf. See Gov't's Ex. 1, ECF No. 12-1, (Brief For Appellant at 6-8).
As for the remaining alleged failures of counsel, the D.C. Court of Appeals remanded the Petitioner's case for the limited purpose of correcting the improperly imposed enhancements to his sentence. Thus, appellate counsel's failure to "reargue" the sufficiency of the evidence supporting Petitioner's upheld convictions and to challenge the imposition of consecutive sentences for armed robbery and armed burglary was not objectively unreasonable because such arguments would have been outside the scope of the remand to Superior Court, and "[u]nder the mandate rule, `an inferior court has no power or authority to deviate from the mandate issued by an appellate court.'" Independent Petroleum Ass'n of America v. Babbitt, 235 F.3d 588, 596-97 (D.C.Cir.2001) (quoting Briggs v. Pennsylvania R.R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948)). Furthermore, because the D.C. Court of Appeals in the first appeal regarded "the charges relating to the burglary, the robbery, and the shooting ... generally as separate offenses, not the same offense," Sanders, 809 A.2d at 606, and resolved "[t]he merger issues," id. at 602-04, appellate counsel had no reasonable basis to reassert a challenge to the consecutive sentences imposed for those convictions. See id. at 604 (reasoning that "appellants reached a `fork in the road' between their decision to commit burglary while armed (count 3) and armed robbery (count 7)," thereby committing separate, multiple acts).
Plaintiff's claim based on counsel's alleged presentation of "a single frivolous issue" fares no better. In her brief, counsel presented the following argument:
Brief at 10. The D.C. Court of Appeals summarized the argument as follows: "[A]ppellant contends that the new sentence is unreasonable because it does not comport with the sentencing goals set forth in statutes related to the U.S.S.G.
Nevertheless, the D.C. Court of Appeals proceeded to review the Petitioner's challenge to the Superior Court's "ruling on [the Petitioner's] Rule 35 motion only for abuse of discretion" and concluded that it was "satisfied that the trial court did not abuse its discretion when resentencing appellant." Saunders, 975 A.2d at 167. The court reasoned that absent a constitutional violation "sentences within statutory limits are unreviewable." Id. (citation and internal quotation marks omitted). It explained that "[d]ue process may be implicated if the sentencing judge relies on `mistaken information or baseless assumptions,' but a judge has `wide latitude' in sentencing matters and may consider any reliable information, from virtually any source, in deciding what sentence to impose." Id. (quoting Wallace v. United States, 936 A.2d 757, 780 (D.C.2007)).
Because the Petitioner's new sentence was "within statutory limits," a reversal was possible only upon his showing that the sentence was "actually based on materially false or misleading evidence." Id. Here, the Petitioner does not claim that appellate counsel had any basis to make such an argument — though arguably she tried but in her verbosity was misunderstood. Furthermore, the D.C. Court of Appeals found from the Superior Court's consideration of such favorable factors as "the time [the Petitioner] had already served, his progress while incarcerated, and his expression of remorse[,]" id., that the Superior Court had not abused its discretion in reducing the Petitioner's minimum prison sentence by 56 years. Even if appellate counsel performed deficiently, the Petitioner has not shown that the outcome of the appeal would have been different but for counsel's "misplaced" argument.
For the foregoing reasons, the Court concludes that the Petitioner has not shown that he was deprived of the effective assistance of counsel on appeal of his resentencing order. Therefore, the application for a writ of habeas corpus is denied. A separate final Order accompanies this Memorandum Opinion.