Williams v. Martinez

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2009 Decided November 13, 2009

No. 08-5221

CRAIG ALLAN WILLIAMS,

APPELLANT

v.

R. MARTINEZ, WARDEN AND KENNETH L. WAINSTEIN, UNITED

STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-00971-ESH)

William Hoffman, appointed by the court, argued the cause

as amicus curiae in support of appellant. With him on the briefs

was David L. Cousineau.

Craig A. Williams, pro se, filed briefs for appellant.

Michael T. Ambrosino, Assistant U.S. Attorney, argued the

cause for appellees. With him on the brief was Roy W. McLeese

III, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S.

Attorney, entered an appearance.

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Before: ROGERS, TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit Judge

BROWN.

TATEL, Circuit Judge: Section 23-110 of the D.C. Code

establishes a procedure for collateral review of convictions in

the D.C. Superior Court and creates exclusive jurisdiction in that

court “unless” the remedy provided by that section is

“inadequate or ineffective.” In this case, we must decide

whether section 23-110 bars a prisoner convicted in Superior

Court from bringing a federal habeas corpus petition alleging

ineffective assistance of appellate counsel. Because the D.C.

Court of Appeals has held that challenges to the effectiveness of

appellate counsel may not be brought pursuant to section 23-

110, but must instead be raised through a motion to recall the

mandate in that court, we hold that section 23-110 does not

deprive federal courts of jurisdiction over habeas petitions

alleging ineffective assistance of appellate counsel.

I.

Although the background of this case is complicated,

involving as it does several proceedings spanning more than

fifteen years, see Williams v. United States, 878 A.2d 477 (D.C.

2005) (en banc); Williams v. United States, 783 A.2d 598 (D.C.

2001), understanding the issue before us requires knowing only

the following.

In 1990, a D.C. Superior Court jury convicted appellant

Craig Allan Williams of first-degree murder. Represented by

new counsel, Williams then appealed. During the pendency of

that appeal, Williams filed a motion for post-conviction relief

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pursuant to D.C. Code § 23-110, which provides that a “prisoner

in custody under sentence of the Superior Court claiming the

right to be released upon the ground that [] the sentence was

imposed in violation of the Constitution . . . may move the court

to vacate, set aside, or correct the sentence.” D.C. Code § 23-

110(a).

Consistent with its usual practice, the D.C. Court of

Appeals stayed Williams’s direct appeal pending the Superior

Court’s resolution of his section 23-110 motion. See Shepard v.

United States, 533 A.2d 1278, 1280 (D.C. 1987). Thereafter,

the Superior Court denied Williams’s section 23-110 motion,

and the D.C. Court of Appeals consolidated his appeal of that

denial with his direct appeal. In 1995, the D.C. Court of

Appeals affirmed Williams’s conviction.

Williams then filed a motion in the D.C. Court of Appeals

to recall the mandate affirming his conviction—the procedure

required in the District of Columbia to litigate the issue of

ineffective assistance of appellate counsel. See Watson v.

United States, 536 A.2d 1056, 1060 (D.C. 1987) (en banc). In

that motion, Williams complained that counsel on both his direct

appeal and his section 23-110 motion had rendered ineffective

assistance. The D.C. Court of Appeals summarily denied the

motion to recall the mandate.

Making the same ineffective assistance of appellate counsel

claim, Williams then sought habeas relief in federal court. The

district court dismissed Williams’s habeas petition for lack of

jurisdiction on the ground that section 23-110 provides the

exclusive remedy for collateral challenges to sentences imposed

by the Superior Court. Williams v. Martinez, 559 F. Supp. 2d

56, 57–58 (D.D.C. 2008).

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Williams appealed, and we referred his case to the district

court to determine in the first instance whether to issue a

certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1)

(requiring a COA to appeal a final order in a habeas

proceeding); United States v. Mitchell, 216 F.3d 1126, 1130

(D.C. Cir. 2000) (holding that petitioners should seek a COA

from the district court before requesting one from the appeals

court). The district court declined to issue a COA, explaining

that for the reasons given in its opinion dismissing Williams’s

claim for lack of jurisdiction, Williams had failed to make “a

substantial showing of the denial of a constitutional right,” as

required for a COA. 28 U.S.C. § 2253(c)(2). Williams then

filed a request for a COA in this court, and we appointed amicus

curiae to present arguments on his behalf.

Because the district court denied Williams’s petition

without reaching the merits of his constitutional claim, we

review his request for a COA in two steps. We ask first whether

Williams has shown that “jurists of reason would find it

debatable whether the district court was correct” in dismissing

his petition for lack of jurisdiction, and second whether “jurists

of reason would find it debatable whether [his] petition states a

valid claim of the denial of a constitutional right.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). We take each step in turn.

II.

The answer to the first question—whether the district court

correctly dismissed Williams’s claim for lack of jurisdiction—

turns on the reach of section 23-110. Section 23-110(a)

authorizes a “prisoner in custody under sentence of the Superior

Court” to “move the court to vacate, set aside, or correct the

sentence.” D.C. Code § 23-110(a). Section 23-110(g) provides:

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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 that

the remedy by motion is inadequate or ineffective to

test the legality of his detention.

D.C. Code § 23-110(g).

Williams contends that section 23-110(g) presents no bar to

his ineffective assistance of appellate counsel claim.

Specifically, he argues that because the D.C. Court of Appeals

prohibits prisoners from bringing challenges to the effectiveness

of appellate counsel under section 23-110—they may be raised

only through a motion to recall the mandate—his remedy under

section 23-110 is “inadequate or ineffective.” According to the

government, Williams, by focusing solely on the adequacy of

his remedies under section 23-110, “addresses the wrong

question.” Appellees’ Br. 25. As the government sees it, the

proper inquiry is not whether section 23-110 provides an

adequate remedy to test the legality of Williams’s detention, but

rather whether the “local remedy” taken as a whole does. Id.

Therefore, the government argues, because the D.C. Court of

Appeals provides an adequate local remedy to challenge the

effectiveness of appellate counsel, namely the opportunity to file

a motion asking the court to recall its mandate, section 23-110

bars Williams’s habeas petition.

We agree with Williams. 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 section 23-110(a). Recall

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that section 23-110(g) provides that a prisoner authorized to

apply for relief under section 23-110(a) may not bring a habeas

petition in federal court “unless it also appears that the remedy

by motion is inadequate or ineffective to test the legality of his

detention.” D.C. Code § 23-110(g). “[R]emedy by motion”

plainly refers to motions filed pursuant to section 23-110(a).

Although the D.C. Court of Appeals allows prisoners to

challenge the effectiveness of appellate counsel through a

motion to recall the mandate, such a motion—filed directly in

the D.C. Court of Appeals—is obviously not a “remedy by

[section 23-110] motion,” which is filed in the D.C. Superior

Court. D.C. Code § 23-110(g). Indeed, the D.C. Court of

Appeals itself has emphasized that a motion to recall the

mandate is an “independent” action separate and apart from a

section 23-110 motion. Wu v. United States, 798 A.2d 1083,

1091 (D.C. 2002). Thus, because the Superior Court lacks

authority to entertain a section 23-110 motion challenging the

effectiveness of appellate counsel, that section is, by definition,

inadequate to test the legality of Williams’s detention.

Accordingly, section 23-110 does not bar Williams’s habeas

petition.

Our decision in Streater v. Jackson, 691 F.2d 1026 (D.C.

Cir. 1982), supports this view. There, the D.C. Court of

Appeals dismissed Streater’s section 23-110 motion alleging

ineffective assistance of appellate counsel. Streater then

petitioned for habeas relief in the district court, which dismissed

his petition for failing to exhaust his local remedies. On appeal,

we recognized that Streater found himself in a bind: on the one

hand, section 23-110 was unavailable to him because the

Superior Court lacks authority to review appellate proceedings;

on the other hand, the D.C. Court of Appeals had at that time

failed to clarify what avenue of local relief remained open to

him. Accordingly, we instructed the district court to hold

Streater’s habeas petition in abeyance pending his application to

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the D.C. Court of Appeals to recall its mandate—the very

procedure subsequently adopted by the D.C. Court of Appeals

as the appropriate vehicle for mounting a challenge to the

effectiveness of appellate counsel. Id. at 1028; see Watson, 536

A.2d at 1060–61 (requiring that ineffective assistance of

appellate counsel claims be litigated through a motion to recall

the mandate). Of significance to the issue before us, we

clarified that after “a cogent ruling from the D.C. Court of

Appeals concerning local relief, if any, for Streater, the District

Court will be in a position to rule intelligently on his federal

petition for habeas corpus.” Streater, 691 F.2d at 1028. In

other words, Streater anticipated precisely the situation we

confront here—a federal habeas petition asserting ineffective

assistance of appellate counsel after the prisoner moved to recall

the mandate in the D.C. Court of Appeals—and seemed to have

assumed that the district court would have jurisdiction to

entertain that petition.

Blair-Bey v. Quick, 151 F.3d 1036 (D.C. Cir. 1998), further

reinforces this conclusion. In that case, a prisoner convicted of

violating the District of Columbia Code filed a federal habeas

petition challenging the procedures under which he was denied

parole by the D.C. Parole Board. We concluded that section 23-

110 presented no bar to the habeas proceeding, explaining that

the claim could not have been brought under section 23-110

because it did not “challenge [Blair-Bey’s] conviction or

sentence” as provided in section 23-110, and “section 23-110(g)

only bars us from hearing those claims that could have been

raised through section 23-110.” Id. at 1043; see also Neal v.

Director, 684 F.2d 17, 19 (D.C. Cir. 1982) (finding that section

23-110(g) does not preclude federal court jurisdiction over a

prisoner’s habeas challenge to his transfer between

penitentiaries because challenges to prison transfer procedures

fall outside the scope of section 23-110). Blair-Bey therefore

confirms that section 23-110(g) divests federal courts of

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jurisdiction only over habeas petitions by prisoners who, unlike

Williams, have an effective section 23-110 remedy available to

them.

Blair-Bey also speaks to the question, arguably left open in

Streater, whether the availability of an adequate local remedy

outside section 23-110 is sufficient to bar prisoners sentenced in

the District of Columbia from seeking federal habeas relief. In

Blair-Bey, as in this case, the prisoner had another means to

seek his release: section 16-1901 of the D.C. Code, which

provides a general habeas corpus remedy for prisoners confined

in the District. D.C. Code § 16-1901. Despite the availability of

that alternative procedure, however, we allowed Blair-Bey’s

federal habeas petition to go forward. Blair-Bey, 151 F.3d at

1047.

The section 16-1901 procedure at issue in Blair-Bey is

analogous to the mandate-recall procedure at issue here in that

both provide prisoners with a means to secure their release, and

both provide relief comparable to that otherwise available for

claims that fall within section 23-110’s scope. See Norris v.

United States, 927 A.2d 1034, 1038 (D.C. 2007) (explaining that

section 16-1901 and section 23-110 are both “designed to permit

challenges to unlawful custody”). Indeed, section 16-1901 is

perhaps more akin to section 23-110 because, like a section 23-

110 motion, a habeas petition under section 16-1901 is filed

directly with the Superior Court. See D.C. Code § 16-1901(c).

But just as the availability of section 16-1901 did not bar Blair-

Bey’s federal habeas petition, the availability of the mandate-

recall procedure does not divest the federal district court of

jurisdiction over Williams’s petition.

Nothing in Garris v. Lindsay, 794 F.2d 722 (D.C. Cir.

1986), on which the government relies, requires a different

result. In that case, Garris, a D.C. prisoner, argued in his direct

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appeal that he had been denied his Sixth Amendment right to

represent himself in his Superior Court trial. The D.C. Court of

Appeals rejected that claim, and D.C. law barred him from

relitigating the issue collaterally under section 23-110. Id. at

727. Garris then filed a federal habeas petition in which he

argued that because he was unable to take advantage of section

23-110, the district court had authority to entertain his petition.

Noting that “[i]t is the inefficacy of the remedy, not a personal

inability to utilize it, that is determinative,” we concluded that

the district court lacked habeas jurisdiction. Id. at 727. Here, it

is indeed the “inefficacy of the remedy” that presents the

problem. Section 23-110 was unavailable to Williams because

his constitutional claim—unlike Garris’s—falls outside that

statute’s scope.

In concluding that Williams may proceed with his habeas

petition, we are mindful that when Congress enacted section 23-

110 as part of the District of Columbia Court Reform and

Criminal Procedure Act of 1970, Pub. L. No. 91-358, § 210, 84

Stat. 608, it sought to vest the Superior Court with exclusive

jurisdiction over most collateral challenges by prisoners

sentenced in that court. See Swain v. Pressley, 430 U.S. 372,

378 (1977); Blair-Bey, 151 F.3d at 1045–46; see also Swain,

430 U.S. at 381–82 (explaining that “[s]ince the scope of the

remedy provided by § 23-110 is the same as that provided by §

2255, it is also commensurate with habeas corpus in all respects

save” administration by Article III judges). That said, Congress

also included the “inadequate or ineffective” exception,

indicating that it contemplated circumstances under which

prisoners sentenced in Superior Court could petition for habeas

relief in federal court. As noted above, supra at 7–8, we have

already recognized some exceptions under section 23-110(g),

and today we recognize another. The government warns that

allowing habeas petitions like Williams’s to proceed will “open

the floodgates to frivolous federal habeas claims.” Appellees’

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Br. 35. Although the government gives us no basis for thinking

that will happen, Congress can always close the “floodgates” if

the feared deluge comes to pass.

The concurring opinion correctly notes that D.C. prisoners

who challenge the effectiveness of appellate counsel through a

motion to recall the mandate in the D.C. Court of Appeals will

get a second bite at the apple in federal court. But that is a

consequence of section 23-110(g), which bars federal habeas

claims only when the section 23-110 motion is adequate or

effective. As explained above, a motion to recall the mandate

does not qualify as a motion pursuant to section 23-110.

Moreover, we allowed Blair-Bey to file a federal habeas petition

challenging his parole proceedings even though the D.C. Court

of Appeals had affirmed the Superior Court’s denial of his D.C.

habeas petition making precisely the same claim. Blair-Bey,

151 F.3d at 1038, 1047. We also recognize that if the D.C.

Court of Appeals wishes to avoid federal habeas review of

ineffective assistance of appellate counsel claims, it would have

to abandon its mandate-recall procedure and permit the Superior

Court to entertain such challenges under section 23-110—just as

we require such claims to be raised directly in the district court

pursuant to 28 U.S.C. § 2255. See United States v. Henry, 472

F.3d 910, 915 (D.C. Cir. 2007) (requiring federal prisoners to

raise ineffective assistance of appellant counsel claims pursuant

to section 2255); concurring op. at 5–6. But again, that is a

consequence of how Congress wrote section 23-110 and how

the District of Columbia’s highest court has interpreted that

provision of the D.C. Code. Although Congress could amend

the statute, we cannot, and on questions of District of Columbia

law this court defers to the D.C. Court of Appeals. See Blair-

Bey, 151 F.3d at 1050.

Given the foregoing, Williams has more than satisfied the

first step of his COA burden. He has shown not just that the

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district court’s habeas jurisdiction is debatable, see Slack, 529

U.S. at 484, but that under section 23-110 the district court in

fact has jurisdiction to entertain his habeas petition. We must

therefore decide whether Williams has presented a reasonably

debatable claim of the denial of a constitutional right, an issue to

which we now turn.

III.

Although criminal defendants enjoy a due process right to

the effective assistance of counsel during their first appeal as of

right, Evitts v. Lucey, 469 U.S. 387, 396 (1985), the Supreme

Court has made clear that defendants lack a constitutional

entitlement to effective assistance of counsel in state collateral

proceedings, Coleman v. Thompson, 501 U.S. 722, 752 (1991).

In this case, the government contends that Williams’s

ineffective assistance of counsel claims relate solely to his

section 23-110 motion, a collateral procedure to which no right

of counsel attaches. Accordingly, the government argues,

Williams has failed to allege the denial of a constitutional right

and so has no right to a COA. We disagree.

The government is certainly correct that Williams’s habeas

petition challenges the effectiveness of counsel in the section

23-110 proceedings. But the petition does not stop there. It

goes on to challenge the effectiveness of counsel in the direct

appeal as well. “Ground two” of the petition expressly alleges

the “[d]enial of due process and effective assistance of counsel

on first appeal of criminal conviction.” Pet. for Writ of Habeas

Corpus at 19.5, Williams v. Martinez, 559 F. Supp. 2d 56

(D.D.C. 2008) (No. 08-0971). Contrary to the government’s

claim, then, Williams has in fact asserted the denial of a

constitutional right—effective assistance of counsel in his direct

appeal.

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Having established that Williams has asserted a

constitutionally cognizable right in his habeas petition, we must

determine whether he has shown a reasonably debatable

infringement of that right. See Slack, 529 U.S. at 484. “The

COA determination under § 2253(c) requires an overview of the

claims in the habeas petition and a general assessment of their

merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

Because the district court found it unnecessary to reach the

merits of Williams’s habeas petition, however, we lack the

benefit of that court’s analysis. Moreover, the parties’ briefs

give little attention to the merits of Williams’s claim, and to the

extent that they do, they disagree on the precise nature of that

claim. Given all this, we are unprepared to decide whether

Williams has met his burden of stating “a valid claim of the

denial of a constitutional right.” Slack, 529 U.S. at 484; see id.

at 485, 489 (declining to address the merits of the COA analysis

where the parties had not briefed the issue). Accordingly, we

remand the case to the district court to consider the merits

component of the COA question, an evaluation that the court

should undertake in light of the standard set forth in 28 U.S.C. §

2254. See Miller-El, 537 U.S. at 349–50 (Scalia, J., concurring)

(explaining that a judge should deny a COA if all reasonable

jurists would conclude that the habeas statute bars relief); cf.

Madley v. U.S. Parole Comm’n, 278 F.3d 1306, 1308–09 (D.C.

Cir. 2002) (holding that District of Columbia courts are deemed

to be state courts for purposes of 28 U.S.C. § 2253); Coady v.

Vaughn, 251 F.3d 480, 484–85 (3d Cir. 2001) (requiring a state

prisoner to challenge his custody under 28 U.S.C. § 2254 rather

than § 2241).

For the foregoing reasons, we reverse the dismissal of

Williams’s habeas petition and remand to the district court for

further proceedings consistent with this opinion.

So ordered.

BROWN, Circuit Judge, concurring in the judgment: I

agree it was error for the district court to dismiss Williams’s

habeas petition for lack of jurisdiction pursuant to D.C. Code

§ 23-110(g). However, the court interprets section 23-110 so

literally it confers routine jurisdiction in federal court for all

claims of ineffective assistance of appellate counsel by

prisoners under D.C. sentence. Since I believe this result

departs from congressional intent, I would read the statutory

scheme broadly to maintain federal jurisdiction solely as a

safety valve. Therefore, I concur only in the judgment.

I.

History matters here. Our current dilemma arises out of a

succession of procedural anomalies that can only be described

as “A Series of Unfortunate Events.” First, when section 23-

110 was enacted in 1970, the constitutional claim of appellate

ineffective assistance of counsel (IAC) did not exist. The

Supreme Court did not recognize a Sixth Amendment right to

effective assistance of counsel on direct appeal of a criminal

conviction until Evitts v. Lucey, 469 U.S. 387, 395 (1985).

Several years before Lucey, however, the District of Columbia

Court of Appeals (DCCA) considered an appellate IAC claim

in Streater v. United States, 429 A.2d 173 (D.C. 1980)

(Streater I). In Streater I, the DCCA held Streater, a D.C.

prisoner, could not raise the claim in a section 23-110 motion.

The DCCA determined the claim was “not within the purview

of § 23-110” because, among other reasons, Streater “has not

argued that his sentence was imposed in violation of the

Constitution of the United States.” Id. at 174. At the time,

prior to Lucey, this was a correct statement of the scope of

section 23-110. Relying on two federal circuit decisions

interpreting the federal habeas statute, 28 U.S.C. § 2255, the

DCCA also noted section 23-110 “provides no basis upon

which the trial court may review appellate proceedings.” Id.

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In Streater v. Jackson, 691 F.2d 1026 (D.C. Cir. 1982)

(Streater II), we reviewed the district court’s dismissal of

Streater’s habeas petition. Streater argued he was given the

“run around” by the D.C. courts. Id. at 1028. We observed

the DCCA had not “enlightened Streater as to the remedy, if

any, still open to him in the local courts.” Id. Reluctant to

meddle with the DCCA’s jurisdiction, we ordered the district

court to hold Streater’s petition in abeyance and invited the

DCCA to consider his motion to recall the mandate. Id. It

did. See Streater v. United States, 478 A.2d 1055 (D.C.

1984).

Fast forward to Watson v. United States, 536 A.2d 1056

(D.C. 1987) (en banc), in which the DCCA again faced an

appellate IAC claim, but this time post-Lucey. The DCCA

revisited the procedural question of “how one may challenge

previous counsel’s effectiveness on appeal.” Id. at 1059.

Turning to Streater I, the DCCA again rejected section 23-

110 as a procedure for raising this claim because “the

Superior Court should not have authority to rule on the

constitutionality of an appellate proceeding.” Id. at 1060

(citing Streater I, 429 A.2d at 174). The court also refused to

allow the claim to be brought under the District’s general

habeas statute, D.C. Code § 16-1901, for the same reason. Id.

(citing Streater II, 691 F.2d at 1028). Having dismissed these

statutory habeas remedies, the court identified an appropriate

procedural vehicle for the claim: “A motion in this court to

recall the mandate is the appropriate avenue to take in

presenting a Lucey challenge.” Id. (citing United States v.

Winterhalder, 724 F.2d 109, 111 (10th Cir. 1983)). In

reaching this conclusion, the DCCA observed that in Streater

II we had approved its decision to remove the claims from

section 23-110 in Streater I. Id. at 1060–61.

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II.

With this history in mind, I turn to the statutory provision

at issue, section 23-110(g), which provides:

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 that the

remedy by motion is inadequate or ineffective to

test the legality of his detention.

D.C. Code § 23-110(g). The court interprets this provision to

mean the federal courts have jurisdiction to entertain a D.C.

prisoner’s habeas petition whenever the prisoner is not

“authorized to apply for relief by motion pursuant to this

section.” See Op. at 5–6. Because in Streater I the DCCA

held appellate IAC claims cannot be presented in a section 23-

110 motion, the court correctly observes a prisoner with such

a claim is not “authorized” to file a section 23-110 motion;

thus, the court reasons, section 23-110 is “by definition,

inadequate” to address those claims. Op. at 6. While it is true

the statute’s plain words may be read to justify the court’s

holding, the result is clearly at odds with the statute’s purpose.

Enacted by Congress in 1970, section 23-110 was only

one provision of a sweeping legislative reform designed to

remove “local litigation” from the federal courts to the

District of Columbia’s judicial system. Swain v. Pressley,

430 U.S. 372, 375 (1977). As the Supreme Court noted in

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Swain, section 23-110 created for prisoners under D.C.

sentence a collateral procedure in the Superior Court

“comparable” to the habeas statute for federal prisoners,

section 2255. Id. Section 23-110, like section 2255, was

“intended to substitute a different forum [the Superior Court]

and a different procedure [section 23-110] for collateral

review” of D.C. prisoners’ sentences. Id. at 378. The

statute’s clear purpose was to shift initial habeas jurisdiction

for D.C. prisoners from the federal courts to the District of

Columbia courts. See Byrd v. Henderson, 119 F.3d 34, 36–37

(D.C. Cir. 1997).

This court now says the DCCA’s interpretation of section

23-110 requires federal courts to assume jurisdiction over

appellate IAC claims. The court in effect says, “The DCCA

made us do it.” Congress enacted section 23-110 with the

broad purpose of accomplishing the opposite result, and the

DCCA, with our encouragement, exercised its best judgment

in fashioning a procedural remedy for a heretofore

unrecognized constitutional claim. The DCCA therefore

could respond, “The D.C. Circuit made us do it.”

III.

The answer lies in section 23-110(g)’s “inadequate and

ineffective” clause—what we have called the “safety valve.”

Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir. 1998). In

Swain, the Supreme Court upheld section 23-110 against a

Suspension Clause challenge, relying heavily on the last

clause of section 23-110(g): “That clause allows the District

Court to entertain a habeas corpus application if it ‘appears

that the remedy by motion is inadequate or ineffective to test

the legality of [the applicant’s] detention.’” 430 U.S. at 381.

Congress decided to replicate a “state” judicial system in the

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District of Columbia, with no interference from the federal

courts unless the state habeas remedy is deficient. Logically,

then, section 23-110(g) should be read purposively to require

federal courts to determine if the remedy, including a

substitute procedural mechanism like the motion to recall the

mandate, is “adequate and effective to test the legality” of the

prisoner’s detention.

The DCCA’s motion to recall the mandate procedure is

cumbersome, requiring the movant to meet a high initial

burden. See Watson, 536 A.2d at 1060. It is thus unclear

whether the recall-mandate procedure is an entirely adequate

and effective remedy. But we do not have to answer that

question in Williams’s case because the DCCA summarily

denied his motion to recall the mandate, his motion for an

explanation, and his petition for rehearing. The DCCA’s

failure to explain why it denied Williams’s motion leaves us

with no basis to determine whether it actually considered his

claim on the merits or rejected the claim solely because

Williams had failed to satisfy the initial burden for such

motions. We therefore cannot find the remedy afforded

Williams is adequate and effective, and section 23-110(g)’s

safety valve operates to allow the federal district court

jurisdiction to entertain his habeas petition.

IV.

With all this in mind, I see no reason for the court to

revisit the Streater question and reinterpret section 23-110(g).

The court today does a bait-and-switch: it rejects the mandate-

recall procedure and informs the DCCA the federal courts

have jurisdiction to hear Williams’s claim and others like it

unless the DCCA overrules its precedent and allows those

6

claims to be heard by the Superior Court under section 23-

110.

It is true the procedural diktat the court imposes on the

DCCA today is identical to the procedure we have adopted for

ourselves. We “ordinarily” require federal prisoners to raise

appellate IAC claims collaterally pursuant to section 2255.

United States v. Henry, 472 F.3d 910, 914 (D.C. Cir. 2007).

But to give credit where credit is due, at the time the DCCA

adopted the motion to recall the mandate procedure—only a

year after Lucey—its decision was eminently reasonable.

Once the Supreme Court had authorized a new constitutional

claim to challenge events happening after the trial court

proceedings, it was logical to require the claim to be initiated

in the court before which the alleged defect occurred.

Moreover, when facing this same question, other federal

and state appellate courts have made the exact same choice.

See State v. Knight, 484 N.W.2d 540, 543 n.5 (Wis. 1992)

(noting Third, Ninth, and Tenth Circuits, Missouri, and the

District of Columbia employed motion to recall the mandate

procedure); see also United States v. West, 240 F.3d 456, 460

n.3 (5th Cir. 2001) (surveying approaches of federal and state

courts). Still other courts have answered the question

differently than either the DCCA or our circuit. For instance,

the Wisconsin Supreme Court, confronting a statutory

provision nearly identical to section 23-110, determined the

statutory provision was “‘inadequate or ineffective’” to

address appellate IAC claims. Knight, 484 N.W.2d at 544.

After considering the approaches taken by other appellate

courts, the Wisconsin Supreme Court held the claim should be

presented directly to the state appellate court in an original

writ of habeas corpus. Id. at 544–45; see also West, 240 F.3d

at 460 n.3 (observing Second Circuit recalls its own mandate

7

from dismissal of direct appeal after district court has denied

section 2255 relief). We cannot fault the DCCA for doing

exactly what other courts have done when facing this thorny

procedural question.

Because the court has determined, as a matter of law, that

section 23-110 is inadequate and ineffective to raise appellate

IAC claims, a D.C. prisoner may now file a habeas petition

asserting this claim in the federal district court, and the court

will be obligated to review the claim on the merits. In light of

the exhaustion requirement of 28 U.S.C. § 2254(c), the

prisoner will first have to file a motion to recall the mandate

with the DCCA. But even if the DCCA recalls the mandate,

remands the record to the Superior Court for a factual hearing,

and then denies the prisoner’s claim in a decision on the

merits—clearly an adequate and effective remedy—the

prisoner still gets a second (or more accurately third) bite at

the apple in federal court. Some of these claims will be

summarily resolved pursuant to AEDPA’s deferential

standards, and it is unclear what the added burden on our

courts will be. For instance, Williams’s appellate IAC claim

appears to be little more than a string of tenuous arguments

nested like Russian dolls. A better use of our judicial

resources would be to assert jurisdiction only where the safety

valve is truly implicated.

At this late hour, rather than leaving the DCCA with a

Hobson’s choice, I would allow it to address the matter in the

first instance, as we did in Streater II. There we noted, “it is

apparent that the D.C. Court of Appeals is the tribunal best

situated to address Streater’s claim that he was denied

effective assistance of counsel in that forum.” 691 F.2d at

1028. Principles of federalism and comity also gave us pause

back then: “Mindful that relations between the District of

8

Columbia and federal systems should not be ‘disturbed by

unnecessary conflict between courts equally bound to guard

and protect rights secured by the Constitution,’ we believe the

D.C. Court of Appeals should be invited to consider and rule

on the merits of Streater’s claim for post-conviction relief.”

Id. (quoting Ex parte Royall, 117 U.S. 241, 251 (1886)).

These concerns are heightened when, as is the case here, we

interpret a provision of the D.C. Code that is “an Act of

Congress applicable exclusively to the District of Columbia”

because “[w]e do not treat such local statutes as if they were

part of the United States Code,” and “[o]ur policy has been to

defer to the District of Columbia Court of Appeals on

questions of statutory interpretation.” United States v.

Edmond, 924 F.2d 261, 264 (D.C. Cir. 1991). If, as in

Streater II, we remanded Williams’s habeas petition to the

federal district court and ordered it held in abeyance, we

would allow the DCCA the opportunity either to recall its

mandate and address Williams’s claim on the merits or to

revisit the underlying question that has caused this court and

others so many procedural headaches.