United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
1971, Randolph Greene was serving a 20-year sentence for
armed bank robbery in the District of Columbia. His father
died in September of that year, and his mother sought and
obtained permission for Randolph to attend the funeral.
Randolph was escorted by four armed federal marshals to the
Lavance Greene, the petitioner in this case, saw this
solemn occasion as a chance to break his half-brother
Randolph out of jail. He disarmed the four marshals, released
his brother, shot one pursuing marshal to death, and then
commandeered a vehicle at gunpoint. But local police gave
chase and the pair surrendered after a high-speed pursuit.
was convicted of escape; Lavance was convicted of four counts
of armed robbery and felony murder (all D.C. Code offenses),
as well as rescue of a federal prisoner and premeditated
murder of a federal officer (two federal crimes). On appeal,
the District of Columbia Circuit Court of Appeals affirmed
Lavance's convictions under the D.C. Code. But the court
found troubling the application of disparate standards for
assertion of an insanity defense to state and federal
offenses, and chose to avoid a constitutional question by
vacating Lavance's convictions for the two federal
offenses. Greene, 489 F.2d at 1147, 1156-58; see
also United States v. Greene, 834 F.2d 1067 (D.C.
point, Lavance Greene stood sentenced to 15 years to life
imprisonment on both of the armed robbery charges, the
sentences to run concurrently with one another, and to 20
years to life on the felony murder charges, to run
consecutively to the sentences for the armed robbery, for a
total sentence of 35 years to life. [R. 1-1 at 5-6]
petition,  Greene argues that the trial court lacked
the authority to run his felony murder sentence consecutively
to his armed robbery sentences because in 1998, more than
twenty years after he was convicted, the D.C. Code provisions
cited in the grand jury indictments for that authority were
repealed and recodified by Congress. He also asserts that the
failure to state the statutory basis for imposing consecutive
sentences in the judgment itself renders both his sentences
and his underlying convictions invalid. [R. 1 at 10-11] He
also asserts without explanation that Johnsonv. United
States, ___ U.S. ___, 135 S.Ct. 2551 (2015) somehow
"declared" the D.C. statutes that criminalized his
conduct unconstitutional. [R. 1 at 11-12]
Court conducts an initial review of habeas corpus petitions.
28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 F.App'x 544, 545 (6th Cir. 2011).
However, Greene may not challenge his D.C. Code convictions
and sentences pursuant to 28 U.S.C. § 2241 in this
instance. Greene's federal convictions were vacated on
appeal, and he challenges only his D.C. Code convictions. The
District of Columbia is not a state, and hence he may not
seek habeas relief under 28 U.S.C. § 2254. Rather, he
must challenge his convictions in the Superior Court for the
District of Columbia utilizing the District's own
mechanism for collateral attacks, D.C. Code § 23-110.
That statute, which is modeled after 28 U.S.C. § 2255,
provides a mechanism for postconviction motions by prisoners
convicted of D.C. Code offenses. Swain v. Pressley,
430 U.S. 372, 376-78 (1977); Palmore v. United
States, 411 U.S. 389, 395 (1973). Greene must therefore
seek relief under that provision in the Superior Court for
the District of Columbia. Ford v. Wiley, 168
F.App'x 877, 880 (11th Cir. 2006) ("[f]ederal courts
... are generally without jurisdiction to entertain motions
to vacate, set aside, or correct a sentence imposed by the
D.C. Superior Court.").
23-110 does contain a "savings clause" that is
nearly identical to the one found in Section 2255:
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
Code § 23-110(g). Thus, to pursue his claims in this
Court, Greene must demonstrate that his remedy under Section
23-110 is "inadequate or ineffective" to challenge
his D.C. Code convictions. Rogers v. Zuercher, No.
09-03-ART, 2009 WL 499118, at *2 (E.D. Ky. Feb. 27, 2009)
(citingBlair-Beyv. Quick, 151 F.3d 1036, 1042-43
(D.C. Cir. 1998)); Perkinsv. Henderson, 881 F.Supp.
55, 57 (D.D.C. 1995).
Greene cannot invoke Section 2241 to seek habeas relief.
Section 23-110 is not an inadequate or ineffective mechanism
to challenge prior convictions simply because a petitioner
has been denied relief under it. Wilson v. Office of the
Chairperson, 892 F.Supp. 277, 280 (D.D.C. 1995). And
that remedy is not unavailable merely because Greene has
never sought relief based on his present claims under that
provision at all. Totten v. Ives, No. 12-23-GFVT,
2012 WL 1409667, at *1 (E.D. Ky. Apr.23, 2012) (citing
James v. Edwards, 1989 WL 4972, at *1 (D.D.C. 1989)
("[P]etitioner's claim of ineffective assistance
must be dismissed because petitioner has not raised this
claim in the local courts.")).
does Greene assert that he is "actually innocent"
of his offenses on the ground that after his convictions
became final, the Supreme Court re-interpreted the
substantive terms of the criminal statutes under which he was
convicted in a manner that establishes that his conduct did
not violate the statutes. Wooten v. Cauley, 677 F.3d
303, 307-08 (6th Cir. 2012); Hayes v. Holland, 473
F.App'x 501, 501-02 (6th Cir. 2012) ("To date, the
savings clause has only been applied to claims of actual
innocence based upon Supreme Court decisions announcing new
rules of statutory construction unavailable for attack under
section 2255."). Instead, Greene argues that his
convictions are void because the grand jury indictments and
criminal judgment did not cite valid authority for imposing
consecutive sentences. Those claims are, if anything, claims
of ordinary trial error that could and must have been raised
on direct appeal or in an initial motion for collateral
review, and hence fail to open the gateway to federal habeas
review in this proceeding. Cf James v. Warden, FCI El
Reno, Okla., No. CIV 13-641-HE, 2014 WL 1330015, at *5
(W.D. Okl. March 12, 2014) (habeas claim that trial court
should have run sentences concurrently rather than
consecutively is challenge to validity of sentence that must
be pursued under Section 2255, not Section 2241) (collecting
while Greene refers to the Johnson decision as a
basis for relief, the Supreme Court has declared that
decision to be retroactively applicable to cases on
collateral review, Welch v. United States, ___ U.S.
___ 136 S.Ct. 1257 (2016), and hence his remedy under Section
23-110 is not inadequate and ineffective to assert a claim
under it. Cf. Woodson v. Meeks, No. 0:15-4209- BHH,
2016 WL 8669184, at *1 (D.S.C. Oct. 14, 2016); Lewis v.
Butler, No. 16-135-DLB, 2016 WL 4942005, at *2-3 (E.D.
Ky. Sept. 14, 2016).