United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
Rodarrio Wells is confined at the United States
Penitentiary-Big Sandy in Inez, Kentucky. Proceeding without
an attorney, Wells has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. [R. 1]
October 1995, a grand jury for the Superior Court for the
District of Columbia issued an indictment in Case No.
F-8738-95 charging Wells with twenty crimes ranging from
armed robbery, armed kidnapping, and carjacking, to assault
with intent to kill, first degree felony murder, and
possession of a firearm during the commission of a violent
felony. Following a jury trial in September 1996, Wells was
convicted on fourteen of these counts, and in December of
that year was sentenced to a cumulative term of 30 years to
life in prison. An appeal was taken, but upon remand a
revised judgment was entered in December 1999 sentencing
Wells to a cumulative term of imprisonment for 45 years to
life. [R. 1-2 at 6-7]
had also been charged in October 1995 in a separate case,
Case No. F-8891-95, with armed robbery, premeditated first
degree murder, felony murder, possession of a firearm during
a crime of violence, and carrying a pistol without a license.
[R. 1-2 at 2-4] On October 12, 1996, Wells pled guilty to the
felony murder count in exchange for the dismissal of the
other charges. On December 6, 1996, the Superior Court
sentenced him to 15 years to life imprisonment to run
consecutively to any other sentence. [R. 1-2 at 8]
2016, Wells filed pro se motions to vacate his convictions or
sentences in both cases pursuant to D.C. Code § 23-110.
The Superior Court denied that motion in Case No. F-8738-95
on January 24, 2017; the motion in Case No. F-8891-95 remains
pending as of this writing.
petition, Wells states that the Bureau of Prisons'
Sentence Monitoring Computation Data sheet identifies the
sections of the D.C. Code he violated when he was convicted
in 1996, but that the present versions of these code sections
now relate to wholly different matters, such as unwholesome
food. Wells contends that the mismatch between the conduct
proscribed by the prior versions of the statutes of offense
and their current subject matter somehow violates his due
process rights under the Fifth Amendment because he was not,
in 1995, given notice in the indictment that he was violating
the rules set forth in the current version of the statute.
[R. 1-1 at 1-5] He also asserts without explanation that
Johnson v. United States, ___U.S. ___, 135 S.Ct.
2551 (2015) somehow "declared" the D.C. statutes
that criminalized his conduct unconstitutional. [R. 1-1 at 6]
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, Wells may not challenge his D.C. Code convictions
and sentences pursuant to 28 U.S.C. § 2241 in this
instance. 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 post-conviction
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).
Wells 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
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
D.C. Code § 23-110(g). Thus, to pursue his claims in
this Court, Wells 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) (citing Blair-Bey v. Quick, 151 F.3d
1036, 1042-43 (D.C. Cir. 1998)); Perkins v.
Henderson, 881 F.Supp. 55, 57 (D.D.C. 1995).
Wells 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 a petitioner
has not 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 Wells 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, Wells argues that his convictions are
void because the D.C. Code sections cited in the 1995 grand
jury indictments and 1996 criminal judgments have since been
amended and now relate to different subject matters. This
claim is self-evidently meritless, but more fundamentally is
one that is not predicated upon newly-decided Supreme Court
authority. If anything, this claim appears to be a challenge
to the jurisdiction of the trial court, and hence is one that
he must pursue in a motion for collateral review in the trial
court. D.C. Code § 23-110(a)(2). Federal habeas review
is therefore unavailable.
while Wells 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).