Briscoe v. Wagner

• Court: District Court, District of Columbia
• Decided: May 5, 2010
• Docket: Civil Action No. 2010-0710
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FILED FOR THE DISTRICT OF COLUMBIA MAY - 5 2010 Clerk, U.S. District &Bankruptcy Tyrone Briscoe, ) Courts for the District Of Columbia ) Plaintiff, ) ) v. ) Civil Action No. 10 0710 ) Chief Judge Annice M. Wagner et aI., ) ) Defendants. )

MEMORANDUM OPINION

This action, brought pro se, is before the Court on its initial review of the complaint,

which is accompanied by an application to proceed in forma pauperis. The Court will grant the

application to proceed in forma pauperis and will dismiss the case pursuant to the screening

provisions of28 U.S.C. § 1915A(a). Under that statute, the Court is required to screen a

prisoner's complaint and dismiss it upon a determination that the complaint fails to state a claim

upon which relief can be granted. See 28 U.S.c. § 1915A(b)(1).

The plaintiff is a District of Columbia prisoner confined at the United States Penitentiary

McCreary in Pine Knot, Kentucky. Invoking 42 U.S.c. § 1983, the plaintiff sues former Chief

Judge Annice M. Wagner of the District of Columbia Court of Appeals, former Assistant United

States Attorney ("AU SA") John Fisher and AUSA James Sweeney, and attorneys Kenneth A.

Rosenau and Susan H. Rosenau, both of whom were appointed in 2001 to represent the plaintiff

in his criminal appeal before the D.C. Court of Appeals. See Complaint ("Compl.") Attachment

(Nov. 21,2001 Order). In the appointment order, Judge Wagner instructed the newly appointed

counsel to file a supplemental brief within 90 days to the plaintiff's pro se "motion ... to dismiss

his indictment and/or to be granted release on bail." Id.

3 The plaintiff sues Judge Wagner apparently for making the aforementioned appointment

of counsel against the plaintiffs wishes, see Compl. at 2-3, the AUSAs for allegedly failing to

respond to his pro se motion (brief), see id. at 2, and his appointed appellate counsel for allegedly

failing to supplement the issues he had raised in his earlier filing and for providing ineffective

assistance of counsel, see id. The plaintiff "is asking to be giving [sic] his pro se rights ... so he

can move to have his indictment dismiss[ ed]." ld. at 3. This court does not have authority to

review orders issued by the D.C. Court of Appeals and, thus, cannot direct the D.C. Court of

Appeals to restore the plaintiff s pro se status. See Fleming v. United States, 847 F. Supp. 170,

172 (D.D.C. 1994) (applying District o.fColumbia Court o.f Appeals v. Feldman, 460 U.S. 462,

482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 4l3, 415, 416 (1923». "Only the United

States Supreme Court has [the] power" to review the final judgment of a state or District of

Columbia court. ld.

As for the claim of ineffective assistance of appellate counsel, the plaintiff has not stated

that he moved in the D.C. Court of Appeals to recall the mandate, which is "the appropriate

vehicle for mounting a challenge to the effectiveness of appellate counsel." Williams v.

Martinez, 586 F.3d 995, 999 (D.C. Cir. 2009). This Court therefore is without jurisdiction to

entertain that claim via a writ of habeas corpus. See id. (concluding that this Court would have

jurisdiction over a "federal habeas petition asserting ineffective assistance of appellate counsel

after [the petitioner has] moved to recall the mandate in the D.C. Court of Appeals[.]"); 28

U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus ... shall not be granted

unless it appears that . .. the applicant has exhausted the remedies available [in the local

courts].").

2 Finally, the claims against the AUSAs cannot be maintained because failing to respond to

the plaintiffs pro se filing does not state a claim upon which relief may be granted. Accordingly,

the complaint will be dismissed. I

~A,ti9 Un d States DIstnct Judge Date: April .J-/, 2010

I A separate Order of dismissal accompanies this Memorandum Opinion.