UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HOWARD L. SMITH, JR., : : Petitioner, : Civil Action No.: 18-2557 (RC) : v. : Re Document No.: 5 : JUSTIN ANDREWS, : : Respondent. :
MEMORANDUM OPINION
GRANTING RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
I. INTRODUCTION
This matter is before the Court on Howard L. Smith, Jr.’s pro se Petition for Writ of
Habeas Corpus. 1 For the reasons discussed below, the Court lacks subject matter jurisdiction, so
the petition will be dismissed.
II. FACTUAL BACKGROUND
On December 9, 1987, Smith was indicted in the Superior Court for the District of
Columbia on four charges: burglary in the second degree while armed, murder in the first degree
while armed, carrying a pistol without a license, and felony murder. These charges, in case
number 1987-FEL-6416, related to the murder of Nelson Able on March 29, 1987. Before Smith
was tried on these charges, however, a superseding indictment was issued on January 5, 1988, in
which Smith was re-indicted for the murder of Able and the related offenses, as well as two
1 Petitioner captioned his pleading as a “Motion to Vacate, Set Aside, or Correct Sentence by a Prisoner in State Custody, Pursuant to 28 U.S.C. 2254.” The Court has construed it as a petition for writ of habeas corpus. counts of assault with intent to commit murder while armed. The latter two new counts related
to a shooting incident that occurred outside of a D.C. nightclub on May 25, 1987.
Following the superseding indictment, Smith was tried before a jury on the charges
related to the Able murder and convicted on all four charges. He was sentenced to twenty years
to life on the first-degree murder charge, twenty years to life on the felony-murder charge, five to
fifteen years on the burglary-while-armed charge, and one year on the charge of carrying a pistol
without a license. The sentences for the burglary, felony murder, and first-degree murder
convictions were imposed to run concurrently, while the firearm sentence was imposed to run
consecutively to those sentences. Following an appeal, the conviction for felony murder was
ultimately set aside as duplicative of the first-degree murder conviction. See Smith v. United
States, No. 88–1290, slip op. at 4 (D.C. Ct. of App. June 17, 1991).
Meanwhile, on January 30, 1989, Smith entered a guilty plea to one count of assault with
a dangerous weapon in connection with the May 25, 1987 nightclub assaults. On March 20,
1989, the trial court sentenced him to a term of imprisonment of two to six years and ordered the
sentence to run concurrently with the sentences previously imposed for the Able murder. See
United States v. Smith, 10 F. Supp. 2d 578, 580 (E.D. Va. 1998). 2
From 1995 through 2016, Smith filed six post-judgment collateral attack motions
pursuant to D.C. Code § 23-110 and two federal habeas petitions related to the Able murder.
2 While serving these various sentences, Smith was convicted in February 1998 of second-degree murder and prisoner possession of a shank following a trial in the U.S. District Court for the Eastern District of Virginia. See Smith, 10 F. Supp. 2d at 579. These convictions stemmed from a December 1996 incident at the Lorton Reformatory Complex, in which Smith murdered a fellow inmate by stabbing him with a home-made knife. Id. He received a sentence of life without parole to run consecutively to his D.C. sentences.
2 These motions raised a variety of legal challenges, including ineffective assistance of counsel,
actual innocence, and illegal indictment under D.C. Code § 22-3202.
In the instant petition, Smith alleges that his Able murder convictions were the result of
“a fake superseded indictment that was never presented and re-indicted by a Grand Jury.” Pet. at
4, ECF No. 5. Based on this claim, Smith asserts that the Superior Court lacked subject matter
jurisdiction over his trial, and that his Fifth Amendment right to be indicted by grand jury was
violated. See id.
III. ANALYSIS
Under 28 U.S.C. § 2254, federal district courts are authorized to issue writs of habeas
corpus with respect to a person detained pursuant to a state court judgment “on the ground that
he is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254. Local D.C. courts, including the Superior Court in which Smith was convicted,
are treated as state courts for purposes of this jurisdiction. See Gorbey v. United States, 55 F.
Supp. 3d 98, 103 (D.D.C. 2014) (citing Milhouse v. Levi, 548 F.2d 357, 360 n.6 (D.C. Cir.
1976)).
For prisoners in D.C., however, habeas relief is particularly challenging to obtain in
federal court because of an additional requirement imposed by D.C. Code § 23-110. This
provision provides that a habeas petition “shall not be entertained by . . . any Federal . . . court if
it appears that [the petitioner] has failed to make a motion for relief under [D.C. Code § 23-110]
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.” 3 D.C. Code § 23-110(g).
3 The phrase “‘[r]emedy by motion’ plainly refers to motions filed pursuant to [§] 23- 110(a).” Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir. 2009).
3 Section § 23-110, in other words, “vest[s] the Superior Court with exclusive jurisdiction over
most collateral challenges by prisoners sentenced in that Court.” Williams v. Martinez, 586 F.3d
995, 1000 (D.C. Cir. 2009). And federal courts lack jurisdiction “to entertain a habeas corpus
petition attacking the constitutional validity of a Superior Court sentence even after the local
remedy . . . has been pursued unsuccessfully.” Garris v. Lindsay, 794 F.2d 722, 726, (D.C. Cir.
1986) (per curiam) (citing Swain v. Pressley, 430 U.S. 372, 377–78 (1977)). Thus, a D.C.
“prisoner has no recourse to a federal judicial forum unless the local remedy is inadequate or
ineffective to test the legality of his detention.” Byrd v. Henderson, 119 F.3d 34, 36 (D.C. Cir.
1997) (per curiam).
In Smith’s case, the local remedy is neither inadequate nor ineffective. As evidenced by
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HOWARD L. SMITH, JR., : : Petitioner, : Civil Action No.: 18-2557 (RC) : v. : Re Document No.: 5 : JUSTIN ANDREWS, : : Respondent. :
MEMORANDUM OPINION
GRANTING RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
I. INTRODUCTION
This matter is before the Court on Howard L. Smith, Jr.’s pro se Petition for Writ of
Habeas Corpus. 1 For the reasons discussed below, the Court lacks subject matter jurisdiction, so
the petition will be dismissed.
II. FACTUAL BACKGROUND
On December 9, 1987, Smith was indicted in the Superior Court for the District of
Columbia on four charges: burglary in the second degree while armed, murder in the first degree
while armed, carrying a pistol without a license, and felony murder. These charges, in case
number 1987-FEL-6416, related to the murder of Nelson Able on March 29, 1987. Before Smith
was tried on these charges, however, a superseding indictment was issued on January 5, 1988, in
which Smith was re-indicted for the murder of Able and the related offenses, as well as two
1 Petitioner captioned his pleading as a “Motion to Vacate, Set Aside, or Correct Sentence by a Prisoner in State Custody, Pursuant to 28 U.S.C. 2254.” The Court has construed it as a petition for writ of habeas corpus. counts of assault with intent to commit murder while armed. The latter two new counts related
to a shooting incident that occurred outside of a D.C. nightclub on May 25, 1987.
Following the superseding indictment, Smith was tried before a jury on the charges
related to the Able murder and convicted on all four charges. He was sentenced to twenty years
to life on the first-degree murder charge, twenty years to life on the felony-murder charge, five to
fifteen years on the burglary-while-armed charge, and one year on the charge of carrying a pistol
without a license. The sentences for the burglary, felony murder, and first-degree murder
convictions were imposed to run concurrently, while the firearm sentence was imposed to run
consecutively to those sentences. Following an appeal, the conviction for felony murder was
ultimately set aside as duplicative of the first-degree murder conviction. See Smith v. United
States, No. 88–1290, slip op. at 4 (D.C. Ct. of App. June 17, 1991).
Meanwhile, on January 30, 1989, Smith entered a guilty plea to one count of assault with
a dangerous weapon in connection with the May 25, 1987 nightclub assaults. On March 20,
1989, the trial court sentenced him to a term of imprisonment of two to six years and ordered the
sentence to run concurrently with the sentences previously imposed for the Able murder. See
United States v. Smith, 10 F. Supp. 2d 578, 580 (E.D. Va. 1998). 2
From 1995 through 2016, Smith filed six post-judgment collateral attack motions
pursuant to D.C. Code § 23-110 and two federal habeas petitions related to the Able murder.
2 While serving these various sentences, Smith was convicted in February 1998 of second-degree murder and prisoner possession of a shank following a trial in the U.S. District Court for the Eastern District of Virginia. See Smith, 10 F. Supp. 2d at 579. These convictions stemmed from a December 1996 incident at the Lorton Reformatory Complex, in which Smith murdered a fellow inmate by stabbing him with a home-made knife. Id. He received a sentence of life without parole to run consecutively to his D.C. sentences.
2 These motions raised a variety of legal challenges, including ineffective assistance of counsel,
actual innocence, and illegal indictment under D.C. Code § 22-3202.
In the instant petition, Smith alleges that his Able murder convictions were the result of
“a fake superseded indictment that was never presented and re-indicted by a Grand Jury.” Pet. at
4, ECF No. 5. Based on this claim, Smith asserts that the Superior Court lacked subject matter
jurisdiction over his trial, and that his Fifth Amendment right to be indicted by grand jury was
violated. See id.
III. ANALYSIS
Under 28 U.S.C. § 2254, federal district courts are authorized to issue writs of habeas
corpus with respect to a person detained pursuant to a state court judgment “on the ground that
he is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254. Local D.C. courts, including the Superior Court in which Smith was convicted,
are treated as state courts for purposes of this jurisdiction. See Gorbey v. United States, 55 F.
Supp. 3d 98, 103 (D.D.C. 2014) (citing Milhouse v. Levi, 548 F.2d 357, 360 n.6 (D.C. Cir.
1976)).
For prisoners in D.C., however, habeas relief is particularly challenging to obtain in
federal court because of an additional requirement imposed by D.C. Code § 23-110. This
provision provides that a habeas petition “shall not be entertained by . . . any Federal . . . court if
it appears that [the petitioner] has failed to make a motion for relief under [D.C. Code § 23-110]
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.” 3 D.C. Code § 23-110(g).
3 The phrase “‘[r]emedy by motion’ plainly refers to motions filed pursuant to [§] 23- 110(a).” Williams v. Martinez, 586 F.3d 995, 998 (D.C. Cir. 2009).
3 Section § 23-110, in other words, “vest[s] the Superior Court with exclusive jurisdiction over
most collateral challenges by prisoners sentenced in that Court.” Williams v. Martinez, 586 F.3d
995, 1000 (D.C. Cir. 2009). And federal courts lack jurisdiction “to entertain a habeas corpus
petition attacking the constitutional validity of a Superior Court sentence even after the local
remedy . . . has been pursued unsuccessfully.” Garris v. Lindsay, 794 F.2d 722, 726, (D.C. Cir.
1986) (per curiam) (citing Swain v. Pressley, 430 U.S. 372, 377–78 (1977)). Thus, a D.C.
“prisoner has no recourse to a federal judicial forum unless the local remedy is inadequate or
ineffective to test the legality of his detention.” Byrd v. Henderson, 119 F.3d 34, 36 (D.C. Cir.
1997) (per curiam).
In Smith’s case, the local remedy is neither inadequate nor ineffective. As evidenced by
one of Smith’s own previous § 23-110 motions (filed in January 2003), improper indictment
challenges can be made under § 23-110. Resp.’s Mot. Dismiss at 3–4, ECF No. 5; see also
United States v. Graham, No. F-5576-03, 2011 D.C. Super. LEXIS 21 (June 2, 2011) (discussing
§ 23-110 motion involving trial error claims, including prosecutorial misconduct); Saunders v.
United States, 72 F. Supp. 3d 105, 108 (D.D.C. 2014) (finding that errors in a Superior Court
verdict should have been raised under § 23-110); Johnson v. Stansberry, No. 10-0178, 2010 WL
358521, at *1 (D.D.C. Jan. 29, 2010) (same with respect to claims of prosecutorial misconduct
and imposition of illegal sentence). That Smith was unsuccessful in his 2003 motion does not
mean his remedy under § 23-110 was inadequate or ineffective; rather, “[i]t is the inefficacy of
the remedy, not a personal inability to utilize it, that is determinative.” See Garris, 794 F.2d at
727.
More generally, the D.C. Circuit has indicated that § 23-110 is the appropriate route for
D.C. prisoners to allege trial court errors like the one Smith has alleged in the current petition.
4 Indeed, the circuit court has recognized that federal court jurisdiction is proper under § 2254 only
in a few narrow categories of cases where the constitutional claim falls outside the scope of § 23-
110, such as ineffective assistance of appellate counsel, see Williams, 586 F.3d at 1001, or
challenges to parole denial procedures, see Blair-Bey v. Quick, 151 F.3d 1036, 1043 (D.C. Cir.
1998). Smith’s claims here are far removed from those narrow categories of challenges and
relate solely to alleged errors in the trial court (an allegedly defective indictment). As such,
§ 23-110 is an adequate remedy, and this Court must dismiss his § 2254 petition for lack of
jurisdiction.
IV. CONCLUSION
For the foregoing reasons, Respondent’s motion to dismiss is GRANTED. An order
consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: July 8, 2019 RUDOLPH CONTRERAS United States District Judge