Tolliver v. Cross

• Court: District Court, District of Columbia
• Decided: November 27, 2009
• Docket: Civil Action No. 2009-2253
• Status: Published

Opinion

FILED UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Nov 27 2009 NANcY MAYER W

BROOK M. TOLLIVER, U.S. DIST~lJ'~&~~, CLERK

Petitioner,

v. Civil Action No. U 2253 9 JAMES CROSS,

Respondent.

MEMORANDUM OPINION

This matter comes before the Court on petitioner's application to proceed informa

pauperis and pro se petition for a writ of habeas corpus.

Petitioner challenges his conviction in and the sentence imposed by the Superior Court of

the District of Columbia on the ground that the prosecutor deliberately misstated evidence which

corroborated the testimony of an eyewitness. A challenge of this nature must be brought by

motion in the Superior Court under D.C. Code § 23-110. In relevant part D.C. Code § 23-110

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 ... any Federal. " court if it appears ... 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). "Section 23-110 has been found to be adequate and effective because it

is coextensive with habeas corpus." Saleh v. Braxton, 788 F. Supp. 1232 (D.D.C. 1992). It is

settled that "a District of Columbia prisoner has no recourse to a federal judicial forum unless

1 the local remedy is 'inadequate or ineffective to test the legality of his detention'" Byrd v.

Henderson, 119 F.3d 34,36-37 (D.C. Cir. 1997) (internal footnote omitted); Garris v. Lindsay,

794 F.2d 722, 726 (D.C. Cir.), cert. denied, 479 U.S. 993 (1986). A prisoner's lack of success in

his previous attempts to collaterally attack his conviction and sentence by means of a motion

under D.C. Code § 23-110(g) does not render this remedy inadequate or ineffective. See Wilson

v. Office of the Chairperson, 892 F. Supp. 277, 280 (D.D.C. 1995).

Accordingly, the Court will dismiss the petition without prejudice. An Order consistent

with this Memorandum Opinion will be issued separately on this date.

~Th'~ Un ed S a es Dlstnct Judge Date: H)01; J 0;