Williams v. Martinez
586 F.3d 995
D.C. Cir.
2009
Check Treatment
Docket

*1 by correcting one set of hazards while Natural Res. set forth Chevron Def. 2778, Council, to exist.” allowing 467 U.S. similar hazards Docket A-07-90, 2116, with the Consistent No. at L.Ed.2d No. Decision moreover, Depart- 2007) (J.A. 45). HHS’s regulation, 25, HHS (Sept. “de- interpreted Board has

mental systemic a structural

ficiency” to denote a manifesta- simply rather than problem, judgment affirm the of the District We site. deficiency particular tion of Court. Inc., Agency, Cmty. Action See First State 1877, A-02-122, No. No. Decision Docket So ordered. 1, 2003); Norwalk Econ. (May

at 78-79 Now, Inc., Docket No. A-05-

Opportunity (Nov. 2002, 28,

92, at 17 Decision No.

2005). short, terms of the HHS plain Camden, after it re-

regulation required WILLIAMS, Craig Appellant Allan notice, to ensure that it the initial ceived and hazardous did not have “undesirable any of its conditions” at

materials and MARTINEZ, R. L. Warden Kenneth Hayes and merely not at the playgrounds, Wainstein, Attorney United States failed playgrounds. Camden Charleston Columbia, Appellees. the District of comply obligation. with that No. 08-5221. reject related We also Camden’s notice of proper that it lacked argument Appeals, United States Court of Lois I site. required the corrections District of Columbia Circuit. sure, generally requires Act To be Argued Sept. 2009. for corrective opportunity notice and fund grantee may lose its action before Decided Nov. however, Here, received ing. Camden Rehearing En Banc Denied deficiency letter initial such notice: HHS’s Dec. meeting not

informed Camden that was “free of obligation its to maintain sites hazardous materials.”

undesirable Report (Sept.

Head Start Review

2005) (J.A. 145) (quoting 45 C.F.R. 1304.53(a)(10)(viii)). letter, That com and its De regulations with HHS’s

bined afford rulings, Board

partmental that all of its sufficient notice

ed Camden had to be free of “undesirable

playgrounds by the time of

and hazardous materials” Depart follow-up review. As HHS’s the re explained, Board

mental grantee “to process

view does not allow by correcting prob

play cat and mouse” other allowing location “while

lems at one noncompliant or

premises to be or become *2 Hoffman, appointed by the

William court, argued the cause as amicus curiae him support appellant. With briefs was David L. Cousineau. Williams, se, Craig pro A. filed briefs for appellant. Ambrosino,

Michael T. Assistant U.S. Attorney, argued appellees. the cause for him Roy With on the brief was W. III, Attorney. McLeese Assistant U.S. R. Lawrence, Craig Attorney, Assistant U.S. an appearance. entered ROGERS, Before: TATEL and BROWN, Judges. Circuit Opinion for the Court filed Circuit Judge TATEL.

Opinion concurring judgment filed Judge Circuit BROWN. TATEL, Judge: Circuit 23-110 of the estab- Section lishes a for collateral review of convictions in the jurisdiction creates exclusive in that court remedy provided by “unless” the that sec- tion is “inadequate ineffective.” this case, we must decide whether section 23- 110 bars a convicted in bringing Court from a federal habeas cor- pus petition alleging ineffective assistance appellate counsel. Because the D.C. challenges has held that appellate to the effectiveness of counsel may brought pursuant not be to section through but must instead be raised in that motion to recall the mandate court, we hold that section 23-110 does not deprive federal courts of over petitions alleging ineffective assis- tance of counsel. summarily denied the

I. the mandate. motion to recall background of this case Although the Making as it does several the same ineffective assistance involving complicated, claim, more than fifteen counsel Williams then spanning proceedings *3 States, 878 sought v. United relief in federal court. The years, see Williams (D.C.2005)(en banc); v. Williams 477 district court dismissed Williams’s habeas A.2d (D.C.2001), States, A.2d 598 lack of the United requires us understanding provides the issue before that ground following. knowing remedy challenges for collateral exclusive by the imposed to sentences 1990, jury Superior Court In a D.C. Martinez, Court. Williams appellant Craig Allan Williams convicted (D.D.C.2008). 56, F.Supp.2d Represented by first-degree murder. of counsel, appealed. then appealed, new Williams and we referred his Williams appeal, that pendency of in During case to the district court to determine post-conviction a filed motion for to a certifi- Williams the first instance whether issue (COA). § to of See 28 appealability relief cate U.S.C. custody 2253(c)(1) “prisoner that a provides (requiring appeal which to a COA proceeding); under sentence final order in a habeas Unit- upon Mitchell, released claiming right ed States v. (D.C.Cir.2000) imposed the sentence was

ground (holding petitioners [ ] may ... in violation of Constitution from the district court should seek COA vacate, aside, or the court to set appeals move from requesting before one court). § 23- the sentence.” D.C.Code correct The district court declined issue 110(a). COA, explaining that for the reasons given opinion dismissing in its Williams’s practice, the with its usual Consistent jurisdiction, claim for lack of Williams had stayed Appeals of Williams’s D.C. Court showing of failed to make “a substantial Superior Court’s appeal pending the direct right,” a constitutional the denial of motion. of his section 23-110 resolution required a COA. 28 U.S.C. States, 533 A.2d Shepard 2253(c)(2). request then filed a Williams (D.C.1987). Thereafter, the Su court, appointed and we for a COA this 23- denied Williams’s section perior Court arguments on his present amicus curiae motion, of D.C. Court behalf. appeal of that denial with consolidated his appeal. the D.C. Court

his direct the district court denied Because affirmed Williams’s conviction. of reaching petition without claim, we re- merits of his constitutional then filed a motion the D.C. Williams steps. in two request view his for COA to recall the mandate whether has shown We ask first Williams re- affirming his conviction—the it “jurists of reason would find debat- District of Columbia to liti- quired court was able whether the district cor- ineffective assistance of gate the issue of dismissing for lack of rect” v. United appellate counsel. See Watson “jurists (D.C.1987) (en jurisdiction, second whether States, A.2d whether banc). reason would find debatable motion, In that Williams com- claim of the states a valid [his] on both his direct plained that counsel right.” Slack v. a constitutional motion had denial of and his section 23-110 473, 484, McDaniel, The 529 U.S. ineffective assistance. rendered Therefore, take as a whole Id. 146 L.Ed.2d 542 We en does. in turn. step government argues, each because the D.C. Appeals provides

II. local the effectiveness counsel, question namely opportuni- The answer to the first —(cid:127) correctly dis- ty asking whether the district to file a motion the court to juris- mandate, claim for lack missed Williams’s recall its section 23-110 bars diction—turns on the reach of section 23- Williams’s habeas 23-110(a) “pris- authorizes a 110. Section agree We with Williams. Section custody under oner sentence the Su- 23-110(g)’s plain language makes clear *4 vacate, “move perior Court” to the court to juris that it divests federal courts of aside, set or correct sentence.” petitions by prison diction to hear habeas 23-110(a). 110(g) Section D.C.Code 23— ers who could have raised viable claims provides: 23-110(a). pursuant to section Recall that application An for writ of habeas cor- 23-110(g) provides prisoner section that a pus behalf of who is au- apply authorized to for relief under section apply by thorized to for relief motion 23-110(a) may bring not pursuant to this section shall not be in federal appears court “unless also by Superior by entertained or Court remedy by inadequate motion is any appears Federal or State court if it legality ineffective to test the of his deten applicant has failed to make a tion.” 23-110(g). “[Rjemedy D.C.Code motion relief under this section or by plainly motion” refers to motions filed Superior that the Court has denied him 23-110(a). to section Although relief, appears unless it also of Appeals D.C. Court allows remedy by motion inadequate or inef- the effectiveness of appellate legality fective to test the of his deten- through counsel a motion to recall tion. mandate, directly such a motion—filed § 23-110(g). D.C.Code Appeals the D.C. of obviously Court —-is Williams contends that section 23- motion,” “remedy by not a [section 23-110] 110(g) presents no bar to his ineffective which is filed the D.C. Court. appellate Spe assistance of counsel claim. Indeed, § 23-110(g). the D.C. cifically, argues he that because the D.C. emphasized Court of .itself has Appeals prohibits prisoners from that a motion to recall the an mandate is bringing challenges to the effectiveness of “independent” separate apart action appellate counsel under section 23-110— from a section 23-110 motion. Wu v. they may only through be raised a motion States, (D.C. A.2d to recall the mandate —his under 2002). Thus, because the “inadequate section 23-110 is or ineffec authority lacks to entertain a section 23- According government, tive.” to the challenging motion of effectiveness Williams, by solely focusing adequa on the counsel, is, appellate that section defini cy 23-110, of his remedies under section tion, inadequate legality to test wrong question.” Appel “addresses the Accordingly, Williams’s detention. section it, government lees’ Br. 25. As the sees pe 23-110 does not bar Williams’s habeas proper inquiry is not whether section tition. provides adequate remedy detention, Jackson, Our legality test decision Streater (D.C.Cir.1982), remedy” but rather whether the “local tak- F.2d 1026 supports this There, parole the D.C. Parole Board. the D.C. Court We view. section 23-110 presented dismissed Streater’s concluded that section 23-110 no alleging assistance ineffective proceeding, bar to the habeas explaining petitioned then for ha- counsel. Streater that the claim could not have been brought court, dis- beas in the district which relief under section because it did not failing missed to exhaust “challenge [Blair-Bey’s] conviction or sen- recog- appeal, his local On we remedies. provided tence” in a nized found himself that Streater from 23-110(g) only “section bars us hear- hand, on one section 23-110 was bind: ing those claims that could been the Superior to him because unavailable through raised section 23-110.” Id. at review authority Court lacks Director, 1043; see Neal v. also hand, the other the D.C. proceedings; (D.C.Cir.1982) (finding that section had at that time failed to 23-110(g) preclude federal does not clarify avenue of local relief re- what prisoner’s over a chal- in- Accordingly, mained to him. open to his lenge penitentia- transfer between court to hold structed the district Streat- challenges prison ries because transfer abeyance pending er’s habeas *5 procedures scope fall outside the of section Ap- D.C. Court application his to the 23-110). Blair-Bey therefore confirms very pro- peals to recall its mandate —the 23-110(g) that section divests federal adopted by subsequently cedure the D.C. jurisdiction only over pe- courts habeas appropriate vehi- Court of as who, by prisoners Williams, unlike titions challenge to effec- mounting cle for a an remedy have effective section 23-110 1028; counsel. Id. at tiveness of to available them. Watson, (requir- see A.2d at 1060-61 536 that assistance of ing ineffective Blair-Bey question, to the speaks also litigated through counsel claims be a mo- Streater, in arguably open left whether the mandate). signifi- tion to recall the Of availability local remedy us, cance to before clarified the issue we outside is sufficient section 23-110 to bar cogent ruling that from after “a the D.C. prisoners in the District of sentenced Co- relief, concerning if Court of local seeking lumbia from federal habeas relief. Streater, any, for the District will case, Blair-Bey, In as in this in intelligently a to rule on his position had another means to seek release: for habeas corpus.” federal D.C.Code, section 16-1901 of the which Streater, at 1028. In 691 F.2d other provides general corpus remedy words, anticipated precisely Streater prisoners confined District. situation we confront here —a federal ha- Despite § D.C.Code avail- petition asserting beas ineffective assis- ability procedure, of that alternative how- of appellate prison- tance counsel after the ever, Blair-Bey’s we allowed habe- in er moved to recall the mandate the D.C. Blair-Bey, go as to forward. 151 seemed to have —and at F.3d assumed that the district court would have jurisdiction that to entertain procedure The section at issue Blair-Bey analogous to the is mandate- Quick, Blair-Bey v. 151 1036 F.3d recall here that issue both (D.C.Cir.1998), further reinforces this con- provide with a means secure ease, prisoner clusion. In that convicted release, provide their both relief com- the District of Code violating Columbia otherwise available for parable that petition challenging filed federal habeas that section 23-110’s procedures under which he was denied claims fall within States, sought it to vest scope. Superior See Norris (D.C.2007) jurisdiction (explaining A.2d with exclusive over most collat- challenges by prisoners section 16-1901 and 23-110 are eral sentenced permit challenges to un- “designed both that court. Pressley, See Swain v. Indeed, custody”). 372, 378, lawful section 16-1901 U.S. 51 L.Ed.2d perhaps (1977); more akin to section 23-110 411 Blair-Bey, 151 F.3d at 1045- because, motion, like a section 23-110 a 46; Swain, 381-82, see also 430 U.S. at petition under section 16-1901 “[sjince (explaining directly filed with the Court. See scope § provided by 1901(e). just But as the provided by is the same as that 16— availability of section 16-1901 did not bar corpus is also commensurate with habeas BlairBey’s petition, federal habeas respects in all save” administration Ar- availability proce- of the mandate-recall said, judges). ticle III That Congress also dure does not divest the federal district “inadequate included the or ineffective” ex- peti- court of over Williams’s ception, indicating that it contemplated cir- tion. cumstances under which prisoners sen- tenced in Superior Court could

Nothing Lindsay, Garris habeas relief federal court. As noted (D.C.Cir.1986), on which govern- above, supra already relies, we requires ment a different result. recognized exceptions some under section case, Garris, prisoner, argued 110(g), today recognize another. his direct that he had been de- 23— government The warns that allowing habe- right repre- nied his Sixth Amendment petitions like proceed Williams’s to will sent himself in his Court trial. *6 “open floodgates the to frivolous federal rejected of Appeals The D.C. Court that Appellees’ habeas claims.” Br. Al- claim, and D.C. law barred him from relit- though government gives us no basis igating collaterally the issue under section thinking that will happen, Congress Id. at 727. Garris then filed a always can “floodgates” close the if the federal petition argued habeas which he deluge pass. feared comes to that because he was unable to take advan- tage of section the district court concurring opinion The correctly notes authority had to entertain his prisoners that D.C. challenge who the ef- Noting inefficacy that is the “[i]t of the fectiveness of through counsel remedy, personal not a inability to utilize motion to recall the mandate in the D.C. it, determinative,” that is we concluded get will a second at bite that the district court lacked juris- habeas apple in federal court. But that ais Here, diction. Id. at 727. it is indeed the consequence of section 23-110(g), which “inefficacy remedy” presents that bars federal habeas claims when problem. Section 23-110 was unavail- section 23-110 motion or effec- able to Williams because his constitutional above, explained tive. As a motion to re- claim—unlike Garris’s—falls outside that call qualify the mandate does not as a scope. statute’s pursuant to section 23-110. More- over, Blair-Bey we allowed concluding that to file a federal may pro- Williams petition petition, challenging parole pro- ceed with his habeas his we are mind- ceedings though ful that Congress when even the D.C. Court of enacted 23-110 as part of the District of Columbia had affirmed the Court’s Court Reform and Criminal Procedure Act denial of his D.C. habeas making 91-358, 210, of Pub.L. No. precisely 84 Stat. the same claim. Blair-Bey, 151 case, In this 115 L.Ed.2d 640 recognize that 1038, 1047. alsoWe F.3d at wishes to contends that Williams’s government of if the D.C. ineffective review of federal habeas assistance of counsel claims re- avoid ineffective claims, it appellate counsel motion, of assistance solely to his section 23-110 late its mandate-recall abandon have to would procedure right to which no collateral Superior Court permit Accordingly, govern- attaches. counsel under section challenges entertain such allege has failed to argues, ment Williams claims to require we such -just as 23-110— right a constitutional and so the denial of pur directly in the district raised disagree. right no to COA.We § 2255. See United to 28 U.S.C. suant certainly correct government The Henry, 472 F.3d States petition challenges the (D.C.Cir.2007) (requiring in the section 23- of counsel effectiveness appellant ineffective assistance to raise not But the does proceedings. 2255); to section claims counsel on to stop goes there. It again, But op. at 1004-1005. concurring ap- of counsel the direct effectiveness Congress of how consequence is a “Ground two” of the peal as well. and how the District wrote section “[djenial alleges pro- of due expressly interpret highest court has of Columbia’s assistance of counsel on cess and effective Al the D.C. Code. provision ed criminal conviction.” Pet. first statute, amend the Congress could though 19.5, Corpus of Habeas for Writ cannot, of District of questions and on Martinez, F.Supp.2d Williams to the this court defers law Columbia (D.D.C.2008). Contrary govern- to the Blair-Bey, 151 Appeals. then, claim, Williams has fact F.3d at 1050. ment’s denial of a constitutional asserted the has more foregoing, Williams Given of counsel right assistance step first of his COA —effective than satisfied appeal. direct just that the not He has shown burden. debat- jurisdiction is court’s habeas district that Williams Having established Slack, able, 529 U.S. see constitutionally cognizable has asserted *7 1595, that under section 23-110 but petition, we must deter in his habeas right has court in fact district reasonably whether he has shown mine must habeas We entertain his infringement right. of that debatable Williams has decide whether therefore Slack, 484, 120 S.Ct. 1595. 529 U.S. reasonably claim of debatable presented 2253(c) § under “The determination COA right, an issue of a constitutional

the denial claims in the an overview of the requires now turn. to which we general and a assessment habeas Cockrell, v. their merits.” Miller-El III. 1029, 322, 336, 123 154 S.Ct. 537 U.S. enjoy a defendants Although criminal (2003). Because the district 931 L.Ed.2d assis- to the effective process right due unnecessary to reach the found court during their first of counsel tance petition, how of Williams’s merits 387, Lucey, v. 469 U.S. right, as of Evitts that court’s ever, the benefit of we lack (1985), 830, 396, L.Ed.2d 821 105 S.Ct. Moreover, parties’ briefs analysis. made clear that Supreme to the merits of little attention give entitle- a constitutional lack defendants claim, and to the extent assistance of counsel to effective ment na do, they disagree precise on the they Coleman proceedings, collateral state this, we are 722, 752, claim. Given all ture of that S.Ct. Thompson, 501 U.S. unprepared jurisdiction solely to decide whether Williams safety as a valve. Therefore, stating “a valid I only judgment. has met his burden concur claim of the denial of constitutional Slack, 484, I.

right.” 529 U.S. 120 S.Ct. 1595; 485, 489, 120 see id. at S.Ct. 1595 History matters here. Our current di- (declining to address the merits of the lemma arises out proce- succession of analysis parties where the had not COA dural anomalies that can be described issue). Accordingly, briefed the we re “Aas Series of Unfortunate Events.” mand the case to the district court to First, when section 23-110 was enacted component the merits of the consider COA 1970, the constitutional claim appellate question, an evaluation court (IAC) ineffective assistance of counsel did light should undertake standard Supreme not exist. The Court did not § set forth 2254. See Miller- U.S.C. recognize a right Sixth Amendment to ef- El, 537 U.S. at fective ap- assistance of counsel on direct (Scalia, J., concurring) (explaining that a peal of a criminal conviction until Evitts v. judge if deny should a COA all reasonable 387, 395, Lucey, 469 U.S. jurists would conclude the habeas L.Ed.2d 821 years Several before relief); statute Madley bars v. U.S. cf. however, Lucey, the District of Columbia Comm’n, Parole 278 F.3d (DCCA) considered an (D.C.Cir.2002) (holding that District of Co appellate IAC claim in Streater v. United lumbia courts are deemed to be state States, (D.C.1980) (Streater 429 A.2d 173 2253); purposes § courts for of 28 U.S.C. I). I, In Streater the DCCA held Streat- (3d Goody Vaughn, er, prisoner, a D.C. could not raise the Cir.2001) (requiring a state claim in a section 23-110 motion. The custody under 28 U.S.C. DCCA determined the claim was “not 2241). § § 2254 rather than within purview because, 23-110” reasons, For the foregoing we reverse among reasons, other Streater “has not the dismissal of Williams’s habeas argued that imposed his sentence was and remand to the district for fur- violation of the Constitution of the United ther proceedings opin- consistent with this time, States.” Id. at 174. At prior ion. Lucey, this was a correct statement of the scope of section Relying on two

So ordered. federal circuit decisions interpreting the BROWN, statute, Judge, concurring Circuit 28 U.S.C. judgment: the DCCA also noted section 23-110 “pro- *8 vides no basis upon which the trial court agree I it was error for the district court may review proceedings.” Id. to dismiss Williams’s habeas for jurisdiction lack of pursuant Jackson, to D.C.Code In Streater v. 691 F.2d 1026 However, § 23-110(g). (D.C.Cir.1982) (Streater the court II), inter- we reviewed prets section literally 23-110 so it confers the district court’s dismissal of Streater’s jurisdiction routine in federal court all for habeas argued Streater he was claims of ineffective assistance of appellate given the “run around” the D.C. courts. by prisoners counsel under D.C. sentence. Id. at 1028. We observed the DCCA had Since I believe this departs result from “enlightened not Streater as to the reme- congressional intent, I dy, would read the stat- if any, open still to him in the local utory broadly scheme to maintain federal courts.” Id. Reluctant to meddle with the for under this section or the dis- relief jurisdiction, we ordered DCCA’s in Superior him Streater’s that the denied trict court to hold relief, consid- appears invited the DCCA to abeyance and unless it also Id. It the mandate. his motion to recall remedy by inadequate er motion is or inef- States, 478 v. United See Streater did. legality to fective test the his deten- (D.C.1984). A.2d 1055 tion. v. United

Fast forward to Watson 23-110(g). The court inter- D.C.Code (en (D.C.1987) banc), States, 536 A.2d 1056 to mean provision this prets appel- again faced in which DCCA to entertain a D.C. courts claim, post-Lucey. this time late IAC but whenever prisoner’s ques- procedural The DCCA revisited not to for apply “authorized may challenge previous tion of “how one by motion to this section.” relief Id. at appeal.” counsel’s effectiveness at Because in Op. 1004-1005. Streater I, the DCCA Turning to Streater claims I the DCCA held IAC rejected proce- 23-110 as a section again in presented be a section 23-110 cannot “the this claim because raising for dure motion, correctly pris- the court observes a authority not have Court should such is not oner with a claim “authorized” constitutionality appel- of an rule on the motion; thus, file a section 23-110 (citing at 1060 proceeding.” Id. late reasons, “by 23-110 is defini- court section 174). I, The court A.2d at Streater tion, inadequate” to address those claims. be allow the claim to refused to also it is stat- Op. at 1004-1005.While true the habe- District’s brought general under the may justify plain ute’s words read to statute, clearly the result at holding, the court’s II, (citing Streater same reason. Id. purpose. with statute’s odds 1028). these Having dismissed F.2d Congress Enacted section remedies, iden- statutory the court sweep provision was one of a vehicle appropriate procedural tified an designed legislative reform to remove ing in this to recall the claim: “A motion litigation” from the federal courts “local appropriate avenue the mandate is judicial system. the District Columbia’s Lucey Id. presenting challenge.” take 372, 375, U.S. Pressley, Swain Winterhalder, 724 (citing States v. As the L.Ed.2d Cir.1983)). (10th In reach- F.2d Swain, Court noted section Supreme conclusion, this observed ing DCCA created for under D.C. its approved II we had Streater in the Su collateral sentence section to remove the claims from decision “comparable” to the habeas perior Court I. Id. at 23-110 Streater prisoners, for federal section statute

II. 23-110, like section was Id. Section forum to substitute different “intended mind, history this I turn to With proce and a different [the Court] issue, 23- statutory provision at for collateral review” 23-110] dure [section which 110(g), provides: prisoners’ sentences. Id. of D.C. of habeas application An for writ *9 purpose 1224. statute’s clear The is corpus of a who behalf jurisdiction for to shift initial habeas was by motion apply authorized to relief the federal courts to prisoners from D.C. not be section shall to this Byrd courts. District See the Columbia byor the entertained Henderson, (D.C.Cir. 34, 36-37 119 F.3d appears if it any Federal or State court 1997). a to make that the failed applicant says DCCA’s inter- summarily

This court now the the DCCA denied to his motion feder- pretation requires mandate, section 23-110 recall the ex- motion for an jurisdiction appel- al to assume over courts planation, rehearing. and his says, in effect late IAC claims. The court The failure to explain why DCCA’s it de- Congress “The DCCA made us do it.” motion nied Williams’s leaves us with no pur- section 23-110 with the broad enacted basis to determine whether it con- actually result, pose accomplishing opposite the claim rejected sidered his on the merits DCCA, encouragement, the with our and solely the claim because Williams had its best a judgment fashioning exercised satisfy failed to the initial such burden for remedy for a unrec- procedural heretofore motions. We therefore cannot the find claim. The ognized constitutional DCCA remedy afforded Williams is respond, could therefore “The Circuit effective, 23-110(g)’s safety and section made us do it.” operates valve to allow the federal district court to entertain his habeas III. answer 23-110(g)’s The lies section “inadequate and ineffective” clause—what IV. “safety we have called the valve.” Blair- mind, With all this I Quick, see no reason for Bey (D.C.Cir.1998). Swain, the court to revisit Supreme question the Streater upheld against section 23-110 a Sus- reinterpret 23-110(g). section The pension Clause challenge, relying heavily court does today a bait-and-switch: it re- on the last clause 110(g): of section jects the mandate-recall in- procedure and 23— clause “That allows the District Court to forms the DCCA the federal courts have corpus entertain if it application jurisdiction to hear Williams’s claim and ‘appears remedy by motion is others like it unless the DCCA overrules inadequate or legali- ineffective to the ” test precedent its and allows those claims to be ty applicant’s] [the detention.’ 430 U.S. heard Court under section 97 S.Ct. 1224. Congress decided to judicial replicate system “state” procedural It is true diktat the court Columbia, District with no interference imposes today DCCA is to identical from the federal courts unless the state procedure adopted have for our- Logically, is deficient. “ordinarily” selves. We require federal then, section 23-110(g) pur- read should be raise appellate to IAC claims posively require to to courts deter- collaterally pursuant to if the remedy, mine including substitute v. Henry, States F.3d procedural mechanism like the motion to (D.C.Cir.2007). give But to mandate, credit where recall “adequate is and effec- due, to tive test the credit legality” prisoner’s time the DCCA adopted detention. to recall the mandate procedure only year Lucey after — —its The DCCA’s motion to recall the man- eminently decision was reasonable. Once cumbersome, date requiring Supreme Court had new authorized a movant to meet a high initial burden. claim constitutional events Watson, 536 A.2d at It is thus happening after the trial proceed- unclear whether proce- the recall-mandate logical ings, require it was is an the claim entirely adequate dure and effective remedy. But we do not be initiated the court answer before which question in Williams’s case because alleged defect occurred.

1005 (or Moreover, gets accu- facing ques- prisoner still a second more this same when third) tion, appellate and rately apple other federal state bite at the in federal choice. have the exact same courts made of claims sum- court. Some these will be 168 Wis.2d Knight, State marily resolved to AEDPA’s def- (1992) Third, 540, (noting n. 5 543 N.W.2d standards, and it is unclear what erential Circuits, Missouri, and Ninth, and Tenth the added burden on our courts will be. employed the District of Columbia instance, appellate For IAC Williams’s procedure); see also to recall the mandate appears little more than a claim to be West, 456, n. 240 460 States v. F.3d United arguments of like string tenuous nested (5th Cir.2001) of (surveying approaches judicial use of Russian dolls. A better our courts). and other state Still resources would be to assert question have the differ- courts answered safety truly impli- the valve is where ently than the DCCA or our circuit. either cated. instance, Supreme For the Wisconsin hour, late leaving At this rather than the Court, confronting statutory provision choice, with a I would DCCA Hobson’s 23-110, deter- nearly identical to section it to the matter in the first allow address “ ‘inade- statutory provision the was mined instance, ” as we did Streater II. There appellate to address quate ineffective’ noted, “it apparent we Knight, claims. 484 N.W.2d IAC of tribunal best situ- considering approaches taken After he ated to address Streater’s claim that courts, appellate Su- other Wisconsin was denied effective assistance of counsel pre- the claim preme Court held should that forum.” F.2d at Princi- state directly sented to the comity of and us ples gave federalism also original corpus. of habeas Id. in an writ “Mindful pause back then: that relations West, 544-45; at 460 n. 3 see also F.3d between District of Columbia and fed- own (observing recalls its Second Circuit systems not be eral should ‘disturbed from dismissal of direct mandate unnecessary equal- conflict between courts after district court has denied section guard ly protect rights bound to and se- relief). We cannot fault the DCCA Constitution,’ by the we cured believe exactly have done doing what other courts D.C. Court should be invited thorny facing procedural ques- when this consider rule on merits of Streat- tion. claim for Id. post-conviction er’s relief.” determined, court has as Because the parte Royall, Ex (quoting U.S. law, inade- matter of that section 23-110 is (1886)). 29 L.Ed. 868 ineffective raise quate when, heightened as is These concerns are claims, may file prisoner IAC a D.C. now here, interpret provision case petition asserting this claim Act Congress Code that is “an the D.C. court, and will be federal district the court exclusively to the District of applicable the claim the mer- obligated review on because do not treat such “[w]e Columbia” light requirement its. of the exhaustion they part statutes if were local as 2254(c), the will U.S.C. of 28 Code,” and policy “[o]ur States a motion to recall first to file defer District been to to the of Columbia if the with the DCCA. But even mandate statutory questions on mandate, remands DCCA recalls the v. Ed- interpretation.” United States a factual Court for record (D.C.Cir.1991). mond, F.2d prisoner’s denies the hearing, and then II, If, we remanded clearly Streater in a claim decision merits — petition to the federal and effective —the *11 in abey- court and ordered it held district

ance, allow oppor- we would DCCA

tunity either to recall its mandate and Williams’s claim on the merits or

address underlying question

to revisit the that has many pro-

caused this court and others so headaches.

cedural TOOLEY, Appellant

Scott NAPOLITANO, Ann

Janet Homeland

Security Secretary, in her Official

Capacity, al., Appellees. et

No. 07-5080. Appeals, States Court of

District of Columbia Circuit.

Argued Oct.

Decided Nov.

On for Rehearing. Petition McGill, Lori appointed Avino by the court, argued the cause as amicus curiae support appellant. With her briefs were Richard P. Bress and Gabriel Bell, K. appointed the court.