Appeal from the United States District Court for the District of Columbia (No. 1:08-cv-00971-ESH).
The opinion of the court was delivered by: Tatel, Circuit Judge
Argued September 14, 2009
Before: ROGERS, TATEL and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL. Opinion concurring in the judgment filed by Circuit Judge BROWN.
Section 23-110 of the D.C. Code establishes a procedure for collateral review of convictions in the D.C. Superior Court and creates exclusive jurisdiction in that court "unless" the remedy provided by that section is "inadequate or ineffective." In this case, we must decide whether section 23-110 bars a prisoner convicted in Superior Court from bringing a federal habeas corpus petition alleging ineffective assistance of appellate counsel. Because the D.C. Court of Appeals has held that challenges to the effectiveness of appellate counsel may not be brought pursuant to section 23-110, but must instead be raised through a motion to recall the mandate in that court, we hold that section 23-110 does not deprive federal courts of jurisdiction over habeas petitions alleging ineffective assistance of appellate counsel.
Although the background of this case is complicated, involving as it does several proceedings spanning more than fifteen years, see Williams v. United States, 878 A.2d 477 (D.C. 2005) (en banc); Williams v. United States, 783 A.2d 598 (D.C. 2001), understanding the issue before us requires knowing only the following.
In 1990, a D.C. Superior Court jury convicted appellant Craig Allan Williams of first-degree murder. Represented by new counsel, Williams then appealed. During the pendency of that appeal, Williams filed a motion for post-conviction relief pursuant to D.C. Code § 23-110, which provides that a "prisoner in custody under sentence of the Superior Court claiming the right to be released upon the ground that  the sentence was imposed in violation of the Constitution . . . may move the court to vacate, set aside, or correct the sentence." D.C. Code § 23-110(a).
Consistent with its usual practice, the D.C. Court of Appeals stayed Williams's direct appeal pending the Superior Court's resolution of his section 23-110 motion. See Shepard v. United States, 533 A.2d 1278, 1280 (D.C. 1987). Thereafter, the Superior Court denied Williams's section 23-110 motion, and the D.C. Court of Appeals consolidated his appeal of that denial with his direct appeal. In 1995, the D.C. Court of Appeals affirmed Williams's conviction.
Williams then filed a motion in the D.C. Court of Appeals to recall the mandate affirming his conviction-the procedure required in the District of Columbia to litigate the issue of ineffective assistance of appellate counsel. See Watson v. United States, 536 A.2d 1056, 1060 (D.C. 1987) (en banc). In that motion, Williams complained that counsel on both his direct appeal and his section 23-110 motion had rendered ineffective assistance. The D.C. Court of Appeals summarily denied the motion to recall the mandate.
Making the same ineffective assistance of appellate counsel claim, Williams then sought habeas relief in federal court. The district court dismissed Williams's habeas petition for lack of jurisdiction on the ground that section 23-110 provides the exclusive remedy for collateral challenges to sentences imposed by the Superior Court. Williams v. Martinez, 559 F. Supp. 2d 56, 57--58 (D.D.C. 2008).
Williams appealed, and we referred his case to the district court to determine in the first instance whether to issue a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1) (requiring a COA to appeal a final order in a habeas proceeding); United States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir. 2000) (holding that petitioners should seek a COA from the district court before requesting one from the appeals court). The district court declined to issue a COA, explaining that for the reasons given in its opinion dismissing Williams's claim for lack of jurisdiction, Williams had failed to make "a substantial showing of the denial of a constitutional right," as required for a COA. 28 U.S.C. § 2253(c)(2). Williams then filed a request for a COA in this court, and we appointed amicus curiae to present arguments on his behalf.
Because the district court denied Williams's petition without reaching the merits of his constitutional claim, we review his request for a COA in two steps. We ask first whether Williams has shown that "jurists of reason would find it debatable whether the district court was correct" in dismissing his petition for lack of jurisdiction, and second whether "jurists of reason would find it debatable whether [his] petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). We take each step in turn.
The answer to the first question-whether the district court correctly dismissed Williams's claim for lack of jurisdiction- turns on the reach of section 23-110. Section 23-110(a) authorizes a "prisoner in custody under sentence of the Superior Court" to "move the court to vacate, set aside, or correct the sentence." D.C. Code § 23-110(a). Section 23-110(g) 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 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 ...