United States District Court, D. Maryland
CHARLES V. UPSHUR-BEY, #05824-007 Petitioner,
TIMOTHY S. STEWART, Respondent.
L. Russell, III United States District Judge.
MATTER is before the Court on Respondent Warden Timothy S.
Stewart's Motion to Dismiss for Lack of Jurisdiction or,
Alternatively, for Failure to State a Claim upon which Relief
can be Granted (ECF No. 10). This action arises from
Petitioner Charles V. Upshur-Bey's Petition under 28
U.S.C. § 2241 (2018) (ECF No. 1). The Motion is ripe for
disposition, and no hearing is necessary. See Local
Rule 105.6 (D.Md. 2016). For the reasons outlined below, the
Court will grant Stewart's Motion, deny the Petition, and
decline to issue a Certificate of Appealability.
who is confined at the Federal Correctional Institution in
Cumberland, Maryland (FCI-Cumberand), appears to assert that
he is held on a detainer and is being “unlawfully
detained and restrained of his personal liberty on null and
void judgments and commitment orders.” (Pet. at 2, ECF
No. 1). Upshur-Bey contends he is being held on
three void judgments and commitment orders issued by the
Superior Court of the District of Columbia. He argues that
the consecutive convictions and sentences are illegal and
void as “the statutory authority in each of the matters
was repealed” by congressional enactment of the
National Capital Revitalization and Self Government
Improvement Act of 1997. (Id., at 4-6). He further
contends that his convictions have been rendered
unconstitutional under Johnson v. United States, 135
S.Ct. 2551 (2015). Upshur-Bey seeks immediate release from
Petition was received for filing on January 17, 2017, almost
twenty-four years after the entry of Upshur-Bey's
convictions in the Superior Court for the District of
Columbia. The Petition has been briefed. Respondent filed a
Motion to Dismiss, arguing that the Court is without
jurisdiction to consider the Petition and that the Petition
fails on the merits. (ECF No. 10). Upshur-Bey then filed an
Opposition and Respondent filed a Reply. (ECF Nos. 13, 14).
Upshur-Bey has additionally filed a Motion for Leave to File
for Clarification. (ECF No. 15).
maintains that in 1990, Upshur-Bey engaged in a violent crime
spree when, over the course of two days, he robbed multiple
people, shot three of them, and killed a taxi driver. See
Upshur-Bey v. Sepanek, 2017 WL 708715, at *1 (E.D.Ky.
Feb. 22, 2017). He was convicted of armed robbery, assault
with a deadly weapon, robbery, second-degree murder, and
other charges in the Superior Court for the District of
Columbia. See Upshur v. U.S. Parole Commission, 2011
WL 4345866, *1 (E.D. Ky. Sept. 15, 2011). Upshur-Bey received
a total sentence of 32 years and four months.
observes that this is not the first time Upshur-Bey has
raised his claim that the convictions are null and void due
to the repeal of the District of Columbia laws criminalizing
the conduct. Respondent contends that the ground was raised
in an “Amended Petition” filed in the District
Court for the Eastern District of Kentucky, where Upshur-Bey
was previously serving his District of Columbia sentence
until he was transferred to the FCI-Cumberland. That Court
rejected the claim, noting that Upshur-Bey had “himself
contradicted the claim in a previous motion, where he noted
that those statutes have merely been recodified.”
See Upshur-Bey v. Sepanek, 2017 WL 708715, at *5.
argues that the Court is without jurisdiction over the
Petition. He maintains that as Upshur-Bey was convicted and
sentenced in the Superior Court of the District of Columbia,
he is subject to the provisions of D. C. Code §
bottom, the Court concludes that Upshur-Bey may not attack
his 1990 Superior Court for the District of Columbia
convictions in this Court.
prisoner under a sentence imposed by D.C. Superior Court may
collaterally challenge the constitutionality of his
conviction by moving in that court to vacate his sentence.
See Garris v. Lindsay, 794 F.2d 722, 725 (D.C. Cir.
1986). Challenges to a D.C. Superior Court judgment of
conviction must be pursued under D.C. Code §
23-110. Blair- Bey v. Quick, 151 F.3d
1036, 1042-43 (D.C. Cir. 1998). D.C. Code §
23-110 provides that:
A prisoner convicted and sentenced in Superior Court may move
to vacate, set aside, or correct his sentence upon the ground
that (1) the sentence was imposed in violation of the
Constitution of the United States or the laws of the District
of Columbia, (2) the court was without jurisdiction to impose
the sentence, (3) the sentence was in excess of the maximum
authorized by law, [or] (4) the sentence is otherwise subject
to collateral attack.
D.C. Code § 23-110(a). Moreover, D.C. Code
§ 23-110(g) provides that:
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 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