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Upshur-Bey v. Stewart

United States District Court, D. Maryland

March 30, 2018

CHARLES V. UPSHUR-BEY, #05824-007 Petitioner,
v.
TIMOTHY S. STEWART, Respondent.

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge.

         THIS 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.

         I. BACKGROUND

         Upshur-Bey, 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).[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.[2] 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the consecutive convictions and sentences are illegal and void as “the statutory authority in each of the matters was repealed” by congressional enactment of the National Capital Revitalization and Self Government Improvement Act of 1997.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 confinement.

         The 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).

         II. DISCUSSION

         Respondent 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.

         Respondent 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.

         Respondent 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 § 23-110(g).

         At bottom, the Court concludes that Upshur-Bey may not attack his 1990 Superior Court for the District of Columbia convictions in this Court.

         A 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 ...

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