Opinion
Civil Action No. 04-1381 (CKK).
March 15, 2005
ORDER
This is a habeas corpus action brought pursuant to 28 U.S.C. § 2241. Petitioner, appearing pro se, is a D.C. Code offender challenging the actions of the United States Parole Commission ("Parole Commission") and the District of Columbia Board of Parole ("D.C. Board") that resulted in the forfeiture of his street time. Because the Court finds that the claims are without merit, the petition for writ of habeas corpus will be denied and the case dismissed.
Background
On April 12, 1988, in the Superior Court of the District of Columbia, petitioner was sentenced to a term of imprisonment of four to twelve years after pleading guilty to the offense of distribution of dilaudid. Parole Commission's Opp. to Petition for Writ of Habeas Corpus, Exhibit ("Ex.") A. Petitioner was released on parole by the D.C. Board on November 16, 1993. Id., Ex. B. The D.C. Board calculated petitioner's full-time date to be November 4, 2000. Id.
The D.C. Board issued a parole violator warrant against petitioner on July 21, 1997 based on petitioner's failure to report as directed and illegal use of a narcotic drug. Id., Ex. C Ex. D. On September 1, 1998, the D.C. Board revoked petitioner's parole and ordered him to be considered to reparole by January 6, 1999. Id. Based on petitioner's parole revocation, the District of Columbia Department of Corrections calculated that his new full-term date was July 9, 2005. Id., Ex. E.
In August, 1998, parole authority over D.C. Code offenders was transferred from the D.C. Board to the Parole Commission. See D.C. Code § 24-1231; see also Franklin v. District of Columbia, 163 F.3d 625, 632 (D.C. Cir. 1998). In a Notice of Action dated April 12, 1999, the Parole Commission ordered petitioner paroled on September 4, 1999 after service of 14 months imprisonment. Parole Commission's Opp., Ex. F. The Parole Commission recalculated petitioner's full-term date to be July 9, 2005. Id., Ex. G.
On July 30, 2004, the Parole Commission revoked petitioner's parole after finding the following violations: (1) use of dangerous and habit forming drugs; (2) failure to report to his parole officer as directed; (3) failure to submit to drug testing; (4) failure to attend a drug aftercare program; and (5) possession of crack cocaine. Id., Ex. H. The Parole Commission ordered that petitioner be paroled on April 9, 2005 after the service of 12 months imprisonment. Id. Discussion
Petitioner contends that he is entitled to the restoration of his credit for the street time during his first period of parole from November 16, 1993 to September 1, 1998. He claims that the forfeiture of his street time by the Board of Parole violated the ex post facto clause of the Constitution and his rights to due process and equal protection. Petitioner further alleges that the Board of Parole's decision was fundamentally unfair and an abuse of discretion.
The ex post facto clause prohibits retroactive application of a law which increases the punishment for a crime that an individual has already committed. Collins v. Youngblood, 497 U.S. 37, 42 (1990). A statute retroactively increasing the penalties upon parole revocation also would be unconstitutional. Johnson v. United States, 529 U.S. 694, 701 (2000). The same principle applies to an administrative regulation promulgated pursuant to statutory authority. The "controlling inquiry" is whether retroactive application of the change in a parole regulation creates "a sufficient risk of increasing the measure of punishment attached to the covered crimes." Garner v. Jones, 529 U.S. 244, 250 (2000).
Petitioner's claim arises from decisions of the District of Columbia Court of Appeals resolving an apparent conflict between two District of Columbia statutes and the interpretation of those statutes by the District of Columbia Department of Corrections. The two statutes at issue posed an apparent conflict on the issue of street time forfeiture following a parole revocation. One statute, enacted in 1932, provided that "[i]f the order of parole shall be revoked . . . [t]he time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced." D.C. Code § 24-206(a). In 1987, the District of Columbia enacted a statute that appeared to grant street time credit to parole offenders: "Every person shall be given credit on the maximum and the minimum term of imprisonment for time spent in custody or on parole as a result of the offense for which the sentence was imposed." D.C. Code § 24-431(a).
After being advised by Corporation Counsel that the latter statute repealed the former, the D.C. Department of Corrections promulgated a regulation providing that parole revocation would not result in the loss of street time toward service of the sentence for which parole has been granted. See Davis v. Moore, 772 A.2d 204, 209 (D.C. 2001). That regulation was invalidated by the decision in United States Parole Commission v. Noble, 693 A.2d 1084 (D.C. 1997). In that case, the District of Columbia Court of Appeals held that the law enacted in 1932 providing for loss of street time upon parole revocation was not repealed by the statute enacted in 1987. Id. at 1095. As a result, because the agency had erroneously granted street time credit, the Department of Corrections was required to change its method of computing a person's sentence. Davis, 772 A.2d at 208. The District of Columbia Court of Appeals ruled, in a subsequent decision, that Noble was retroactive and was applicable to persons who committed their offenses before the issuance of the Noble decision. See id. at 215.
Petitioner's street time was forfeited because of a judicial decision invalidating a policy of the D.C. Department of Corrections. A judicial construction of a statute is "an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction." Rivers v. Roadway Express, Inc., 511 U.S. 298, 311-12 (1994). However, an unforeseeable interpretation of a statute, if applied retroactively, that increases punishment violates due process. Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964). A judicial construction of a statute is not foreseeable if it is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue." Id. at 354.
The decision of the D.C. Court of Appeals in Noble was not so unforeseeable as to amount to a due process violation. First, the D.C. statute that required the forfeiture of street time had never been repealed. See Davis, 772 A.2d at 216. Moreover, petitioner was on notice that at the time the Department of Corrections implemented its policy that the United States Parole Commission took a contrary view of D.C. law and continued to forfeit street time upon revocation of parole. Id. at 209; see also Johnson v. Kindt, 158 F.3d 1060, 1063 (10th Cir. 1998) (interpreting Noble), cert. denied, 525 U.S. 1075 (1999). And at the time petitioner violated his parole, the only judicial decision that had addressed the issue found that the D.C. statute providing for the forfeiture of street time had not been repealed by the subsequent D.C. statute and the Department of Corrections policy. See Tyler v. United States, 929 F.2d 451, 457 (9th Cir.), cert. denied, 502 U.S. 845 (1991). For these reasons, the invalidation of the D.C. Department of Corrections' statutory interpretation did not violate the ex post facto clause or due process. Conclusion
Petitioner's argument that the forfeiture of street time by the D.C. Court of Appeals decision violated equal protection was rejected in Noble v. United States Parole Commission, 194 F.3d 152, 154 (D.C. Cir. 1999).
Petitioner's constitutional rights were not violated when his street time was forfeited because of the revocation of his parole. Therefore, the petition for writ of habeas corpus will be denied.