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November 10, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Joan Zeldon, Trial Judge)

Before Steadman and King, Associate Judges, and Reilly, Senior Judge.

The opinion of the court was delivered by: King

KING, Associate Judge: In this appeal, appellant contends the trial court erred in denying his pro se petition for writ of habeas corpus, in which he claimed that he has not received the good time credits he is entitled to receive under the District of Columbia Good Time Credits Act of 1986 ("Good Time Credits Act"). n.1 [footnote omitted] The trial court denied the petition, without a hearing, ruling that relief was not appropriate because appellant had not exhausted the administrative remedies available to an inmate within the Department of Corrections ("Department"). Although both appellant and the government urge us to reach the merits of appellant's claim, we decline to do so because we agree with the trial court that appellant should first exhaust administrative remedies. *fn2 Accordingly, we affirm.


Appellant was convicted in 1980 of armed robbery, unauthorized use of a vehicle, assault with a deadly weapon, and carrying a pistol without a license. He was sentenced to an aggregate term of fifteen years to life imprisonment. In addition, he received a consecutive twenty-month to five-year term for a violation of the Bail Reform Act in 1981. He became eligible for parole consideration in July 1992. In November 1991, appellant filed a petition for writ of habeas corpus claiming that he had been improperly denied application of the Good Time Credits Act on his maximum sentence. Specifically, he maintains that the policy of the Department -- denying application of good time credits to the maximum sentence for those serving life sentences -- is contrary to law.

The Good Time Credits Act, by its terms, reduces both the minimum and maximum sentences. D.C. Code § 24-428 (b) (1989). Once the minimum sentence, less good time, is served, an inmate is eligible for parole consideration, i.e., the inmate has reached the parole eligibility date (in appellant's case, July 1992). See 28 DCMR § 200.1 (1987). The decision to grant or deny parole, upon eligibility, is within the discretion of the Parole Board. *fn3 When the maximum sentence, less good time, has been served, an inmate must be released, i.e., the inmate has reached the mandatory release date. See 28 DCMR § 212.1 (1987).


We conclude that we should not reach the merits of appellant's contention for several reasons. First, the parties agree that the policy of the Department -- that the good time credits provision is not applicable to life sentences -- is an unwritten one. We are reluctant to review, under these circumstances, since we do not know the precise nature and extent of the policy that we are being asked to apply in this appeal. If appellant chooses to further pursue this matter administratively, we would expect that, if the Department adheres to its unwritten policy, it will set forth in writing its position on the applicability of the good time credits provision to life sentences as well as its rationale for rejecting the contentions made by the inmate. Then, in the event of further judicial review, we would be presented with something of substance to consider.

Second, in this court appellant has raised, for what is apparently the first time, the argument that "the Indeterminate Sentences Act *fn4 . . . establishes a forty-five year maximum term as the basis for the mandated application of good time credits to a maximum sentence of life imprisonment." Essentially, appellant contends that his mandatory release date must come after he has served a period of 45 years, less applicable good time credits. Neither the agency nor the trial court has addressed this contention, and we think it inappropriate to consider it for the first time in this appeal. See Smith v. Police & Firemen's Ret. & Relief Bd., 460 A.2d 997, 999 (D.C. 1983) ("In administrative appeals . . . our function is to review decisions made by the responsible executive authority. Accordingly, we do not consider claims raised for the first time on appeal.") (citations omitted). By requiring exhaustion of administrative remedies, we are ensuring that the precise legal arguments being relied upon by appellant will be considered by the agency in the first instance.

Third, there is no urgency to decide this matter at this time. Even if appellant obtains all the relief he claims he is entitled to receive, his mandatory release date will not occur until the year 2011 at the earliest. Thus, this petition does not challenge his current incarceration. The Supreme Court has held, however, that this fact alone will not defeat a habeas petition if postponement of the habeas hearing would result in "dimmed memories or the death of witnesses [that would] render it difficult or impossible to secure crucial testimony on disputed issues of fact." Peyton v. Rowe, 391 U.S. 54, 62, 20 L. Ed. 2d 426, 88 S. Ct. 1549 (1968). In this case, however, there is no danger that requiring exhaustion of administrative remedies would result in the "loss of crucial evidence," id. at 61, since appellant is simply challenging the agency's interpretation and application of two statutes, i.e., the Good Time Credits Act and the Indeterminate Sentence Act.

Finally, we have held -- in a case dealing with credit for time spent in custody prior to the imposition of sentence -- that "ordinarily, all available administrative remedies should be exhausted before resort is had to . Norris v. Freeman supra note 2, 497 A.2d at 1110 (citations omitted). In Norris, the court found that "computation of the sentence is an administrative and not a judicial responsibility." Id. (citations omitted). Similarly, a determination of eligibility for good time credits is an administrative, not a judicial, responsibility. See D.C. Code § 24-430 (b) (1989). In Norris we observed that the Department has established an Administrative Remedy Procedure for inmates seeking formal redress of complaints about their incarceration, id. (citing Department Order No. 4030.1; see supra note 2), and that one must "avail himself of those procedures. . . . [or provide] compelling circumstances that would excuse his failure to do so." Norris, supra, 497 A.2d at 1111. The same rationale applies to appellant's claim. He must first bring his challenge via the ARP, as outlined in Department Order 4030.1C, and then to the Institutional Appeals Board ("Board"). See supra note 2. After exhausting those administrative avenues, appellant then retains the option of securing judicial review if he is dissatisfied with the decision of the Board. See Simpson v. Office of Human Rights, supra note 2, 597 A.2d at 398 (judicial review of agency decisions is permitted unless foreclosed by the legislature).

For these reasons, we conclude that the trial court did not err in dismissing appellant's petition for writ of habeas corpus.


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