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Jones v. Braxton

DISTRICT OF COLUMBIA COURT OF APPEALS


May 9, 1994

RONALD L. JONES, APPELLANT
v.
BERNARD BRAXTON, APPELLEE

Appeal from the Superior Court of the District of Columbia; (Hon. Wendell P. Gardner, Jr., Trial Judge)

The Publication Status of the Document has been Changed by the Court from Unpublished to Published.

Before Terry and Steadman, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: This is an appeal from the trial court's denial of a petition for a writ of habeas corpus *fn1 in which appellant alleged: (1) that the D.C. Board of Parole ("Board") violated his right to due process and equal protection by failing to adhere to the timeframes for scheduling a reconsideration hearing date set forth in 28 DCMR § 104 (1988), *fn2 and (2) that § 104.11, which allows the Board to choose a hearing date that exceeds the suggested timeframes, is unconstitutionally vague. We agree with the trial court that appellant failed to make a showing entitling him to relief. See Bennett v. Ridley, 633 A.2d 824, 826 (D.C. 1993); D.C. Code § 16-1901 (a) (1989). Therefore, we affirm.

On May 11, 1992, citing appellant's "repeated or extremely serious negative institutional behavior," the Board denied appellant parole and scheduled a reconsideration hearing for October 30, 1993, eighteen months later Appellant argues that the language of the regulation regarding timeframes for reconsideration hearings is mandatory and, thus, creates a liberty interest protected by the due process clause. See Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979). However, the regulation is clearly not mandatory in that it states that reconsideration hearings "shall ordinarily occur within [a specified number of] months." 28 DCMR §§ 104.1, 104.2, 104.4-9 (emphasis added). Further, § 104.11 expressly authorizes the Board to disregard the suggested timeframes in favor of the "parole reconsideration date it determines to be appropriate." Thus, the regulatory language does not create an interest protected by the due process clause. See White v. Hyman, 647 A.2d 1175 (D.C. September 29, 1994); see also Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 462-63, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989); Olim v. Wakinekona, 461 U.S. 238, 249, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983). *fn3

Appellant argues that § 104.11 is unconstitutionally vague because it includes no standards to guide and constrain the Board in its discretionary determinations as to when a reconsideration hearing is appropriately scheduled. The vagueness doctrine, which is meant to prevent arbitrary enforcement of s, is inapplicable here. See 1 W. LAFAVE & A. SCOTT, JR., SUBSTANTIVE § 2.3 (c) (1986). This regulation governing the scheduling of parole hearings does not prohibit conduct nor impose sanctions. *fn4

Affirmed.

Associate Judge STEADMAN concurs in the result.


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