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White v. Hyman

September 29, 1994

DANIEL WHITE, APPELLANT
v.
ERIAS A. HYMAN, DISTRICT OF COLUMBIA BOARD OF PAROLE, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Gregory E. Mize, Trial Judge)

Before Wagner, Chief Judge,* and Terry and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Daniel White, a prisoner at a facility administered by the District of Columbia Department of Corrections, filed a petition in the Superior Court for a writ of habeas corpus, alleging that the District of Columbia Board of Parole had unlawfully denied him timely consideration for parole. A Superior Court Judge denied the petition without a hearing and dismissed the writ. Because the Board's "Policy Guideline," which White invokes, was adopted after the decision in his case; because White's contention that the Guideline should be applied retroactively was not made to the trial court or brought to the attention of the agency; and because the District's parole statutes and regulations, on which White also relies, do not create a protected liberty interest in being reconsidered for parole at any specific time, we affirm.

I.

White is a prisoner at the Lorton facility operated by the District of Columbia Department of Corrections. He is currently serving sentences with aggregate maximum terms totaling more than sixteen years for offenses which include unlawful distribution of dilaudid, unlawful possession of dilaudid with intent to distribute it, several crimes against property, and willful failure to appear in court. On January 19, 1990, apparently while on pre-parole work release, White failed to return to a halfway house and was placed on escape status. He remained an escapee for seventeen days until he was apprehended on February 4, 1990. After his return to custody, White received a major disciplinary report for possession of contraband.

The Board of Parole held a hearing on October 18, 1991, to determine whether White should be paroled. Board member Enrico Rivera, who prepared the documentation for the Board, noted White's escape and disciplinary violation, and concluded as follows:

It appears that subject's institutionalized behavior has been deplorable, and it is difficult to understand DCDC's *fn1 logic in placing this subject at a halfway house with his type of record. A denial is strongly recommended, and a significant set-off *fn2 proposed, as a deterrent to the subject's apparent contempt of the criminal Justice process.

On October 19, 1991, the day after the hearing, White escaped again. He was not returned to custody until 133 days later. Meanwhile, on November 4, 1991, in conformity with Mr. Rivera's recommendation, the Board denied White parole and set a new parole hearing date for February 4, 1996. On December 17, 1992, White filed a pro se petition for a writ of habeas corpus in the Superior Court, alleging that the Board had violated its Regulations and Guideline by setting a reconsideration date more than four years in the future, and by failing to state its grounds for denying parole and for setting the reconsideration date it did. The trial Judge denied the petition on December 22, 1992, noting that "in view of petitioner's escape status for 133 days *fn3 . . . the Board of Parole proceeded lawfully in issuing its 'early initial' hearing order of November 4, 1991." This appeal followed.

II.

White contends that the District's parole scheme provides him with a protected liberty interest, see Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7-8, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979); Board of Pardons v. Allen, 482 U.S. 369, 376-81, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987), and that the Board failed to adhere to its obligations under its regulations and Guideline and thus denied him liberty without due process of law. In order to assess White's contentions, we must consider the language of the provisions on which he relies.

Section VI (A)(1) of the Board's "Policy Guideline," which was initially adopted on December 16, 1991, and amended in April 1992, provides in pertinent part as follows:

When the Board denies parole for any offender, it shall ordinarily schedule a reconsideration date within the prescribed set-offs unless certain factors support imposition of an alternative set-off. The length of a set-off is based on the term of the sentence imposed by the courts, and may not exceed the date on which release from incarceration becomes mandatory.

(Emphasis added). *fn4 The applicable regulation respecting the scheduling of rehearings provides that

when the Board denies parole and orders reconsideration for a person serving a maximum sentence of five (5) years or more, reconsideration shall ...


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