March 30, 1995
ANDRE ADAMS, PETITIONER,
BERNARD L. BRAXTON, RESPONDENT.
Appeal from the Superior Court of the District of Columbia. (Hon. Donald S. Smith, Trial Judge).
Before Ferren and Schwelb, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Andre Adams appeals from an order of the trial court denying his petition for a writ of habeas corpus. His principal contention is that the District of Columbia Board of Parole (the Board) failed to comply with its own regulation requiring the review of parole violator detainer warrants every six months. He maintains that as a result of the Board's noncompliance, the subsequent revocation of his parole was unlawful. We affirm.
In July 1981, Adams was sentenced in the Superior Court to consecutive terms of imprisonment for threats and for weapons and drug offenses. His minimum aggregate term was twenty-six months and twenty days; his maximum aggregate term was eighty months. He was released on parole on August 26, 1983. As a condition of his parole, Adams was required, among other things, to obey all laws (Condition 9), and he was prohibited from possessing a firearm or other deadly weapon (Condition 5).
On September 12, 1984, Adams was rearrested in Maryland and charged with armed robbery with a deadly weapon and with robbery. He was convicted by a jury and, on July 8, 1985, he was sentenced to serve a maximum of thirty-five years.
According to his petition, Adams successfully appealed from his Maryland conviction. On February 28, 1989, he was granted a new trial. In August 1990, Adams was retried and convicted once again. On September 30, 1992, Adams' second conviction was reversed on appeal. *fn1 Ultimately, on January 28, 1993, Adams entered an Alford *fn2 plea to robbery and was sentenced to time served.
Meanwhile, on July 22, 1985, the Board issued a parole violator warrant and lodged it as a detainer against Adams, who was then incarcerated in Maryland. *fn3 According to Adams' petition, the Board next conducted a Dispositional review of the detainer in November 1992, and ordered at that time that the detainer remain in effect. On February 10, 1993, having served his Maryland sentence, Adams was committed to the District of Columbia Jail as a parole violator. On March 30, 1993, following a hearing, the Board revoked Adams' parole on the basis of his robbery conviction in Maryland and his possession of a dangerous weapon during the commission of that crime.
On June 11, 1993, Adams filed a pro se petition for a writ of habeas corpus. He alleged that he was being unlawfully detained by appellee Bernard Braxton, the Administrator of the Occoquan facility operated by the District of Columbia Department of Corrections. On August 10, 1993, the trial Judge denied the petition. This appeal followed. *fn4
The regulation invoked by Adams provides in pertinent part that "the Board shall review the Disposition of each warrant issued as a detainer every six (6) months." 28 DCMR § 218.3 (1987). Adams contends that the Board failed to comply with this regulation during his prolonged incarceration in Maryland and that the subsequent revocation of his parole was therefore unlawful. Braxton does not contest the claim of noncompliance, but contends primarily that the Board's failure to conduct reviews did not prejudice Adams because the detainer would not have been rescinded in any event.
Section 218.3 is cast in terms of command. The verb "shall" creates "a duty, not an option." Riggs Nat. Bank v. District of Columbia, 581 A.2d 1229, 1257 (D.C. 1990) (citations omitted). Its use ordinarily connotes that the duty imposed is mandatory unless such a construction is inconsistent with the manifest intent of the drafter or repugnant to the context of the regulation. Id.
The obvious purpose of § 218.3 is to ensure that the Board remains fully apprised of the current status of a parolee against whom a detainer has been lodged, so that it may exercise its informed discretion as to whether the detainer should remain in effect. The Supreme Court has declared that "regulations validly prescribed by a government administrator are binding upon him as well as the citizen." Service v. Dulles, 354 U.S. 363, 372, 1 L. Ed. 2d 1403, 77 S. Ct. 1152 (1957). We have likewise held that an agency must follow its own regulations. Hanson v. District of Columbia Rental Hous. Comm'n, 584 A.2d 592, 595 (D.C. 1991); see also Sangamon Valley Television Corp. v. United States, 106 U.S. App. D.C. 30, 33, 269 F.2d 221, 224 (1959).
We note, on the other hand, that the decision to grant or deny parole, and the procedures utilized by the Board to reach that decision, are discretionary in nature. See, e.g., White v. Hyman, 647 A.2d 1175, 1179-80 (D.C. 19914). Notwithstanding the presumptively mandatory character of "shall," we have construed the word less rigorously in some cases involving public agencies, see, e.g., District of Columbia v. W.T. Galliher & Bro., Inc., A.2d , No. 92-TX-1128, slip op. at 7-8 (D.C. Mar. 30, 1995), especially where, as here, the regulation does not specify the consequences of noncompliance. See Teamsters Local Union 1714 v. Public Employee Relations Bd., 579 A.2d 706, 710 (D.C. 1990); cf. United States. v. James Daniel Good Real Property, 126 L. Ed. 2d 490, 114 S. Ct. 492, 506 (1993).
In the present case, we need not decide whether the regulation creates a mandatory duty because, even if it does, a violation of that duty would not entitle Adams to the remedy that he seeks. *fn5 Specifically, we cannot agree with Adams' contention that he is entitled to reversal of the order revoking his parole. Adams has not shown, and we cannot discern, any legally sufficient nexus between the Board's alleged noncompliance and the relief sought.
One of the conditions of Adams' parole was that he refrain from criminal conduct. He did not so refrain. On the contrary, while on parole, he was convicted in Maryland of robbery. The conviction was based on his plea of guilty, albeit an Alford plea. *fn6 At a revocation hearing, Adams would have had no right to relitigate the question of his guilt of the Maryland robbery, for that issue had been conclusively decided against him by his Maryland conviction. See Morrissey v. Brewer, 408 U.S. 471, 490, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972).
Assuming, without deciding, that the regulation was violated, "there is no presumption or general rule that, for every duty imposed upon the court or the Government and its prosecutors, there must exist some corollary punitive sanction for departures or omissions, even if negligent." United States v. Montalvo-Murillo, 495 U.S. 711, 717, 109 L. Ed. 2d 720, 110 S. Ct. 2072 (1990). Although, as a general rule, "where there is a legal right, there is also a legal remedy," Brantley v. District of Columbia, 640 A.2d 181, 184 (D.C. 1994) (citations omitted), that remedy must be reasonably related to the violation in question. In Mack v. United States, 637 A.2d 430 (D.C. 1994), we held that the trial court's erroneous extension of a defendant's preventive pretrial detention beyond the period authorized by statute did not warrant dismissal of the indictment with prejudice, for there was no sufficient nexus between the right violated and the relief sought. Id. at 433-34.
Mack is instructive here. The purpose of § 218.3 is to ensure that the Board exercises its discretion with respect to the maintenance or withdrawal of a detainer where the parolee is incarcerated prior to his revocation hearing. The regulation has nothing to do with the merits of the revocation hearing, or with the question whether the defendant's parole should be revoked.
Accordingly, Adams is not entitled to an order reversing the revocation of his parole. Even if he was unlawfully detained for some period in Maryland as a result of the Board's noncompliance with its regulation - an issue which we cannot and do not decide on this record - his detainer in the District at the time he sought his release was not unlawful, and his petition for a writ of habeas corpus was properly denied.
For the foregoing reasons, the order appealed from is hereby