Before Schwelb and Washington, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Belson, Senior Judge.
Appeal from the Superior Court of the District of Columbia (Hon. Iraline Green Barnes, Trial Judge)
Appellant Kenneth Hammond appeals the trial court's order denying his petition for writ of habeas corpus, filed pursuant to D.C. Code § 16-1901 (1999 Supp.), in which he asserted that his due process rights were violated when - following his successful challenge of the D.C. Parole Board's initial parole revocation order - the Board imposed a longer set-off, i.e., the period of time which must pass before it would next consider releasing him on parole. He contends that the Board's actions in imposing a longer set-off triggered a presumption of vindictiveness, and that the Board did not rebut the presumption by setting forth objective information concerning conduct on his part after the first parole revocation hearing that justified the imposition of a longer set-off. The government, assuming the applicability of a presumption of vindictiveness, contends the presumption was overcome when the Board noted that appellant's credibility was "shot" as a result of his testimony at his second parole revocation hearing. Because we are not persuaded that the government has overcome the presumption, we reverse.
Appellant was released on parole by the D.C. Parole Board in April 1996. In August 1997, appellant was arrested in Maryland on charges of second-degree rape and second-degree sexual offense, arising out of an incident in which his girlfriend alleged he had raped her. On January 6, 1998, appellant pled guilty to second-degree assault, a misdemeanor, and the following day a parole violation warrant issued by the D.C. Parole Board was executed against him. At his parole revocation hearing, he was found to have committed four parole violations: (1) failure to obey all laws while on parole; (2) failure to report his Maryland arrest to his parole officer; (3) failure to meet with his parole officer on one occasion; and (4) failure to participate in an outpatient drug program, a special condition of his parole. Based on these findings, on February 25, 1998, the Parole Board issued an order revoking appellant's parole, and ordered that he be reconsidered for parole on the set-off date of January 7, 2000.
On March 18, 1998, appellant filed a pro se petition for writ of habeas corpus. In response to a show cause order issued by the trial court, the Parole Board submitted a memorandum to the court conceding that it had erred in failing to provide a written explanation for its imposition of a set-off that was longer than that recommended by the guidelines, and indicated that upon dismissal of the petition, a new revocation hearing would be scheduled. Based on this submission, the trial court denied and dismissed appellant's petition, and the Parole Board scheduled a new revocation hearing. At the second revocation hearing, the hearing official concluded that appellant had committed only two violations - failure to obey all laws and failure to meet with his parole officer - and recommended a set-off date of April 7, 1999. Disagreeing with the recommended disposition, Board Chair Margaret Quick recommended a set-off date of January 6, 2001, noted the presence of three countervailing factors, and added the comment: "Subject's credibility is shot. This testimony is different from his previous hearing on at least one allegation. Subject was convicted on a charge stemming from two allegations of rape. Subject was not adhering to his special condition and reporting requirements." On September 16, 1998, the Parole Board issued an order revoking appellant's parole and ordering a set-off date of January 6, 2001, as recommended by Ms. Quick. The three countervailing factors identified by Ms. Quick were cited on the revocation order as reasons for the Board's decision. These factors were "prior record of violent behavior," "opportunity but little effort to engage in productive programming or work," and "needs programming to remain crime-free in the community."
On December 10, 1998, the Board issued a third parole revocation order, specifying only the "failure to obey all laws" violation, because the evidence on the other remaining violation was insufficient. *fn1 The third revocation order specified the same set-off date - January 6, 2001 - as the second revocation order, and cited the same three countervailing factors.
In North Carolina v. Pearce, 395 U.S. 711 (1969), the Supreme Court applied the due process clause to a trial court's imposition of a longer sentence on the appellant, after the appellant's conviction following a retrial which had been necessitated by the reversal on appeal of the appellant's initial conviction. The Court held that "Due process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." Id. at 725. The Court continued,
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. Id. at 726.
"In sum, the Court [in Pearce] applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence." United States v. Goodwin, 457 U.S. 368, 374 (1982).
The District of Columbia, in its brief to this court, assumed arguendo that the Pearce presumption applies to parole determinations and did not provide any authority or argument to the contrary. A number of federal courts of appeals have extended the Pearce presumption to encompass parole determinations. See, e.g., Marshall v. Lansing, 839 F.2d 933 (3rd Cir. 1988); Kindred v. Spears, 894 F.2d 1477 (5th Cir. 1990); Bono v. Benov, 197 F.3d 409 (9th Cir. 1999). As the Third Circuit stated in Marshall, supra,
We believe that the logic of Pearce and its progeny applies with equal force to the facts of this case. Just as a sentencing judge might resent a challenge to an underlying conviction which he himself had overseen, so too might the Commission look unkindly upon a successful court challenge to its [decisions], thus supplying a motive for retaliation. . . . [W]here a prisoner's challenge could be viewed as an assault on the Commission's ...