United States District Court, D. Columbia
August 29, 2005.
JOSEPH LOWERY BEY, Petitioner,
U.S. PAROLE COMMISSION, et al., Respondents.
The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge
This is a habeas corpus action brought pursuant to
28 U.S.C. § 2241. Petitioner, appearing pro se, is challenging the parole
revocation decision of the United States Parole Commission
("Parole Commission") forfeiting the time he spent on parole.
Because the Court finds that the claim is without merit, the
petition for writ of habeas corpus will be denied and the case
will be dismissed.
On September 8, 1971, in the United States District Court for
the District of Columbia, Petitioner was sentenced to probation
for unlawfully possessing a United States Treasury check. Parole
Commission's Opposition to Petition for Writ of Habeas Corpus
("Parole Commission's Opp."), Exhibit ("Ex.") A. On April 12,
1976, Petitioner's probation was revoked and he was sentenced to
a term of imprisonment of four to twelve months. Id. Petitioner
was then convicted of unlawful distribution of a controlled
substance and sentenced to a concurrent term of one to three
years imprisonment on July 6, 1976. Id., Ex. B. On November 4,
1976, in the Superior Court of the District of Columbia,
Petitioner was sentenced to an aggregate term of eight to twenty-four years for assault with intent to kill and
assault with a deadly weapon. Id., Ex. C.
The District of Columbia Board of Parole ("D.C. Board") paroled
Petitioner on July 16, 1985. Id., Ex. D. Petitioner was ordered
by the D.C. Board to remain under parole supervision until June
7, 2002. Id. On April 1, 1987, the D.C. Board revoked
Petitioner's parole on the grounds that he failed to maintain
legitimate employment, inform his parole officer of his
employment, and follow the parole officer's instructions. Id.,
Ex. G-1 and Ex. G-2. Petitioner escaped from the custody of the
District of Columbia Department of Corrections on May 7, 1988,
and remained on escape status until May 9, 1991. Id., Ex. H.
On November 5, 1991, Petitioner was sentenced in D.C. Superior
Court to 150 days for possession of heroin. Id., Ex. I. On June
9, 1994, Petitioner was sentenced to a term of six months
imprisonment for attempted prison breach. Id., Ex. J-1. The
D.C. Board granted Petitioner parole on January 16, 1996 and
ordered Petitioner to remain under parole supervision until
January 28, 2009. Id., Ex. K.
On August 5, 1998, parole authority over D.C. Code offenders
was transferred from the D.C. Board to the Parole Commission.
See D.C. Code § 24-1231; see also Franklin v. District of
Columbia, 163 F.3d 625, 632 (D.C. Cir. 1998). On December 10,
2001, the Parole Commission revoked Petitioner's parole based on
the finding that he had been in possession of heroin. Parole
Commission's Opp., Ex. N. The Parole Commission revoked
Petitioner's parole and ordered him to serve a revocation term of
10 months. Id. On June 17, 2002, the Parole Commission again
paroled Petitioner and ordered that he remain under parole
supervision until September 16, 2014. Id., Ex. O. The Parole Commission revoked Petitioner's parole on November
18, 2002, on the grounds that he used dangerous and habit-forming
drugs, failed to submit to drug testing, and failed to report to
his parole officer as directed. Id., Ex. R. Petitioner was
sentenced by the Parole Commission to a revocation term of 12
months. Id. On September 11, 2003, Petitioner was paroled and
ordered by the Parole Commission to remain under its supervision
until March 21, 2014. Id., Ex. S.
On April 20, 2005, the Parole Commission issued a warrant for
Petitioner's arrest based on allegations that he violated his
parole by failing to submit to drug testing, using dangerous and
habit-forming drugs, failing to participate in a drug aftercare
program, and failing to report to his parole officer as directed.
Id., Ex. T-1 and Ex. T-2. On July 2, 2005, Petitioner agreed to
an expedited revocation process. Id., Ex. V. The Parole
Commission proposed to Petitioner that his parole be revoked and
that he be ordered to serve 14 months. Id. Petitioner agreed to
accept responsibility for his conduct, waive his right to a
revocation hearing, and waive his right to appeal the revocation
decision. Id. The Parole Commission revoked Petitioner's parole
on July 21, 2005 and continued him to a presumptive reparole date
of July 2, 2006. Id., Ex. W.
Petitioner contends that the forfeiture of his street time by
the Parole Commission violated the Ex Post Facto Clause of the
Constitution and extended his sentence beyond the maximum under
the law. The Ex Post Facto Clause prohibits retroactive
application of a law which increases the punishment for a crime
that an individual has already committed. Collins v.
Youngblood, 497 U.S. 37, 42 (1990). A statute retroactively
increasing the penalties upon parole revocation also would be unconstitutional. Johnson v. United
States, 529 U.S. 694, 701 (2000). The same principle applies to
an administrative regulation promulgated pursuant to statutory
authority. The "controlling inquiry" is whether retroactive
application of the change in a parole regulation creates "a
sufficient risk of increasing the measure of punishment attached
to the covered crimes." Garner v. Jones, 529 U.S. 244, 250
Petitioner's claim arises from decisions of the District of
Columbia Court of Appeals resolving an apparent conflict between
two District of Columbia statutes and the interpretation of those
statutes by the District of Columbia Department of Corrections.
The two statutes at issue posed an apparent conflict on the issue
of street time forfeiture following a parole revocation. One
statute, enacted in 1932, provided that "[i]f the order of parole
shall be revoked . . . [t]he time a prisoner was on parole shall
not be taken into account to diminish the time for which he was
sentenced." D.C. Code § 24-206(a). In 1987, the District of
Columbia enacted a statute that appeared to grant street time
credit to parole offenders: "Every person shall be given credit
on the maximum and the minimum term of imprisonment for time
spent in custody or on parole as a result of the offense for
which the sentence was imposed." D.C. Code § 24-431(a).
After being advised by Corporation Counsel that the latter
statute repealed the former, the D.C. Department of Corrections
promulgated a regulation providing that parole revocation would
not result in the loss of street time toward service of the
sentence for which parole has been granted. See Davis v. Moore,
772 A.2d 204, 209 (D.C. 2001). That regulation was invalidated by
the D.C. Court of Appeals' decision in United States Parole
Commission v. Noble, 693 A.2d 1084 (D.C. 1997). In that case,
the court held that the law enacted in 1932 providing for loss of
street time upon parole revocation was not repealed by the
statute enacted in 1987. Id. at 1095. As a result, because the agency had erroneously granted street
time credit, the Department of Corrections was required to change
its method of computing a person's sentence. Davis,
772 A.2d at 208. The District of Columbia Court of Appeals ruled, in a
subsequent decision, that Noble was retroactive and was
applicable to persons who committed their offenses before the
issuance of the Noble decision. See id. at 215.
Petitioner's street time was forfeited because of a judicial
decision invalidating a policy of the D.C. Department of
Corrections. A judicial construction of a statute is "an
authoritative statement of what the statute meant before as well
as after the decision of the case giving rise to that
construction." Rivers v. Roadway Express, Inc., 511 U.S. 298,
311-12 (1994). However, an unforeseeable interpretation of a
statute, if applied retroactively, that increases punishment
violates due process. Bouie v. City of Columbia, 378 U.S. 347,
353-54 (1964). A judicial construction of a statute is not
foreseeable if it is "unexpected and indefensible by reference to
the law which had been expressed prior to the conduct at issue."
Id. at 354.
The decision of the D.C. Court of Appeals in Noble was not so
unforeseeable as to amount to a due process violation. First, the
D.C. statute that required the forfeiture of street time had
never been repealed. See Davis, 772 A.2d at 216. Moreover,
petitioner was on notice that at the time the Department of
Corrections implemented its policy that the United States Parole
Commission took a contrary view of D.C. law and continued to
forfeit street time upon revocation of parole. Id. at 209; see
also Johnson v. Kindt, 158 F.3d 1060, 1063 (10th Cir. 1998)
(interpreting Noble), cert. denied, 525 U.S. 1075 (1999). And
at the time petitioner violated his parole, the only judicial
decision that had addressed the issue found that the D.C. statute
providing for the forfeiture of street time had not been repealed
by the subsequent D.C. statute and the Department of Corrections policy. See Tyler v.
United States, 929 F.2d 451, 457 (9th Cir.), cert. denied,
502 U.S. 845 (1991). For these reasons, the invalidation of the
D.C. Department of Corrections' statutory interpretation did not
violate the Ex Post Facto Clause. See Davis,
772 A.2d at 215-16; accord McQueen v. United States Parole Comm'n, 2005 WL
913151, at *2 (D.D.C, Apr. 19, 2005); Simmons v. United States
Parole Comm'n, 2005 WL 758268, at *1-2 (D.D.C. Apr. 1, 2005);
Wade v. Figueroa, 2005 WL 607974, at *2 (D.D.C. Mar. 15, 2005).
Accordingly, the Parole Commission did not violate petitioner's
constitutional rights when it revoked his parole. Therefore, the
petition for writ of habeas corpus will be denied.
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