Cr. No. xx-188 (SS)

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), appellant Matthew xxxxxxx hereby states as follows:

A. Parties and Amici: This appeal arises from a habeas corpus action between petitioner-appellant xxxxxxx and respondent-appellee, the United States Parole Commission. The District of Columbia participated as amicus curiae in support of Mr. xxxxxxx in appeal no. 95-5229, xxxxxxx v. United States Parole Commission, 82 F.3d 1108 (D.C. Cir. 1996), and on certification to the District of Columbia Court of Appeals, United States Parole Commission v. xxxxxxx, 711 A.2d 85 (en banc) (D.C. 1998) (reinstating 693 A.2d 1084) (D.C. 1997)), and as amicus curiae in support of the U.S. Parole Commission in the district court on remand, xxxxxxx v. United States Parole Commission, 32 F. Supp. 2d 11 (D.D.C. 1998). The Public Defender Service for the District of Columbia participated in this case as amicus curiae in support of Mr. xxxxxxx in the district court on remand.

B. Rulings Under Review: This is an appeal from the decision of the district court (the Honorable Stanley Sporkin) denying Mr. xxxxxxx’s request on remand to require the United States Parole Commission to grant Mr. xxxxxxx credit for time spent on parole prior to revocation. The district court’s decision is reported at xxxxxxx v. United States Parole Commission, 32 F. Supp.

2d 11 (D.D.C. 1998), and reproduced in appellant’s appendix at App. 17-20.

C. Related Cases

This case was previously before this Court in D.C. Circuit case no. 95-5229, in which this Court certified a question of statutory interpretation to the D.C. Court of Appeals. xxxxxxx v. United States Parole Commission, 82 F.3d 1108 (D.C. Cir. 1996). The D.C. Court of Appeals answered the certified question in United States Parole Commission v. xxxxxxx, 711 A.2d 85 (D.C. 1998) (en banc) (reinstating 693 A.2d 1084 (D.C. 1997)), and returned the case to this Court. On June 16, 1998, this Court granted appellant's unopposed motion for remand to the district court for further proceedings. (App. 15). The case is now before this Court on appeal from the district court's decision on remand.

Issues regarding retroactive application of the D.C. Court of Appeals en banc decision in xxxxxxx were raised by Mr. xxxxxxx on remand and have been raised by other former D.C. parolees in cases pending before the D.C. Court of Appeals in Davis, et al. v. Moore, et al., D.C.C.A. Case Nos. 98-SP-1234, 98-SP-1240, 98-SP-1261, 98-SP-1319 (consolidated). Mr. xxxxxxx is not a party to those cases. The United States Parole Commission may participate in those cases as amicus curiae.

JURISDICTION

The district court had jurisdiction over this case pursuant to 28 U.S.C. § 2241. This Court has jurisdiction pursuant to 28 U.S.C. § 2253(a).

ISSUE PRESENTED FOR REVIEW

1. Whether D.C. Code § 24-209 and principles of equal protection require the United States Parole Commission to treat Mr. xxxxxxx the same as similarly situated former D.C. parolees under the jurisdiction of the D.C. Parole Board.

STATUTES AND RULES

Pursuant to D.C. Cir. Rule 28(a), pertinent statutes and rules are included in the addendum to this brief.

This case has an extensive history, arising out of a disparity in the treatment of D.C. parolees by the District of Columbia and the United States Parole Commission (also referred to as the "Commission") pursuant to D.C. Code § 24-431(a), a 1987 statute authorizing credit for time spent on parole.¹ From 1987 to 1998, the District of Columbia applied § 24-431(a) to grant credit to parolees for time spent on parole prior to revocation (also referred to as "street time"). During those eleven years, the U.S. Parole Commission interpreted § 24-431(a) to contain an exception for parole revocation, and continued to apply D.C. Code § 24-206(a), a 1932 statute requiring the forfeiture of credit for time spent on parole prior to revocation.²

On January 27, 1995, Matthew xxxxxxx filed a petition for writ of habeas corpus challenging the Commission’s more punitive treatment of D.C. parolees under § 24-431(a). The district court granted Mr. xxxxxxx’s petition. xxxxxxx v. United States Parole Commission, 887 F. Supp. 11 (D.D.C. 1995).³ On appeal by the government, this Court certified the following question to the District of Columbia Court of Appeals:

Under District of Columbia law, given the facts described below, did the United States Parole Commission properly interpret sections 24-206(a) and 24-431(a) of the District of Columbia Code in deciding that, after revocation of a person's parole, time that the person spent on parole before revocation cannot be credited against his sentence?

xxxxxxx v. United States Parole Commission, 82 F.3d 1108 (D.C. Cir. 1996). On April 17, 1997, a panel of the D.C. Court of Appeals answered that question in the affirmative. United States Parole Commission v. xxxxxxx, 693 A.2d 1084 (D.C. 1997). The en banc D.C. Court of Appeals subsequently vacated that decision and on April 23, 1998, the en banc court voted to adopt and reinstate the panel's original majority decision. United States Parole Commission v. xxxxxxx, 711 A.2d 85 (1998).⁴

The D.C. Court of Appeals returned this case to this Court, which granted Mr. xxxxxxx’s unopposed motion for remand to the district court to review the government’s application of the District of Columbia’s new interpretation of § 24-431(a). (App. 15). The district court denied Mr. xxxxxxx’s claims on remand. xxxxxxx v. United States Parole Commission, 32 F. Supp. 2d 11 (D.D.C. 1998) (App. 17-20). Mr. xxxxxxx filed a timely notice of appeal from that decision. (App. 21).

Statement of Facts

Mr. xxxxxxx's Parole History

Mr. xxxxxxx was convicted of one federal and two District of Columbia criminal offenses in 1978, 1982 and 1985, respectively, each for unlawful distribution of a controlled substance.⁵On January 14, 1985, Mr. xxxxxxx was arrested on his third offense, unlawful distribution of preludin, in Superior Court Case No. F8995-84B. He was convicted of this offense on September 13, 1985 and sentenced to thirty to ninety months. That sentence was aggregated to the remaining special parole term of 20 months and seven days. (Mr. xxxxxxx received credit on his federal special parole term only for the three months and 24 days he served on parole between September 21, 1984 and January 14, 1985.) His final aggregated sentence on these offenses was 110 months and seven days. In total, Mr. xxxxxxx has served almost two and a half years on probation, more than six and a half years on parole, and almost seven and a half years in prison in connection with these offenses.

The term of parole at issue in this case began on March 11, 1988, when it was calculated that Mr. xxxxxxx had over six years, or 2,197 days, remaining to serve on his aggregated sentence. More than five years later, on May 20, 1993, the U.S. Parole Commission issued a warrant for Mr. xxxxxxx's arrest for violation of the terms of parole.⁶ Mr. xxxxxxx was arrested on June 8, 1993.

The U.S. Parole Commission revoked Mr. xxxxxxx's parole and recalculated his sentence to be 2,197 days, forfeiting his credit for more than five years on parole. On October 7, 1994, he was released once more on parole and his remaining aggregated sentence was calculated at 1,597 days. On January 9, 1995, Mr. xxxxxxx filed this petition for habeas corpus, seeking credit for the time he had spent on parole from 1988 to 1993. Following the district court’s grant of his petition on May 31, 1995, Mr. xxxxxxx remained free of supervision.⁷

If Mr. xxxxxxx had been subject to the jurisdiction of the D.C. Board of Parole instead of the U.S. Parole Commission, the D.C. Board of Parole would have awarded him credit for more than five years spent on parole between 1988 and 1993. With that credit, Mr. xxxxxxx’s full term sentence would have expired no later than April 10, 1994.

The District of Columbia’s Current Interpretation of D.C. Code § 24-431(a)⁸

In xxxxxxx, the D.C. Court of Appeals interpreted D.C. Code § 24-431(a) to contain an unstated exception for parole revocation. The court thereby reconciled that provision with § 24-206(a) and found that the later statute did not impliedly repeal the earlier one, affirming the U.S. Parole Commission’s interpretation of statute. 693 A.2d at 1093-94. In its xxxxxxx decision, the D.C. Court of Appeals identified but did not decide the question of whether the retroactive application of its decision should be limited, concluding: "We express no opinion on whether xxxxxxx has a justifiable basis for arguing on ex post facto, if not on equitable, grounds that the § 24-206(a) prohibition of credit for street time after his parole revocation should not apply to him." 693 A.2d at 1104-05.

Following the court’s en banc decision in xxxxxxx, the District of Columbia began to recalculate the sentences of some groups of persons formerly granted credit for time spent on parole prior to revocation, but not others. In particular, the District of Columbia did not recalculate the sentences of persons released from custody and from parole before April 23, 1998 (i.e., persons whose sentences had expired before the court’s en banc decision).⁹ For all persons who remained in custody or on parole as of April 23, 1998, the District of Columbia has recalculated or plans to recalculate their sentences to withdraw any credit previously awarded for street time, requiring thousands of persons to remain incarcerated or on parole for months or years longer than anticipated. (App. 16).

The District Court’s Decision on Remand

On remand, Mr. xxxxxxx argued that the U.S. Parole Commission violated his equal protection, due process and ex post facto rights, in violation of D.C. Code § 24-209 and the Constitution. Without considering Mr. xxxxxxx’s constitutional claims, the district court ruled that because the U.S. Parole Commission had always denied credit for time spent on parole prior to revocation, Mr. xxxxxxx had no legitimate expectation of receiving the credit he requests. In contrast, the district court expressed its opinion that D.C. parolees "clearly had a right to rely on the District of Columbia’s prior interpretation of its own laws." xxxxxxx v. United States Parole Commission, 32 F. Supp. 2d at 14 (App. at 20).

SUMMARY OF ARGUMENT

For eleven years, District of Columbia parolees whose parole was revoked received drastically different sentences based solely on whether they were incarcerated in federal or District of Columbia prisons. Although the District of Columbia’s highest court resolved the underlying difference in statutory interpretation, that court did not rectify the past unequal treatment, prevent the selective retroactive application of its decision, or otherwise assure equal treatment under law. As a result, Mr. xxxxxxx’s sentence is more than five years longer than the sentence an identical parolee under District of Columbia jurisdiction would have served, even under the city’s current (post-xxxxxxx) application of the law.

Mr. xxxxxxx’s constitutional right to equal protection is underscored by D.C. Code § 24-209, which requires the U.S. Parole Commission to provide D.C. offenders with the same parole privileges granted by the District of Columbia, and by prohibitions against the selective retroactive application of court decisions. Mr. xxxxxxx is similarly situated to D.C. parolees who have retained credit for street time because there is no legitimate rationale for discriminating between those parolees on the basis of the jurisdiction of the U.S. Parole Commission or on the basis of sentence expiration date.

The D.C. Court of Appeals’ affirmation of the U.S. Parole Commission’s interpretation of statute does not extinguish Mr. xxxxxxx’s right to equal protection. The district court’s ruling on remand, from which Mr. xxxxxxx appeals, not only failed to consider Mr. xxxxxxx’s equal protection arguments but founded its decision on the same disparate treatment, considering only a limited (and incorrect) view of Mr. xxxxxxx’s reliance interests. Those interests include fair treatment and compliance with the rule of law.

MR. xxxxxxx HAS AN EQUAL PROTECTION RIGHT TO CREDIT FOR TIME SPENT ON PAROLE PRIOR TO REVOCATION

Standard of Review

Mr. xxxxxxx’s legal and constitutional claims are subject to de novo review. See, e.g., United States v. Glover, 153 F.3d 749, 757 (D.C. Cir. 1998).

Equal Treatment of D.C. Parolees under the Jurisdiction of the U.S. Parole Commission and the D.C. Parole Board is Expressly Required by Statute

The Fourteenth Amendment of the United States Constitution provides that:

No State shall . . . deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As applied in the District of Columbia and to the federal government, those principles are incorporated into the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Under equal protection principles, the government "must treat like cases alike." Vacco v. Quill, 117 S. Ct. 2293, 2297 (1997).

Equal protection of the laws frequently turns on the intent of the legislature in distinguishing among different groups of citizens. In contrast, this case stands out because here, the legislature has unequivocally mandated equal treatment. The U.S. Parole Commission is explicitly required by D.C. Code § 24-209 to grant D.C. offenders the same rights to parole as the D.C. Parole Board. That statute provides that the U.S. Parole Commission shall have the "same power and authority over prisoners convicted in the District of Columbia . . . as is vested in the District Board of Parole . . . ."¹⁰ In the cases challenging disparate treatment by the U.S. Parole Commission and the D.C. Parole Board, courts have repeatedly interpreted § 24-209 to require that D.C. offenders housed in federal and local facilities have the same privileges of parole, subject to the same parole guidelines, regulations, rules and standards.¹¹ See, e.g., Thomas v. Brennan, 961 F.2d 612, 617-18 (7th Cir. 1992); Johnson v. Williford, 821 F.2d 1279, 1288 (7th 1987); Walker v. Luther, 830 F.2d 1208, 1210 & 1216-17 (2d Cir. 1987); Bracey v. Zerbst, 93 F.2d 8, 10 (10th Cir. 1937); Cosgrove v. Thornburgh, 703 F. Supp. 995, 1003 (D.D.C. 1988); Bracey v. Hill, 11 F. Supp. 148, 149 (M.D. Pa.), aff’d, 77 F.2d 970 (3d Cir. 1935). Therefore, this case is unlike the more typical equal protection claim, in which a facially discriminatory statute which "neither burdens a fundamental right nor targets a suspect class" will be upheld "so long as it bears a rational relationship to some legitimate end." Romer v. Evans, 517 U.S. 620, 631 (1996).

Mr. xxxxxxx is similarly situated to the group of D.C. parolees who have retained credit for time on parole prior to revocation under the District of Columbia’s new interpretation and application of § 24-431(a). Had Mr. xxxxxxx's parole been administered by the District of Columbia, his sentence would have expired in 1994. The District of Columbia is not applying xxxxxxx to recalculate the sentences of persons whose sentences expired prior to April 23, 1998. Therefore, a person identical to Mr. xxxxxxx in every respect but subject to the jurisdiction of the D.C. Parole Board would have been released in 1994 and would not have his or her sentence recalculated today. Even if the government were able to articulate a rational basis for discriminating between these groups of parolees, § 24-209 would prohibit that discriminatory treatment.

The fact that the U.S. Parole Commission's interpretation of § 24-431(a) was upheld by the D.C. Court of Appeals does not diminish the inequity -- and violation of the rule of law and principles of equal protection -- that would result from upholding disparate treatment of D.C. parolees by the U.S. Parole Commission and the D.C. Board of Parole under the same statute. It is fundamentally unfair to subject Mr. xxxxxxx to an additional five year sentence when an identical D.C. offender housed in a D.C. facility would not be required to serve those additional five years.

Equal Protection is Also Required under Supreme Court Precedent Prohibiting the Selective Retroactive Application of Judicial Decisions, Which Does Not Support Distinguishing Between Parolees Based on Sentence Expiration Date

This case is also unlike the more typical equal protection claim because the government’s selective retroactive application of xxxxxxx raises particularly compelling equal protection concerns. In the context of judicial decisions, equal treatment is "a fundamental component of stare decisis and the rule of law generally." James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 537 (1991). Any other result would "violate[ ] basic norms of constitutional adjudication." Griffith v. Kentucky, 479 U.S. 314, 322 (1987). Concern for equal treatment has led the Supreme Court to revise the standards for reviewing the retroactive application of both civil and criminal court decisions. With respect to constitutional rules of criminal procedure, the Court no longer "tolerate[s]" the "'actual inequity that results when the Court chooses which of many similarly situated defendants should be the chance beneficiary' of a new rule." Id. at 323 (citing United States v. Johnson, 457 U.S. 537, 556 n.16 (1982) (emphasis in original)). For the same reasons, the Court has also "prohibit[ed] the erection of selective temporal barriers to the application of federal law in noncriminal cases." Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993).

In both the civil and criminal context, we can scarcely permit "the substantive law [to] shift and spring" according to "the particular equities of [individual parties'] claims" of actual reliance on an old rule and of harm from a retroactive application of the new rule.

Id. (citing Beam, 501 U.S. at 543). This doctrine applies to agencies as well as courts. See National Fuel Gas Supply Corp. v. Federal Energy Reg. Comm'n, 59 F.3d 1281, 1289 (D.C. Cir. 1995). Neither Griffith nor Harper applies directly to this case, but they suggest that there may rarely, if ever, be a rational basis for the discriminatory retroactive application of judicial changes in the law, in contrast to the more typical equal protection challenge to a facially discriminatory statute, which is presumably based on deliberate legislative choices. These principles strongly support the protection of equal rights under xxxxxxx to D.C. parolees here, regardless of which agency administers their parole.

Under these principles, Mr. xxxxxxx is similarly situated to the group of D.C. parolees who have been permitted to retain their street time credits under a second and independent view of his equal protection rights. Under this view, the distinguishing factor is sentence expiration date. Thus, there is no legally significant difference between the group of former D.C. parolees whose sentences did not expire prior to the issuance of the xxxxxxx decision on April 23, 1998, and the group of parolees who had completed their sentences by that date.¹² There are undoubtedly persons whose sentences expired in early April, 1998, who are essentially indistinguishable -- or distinguishable only based on trivial or unfair factors -- from persons whose sentences expired shortly after April 23, 1998. For example, it would be unfair to grant or deny credit, respectively, to two former parolees who were identical to each other except that the police (perhaps for administrative reasons or concerns for public safety), executed an arrest warrant for one several days earlier or later than the other. Similarly, it would be unfair to subject a person to a significantly longer sentence than another person when the two were identical in all respects except that the second person had a sentence expiration date prior to April 23, 1998 because he or she was detained prior to trial. Here, the government has intentionally treated D.C. parolees differently, when no legitimate governmental purpose justifies subjecting one to a longer sentence than the other. Unequal treatment on this basis is prohibited by the Constitution and the principles supporting Harper, James Beam and Griffith.

CONCLUSION

In summary, Mr. xxxxxxx is similarly situated to persons who have been permitted to retain street time credit following the xxxxxxx decision both because the only factor distinguishing him from those persons is that their sentences expired prior to April 23, 1998 and because, had he been subject to the jurisdiction of the D.C. Parole Board, his sentence would have expired prior to April 23, 1998. In accordance with § 24-209, principles of equal protection, and the principles underlying Harper, James Beam, and Griffith, D.C. offenders should receive the same rights to parole regardless of their place of incarceration or release date and the District of Columbia’s new interpretation of § 24-431(a) should be applied equally to all former parolees -- including those under the jurisdiction of the Commission -- or to none.¹³ In Mr. xxxxxxx’s case, the Commission’s imposition of a sentence five years longer than the sentences served by similarly situated persons violates the equal protection of the law.

For the reasons stated above, Mr. xxxxxxx respectfully requests this Court to rule that the government must treat similarly situated former parolees the same under the Constitution, D.C. Code § 24-209, § 24-431(a) and xxxxxxx, and therefore that the United States Parole Commission must grant him credit for time spent on parole prior to revocation.

Respectfully submitted,

A.J. KRAMER

Federal Public Defender

BEVERLY G. DYER

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20001

(202) 208-7500

Counsel for Matthew xxxxxxx

CERTIFICATE OF LENGTH

I hereby certify that the foregoing brief for appellant, Matthew xxxxxxx, does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).

Beverly G. Dyer

CERTIFICATE OF SERVICE

I hereby certify that on April 20, 1999, two copies of the foregoing brief for appellant Matthew xxxxxxx and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Division, United States Attorney's Office, 555 Fourth Street, N.W., Washington, D.C. 20001.