On January 27, 1995, Matthew xxxxxx 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. xxxxxx's petition. xxxxxx 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?

xxxxxx 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. xxxxxx, 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. xxxxxx, 711 A.2d 85 (1998). ⁽⁴⁾

The D.C. Court of Appeals returned this case to this Court, which granted Mr. xxxxxx'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. xxxxxx's claims on remand. xxxxxx v. United States Parole Commission, 32 F. Supp. 2d 11 (D.D.C. 1998) (App. 17-20). Mr. xxxxxx filed a timely notice of appeal from that decision. (App. 21).

The term of parole at issue in this case began on March 11, 1988, when it was calculated that Mr. xxxxxx 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. xxxxxx's arrest for violation of the terms of parole. ⁽⁶⁾ Mr. xxxxxx was arrested on June 8, 1993.

The U.S. Parole Commission revoked Mr. xxxxxx'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. xxxxxx 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. xxxxxx remained free of supervision. ⁽⁷⁾

If Mr. xxxxxx 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. xxxxxx's full term sentence would have expired no later than April 10, 1994.

1. The District of Columbia's Current Interpretation of D.C. Code § 24-431(a) ⁽⁸⁾
2. 
   
   

In xxxxxx, 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 xxxxxx 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 xxxxxx 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 xxxxxx, 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).

1. The District Court's Decision on Remand

On remand, Mr. xxxxxx 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. xxxxxx'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. xxxxxx 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." xxxxxx 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. xxxxxx'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-xxxxxx) application of the law.

Mr. xxxxxx'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. xxxxxx 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. xxxxxx's right to equal protection. The district court's ruling on remand, from which Mr. xxxxxx appeals, not only failed to consider Mr. xxxxxx's equal protection arguments but founded its decision on the same disparate treatment, considering only a limited (and incorrect) view of Mr. xxxxxx's reliance interests. Those interests include fair treatment and compliance with the rule of law.

ARGUMENT

1. MR. xxxxxx HAS AN EQUAL PROTECTION RIGHT TO CREDIT FOR TIME SPENT ON PAROLE PRIOR TO REVOCATION
2. 
   
   

1. Standard of Review
2. 
   
   

Mr. xxxxxx'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).

1. 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 (7^th Cir. 1992); Johnson v. Williford, 821 F.2d 1279, 1288 (7^th 1987); Walker v. Luther, 830 F.2d 1208, 1210 & 1216-17 (2d Cir. 1987); Bracey v. Zerbst, 93 F.2d 8, 10 (10^th 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. xxxxxx 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. xxxxxx's parole been administered by the District of Columbia, his sentence would have expired in 1994. The District of Columbia is not applying xxxxxx to recalculate the sentences of persons whose sentences expired prior to April 23, 1998. Therefore, a person identical to Mr. xxxxxx 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. xxxxxx 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.

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 xxxxxx to D.C. parolees here, regardless of which agency administers their parole.

Under these principles, Mr. xxxxxx 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 xxxxxx 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. xxxxxx is similarly situated to persons who have been permitted to retain street time credit following the xxxxxx 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. xxxxxx'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. xxxxxx 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 xxxxxx, 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 xxxxxx

CERTIFICATE OF LENGTH

I hereby certify that the foregoing brief for appellant, Matthew xxxxxx, 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 xxxxxx 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.

Beverly G. Dyer

1. Section 24-431(a) provides that "[e]very person shall be given credit . . . for time spent in custody or on parole as a result of the offense for which the sentence was imposed. . . ."

2. The U.S. Parole Commission has jurisdiction over numerous D.C. offenders who have been placed in federal facilities, typically because they are serving mixed D.C. and federal sentences or because of overcrowding in D.C. facilities. The District of Columbia reimburses the federal government for the cost of that custody. See D.C. Code § 24-424.

3. "App." refers to pages of the Appendix filed with this brief.

4. Hereinafter, unless otherwise identified, "xxxxxx" refers to the D.C. Court of Appeals en banc decision, with citations to the panel decision.

5. On December 8, 1978, Mr. xxxxxx was convicted in federal court of violating 21 U.S.C. § 841(a). He was sentenced to three years probation. On May 18, 1981, his probation was revoked and he was resentenced to one year and a day incarceration and two years of special parole on the same charge, to run concurrently with any other sentence. He was imprisoned for seven months on that sentence, and released on parole on December 18, 1981. (Mr. xxxxxx completed the remaining five months and a day of his term of imprisonment on parole before beginning his term of special parole. See 28 C.F.R. § 2.57(a).)

On November 15, 1982, Mr. xxxxxx was convicted in D.C. Superior Court Case No. F4014-82 of distribution of $60.00 worth of dilaudid, and sentenced to one to three years imprisonment, also to run concurrently to any other sentence. Mr. xxxxxx was imprisoned on that charge until September 21, 1984, when he was again released on parole.

On January 14, 1985, Mr. xxxxxx 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. xxxxxx 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.)

6. These violations consisted of a positive urine test for Valium (benzodiazepine) on April 19, 1993, and the failure to attend eight appointments at Next Step, Inc. from February 2, 1993 through March 26, 1993. (App. 12). Upon his arrest, Mr. xxxxxx explained to an interviewing parole officer that he had taken a Valium pill, which he obtained from his mother, because of a bad headache and to calm his nerves. (App. 12). He also explained that he had been unaware of Narcotics Anonymous meetings that were scheduled on the same days as group counseling sessions at Next Step, Inc. -- which he did attend -- and that he had reported for urinalysis several times during the period of time in which he was accused of missing appointments. (App. 12).

7. The Commission again asserted jurisdiction over Mr. xxxxxx in December, 1998, after the district court denied his claims on remand.

8. The District of Columbia's former interpretation of § 24-431(a) is set out in detail in the earlier xxxxxx decisions.

9. The District of Columbia acknowledged this policy and practice in its amicus brief on remand before the district court. Brief of the District of Columbia as amicus curiae in Support of Respondent, Civ. No. 95-188 (D.D.C. November 6, 1998) at 8.

10. The D.C. Council's intent is also demonstrated by the Council's 1991 amendment to the Good Time Credits Act to remove an inequity between D.C. offenders housed in federal and local facilities. Originally, D.C. Code § 24-428 (repealed August 20, 1994) applied to D.C. offenders "imprisoned in a District correctional facility . . . ." Pursuant to that statute, courts upheld the U.S. Parole Commission's more punitive treatment of D.C. offenders housed in federal facilities. See, e.g., Jackson v. Thornburgh, 907 F.2d 194 (D.C. Cir. 1990); Moss v. Clark, 886 F.2d 686 (4^th Cir. 1989). In direct response to those cases, the D.C. Council amended the Good Time Credits Act to require equal treatment of D.C. offenders housed in federal facilities. See D.C. Good Time Credits Amendment Act of 1991, Act 9-51, 38 D.C. Reg. 27, pp. 4090-4091 (July 5, 1991).

11. The District of Columbia codified its interpretation of § 24-431(a) in D.C. Department of Corrections Order 4340.2 and 28 DCMR § 601.7, establishing that credit for street time would not be forfeited after revocation. Section 601.7 impliedly repealed 28 DCMR § 220.2, an earlier regulation that conformed to D.C. Code § 24-206(a). In 1989, without authority to do so, the U.S. Parole Commission issued its own inconsistent regulation, 28 C.F.R. § 2.66(i), which states in relevant part that the Commission "shall order the forfeiture of the portion corresponding to the D.C. sentence pursuant to D.C. Code 24-206(a)." However, the Commission's regulations also provide that "[t]he Commission shall apply . . . the guidelines of the District of Columbia Board of Parole to the prisoner's D.C. Code crimes." 28 C.F.R. § 2.66(b). In these circumstances, the Commission's conflicting regulation is invalid. See, e.g., Thomas v. Brennan, 961 F.2d 612, 617-18 (7^th Cir. 1992) (striking down 28 C.F.R. § 2.66(f) to the extent it was inconsistent with D.C. municipal regulations, based on § 2.66(b) and § 24-209).

12. Purely prospective application of xxxxxx, in contrast, would impact persons who served on parole after April 23, 1998, and later had their parole revoked.

13. The D.C. Court of Appeals is reviewing the District of Columbia's retroactive application of xxxxxx in Davis v. Moore, D.C.C.A. Case Nos. 98-SP-1234, 98-SP-1240, 98-SP-1261, 98-SP-1319 (consolidated), but that court has not been asked by any party to consider the District's decision not to recalculate the sentences of persons whose sentences expired prior to April 23, 1998. Therefore, that court is unlikely to rule that the District must apply xxxxxx retroactively to all D.C. parolees who served on parole between April 11, 1987 (the effective date of the Good Time Credits Act) and April 23, 1998, and who had their parole revoked.