Davis v. Moore

Decision Date26 April 2001
Docket Number No. 98-SP-1240, No. 98-SP-1261, No. 98-SP-1319., No. 98-SP-1234
Citation772 A.2d 204
PartiesMaurice Delane DAVIS, et al., Appellants, v. Margaret MOORE, et al., Appellees.
CourtD.C. Court of Appeals

Jonathan S. Franklin, with whom Jonathan L. Abram and E. Desmond Hogan Washington, DC, were on the brief, for appellants.

Stephen B. Kinnaird, Washington, DC, with whom Robert R. Rigsby, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Mary L. Wilson, Assistant Corporation Counsel, were on the brief, for appellees.

Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher, Thomas J. Tourish, Jr., Elizabeth H. Danello, and Lisa Hertzer Schertler, Assistant United States Attorneys, filed an amicus curiae brief for the United States.

Before WAGNER, Chief Judge, TERRY, STEADMAN, SCHWELB, FARRELL, RUIZ, REID, and GLICKMAN, Associate Judges, and GALLAGHER, Senior Judge.

On Rehearing En Banc

GLICKMAN, Associate Judge:

Two years ago, in United States Parole Comm'n v. Noble, 693 A.2d 1084, 1095 (D.C.1997), op. adopted, 711 A.2d 85 (D.C. 1998) (en banc), this court resolved a decade-old dispute regarding "street time," the colloquial term for time that a convicted offender spends serving his sentence while on parole. We held that a law enacted by Congress in 1932, providing for loss of accrued street time when parole is revoked, was not repealed by the Council of the District of Columbia in 1987, and remains in full force and effect. Our holding required the District of Columbia Department of Corrections to change its method of computing the amount of time that prisoners in its custody had left to serve on their sentences, because the Department had been allowing parole violators to retain credit for street time on the erroneous understanding that the Council had repealed the 1932 law by implication.

The present case presents a question that we reserved in Noble: whether our holding would apply retroactively. Appellants are three D.C.Code offenders whose paroles were revoked prior to our decision in Noble. In computing the time remaining on appellants' sentences following their reincarceration, the Department of Corrections initially credited them with their street time. After our decision in Noble, however, the Department recomputed appellants' remaining sentences by withdrawing credit for street time, thereby increasing the amount of time that appellants had left to serve.

Appellants contend that our holding in Noble announced a new rule of law which enhances the punishment imposed on D.C.Code offenders if they violate the terms of their parole. Claiming that there was widespread reliance in the District of Columbia on the pre-Noble understanding that parole revocation would not result in loss of street time, appellants invoke the equitable balancing test that this court adopted in Mendes v. Johnson, 389 A.2d 781 (D.C.1978) (en banc), to argue that Noble must be applied prospectively only. Appellants further argue that retroactive application of Noble to increase their sentences would not only be inequitable under Mendes, but would also violate the Ex Post Facto and Due Process Clauses of the Constitution.

A division of this court upheld the retroactive application of Noble to appellants, with one judge dissenting. We vacated the decision of the division and granted rehearing en banc, in part because recent retroactivity decisions of the Supreme Court have undermined the viability of Mendes.

We conclude that the Department of Corrections acted properly when it recomputed appellants' sentences in accordance with Noble. In reaching that conclusion, we hold, first, that the retroactive application of Noble does not violate the Ex Post Facto or Due Process Clauses. Second, we hold that the time has come for us to jettison the retroactivity jurisprudence that we adopted in Mendes. Instead of using a balancing test, we follow the lead of the Supreme Court and adopt a firm rule of retroactivity for our rulings. Applying that rule in this case, we hold that Noble must be applied retroactively so long as it is Constitutional to do so.


This case has its genesis in a purported conflict between two statutes relating to street time. The first statute was enacted by Congress in 1932, and provides that a D.C.Code offender forfeits his accrued street time if he violates the conditions of his parole and is reincarcerated. The language of this statute is unequivocal: "If 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) (1996). The revocation of parole results in the prolongation of the time that an offender serves on his sentence by the amount of street time that is lost.

The second statute was enacted fifty-five years later by the Council of the District of Columbia as part of the Good Time Credits Act of 1986 ("GTCA"), D.C. Law 6-218, § 5, 34 D.C.Reg. 484 (1987). This statute, which took effect in 1987, provides among other things that D.C.Code offenders get credit for their street time against the service of their sentences. The language of the statute is that "[e]very 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) (1996). Unlike § 24-206(a), however, the GTCA does not specifically address whether a D.C.Code offender forfeits his street time credit if his parole is revoked.

Disagreement over whether the street time forfeiture provision of § 24-206(a) remained in force surfaced almost immediately after the GTCA went into effect. The District of Columbia Corporation Counsel advised the Department of Corrections that in its opinion the GTCA implicitly repealed the provision of § 24-206(a) that required forfeiture of street time upon revocation of parole. See Noble, 693 A.2d at 1095

. In reliance on the Corporation Counsel's opinion, the Department of Corrections issued an order, and thereafter a formal regulation, providing that henceforth revocation of parole would not result in the loss of credit for street time toward service of the sentence for which parole had been granted. See 35 D.C.Reg. 1077, 1078 (1988).

The United States Parole Commission promptly took issue with the Corporation Counsel's statutory interpretation. See Noble, 693 A.2d at 1095-96

. The Commission concluded that the Council did not repeal the street time forfeiture provision of § 24-206(a) by implication when it enacted the GTCA, but merely recognized the general rule that a sentence of imprisonment could be served on parole as well as in custody. Consistent with this conclusion, the Commission promulgated its own formal regulation to provide that D.C.Code prisoners under federal supervision would continue to lose credit for street time upon the revocation of their parole. See 28 C.F.R. § 2.65(i) (1999).

Because the Commission and the District disagreed over whether the GTCA repealed the street time forfeiture provision of § 24-206(a), offenders sentenced in the District to imprisonment were subject to disparate treatment upon revocation of their parole. The disparity depended on where the Attorney General chose to designate them to serve their sentences. Pursuant to D.C.Code § 24-425 (1996), the Attorney General has custody over all prisoners convicted in the District and has unfettered discretion to designate them to prisons maintained by the District of Columbia government or by the federal government. See District of Columbia v. Cooper, 483 A.2d 317, 322 (D.C.1984)

; Curry-Bey v. Jackson, 422 F.Supp. 926, 932 (D.D.C.1976). While District authorities supervise prisoners who are confined to D.C. correctional facilities, the Commission supervises parole of D.C. offenders housed at federal facilities.1

See D.C.Code §§ 24-206(b) and 24-209 (1996); Franklin v. Ridley, 635 A.2d 356, 357 n. 2 (D.C.1993); Goode v. Markley, 195 U.S.App. D.C. 391, 394, 603 F.2d 973, 976 (1979). Under § 24-209, the Commission must apply D.C. (rather than federal) parole law to these inmates. See Walker v. Luther, 830 F.2d 1208, 1217 (2d Cir.1987). See also D.C.Code § 24-1231(c) (2000 Supp.). In the case of the GTCA, however, the Commission applied its construction of that law rather than the Corporation Counsel's construction. Hence in the years following the enactment of the GTCA, D.C.Code offenders supervised by the Commission continued to forfeit street time upon revocation of parole while locally supervised offenders did not.

Predictably, the Commission's interpretation of the GTCA was soon challenged by a federally designated D.C.Code offender who was deprived of street time credit when his parole was revoked. Joseph Michael Tyler instituted this challenge by means of a habeas corpus petition in federal district court in Alaska after his parole was revoked in early 1988. The district court denied relief, and the Court of Appeals for the Ninth Circuit affirmed in Tyler v. United States, 929 F.2d 451 (9th Cir.1991). Invoking the "cardinal rule" of statutory construction that repeals by implication are disfavored,2 and specifically rejecting the D.C. Corporation Counsel's statutory analysis as "cursory," "ill-conceived" and "overly simplistic," id. at 456, the Ninth Circuit held that "the GTCA did not impliedly repeal the longstanding requirement of section 24-206 that parole violators forfeit their street time." Id. at 457. The court further held that Tyler was not entitled to retain credit for his street time merely because prisoners in the District did not lose street time upon revocation of their parole: "We cannot seriously entertain an argument that an erroneous statutory interpretation should be perpetuated simply because it would favor a prisoner who has not yet...

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