Noble v. U.S. Parole Com'n, 95-5229

• Citation: 317 U.S. App. D.C. 304,82 F.3d 1108
• Decision Date: 03 May 1996
• Docket Number: No. 95-5229,95-5229
• Parties: Matthew NOBLE, Appellee, v. UNITED STATES PAROLE COMMISSION, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1108

82 F.3d 1108

317 U.S.App.D.C. 304

Matthew NOBLE, Appellee, v. UNITED STATES PAROLE COMMISSION, Appellant.

No. 95-5229.

United States Court of Appeals, District of Columbia Circuit.

Argued March 26, 1996.

Decided May 3, 1996.

Appeal from the United States District Court for the District of Columbia (No. 95cv00188).

Mark J. Ehlers, Assistant United States Attorney, argued the cause, Washington, DC, for appellant. With him on the briefs were Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and John M. Facciola, Assistant United States Attorneys.

Allen E. Burns, Assistant Federal Public Defender, argued the cause, Washington, DC, for appellee. With him on the brief was A.J. Kramer, Federal Public Defender.

Mary Wilson, Assistant Corporation Counsel, argued the cause, Washington, DC, for amicus curiae the District of Columbia. With her on the brief was Charles F. Ruff Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel.

Before: SILBERMAN, RANDOLPH, and TATEL, Circuit Judges.

An opinion for the Court filed by Circuit Judge TATEL accompanies this order.

ORDER

PER CURIAM.

CERTIFICATION OF QUESTION OF LAW

by the United States Court of Appeals for the District of

Columbia Circuit to the District of Columbia Court

of Appeals pursuant to D.C.Code § 11-723

On March 26, 1996, we heard oral argument in United States Parole Commission v. Matthew Noble, No. 95-5229. Determinative of the appeal is a significant question of District of Columbia law as to which there is no controlling precedent in the decisions of the District of Columbia Court of Appeals. We therefore certify to the District of Columbia Court of Appeals the following question:

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?

The facts relevant to the certified question are as follows. Appellee Matthew Noble, having been convicted under both federal and District of Columbia law, is serving a term of parole under the supervision of the U.S. Parole Commission. Noble seeks credit for 1,479 days he previously served on parole for his District of Columbia sentence before his parole was revoked.

Noble was convicted in federal district court on December 5, 1978 of unlawful distribution of a controlled substance in violation of 21 U.S.C. § 841(a) and was sentenced to three years of probation. On May 18, 1981, his probation was revoked, and he was sentenced to federal prison for a term of one year and a day and a parole term of two years. Noble was released from prison and began serving parole on December 18, 1981. After violating the terms of his parole, Noble was reincarcerated in a federal institution on March 19, 1983. He was once again released on parole on September 21, 1984.

While serving parole for his federal offense, Noble was convicted in District of Columbia Superior Court for unlawfully distributing a controlled substance, in violation of D.C.Code § 33-541, and was sentenced on September 13, 1985 to a prison term of seven and one-half years. Pursuant to 18 U.S.C. §§ 4161 and 4205, the United States Bureau of Prisons aggregated Noble's District of Columbia sentence and the remainder of his federal parole term to a sentence of 110 months and seven days, with ninety months deemed a local District of Columbia sentence.

Noble was released on parole in March 1988 with 2,197 days left to be served. He tested positive for drugs in May 1993. The U.S. Parole Commission revoked Noble's parole on December 1, 1993, refusing to credit him for the 1,902 days that he had served on parole. Noble was resentenced to prison and was later reparoled on October 7, 1994 with 1,597 days left to be served. Although this final portion of Noble's sentence pertained to his offense under District of Columbia law, not his federal conviction, Noble remained under the supervision of the U.S. Parole Commission in accordance with D.C.Code §§ 24-206(b) and 24-209.

Noble filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the District of Columbia, seeking credit under D.C.Code § 24-431(a) for the 1,479 days he served on parole from March 11, 1988 until May 28, 1993, a portion of his sentence related to his D.C.Code violation. Granting his petition, the district court ruled that section 24-431(a) of the D.C.Code authorizes credit for time served on parole even for a person whose parole has been revoked. See Noble v. United States Parole Comm'n, 887 F.Supp. 11, 13-14 (D.D.C.1995). The U.S. Parole Commission has appealed the district court's ruling. The District of Columbia filed a brief and participated in oral argument as amicus curiae in support of Noble.

Section 24-206(a) of the D.C.Code, enacted by Congress in 1932, provides that when a person's parole is revoked, the prisoner is not entitled to credit for time served on parole. The relevant portion of section 24-206(a) reads:

If the order of parole shall be revoked, the prisoner, unless subsequently reparoled, shall serve the remainder of the sentence originally imposed less any commutation for good conduct which may be earned by him after his return to custody.... The time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced.

In the District of Columbia Good Time Credits Act of 1986, D.C.CODE ANN. §§ 24-428 to 24-434 (1989 Repl.), a measure designed in part to reduce prison overcrowding, the District of Columbia Council provided that good time credits were to be applied to prisoners' minimum and maximum sentences, not simply to their maximum sentences, as was the case prior to the Act. See Luck v. District of Columbia, 617 A.2d 509, 511 (D.C.1992) ("Luck I "). The Act also allowed prisoners to receive credit for "street time"--that is, time served on parole. A provision of the Act codified at section 24-431(a) of the D.C.Code states:

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.

The District of Columbia Department of Corrections has consistently interpreted section 24-431(a) to mean that even a prisoner whose parole has been revoked is entitled to credit for time served on parole before revocation. See D.C.MUN.REGS. tit. 28, § 601.7 (1988); Luck I, 617 A.2d at 512. Under this interpretation, section 24-431(a) trumps the older section 24-206(a). The U.S. Parole Commission, however, construes section 24-431(a) as inapplicable to any prisoner whose parole has been revoked. Consequently, District of Columbia offenders serving aggregated District of Columbia and federal sentences under the supervision of the U.S. Parole Commission receive no credit for time served on parole if their parole is revoked, while District of Columbia offenders under the supervision of the D.C. Department of Corrections do receive credit for time served on parole. This conflict is troublesome, for the U.S. Parole Commission concedes in its briefs and numerous courts have held that, under D.C.Code § 24-209, the same law--District of Columbia law--governs the parole terms of District of Columbia offenders whether under the supervision of the D.C. Board of Parole or of the U.S. Parole Commission. See, e.g., Walker v. Luther, 830 F.2d 1208, 1216-17 (2d Cir.1987); Johnson v. Williford, 821 F.2d 1279, 1288 (7th Cir.1987); Cosgrove v. Thornburgh, 703 F.Supp. 995, 1004 (D.D.C.1988).

Although the D.C. Court of Appeals has in dicta discussed the question whether section 24-431(a) authorizes credit for street time if parole is revoked, see Franklin v. Ridley, 635 A.2d 356, 357-58 (D.C.1993); Luck I, 617 A.2d at 511-15, no decision of that court presents a direct holding on the issue. For reasons explained in the accompanying opinion, we cannot with confidence decide the question of District of Columbia law upon which resolution of this case depends without guidance from the D.C. Court of Appeals. See D.C.CODE ANN. § 11-723(a) (1995 Repl.); National Union Fire Ins. Co. v. Riggs Nat'l Bank, 5 F.3d 554, 557 (D.C.Cir.1993). We therefore certify the question of law set forth in the opening paragraph of this order. The Clerk of the Court shall forward copies of all or such portion of the record as the D.C. Court of Appeals requests pursuant to D.C.Code § 11-723(d).

So ordered.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

In the order accompanying this opinion, we certify to the District of Columbia Court of Appeals the question whether a District of Columbia offender under the supervision of the United States Parole Commission whose parole is revoked is entitled under section 24-431(a) of the District of Columbia Code to credit for time served on parole before revocation. As required by D.C.Code § 11-723(c), our certification order sets forth the question of law to be answered, as well as a statement of relevant facts and the nature of the controversy. In this opinion, we explain our reasons for certifying this question.

Although the D.C. Court of Appeals has indicated in dicta that section 24-431(a) entitles District of Columbia offenders to credit for street time served even in the event of parole revocation, it has never issued a holding to that effect. In Luck v. District of Columbia, 617 A.2d 509 (D.C.1992) ("Luck I "), the D.C. Court of Appeals, answering a question certified to it from this court, ruled that section 24-431(a) was not retroactive, that is, that time spent on parole before section 24-431(a)'s effective date of April 11, 1987 could not be credited against a person's sentence. See Luck I, 617 A.2d at...