Richard A. Howerton, Appellant, v. Hugh F. Rivers et al., Appellees, 326 F.2d 653 (D.C. Cir. 1963)

In 1954 appellant was convicted on two counts of violating the federal narcotics acts (21 U.S.C. § 174 and 26 U.S.C. § 2553(a)) and was sentenced to concurrent terms of three to nine years. On July 21, 1960, after serving approximately six years of the sentence, the appellant was conditionally released; he had earned 864 days of mandatory good time pursuant to 18 U.S.C. § 4161, and 269 days of industrial good time pursuant to 18 U.S.C. § 4162. On June 7, 1962, having found that appellant had violated his parole, the District of Columbia Parole Board revoked his parole pursuant to 24 D.C.Code §§ 205-206; deprived him of all good time earned, namely, 1133 days; and committed him to serve the full term expiring May 2, 1965. The maximum sentence imposed in 1954 normally would have expired on July 30, 1963. The appellant sought to challenge his recommitment by writ of habeas corpus in the District Court. That court granted appellee's motion for summary judgment.

Appellant contends that the District Parole Board should have acted pursuant to 18 U.S.C. § 4205¹  and 18 U.S.C. § 4207,²  rather than 24 D.C.Code §§ 205-206,³  in revoking his parole, since appellant was convicted for a federal crime rather than for an offense made criminal by the District of Columbia Code. This distinction becomes important to the appellant because it is argued that the parole board would have had discretion under 18 U.S.C. § 4207 to recommit appellant for less than the full remaining sentence, while under 24 D.C.Code § 206 there is no such discretion.⁴  Therefore, it is contended, since the Board purported to act under the D.C.Code, the action taken by it in this case was without benefit of any assumption by it of the existence of such discretion; and this constituted error.

Appellant also argues that, in so far as the recommitment extends beyond the date upon which the maximum term imposed would have expired, the recommitment is not authorized by statute or, if so authorized, contravenes the Fifth Amendment.

We find no merit in either contention. It is clear that the 1932 act — the predecessor to the present provisions — establishing the D. C. Parole Board, transferred authority over prisoners held in District prisons to the D. C. Board. It is also clear that the provisions of the District parole act, rather than the federal parole law, were to be applied to these prisoners. Sims v. Rives, 66 App. D.C. 24, 84 F.2d 871, cert. denied, 298 U.S. 682, 56 S. Ct. 960, 80 L. Ed. 1402 (1936). See also, Story v. Rives, 68 App. D.C. 325, 97 F.2d 182, cert. denied, 305 U.S. 595, 59 S. Ct. 71, 83 L. Ed. 377 (1938); Gould v. Green, 78 U.S.App. D.C. 363, 141 F.2d 533 (1944); Noll v. Board of Parole, 89 U.S.App.D.C. 206, 191 F.2d 653 (1951); and Clokey v. United States, 310 F.2d 86 (4th Cir. 1962). The Fourth Circuit case of Gilstrap v. Clemmer, 284 F.2d 804, does not point towards a different result, because the court was there dealing with the question of whether the federal parole law or the D. C. parole law applied to a person convicted under the D.C.Code.⁵  Congress presumably can handle these varying situations in varying ways. Although it might be more logical for Congress to prescribe uniformity in the parole treatment of all United States prisoners, whether "D. C." prisoners or "federal" prisoners, it is not urged upon us in this proceeding that it has done so.

As for the second contention, the question is not yet ripe for review. It is true that the maximum sentence would have expired on July 30, 1963, if it had run without interruption. However, the record shows that the appellant left this jurisdiction in violation of his parole sometime prior to August 18, 1961, and went to New York. Moreover, he was there convicted of a crime and imprisoned in a New York prison for at least eight months, being released on May 15, 1962. Under no theory could it be contended that his 1954 sentence ran during this period. Thus, the maximum time originally imposed would not expire until sometime in 1964, even if appellant's contention were accepted. In any case, we consider this court's opinion in Bates v. Rivers, 116 U.S.App.D.C. 306, 323 F.2d 311, as dispositive on the merits of the argument.

Affirmed.