David S. Ashby-bey, Petitioner-appellee, v. Edwin Meese Iii, Attorney General,* et al.,respondents-appellants, 821 F.2d 1288 (7th Cir. 1987)

Today we have held in the companion case of Johnson v. Williford, 821 F.2d 1279 (7th Cir. 1987), that the United States Parole Commission ("U.S. Commission") is empowered by D.C.Code Sec. 24-209 to determine whether to release on parole District of Columbia Code offenders ("D.C.Code offenders") held in federal prisons, but under that statute must apply District of Columbia parole laws and regulations when making such determinations. Act of June 5, 1934, ch. 391, 48 Stat. 880 (codified at D.C.Code Sec. 24-209). Petitioner David S. Ashby-Bey ("Ashby-Bey") is a D.C.Code offender and was incarcerated at the United States Penitentiary at Marion, Illinois ("Marion") at the time he filed pro se this habeas corpus petition raising the same issues decided today in Johnson. Ashby-Bey's petition was granted by Magistrate Kenneth J. Meyers, and Ashby-Bey was transferred to the District of Columbia for a parole hearing in January of 1985. Parole was denied at that time and we are advised by his counsel for this appeal that he was transferred back to Marion to continue serving his sentence.

The magistrate granted Ashby-Bey's petition based on his reasoning in Drakeford v. United States Parole Commission, 83 C 4210 (S.D. Ill. May 24, 1984), opinion amended (S.D. Ill. July 15, 1984), vacated and dismissed as moot by unpublished order, Nos. 84-2295 and 84-2340 [799 F.2d 753 (table)] (7th Cir. Aug. 27, 1986). Even if we assume that Drakeford correctly decided that only prisoners convicted in federal district courts are included in the term "federal prisoners" and because of that Ashby-Bey would not be an "eligible prisoner," as defined in 18 U.S.C. § 4201(4), and thus would fall outside the U.S. Commission's statutory authority under 18 U.S.C. § 4203(b) (1), which is limited to "eligible prisoners," our conclusion that the U.S. Commission has authority to decide Ashby-Bey's case is unaffected. That statutory authority is derived from the Congressional grant of power found in D.C.Code Sec. 24-209 and does not depend on whether Ashby-Bey is within the definition of the term "federal prisoner." Furthermore, D.C.Code Sec. 24-209 applies to all persons convicted of a D.C.Code violation and held in federal prisons, no matter whether they were convicted in the District of Columbia Superior Court or the U.S. District Court for the District of Columbia. As in Johnson, the issues are whether Sec. 24-209 applies to the U.S. Commission and remains in effect and whether Sec. 24-209 requires the U.S. Commission to use D.C. parole laws and regulations for D.C.Code offenders.

On the basis of Johnson, we hold that the magistrate erred in ruling that the U.S. Commission lacked statutory authority to decide Ashby-Bey's suitability for release on parole. Ashby-Bey was convicted in the District of Columbia Superior Court for a D.C.Code offense, rather than in the United States District Court for the District of Columbia, as Johnson was for a D.C.Code offense. This distinction does not change the conclusion reached in Johnson that D.C.Code Sec. 24-209 applies to the U.S. Commission and was not repealed by implication by either the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 473, or the District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat. 774 (1973). Thus the U.S. Commission continues to have "the same power and authority" over D.C.Code offenders as the D.C. Parole Board would have if those prisoners were held in a D.C. prison. That part of Ashby-Bey's petition seeking to require the U.S. Commission to apply D.C. parole laws and regulations is granted for the reasons stated in Johnson.

Reversed and remanded for further proceedings consistent herewith.