Appeal from order of the United States District Court of the District of Connecticut, Ellen Bree Burns, J., on petition for writ of habeas corpus, ordering the United States Parole Commission to reconsider appellee's request that it seek reduction in his minimum sentence; cross-appeal from the district court's denial of appellee's sentence-computation claims. Appeal dismissed as moot; on cross-appeal, affirmed in part, dismissed in part.
Before FEINBERG, Chief Judge, VAN GRAAFEILAND and MESKILL, Circuit Judges.
This is an appeal by the United States Parole Commission (the Commission) from an order of the United States District Court for the District of Connecticut, Ellen Bree Burns, J., granting in part Mark A. Corbett's petition for a writ of habeas corpus and ordering the Commission to reconsider Corbett's request that it seek a reduction his minimum sentence. Corbett also cross-appeals from the district court's denial of his claim that the Commission improperly calculated the time served on his sentence. For the reasons state below, we dismiss the Commission's appeal as moot, and affirm in part and dismiss in part on Corbett's cross-appeal.
This case has a complicated procedural history involving overlapping sentences for both youth and adult offenses. Corbett was arrested in August 1980 in Washington, D.C. and charged as an adult with burglary, attempted burglary and petty larceny under the District of Columbia Code. He was living at the time in a halfway house, serving a sentence for a prior, similar offense under the federal Youth Corrections Act (YCA), 18 U.S.C. § 5005 et seq. (repealed 1984). The Commission had set a parole date of December 6, 1980 on that sentence, which for convenience we shall refer to as the YCA sentence or the youth sentence. After his arrest in August 1980, Corbett was incarcerated in a D.C. jail until April 18, 1981, when a D.C. Superior Court judge sentenced him to a term of four to twelve years on the burglary offense. The D.C. judge also recommended psychiatric counseling in a federal facility. For convenience, we shall refer to this sentence as the adult sentence or the D.C. sentence. The adult sentence was to be served consecutively to the youth sentence. In July 1981, after a short time in a D.C. adult correctional facility, Corbett was transferred to the federal prison in Danbury, Connecticut.
Shortly after Corbett's August 1980 arrest, the Commission lodged a detainer with the D.C. jail, charging Corbett with "program failure;" it also issued a Notice of Action retarding his YCA parole date and ordering a hearing on a rescission of that date. (Corbett states that he did not receive this notice until the fall of 1981). In December 1981, a year after Corbett's original YCA parole date, the Commission held a parole hearing on both the YCA sentence and the D.C. adult sentence, over which it had jurisdiction pursuant to the D.C. Code, § 24-206(b). The Commission then rescinded the December 1980 parole date on YCA sentence and set a new one for February 17, 1982. It also established February 17, 1986 as the presumptive parole date for the adult sentence; this was substantially later than the date indicated by Commission guidelines. The Notice of Action explained that the more lengthy period before Corbett became eligible for parole was necessary because of the four-year minimum sentence Corbett had received from the D.C. judge. The Commission noted as follows:
Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 16-22 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision above the guidelines is mandated in that you have a minimum sentence which exceeds the guideline range.
Corbett appealed to the Regional Commissioner and to the National Appeals Board, arguing, among other things, that a decision beyond the guidelines "was not supported by the reasons for facts as stated." The rulings were affirmed at both levels, but the respective Notices of Action (dated July 13 and August 5, 1982), without explanation, voided the rescission of Corbett's original YCA parole date.
Thereafter, Corbett petitioned the Bureau of Prisons for recomputation of his adult sentence on the theory that by voiding the rescission of the original youth sentence parole date the Commission had effectively reinstated it, and all time served since December 6, 1980 should be credited to the term of his adult sentence. The Bureau denied this appeal.
In August 1984, Corbett filed a petition for a writ of habeas corpus in the District of Connecticut. He alleged that the Commission had failed to provide adequate reasons, as required by statute, 18 U.S.C. § 4206(c), for postponing his eligibility for parole on his adult sentence for a period that substantially exceeded the guidelines.*fn1 Corbett argued that the four-year minimum adult sentenced imposed by the D.C. court was not a sufficient reason because the Commission could have asked that court to reduce it, as authorized by section 24-201c of the D.C. Code, that Code governs the Commission's treatment of D.C. offenders in its custody. D.C. Code § 24-209. Corbett asserted that his record of rehabilitation while in prison qualified him for such a petition under the standard of section 24-201c, and that he would otherwise be required to serve 26 months beyond the guideline maximum for similar offenders.*fn2
In response to the petition for a writ, the Commission asserted that the decision whether to apply under section 24-201c for a reduction of sentence is a discretionary one, and that the examiner panel at Corbett's December 1981 parole hearing had justifiably recommended against such an application in view of Corbett's pattern of burglary offenses. The Commission also contended that the hearing examiner had advised Corbett's law student representative of this reason after the hearing, even though the Notice of Action made no mention of it.
The district court granted this portion of Corbett's habeas petition. Judge Burns found it impossible to determine from the official notices whether the Commission ever considered Corbett's request that it apply for a reduction in sentence and if it did, what standard the Commission applied. The judge found that section 24-201c gives "significant weight" to a prisoner's response to prison rehabilitation programs, and ordered the Commission to "conduct a new parole hearing to consider petitioner's request for a petition to the sentencing court for a reduction of his minimum sentence under the standard required by D.C. Code § 24-201c." The judge denied Corbett's remaining claims, which are the subject of the cross-appeal and are discussed in section III below.
The Commission sought a rehearing and a stay pending appeal. In May 1985, the judge refused to change her decision or to grant a star, noting as to the latter that the order " does not require petitioner's immediate release, but only a reconsideration of petitioner's request that the Commission petition the sentencing court for a sentence reduction . . . ." An examiner panel of the Commission then complied with the court order and conducted another hearing on June 27, 1985, while the Commission pursued its avenues of appeal in this court. On July 18, this court also denied the Commission's motion for a stay pending appeal; the following day, the Commission apparently decided that good faith compliance with the district court's order required the Commission to apply for a reduction of Corbett's minimum term on the adult sentence. On October 7, the Commission filed such an application with the D.C. Superior Court, making clear the "unusual circumstances" that lead ...