Ezekiel Bates v. Hugh F. Rivers, Executive, District of Columbia Board of Parole

BURGER, Circuit Judge.

This is a declaratory judgment action arising out of revocation of parole by the District of Columbia Board of Parole in which appellant questions the legality of his continued imprisonment. The District Court granted the government’s motion to dismiss. This appeal followed.

On April 12, 1957, appellant was sentenced by the United States District Court for the District of Columbia to a term of imprisonment of two to six years for assault with a dangerous weapon. On May 15, 1959, he was granted parole by the District of Columbia Board of Parole. D.C.Code Ann. § 24r-204. On January 17, 1961, appellant was sentenced by the Municipal Court for the District of Columbia (now the Court of General Sessions) to ten days in jail on a conviction for intoxication. Thereafter on February 16, 1961, after hearing, appellant’s parole was revoked. Although it is not clear from the record it appears that the drunkenness conviction was the basis for revocation of parole. If appellant had not violated a condition of his parole he would have been released from parole supervision on April 12, 1963. However, on revocation appellant was returned to prison to serve the unexpired portion of his original term, without credit for the time spent on parole. Appellant claims that he is entitled to the same credit against the service of his sentence for time spent on parole as he receives for time spent in prison.

The applicable provision of law is D.C. Code Aim. § 24-206, which provides in pertinent part:

“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. For the purpose of computing commutation for good conduct, the remainder of the sentence originally imposed shall be considered as a new sentence. The time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced.” (Emphasis added.)

See Jones v. Clemmer, 82 U.S.App.D.C. 288, 163 F.2d 852 (1947). The language of the statute is clear and the import of similar language under the general federal parole statute has been acknowledged in numerous cases.¹ Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247 (1923); 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); Howard v. United States, 274 F.2d 100 (8th Cir., 1960), cert. denied, 363 U.S. 832, 80 S.Ct. 1604, 4 L.Ed. 1525; Looney v. Lenz, 217 F.2d 841 (10th Cir., 1955), cert. denied, 349 U.S. 965, 75 S.Ct. 898, 99 L.Ed. 1285; Taylor v. Squier, 142 F.2d 737 (9th Cir., 1942), cert. denied, 323 U.S. 755, 65 S. Ct. 82, 89 L.Ed. 604. See Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938); Hammerer v. Huff, 71 App. D.C. 246, 110 F.2d 113 (1939); Johnson v. Wilkinson, 279 F.2d 683 (5th Cir., 1960). In light of these holdings there is no relief we can afford appellant.

Appeal dismissed.

1 . 18 U.S.C. § 4205 provides, in part:

“The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole, shall not diminish the time he was sentenced to serve. June 25, 1948, c. 645, 62 Stat. 854.” (Emphasis added.)