UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NOBLE, MATTHEW

v.

US PAR CMSN


99-5009a

D.C. Cir. 1999


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Opinion for the Court filed Per Curiam.


Per Curiam: Matthew Noble, a District of Columbia pris- oner who was
held in federal custody, appeals the district  court's denial of a
writ of habeas corpus. He argues that he  has been deprived of equal
protection because other prisoners  were erroneously released earlier
than they should have been.  We affirm.


I.


The District of Columbia is responsible for the custody of  most
prisoners who have been convicted of offenses under  D.C. law, but
some D.C. offenders are held in the custody of  the federal
government. This case arises from a disparity  between the policies of
the U.S. Parole Commission, which  administers parole for prisoners in
federal custody, and those  of the D.C. Board of Parole, which
administers parole for  convicts in D.C. prisons.1


Section 24-206(a) of the District of Columbia Code provides  that
prisoners whose parole is revoked shall not receive credit  against
their sentences for "street time," that is, the time  they spent on
parole. In 1987, the District of Columbia  enacted D.C. Code s
24-431(a); without mentioning parole  revocation, it established a
general rule that street time shall  be treated the same as time spent
in physical custody. The  U.S. Parole Commission concluded that this
new statute did  not affect s 24-206(a). By contrast, the D.C.
Department of  Corrections determined that s 24-431(a) had impliedly
re- pealed the section, and consequently the Board of Parole  began to
give prisoners credit for street time even when their 




__________

n 1 Congress has since transferred the authority of the D.C. Board  of
Parole to the U.S. Parole Commission. See National Capital 
Revitalization and Self-Government Act of 1997, Pub. L. No.  105-33, s
11231(a)(1), 111 Stat. 712, 745; Franklin v. District of  Columbia,
163 F.3d 625, 632 (D.C. Cir. 1998).


parole was revoked. The new D.C. policy was based on a  misreading of
the law, as the D.C. Court of Appeals held in  1997. After that
opinion the Department of Corrections  changed its policy, but it did
not make the change retroactive  to people whose sentences had already
expired--that is, it did  not attempt to rearrest former inmates whose
releases had  been predicated on credit for street time prior to
parole  revocation.


In 1985, having already compiled a long record of drug  offenses, Noble
was convicted in D.C. Superior Court of  distribution of a controlled
substance. At the time, he was a  federal parolee, and the Bureau of
Prisons aggregated his  sentences to yield a term of just over nine
years, to be served  in federal custody. He was paroled again in 1988,
but in 1993  his parole was revoked. Pursuant to D.C. Code s
24-206(a),  the Parole Commission refused to credit Noble's street
time  against his sentence. In 1995, Noble petitioned for a writ of 
habeas corpus, claiming that the Commission had violated  D.C. law by
failing to credit him for his street time. The writ  was granted, see
Noble v. United States Parole Comm'n, 887  F. Supp. 11 (D.D.C. 1995),
but on appeal, we certified to the  D.C. Court of Appeals the question
of whether the Parole  Commission had properly interpreted the D.C.
statute. No- ble v. United States Parole Comm'n, 82 F.3d 1108 (D.C.
Cir.  1996). After that court confirmed that the Commission's 
interpretation was correct, see United States Parole Comm'n  v. Noble,
693 A.2d 1084 (D.C. 1997), aff'd, 711 A.2d 85 (D.C.  1998) (en banc),
we remanded to the district court for further  proceedings. The
district court denied the writ, see Noble v.  United States Parole
Comm'n, 32 F. Supp. 2d 11 (D.D.C.  1998), and Noble appealed.


II.


Obviously no longer able to maintain that the Parole Com- mission has
misread the law, Noble instead argues that the  disparity between his
treatment and that of prisoners in the  custody of the D.C. Department
of Corrections constitutes a  deprivation of the equal protection of
the laws. The difficulty 


with this argument is that Equal Protection Clause--to be  precise, the
equal protection component of the Fifth Amend- ment's Due Process
Clause, cf. Bolling v. Sharpe, 347 U.S.  497 (1954)--does not require
that all persons everywhere be  treated alike. Instead, it imposes the
rather more modest  requirement that government not treat similarly
situated  individuals differently without a rational basis. See
Cleburne  v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). 
Noble cannot show that he has been treated differently from  prisoners
under the supervision of the U.S. Parole Commis- sion because all have
been treated in exactly the same way.


Noble would instead compare himself to prisoners who  were in the
custody of the D.C. Department of Corrections  whose parole was
revoked but who nevertheless received  credit for street time because
their sentences expired before  the D.C. Court of Appeals issued its
decision in 1997. Yet he  is not similarly situated to those
prisoners, because he is in  the custody of a different agency of
government. Seeking to  avoid this problem, he asserts "a
constitutional right to equal  treatment under law by the government,
even where that  treatment is imposed by two different agencies." We
think  that assertion is groundless. If such a right existed, it would
 mean that it is unconstitutional for some D.C. criminal cases  to be
brought in D.C. courts, while others are brought in  federal court,
where harsher sentences may be available.  But cf. Hutcherson v.
United States, 345 F.2d 964 (D.C. Cir.  1965). For that matter, it
would suggest that every circuit  split is a violation of equal
protection. Both of these proposi- tions are obviously erroneous, and


In any event, even if Noble were to be compared to  prisoners in D.C.
custody who received credit for street time,  he could not prevail,
because the difficulty of rearresting  inmates who have already been
released would provide a  rational basis for the disparate treatment.
Neither authority  nor common sense support the proposition that if
the govern- ment erroneously confers a benefit on some people, then 
other people have a constitutional right to receive the same 
windfall. See Tyler v. United States, 929 F.2d 451, 457 (9th 


Cir. 1991) ("We cannot seriously entertain the argument that  an
erroneous statutory interpretation should be perpetuated  simply
because it would favor a prisoner who has not yet  benefitted from


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The judgment of the district court is affirmed.


So ordered.