                        UNITED STATES COURT OF APPEALS

                              FOR THE TENTH CIRCUIT




 JAMES F. JOHNSON,

                 Petitioner-Appellee,

 v.
                                                      No. 96-6154
 THOMAS KINDT, Warden and
 U.S. PAROLE COMMISSION,

                 Respondents-Appellants.


 DISTRICT OF COLUMBIA,

                 Amicus Curiae.


                                           ORDER
                                  Filed September 25, 1998


Before KELLY, BARRETT, and HENRY, Circuit Judges.


       Upon consideration of appellants’ motion to publish the order and judgment

originally filed July 17, 1998, the motion is granted. The published opinion is attached

to this order.

                                           Entered for the Court


                                           PATRICK FISHER, Clerk of Court
                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         JULY 17 1998

                                                                      PATRICK FISHER
                                                                              Clerk
                                        PUBLISH

                       UNITED STATES COURT OF APPEALS

                                     TENTH CIRCUIT



 JAMES F. JOHNSON,

              Petitioner-Appellee,

 v.                                                     No. 96-6154

 THOMAS KINDT, Warden and
 U.S. PAROLE COMMISSION,

              Respondents-Appellants.


 DISTRICT OF COLUMBIA,

              Amicus Curiae.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE WESTERN DISTRICT OF OKLAHOMA
                         (D.C. No. CIV-95-1165-M)


Submitted on the briefs:

Patrick M. Ryan, United States Attorney, Steven K. Mullins, Assistant U.S. Attorney,
Oklahoma City, Oklahoma, Lisa Simotas, Attorney for the Department of Justice,
Washington, D.C., for the Respondents-Appellants.
Richard Eisenberg, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for
Petitioner-Appellee.

Charles L. Reischel, Deputy Corporation Counsel, Mary L. Wilson, Assistant Corporation
Counsel, Washington, D.C., for Amicus Curiae.


Before KELLY, BARRETT, and HENRY, Circuit Judges.


KELLY, Circuit Judge.


       Petitioner-appellee James F. Johnson is an inmate in federal custody serving an

aggregate U.S. Code and District of Columbia (D.C.) Code sentence. In district court,

Johnson filed a habeas petition, pursuant to 28 U.S.C. § 2241, arguing that he was entitled to

credit under his D.C. sentence for “street time” accrued prior to revocation of his parole. The

district court agreed and granted the requested relief. On appeal by respondents-appellants

Thomas Kindt and the U.S. Parole Commission (the Commission), we reverse the judgment

of the district court and remand for further proceedings consistent with this opinion.1


                                      BACKGROUND

       Johnson was convicted of the D.C. crimes of rape and carrying a pistol without a

license and also the federal crime of possession of cocaine with intent to distribute. In 1985,

the United States Bureau of Prisons calculated his aggregated sentence at approximately

        1
              After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral
argument.

                                              -2-
twenty-five years (thirteen years under the D.C. Code and twelve years under the U.S. Code).

On February 4, 1989, the Commission released Johnson on parole with approximately twenty-

one years left to be served.2

        On August 24, 1994, the Commission issued an arrest warrant for a parole violation

(commission of new criminal conduct).           As of that date, Johnson had accumulated

approximately five and one-half years of street time,3 allocated proportionately to the federal

and D.C. crimes as 910 days to the U.S. Code sentence and 1092 days to the D.C. Code

sentence. The Commission revoked Johnson’s parole and ordered the forfeiture of his street

time.

        Johnson filed a habeas petition, arguing that, under D.C. Code § 24-431(a), a provision

effective April 11, 1987, he should have retained credit for the 1092




        2
              The Commission, which has statutory authority to make parole decisions for D.C.
offenders housed in federal prisons, is required to follow D.C. law with regard to D.C. offenses.
See Johnson v. Williford, 821 F.2d 1279, 1288 (7th Cir. 1987); see also D.C. Code § 24-209.
        3
                “‘Street time’ is measured from the date of release on parole to the execution of
the [arrest] warrant or confinement on other charges.” 28 C.F.R. § 2.66(i).

                                                -3-
days of street time attributable to his D.C. sentence.4 The Commission, however, asserted that

a previous, and conflicting, D.C. Code provision required the forfeiture of D.C. street time

upon the revocation of parole. See D.C. Code § 24-206(a) (providing that, after revocation

of parole, “[t]he time a prisoner was on parole shall not be taken into account to diminish the

time for which he was sentenced”). The district court, relying on the case of Noble v. United

States Parole Commission, 887 F. Supp. 11, 13-14 (D.D.C. 1995) (Noble I), concluded that

the Commission had reached an erroneous interpretation of D.C. law. Determining that D.C.

Code § 24-431(a) applied to Johnson’s street time because it was earned after the effective

date of the provision, the district court granted the habeas petition and ordered the

Commission to credit Johnson with the street time allocated to his D.C. sentence.

       The Commission appealed the district court’s ruling to this court. While the appeal

was pending, the Court of Appeals for the District of Columbia resolved the statutory

interpretation issue by answering a question certified by the United States Court of Appeals

for the District of Columbia in the Noble case.5 It determined that D.C. Code § 24-431(a)

        4
               D.C. Code § 24-431(a) provides:

               Every person shall be given credit on the maximum and the minimum term
        of imprisonment for time spent in custody or on parole as a result of the offense
        for which the sentence was imposed. When entering the final order in any case,
        the court shall provide that the person be given credit for the time spent in custody
        or on parole as a result of the offense for which sentence was imposed.
        5
               The certified question was:

        Under District of Columbia law . . ., did the United States Parole Commission
        properly interpret sections 24-206(a) and 24-431(a) of the District of Columbia
                                                                                     (continued...)

                                                -4-
does not effect an implied repeal of D.C. Code § 24-206(a), so that once parole is revoked,

D.C. law does not entitle an offender to street-time credit. See United States Parole Comm’n

v. Noble, 693 A.2d 1084, 1085, 1105 (D.C. 1997) (Noble III) (withdrawn, then

reinstated after en banc rehearing, see United States Parole Comm’n v. Noble, 711 A.2d 85,

86 (D.C. 1998)).

       On appeal, Johnson concedes that this court is bound by the Noble III holding, see

Johnson v. Fankell, 117 S. Ct. 1800, 1804 (1997), but argues that retroactive application

would offend due process.


                                        DISCUSSION

       Generally, “[a] judicial construction of a statute is an authoritative statement of what

the statute meant before as well as after the decision of the case giving rise to that

construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994). However, the

Supreme Court has held that

       an unforeseeable judicial enlargement of a criminal statute, applied
       retroactively, operates precisely like an ex post facto law, such as Art. I, § 10
       of the Constitution forbids . . . . If a state legislature is barred by the Ex Post
       Facto Clause from passing such a law, it must follow that a State Supreme
       Court is barred by the Due Process Clause from achieving precisely the same
       result by judicial construction.



       (...continued)
       5

       Code in deciding that, after revocation of a person’s parole, time that the person
       spent on parole before revocation cannot be credited against his sentence?

Noble v. United States Parole Comm’n, 82 F.3d 1108, 1109 (D.C. Cir. 1996) (Noble II).

                                               -5-
Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964). The construction of a criminal

statute may not “deprive the defendant of the fair warning to which the Constitution entitles

him.” Id. at 354. The Bouie principles apply to “after-the-fact increases in the degree of

punishment” as well as “the ex post facto construction of substantive criminal statutes.”

Helton v. Fauver, 930 F.2d 1040, 1045 (3d Cir. 1991) (citing Devine v. New Mexico Dep’t

of Corrections, 866 F.2d 339, 344 (10th Cir. 1989)).

       The test for determining whether the retroactive application of a judicial decision

violates due process is essentially one of foreseeability. See McDonald v. Champion, 962

F.2d 1455, 1458 (10th Cir. 1992). The issue is a “question[] of constitutional law reviewable

under a plenary standard.” Helton, 930 F.2d at 1044; see also Mahn v. Gunter, 978 F.2d 599,

601 (10th Cir. 1992).6

       A judicial construction of a statute is unforeseeable if it is “unexpected

and indefensible by reference to the law which had been expressed prior to the conduct at

issue.” Bouie, 378 U.S. at 354. Unforeseeable judicial decisions include expansion of a

statute narrow and precise on its face beyond those terms, McDonald, 962 F.2d at 1458; the

overruling of precedent, Devine, 866 F.2d at 345; or when “an in-depth inquiry by a dedicated

and educated student of [the relevant] law would have revealed nothing to foreshadow the

[controlling court] opinion,” id.


        6
                We note that the D.C. Court of Appeals has expressed no view on “whether there
should be any limitation on the class of prisoners the ruling should reach; i.e., the issue of
retroactivity/prospectivity.” Noble III, 693 A.2d at 1104.

                                             -6-
       The case of Tyler v. United States, 929 F.2d 451, 457 (9th Cir. 1991), provides a

factual and legal framework for considering the foreseeability of the Noble III holding.

According to Tyler, soon after § 24-431(a) was enacted, concerned parties recognized the

inconsistency between § 24-431(a) and § 24-206(a). See id. at 455. Without “analysis of

whether [the] inconsistency [was] irreconcilable,” mention of the disfavored status of implied

repeals, or acknowledgment of the congressional oversight of D.C. criminal legislation, the

D.C. Corporation Counsel advised the D.C. Department of Corrections that the newer

provision impliedly repealed the older, so that parole violators had the right to retain street

time. Id. Subsequently, “the D.C. Department of Corrections adopted a rule requiring

retention of street time after a parole revocation.” Id.

       Federal prison officials, however, reached a different conclusion. The Commission

determined that § 24-206(a), the street time forfeiture statute, was still valid, and continued

to apply it. See id. at 455-57.

       After weighing the merits of the divergent positions taken by the D.C. government and

the Commission, the Tyler court concluded that § 24-431(a) “did not impliedly repeal the

longstanding requirement of section 24-206 that parole violators forfeit their street time.” Id.

at 457. Until the decision in Noble III was announced, Tyler was the only appellate decision

that directly addressed the issue. See Noble III, 693 A.2d at 1104. The D.C. Court of Appeals

had “sent mixed signals” on the subject. Noble v. United States Parole Comm’n, 82 F.3d

1108, 1111-12 (D.C. Cir. 1996) (Noble II) (noting that, in Luck v. District of Columbia, 617


                                              -7-
A.2d 509 (D.C. 1992) the court had assumed in dicta that § 24-431(a) permitted street-time

credit after the Act’s effective date).

          In 1994, when Johnson violated his parole, it was foreseeable that the Commission’s

view would ultimately prevail. The Noble III decision did not expand a narrow and precise

legislative provision or overrule controlling precedent. Moreover, elementary legal research

would have revealed the principle that repeals by implication are disfavored. See, e.g.,

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987); Noble II, 82 F.3d at

1112. Accordingly, applying the Noble III holding to Johnson’s petition does not offend due

process.

          The judgment of the United States District Court for the Western District of Oklahoma

is REVERSED and REMANDED with instructions to deny Johnson’s request for habeas

relief.




                                               -8-
                                                                                        F I L E D
                                                                                United States Court of Appeals
                                                                                        Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                         JUL 17 1998
                                FOR THE TENTH CIRCUIT
                                                                                   PATRICK FISHER
                                                                                              Clerk

 JAMES F. JOHNSON,

                 Petitioner-Appellee,

 v.                                                                No. 96-6154
                                                            (D.C. No. CIV-95-1165-M)
 THOMAS KINDT, Warden and                                          (W.D. Okla.)
 U.S. PAROLE COMMISSION,

                 Respondents-Appellants.


 DISTRICT OF COLUMBIA,

                 Amicus Curiae.




                              ORDER AND JUDGMENT*******



Before KELLY, BARRETT, and HENRY, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal.




       *******
               This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

       Petitioner-appellee James F. Johnson is an inmate in federal custody serving an

aggregate U.S. Code and District of Columbia (D.C.) Code sentence. In district court,

Johnson filed a habeas petition, pursuant to 28 U.S.C. § 2241, arguing that he was entitled

to credit under his D.C. sentence for “street time” accrued prior to revocation of his parole.

The district court agreed and granted the requested relief. On appeal by respondents-

appellants Thomas Kindt and the U.S. Parole Commission (the Commission), we reverse the

judgment of the district court and remand for further proceedings consistent with this order

and judgment.


                                       BACKGROUND

       Johnson was convicted of the D.C. crimes of rape and carrying a pistol without a

license and also the federal crime of possession of cocaine with intent to distribute. In 1985,

the United States Bureau of Prisons calculated his aggregated sentence at approximately

twenty-five years (thirteen years under the D.C. Code and twelve years under the U.S. Code).

On February 4, 1989, the Commission released Johnson on parole with approximately twenty-

one years left to be served.1




       1
              The Commission, which has statutory authority to make parole decisions for D.C.
offenders housed in federal prisons, is required to follow D.C. law with regard to D.C. offenses.
See Johnson v. Williford, 821 F.2d 1279, 1288 (7th Cir. 1987); see also D.C. Code § 24-209.

                                               -2-
        On August 24, 1994, the Commission issued an arrest warrant for a parole violation

(commission of new criminal conduct).             As of that date, Johnson had accumulated

approximately five and one-half years of street time,2 allocated proportionately to the federal

and D.C. crimes as 910 days to the U.S. Code sentence and 1092 days to the D.C. Code

sentence. The Commission revoked Johnson’s parole and ordered the forfeiture of his street

time.

        Johnson filed a habeas petition, arguing that, under D.C. Code § 24-431(a), a provision

effective April 11, 1987, he should have retained credit for the 1092 days of street time

attributable to his D.C. sentence.3 The Commission, however, asserted that a previous, and

conflicting, D.C. Code provision required the forfeiture of D.C. street time upon the

revocation of parole. See D.C. Code § 24-206(a) (providing that, after revocation of parole,

“[t]he time a prisoner was on parole shall not be taken into account to diminish the time for

which he was sentenced”). The district court, relying on the case of Noble v. United States

Parole Commission , 887 F. Supp. 11, 13-14 (D.D.C. 1995) ( Noble I), concluded that the

Commission had reached an erroneous interpretation of D.C. law. Determining that D.C.


        2
                “‘Street time’ is measured from the date of release on parole to the execution of
the [arrest] warrant or confinement on other charges.” 28 C.F.R. § 2.66(i).
        3
               D.C. Code § 24-431(a) provides:

               Every person shall be given credit on the maximum and the minimum term
        of imprisonment for time spent in custody or on parole as a result of the offense
        for which the sentence was imposed. When entering the final order in any case,
        the court shall provide that the person be given credit for the time spent in custody
        or on parole as a result of the offense for which sentence was imposed.

                                                 -3-
Code § 24-431(a) applied to Johnson’s street time because it was earned after the effective

date of the provision, the district court granted the habeas petition and ordered the

Commission to credit Johnson with the street time allocated to his D.C. sentence.

       The Commission appealed the district court’s ruling to this court. While the appeal

was pending, the Court of Appeals for the District of Columbia resolved the statutory

interpretation issue by answering a question certified by the United States Court of Appeals

for the District of Columbia in the Noble case.4 It determined that D.C. Code § 24-431(a)

does not effect an implied repeal of D.C. Code § 24-206(a), so that once parole is revoked,

D.C. law does not entitle an offender to street-time credit. See United States Parole Comm’n

v. Noble, 693 A.2d 1084, 1085, 1105 (D.C. 1997) (Noble III) (withdrawn, then

reinstated after en banc rehearing, see United States Parole Comm’n v. Noble, No. 96-SP-578,

1998 WL 208865 (D.C. Apr. 23, 1998)).

       On appeal, Johnson concedes that this court is bound by the Noble III holding, see

Johnson v. Fankell, 117 S. Ct. 1800, 1804 (1997), but argues that retroactive application

would offend due process.




       4
              The certified question was:

       Under District of Columbia law . . ., did the United States Parole Commission
       properly interpret sections 24-206(a) and 24-431(a) of the District of Columbia
       Code in deciding that, after revocation of a person’s parole, time that the person
       spent on parole before revocation cannot be credited against his sentence?

Noble v. United States Parole Comm’n, 82 F.3d 1108, 1109 (D.C. Cir. 1996) (Noble II).

                                                -4-
                                        DISCUSSION

       Generally, “[a] judicial construction of a statute is an authoritative statement of what

the statute meant before as well as after the decision of the case giving rise to that

construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994). However, the

Supreme Court has held that

       an unforeseeable judicial enlargement of a criminal statute, applied
       retroactively, operates precisely like an ex post facto law, such as Art. I, § 10
       of the Constitution forbids . . . . If a state legislature is barred by the Ex Post
       Facto Clause from passing such a law, it must follow that a State Supreme
       Court is barred by the Due Process Clause from achieving precisely the same
       result by judicial construction.

Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964). The construction of a criminal

statute may not “deprive the defendant of the fair warning to which the Constitution entitles

him.” Id. at 354. The Bouie principles apply to “after-the-fact increases in the degree of

punishment” as well as “the ex post facto construction of substantive criminal statutes.”

Helton v. Fauver, 930 F.2d 1040, 1045 (3d Cir. 1991) (citing Devine v. New Mexico Dep’t

of Corrections, 866 F.2d 339, 344 (10th Cir. 1989)).

       The test for determining whether the retroactive application of a judicial decision

violates due process is essentially one of foreseeability. See McDonald v. Champion , 962

F.2d 1455, 1458 (10th Cir. 1992). The issue is a “question[] of constitutional law reviewable




                                              -5-
under a plenary standard.” Helton, 930 F.2d at 1044; see also Mahn v. Gunter, 978 F.2d 599,

601 (10th Cir. 1992).5

       A judicial construction of a statute is unforeseeable if it is “unexpected and

indefensible by reference to the law which had been expressed prior to the conduct at issue.”

Bouie, 378 U.S. at 354. Unforeseeable judicial decisions include expansion of a statute

narrow and precise on its face beyond those terms,        McDonald, 962 F.2d at 1458; the

overruling of precedent, Devine, 866 F.2d at 345; or when “an in-depth inquiry by a dedicated

and educated student of [the relevant] law would have revealed nothing to foreshadow the

[controlling court] opinion,” id.

       The case of Tyler v. United States, 929 F.2d 451, 457 (9th Cir. 1991), provides a

factual and legal framework for considering the foreseeability of the Noble III holding.

According to Tyler, soon after § 24-431(a) was enacted, concerned parties recognized the

inconsistency between § 24-431(a) and § 24-206(a). See id. at 455. Without “analysis of

whether [the] inconsistency [was] irreconcilable,” mention of the disfavored status of implied

repeals, or acknowledgment of the congressional oversight of D.C. criminal legislation, the

D.C. Corporation Counsel advised the D.C. Department of Corrections that the newer

provision impliedly repealed the older, so that parole violators had the right to retain street




       5
                We note that the D.C. Court of Appeals has expressed no view on “whether there
should be any limitation on the class of prisoners the ruling should reach; i.e., the issue of
retroactivity/prospectivity.” Noble III, 693 A.2d at 1104.

                                              -6-
time. Id. Subsequently, “the D.C. Department of Corrections adopted a rule requiring

retention of street time after a parole revocation.” Id.

       Federal prison officials, however, reached a different conclusion. The Commission

determined that § 24-206(a), the street time forfeiture statute, was still valid, and continued

to apply it. See id. at 455-57.

       After weighing the merits of the divergent positions taken by the D.C. government and

the Commission, the Tyler court concluded that § 24-431(a) “did not impliedly repeal the

longstanding requirement of section 24-206 that parole violators forfeit their street time.” Id.

at 457. Until the decision inNoble III was announced, Tyler was the only appellate decision

that directly addressed the issue. See Noble III, 693 A.2d at 1104. The D.C. Court of Appeals

had “sent mixed signals” on the subject. Noble v. United States Parole Comm’n, 82 F.3d

1108, 1111-12 (D.C. Cir. 1996) (Noble II) (noting that, in Luck v. District of Columbia, 617

A.2d 509 (D.C. 1992) the court had assumed in dicta that § 24-431(a) permitted street-time

credit after the Act’s effective date).

       In 1994, when Johnson violated his parole, it was foreseeable that the Commission’s

view would ultimately prevail. The Noble III decision did not expand a narrow and precise

legislative provision or overrule controlling precedent. Moreover, elementary legal research

would have revealed the principle that repeals by implication are disfavored.         See, e.g.,

Crawford Fitting Co. v. J.T. Gibbons, Inc. , 482 U.S. 437, 442 (1987); Noble II, 82 F.3d at




                                              -7-
1112. Accordingly, applying theNoble III holding to Johnson’s petition does not offend due

process.

          The judgment of the United States District Court for the Western District of Oklahoma

is REVERSED and REMANDED with instructions to deny Johnson’s request for habeas

relief.



                                                           Entered for the Court



                                                           Paul J. Kelly, Jr.
                                                           Circuit Judge




                                               -8-
