Eric Glascoe v. United States of America

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 15, 2003 Decided February 27 , 2004
No. 02-7063
ERIC GLASCOE, ET AL.,
APPELLANTS
v.
UNITED STATES OF AMERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(00cv03118)
Aaron Cooper, appointed by the court, argued the cause as
amicus curiae on the side of appellants. With him on the
briefs was Robert D. Wick.
Eric Glascoe, Jibril L. Ibrahim, and Bobby Morgan, ap-
pearing pro se, were on the brief for appellants.
Suzanne Grealy Curt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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Howard, Jr., U.S. Attorney, and John R. Fisher and Eliza-
beth Trosman, Assistant U.S. Attorneys.
Before: R ANDOLPH, ROGERS, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Precisely how long is an individ-
ual’s life span minus, say, five years and 10 days? One
cannot give a firm answer if the person is still alive. No
matter, say the three petitioners here, each of whom seeks a
deduction of good time credits from his maximum sentence of
life imprisonment. If we agree with their position, counters
the government, we will have converted indeterminate sen-
tences into determinate sentences. The case turns on the
meaning of two provisions of the District of Columbia Code.
While serving terms of imprisonment of at least 15 years to
life, Eric Glascoe, Jibril L. Ibrahim and Bobby Morgan filed a
joint pro se petition for a writ of habeas corpus. Each
petitioner had been convicted in the Superior Court of the
District of Columbia, and sentenced pursuant to the D.C.
Code in the 1980’s. Good time credits were applied to their
minimum sentences. The district court, Friedman, J., reject-
ed their claim that the D.C. Good Time Credits Act of 1986,
D.C. C ODE § 24–428 (repealed), also required good time cred-
its to be applied to their maximum life sentences. Five
months after the district court denied their petition, petition-
ers filed a motion for reconsideration under FED. R. C IV. P.
60(b). The district court denied the motion and petitioners
filed a notice of appeal. We referred to the district court the
question whether to grant them a certificate of appealability.
The court issued the certificate, certifying two issues: ‘‘(1)
whether institutional good time credit must be applied to a
maximum sentence of life imprisonment, and (2) whether a
maximum sentence of life imprisonment is deemed a term of
45 years for purpose of applying institutional good time credit
to the maximum sentence.’’ Glascoe v. United States, Civ.
Action No. 00–3118, Order Granting Certificate of Appealabil-
ity, at 3 (D.D.C. July 11, 2002).
The government questions the timeliness of the appeal.
There is no doubt that the notice of appeal came too late to

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bring up the district court’s judgment denying the habeas
petition. See FED. R. A PP. P. 4(a). But the order denying
reconsideration is properly before us. See Browder v. Di-
rector, Dep’t of Corr., 434 U.S. 257, 263 n.7 (1978). In
rejecting the motion the court again addressed the merits of
their case and granted a certificate of appealability on the
underlying issues. We may therefore decide those issues,
although we are confined to determining whether the district
court abused its discretion in resolving them against petition-
ers. Id.; see also Twelve John Does v. District of Columbia,
841 F.2d 1133, 1138 (D.C. Cir. 1988).
Enacted in 1987 and repealed in 1994, the Good Time
Credits Act, § 24–428, provided in relevant part:
(a) Every person who is convicted of a violation of
a District of Columbia (‘‘District’’) criminal law by a
court in the District of Columbia, imprisoned in a
District correctional facility, and whose conduct is in
conformity with all applicable institutional rules is
entitled to institutional good time credits in accor-
dance with the provisions of this section.
TTTT
(b) Good time credits authorized by the provisions
of this section shall be applied to the person’s mini-
mum term of imprisonment to determine the date of
eligibility for release on parole and to the person’s
maximum term of imprisonment to determine the
date when release on parole becomes mandatory.
The time credited per month depended on the length of
sentence. Good time credits of five days per month applied
to a sentence of ‘‘not less than 30 days and not more than 1
year,’’ the shortest term covered. § 24–428(a)(1). Credits of
ten days per month applied to a sentence of ‘‘10 years or
more,’’ the longest term covered. § 24–428(a)(5).
Petitioners, through the amicus curiae we appointed for
them (hereinafter ‘‘petitioners’’), argue that § 24–428 applied
to life sentences because it made ‘‘[e]very person’’ convicted
of violating D.C. criminal law eligible for good time credits

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and because it stated that good time credits ‘‘shall be applied
TTT to the person’s maximum term of imprisonment.’’ § 24–
428(a) & (b). The argument is quite implausible and the
district court did not abuse its discretion in rejecting it.
Section 24–428 stated that good time credits were to be
granted ‘‘in accordance with the provisions of this section.’’
No such provision mentioned life imprisonment. This is
telling. It would be meaningless for prison authorities to
award a prisoner serving a life sentence 10 days of good time
credit each month, unless there is a reduction in the time he
must serve. In the usual case, the amount of the reduction is
easily calculated: the prisoner’s sentence minus good time
credits yields his release date. But imprisonment for life
supplies no fixed term from which to deduct good time
credits; the length of the sentence is indefinite. For this
reason, other courts have rejected arguments like petitioners’.
See, e.g., Hunt v. Warden, 903 P.2d 826, 829 (Nev. 1995);
Escalanti v. Dep’t of Corr., 851 P.2d 151, 153 (Ariz. Ct. App.
1993); Robinson v. Clark, 278 F. Supp. 559, 560 (N.D. Ga.
1967). The rule of lenity, from which petitioners seek sup-
port for their interpretation of § 24–428, cannot assist them
in view of the implausibility of their position. United States v.
Anderson, 59 F.3d 1323, 1340 (D.C. Cir. 1995).
To overcome the indeterminacy of life sentences, petition-
ers propose that they be treated as if they had been sen-
tenced to a term of years. They invoke the Indeterminate
Sentence Act, D.C. CODE § 24–403(a). Under this provision, a
judge imposing a felony sentence must set a ‘‘minimum period
not exceeding one-third of the maximum sentence imposed’’;
if ‘‘the maximum sentence imposed is life imprisonment, a
minimum sentence shall be imposed which shall not exceed 15
years [sic] imprisonment.’’ § 24–403(a). Putting the two
clauses together, petitioners reason that they are entitled to
mandatory parole after 45 years; hence, 45 years is the fixed
term from which good time credits should be subtracted.
The argument assumes that one may calculate the maximum
term by tripling the minimum term. The equation holds true
for determinate sentences. It does not hold true for life
sentences. Three times 15 is 45; but one third of life is not

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necessarily 15. The life imprisonment clause, as the district
court rightly stated, is merely a default provision, added in
light of the impossibility of coming up with any definite term
of years when life is divided by three. Section 24–403 does
not convert life sentences into 45 year sentences. Still less
does it provide a fixed term from which to calculate a
prisoner’s release date by subtracting good time credits.
Petitioners’ alternative proposal is that we direct the gov-
ernment to employ an actuarial approach, estimating the
prisoner’s lifespan and deducting good time credits from that
figure. Whatever the merits of this idea as a matter of
policy, no statute supports it. To order it would be to
legislate.
We have considered and rejected petitioners’ other argu-
ments.
Affirmed.

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