Felix v. Braxton

PER CURIAM:

Danny Felix, a resident of the Lorton Correctional Facility, was found guilty in a prison disciplinary proceeding of escape, lack of cooperation, and being out of place. Felix had a prison status that authorized him to leave Lorton during the day to perform a clerk/typist job at a D.C. government halfway house. However, he allegedly disobeyed instructions not to appear for work on July 2, 1993, a furlough day, and, after taking the prison bus into town, allegedly spent the day at large in the District of Columbia. Felix appeals the denial of his petition for a writ of habeas corpus, in which he claimed that Bernard Braxton, Administrator of the Occoquan Facility, and other prison officials, in conducting the disciplinary proceeding, had violated his right to constitutional due process, as well as his rights under prison regulations, 28 DCMR §§ 500 et. seq. (1987).

Counsel argued Felix’s case in this court on October 19,1995, but on October 23,1995, before we had reached a decision, the District moved to dismiss Felix’s appeal upon learning that Felix had absconded from the halfway house where he was incarcerated on August 27, 1995, and was still at large. As Felix’s counsel notes, there is no evidence to demonstrate that Felix willfully left or failed to return to the halfway house, rather than failing to return to the halfway house for a plethora of other possible reasons. Neither counsel disputes, however, that Felix is presently absent from incarceration without authorization. We therefore grant the District’s motion to dismiss.

“[T]he court has discretionary power to dismiss an appeal where an appellant absconds during its pendency.” West v. United States, 604 A.2d 422, 425 (D.C.1992). “The reasons justifying refusal of the appeal include: (1) inappropriateness of appellate review for one who displays such disdain for the judicial system; (2) discouragement of escape; (3) deterrence of interference with the efficient operation of the court; and (4) avoidance of unfair prejudice to the government by delay occasioned by appellant’s flight.” Id. at 425; In re S.H., 570 A.2d 814, 816 (D.C.1990). Although these quoted decisions addressed the propriety of dismissing appeals of the appellants’ underlying convictions, the same considerations justify dismissing the appeal of a civil matter related to Felix’s conviction. See Doyle v. United States, 215 U.S.App.D.C. 333, 333, 668 F.2d 1365, 1365 (1982) (Freedom of Information Act request for Department of Justice records concerning appellant dismissed once he became a fugitive from justice); Conforte v. Commissioner of Internal Revenue, 692 F.2d 587, 589-90 (9th Cir.1982) (taxpayer’s civil tax appeal dismissed when he became a fugitive from justice in criminal tax case); United States ex rel. Bailey v. United States Commanding Officer of the Office of Provost *845Marshal, 496 F.2d 324, 326 (1st Cir.1974) (habeas corpus petition challenging Army regulation dismissed when appellant was absent from Army without authorization); Johnson v. Laird, 432 F.2d 77, 79 (9th Cir.1970) (habeas corpus petition seeking release from the Army as conscientious objector dismissed when appellant voluntarily absented himself from the military and was still at large). Although Felix did not, and could not, seek release from incarceration in the civil case before us, his constitutional and statutory challenges to prison disciplinary proceedings were intimately connected with his incarceration and thus bring dismissal of this related civil action within the court’s discretion.

Felix’s counsel urges that the District has waived its right to move for dismissal by waiting until after the merits of the case were briefed and argued to inform the court of Felix’s alleged escape. While we encourage counsel to inform the court of an appellant’s absence as soon as counsel learns of it so that the court may consider whether to dismiss the case before investing judicial resources addressing the merits of the case, the fact that Felix’s abscondence was brought to the court’s attention after oral argument does not preclude the District from moving to dismiss. Given the facts here, we believe it appropriate to dismiss Felix’s appeal. Although convicted defendants do not forfeit their constitutional or statutory rights upon entering a correctional facility, see Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), Felix’s unauthorized and untimely exit from incarceration has disentitled him from calling upon the resources of the court for determination of claims related to his incarceration. See Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970) (per curiam). Accordingly, the appeal is ordered dismissed.