# Smith v. Moore

> District of Columbia Court of Appeals · April 20, 2000 · 749 A.2d 132

URL: https://www.frixlaw.com/law-library/cases/9715066

## Case

- **Full name:** Wendell SMITH, Appellant, v. Margaret MOORE, Et Al., Appellees
- **Court:** District of Columbia Court of Appeals
- **Decided:** April 20, 2000
- **Citations:** 749 A.2d 132; 2000 D.C. App. LEXIS 94; 2000 WL 425788
- **Precedential status:** Published
- **Opinion:** Concurrence by Terry
- **Judges:** Terry, Schwelb, Gallagher
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9715066

## Opinion text

TERRY, Associate Judge,
concurring.
I find myself in agreement with both of my colleagues, even though they do not fully agree with each other. Judge Gallagher is entirely correct in concluding that appellant’s constitutional claims are without merit. Although appellant now says he eschews any reliance on the Fifth and Eighth Amendments, his habeas corpus petition was not so unequivocal, and even his appellate brief has constitutional overtones. See footnote 6 of Judge Schwelb’s opinion, ante at 135. I therefore join Judge Gallagher in rejecting appellant’s constitutionally based claims, whether explicit or implicit, for essentially the reasons he states.
But I also join Judge Schwelb in concluding that appellant should have had a hearing in the trial court on his petition. Above and beyond the Constitution, the applicable regulations grant to prisoners additional rights which may not lawfully be infringed. As Judge Schwelb correctly observes, ante at 135, these regulations “have the force of law, and they are binding on the District’s correctional officials.” See Abdullah v. Roach, 668 A.2d 801, 805 (D.C.1995). Because his habeas corpus petition alleged that his rights under the regulations had been violated, and because the prison authorities failed to refute those allegations in their response, the court should have held a hearing to address them. It would be premature for us to consider whether appellant is ultimately entitled to the relief he seeks, or indeed any relief at all. That remains to be seen, but at this juncture he is at least entitled to a hearing under Abdullah and similar cases.
Accordingly, I join both of my colleagues in voting to reverse the denial of appel *140 lant’s habeas corpus petition and to remand this case for further proceedings.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9715066. Public record. Not legal advice.