ARTIE DUFUR, APPELLANT v. UNITED STATES PAROLE COMMISSION, APPELLEE
No. 18-5233
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided May 20, 2022
Argued January 27, 2022
Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-00677)
Caroline A. Flynn, appointed by the court, argued the cause for amicus curiae in support of appellant. With her on the briefs were Roman Martinez and Morgan Hoffman, appointed by the court.
Marsha W. Yee, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were R. Craig Lawrence and Peter C. Pfaffenroth, Assistant U.S. Attorneys.
Before: ROGERS and PILLARD, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
Dissenting opinion by Senior Circuit Judge RANDOLPH.
I.
In 1976, Congress enacted the Parole Commission and Reorganization Act,
Under the amended parole regime, federal prisoners became eligible for parole at the Commission‘s discretion once they had served certain minimum portions of their
Congress overhauled the parole system again in 1984, amid continuing concerns about the federal parole regime. It replaced parole with supervised releаse and directed the creation of federal sentencing guidelines to make the time actually served by federal prisoners more standardized and predictable. Sentencing Reform Act of 1984,
Artie Dufur‘s criminal record culminated in a federal sentence that remains parole eligible. In the early 1970s, Dufur was convicted in state court of two murders and received a life sentence. Dufur served about five years of that life sentence and then escaped. Still at large two years later, Dufur was pulled aside for an inspection at a Canadian border checkpoint. There he shot and killed the federal customs inspector. After being convicted of the murder and of assaulting a federal officer, but before sentencing on those charges, Dufur unsuccessfully attempted another escape. During this escape attempt, an officer was injured and a fellow inmate killed. Dufur pled guilty to an additional federal charge based on his escape attempt and was sentenced to ten years to life for the murder of the customs inspector, ten years for the assault of the customs inspector, and one year for the escape attempt, all with the possibility of parole. California has issued a detainer for the remainder of Dufur‘s initial life sentences on his first two murder convictions.
Dufur became eligible for release on parole pursuant to
The Commission denied release. It found that “there is a reasonable probability that [Dufur] will commit any Federal, State or local crime,” because Dufur‘s history of escapes and of committing violence to evade authorities made him “still . . . a high risk for violent crime.” Notice of Action (July 25, 2016) (hereinafter, “Initial Decision“). The Commission “acknowledge[d]” that Dufur had “completed substantial program[m]ing including the Challenge Program in September 2009 and the Code Program,” but concluded thаt in light of “the nature and seriousness of [Dufur‘s] repetitive violent criminal behavior . . . [he] remain[s] a threat to the community” if released. Id. The Commission stated that it would review Dufur‘s case again,
Dufur filed an administrative appeal arguing, among other things, that the Commission had violated
Upon review, the Initial Decision was affirmed. Reiterating that the escаpe attempt could properly be considered because Dufur was “in custody in connection with [his] federal offense” at the time, Notice of Action on Appeal (Nov. 25, 2016) (hereinafter, “Appeal Decision“), the Appeal Decision also clarified that although
Dufur filed a civil action seeking judicial review of the denial of parole in the U.S. District Court for the District of Columbia. The Commission moved to dismiss the complaint, pursuant to
Dufur appeals. Denying summary affirmance, this court appointed Amicus Curiae to present arguments in support of Dufur, who was proceeding pro se as he had in the district court. Dufur joined the briefs submitted by Amicus, declining to submit his own briefing.1
II.
This court reviews de novo both the district court‘s dismissal of a complaint for
A.
Regarding jurisdiction, the habeas сhanneling rule requires that certain claims be asserted through a habeas petition. Davis, 716 F.3d at 662-63. Our rule derives from the Supreme Court‘s interpretation of the federal habeas corpus statute,
The dissent invokes Wolff v. McDonnell, 418 U.S. 539 (1974), but that case sheds no light on whether the district court lacked jurisdiction here and offers no support for the dissent‘s view that this court “should have ordered [Dufur‘s] claim dismissed without pronouncing on the merits,” Dis. Op. at 3. In Wolff, the habeas claims were dismissed for failure to exhaust administrative remedies, not for lack of subject matter jurisdiction. See 418 U.S. at 544, 554-55; McDonnell v. Wolff, 483 F.2d 1059, 1064 (8th Cir. 1973). For present purposes, Wolff would appear to stand for the unremarkable proposition that, where a prisoner brings a claim sounding in habeas combined with other claims, a court can dismiss the habeas claim for an appropriate reason while proceeding to rule on the merits of the other claims.
1. The Commission appears to contend on appeal that the principle of habeas сhanneling bars Dufur‘s action because the relief Dufur seeks would have the effect of shortening the duration of his confinement. Even assuming, however, that Dufur‘s claims lie “at the ‘core of habeas,‘” Davis, 716 F.3d at 662, the claims are not barred. This court and the Supreme Court have indicated that the habeas channeling rule is not a jurisdictional bar and therefore can be forfeited if a defendant fails to assert it. Muhammad, 540 U.S. at 755; Skinner v. Dep‘t of Just., 584 F.3d 1093, 1100 (D.C. Cir. 2009). And the district court here reasonably concluded based on the Commission‘s motion to dismiss that it had forfeited any habeas channeling defense. Dufur, 314 F. Supp. 3d at 16. In any event, to the extent the Commission contends the habeas channeling rule is an issue of subject matter jurisdiction, this court need not definitively resolve that
Courts construe liberally the pleadings of a pro se litigant. Estelle v. Gamble, 429 U.S. 97, 106 (1976); United States v. Palmer, 296 F.3d 1135, 1143-44 (D.C. Cir. 2002). More particularly, courts may “recharacterize” a pro se litigant‘s filing “in order to place it within a different legal category” so as to “avoid inappropriately stringent application of formal labeling requirements or to create a better correspondence between the substance of a pro se claim and its underlying legal basis.” Castro v. United States, 540 U.S. 375, 381-82 (2003) (internal citations omitted). The authority to recharacterize a pro se complaint extends to the “longstanding practice” of construing as a habeas petition a “motion that a pro se federal prisoner has labeled differently.” Id. at 377. And this court has done that, construing a complaint as a habeas petition even though it was not styled as such and proceeding to analyze it aсcording to the requirements applicable to petitions for habeas corpus. See Monk v. Sec‘y of Navy, 793 F.2d 364, 366 (D.C. Cir. 1986).
That is what the district court appropriately did here. See Dufur, 314 F. Supp. 3d at 16-17, 20. And while the dissent suggests that the district court could not have supposed it was acting as a habeas court because Rule 12(b)(6) purportedly does not apply to habeas cases, “responding to a habeas petition with a motion to dismiss is common practice,” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing Murray v. Carrier, 477 U.S. 478, 483 (1986)).2 So neither the Commission‘s filing
of a Rule 12(b)(6) motion to dismiss nor the district court‘s ruling demonstrates a consensus in the district court that the proceedings here were not in the nature of habeas corpus.
2. The Commission contends, nevertheless, that even if Dufur‘s complaint can properly be recharacterized as a habeas petition, the district court should have found Dufur‘s action barred by two habeas-specific procedural rules. First, Dufur‘s complaint dоes not comply with the “immediate custodian rule,” under which “the proper respondent” in a habeas petition “is the warden of the facility where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004); see id. at 434 (citing
But as this court has held, and as the Supreme Court has strongly suggested, the immediate custodian rule and the habeas venue rule are waivable. See Muhammad, 540 U.S. at 755; Ramsey v. U.S. Parole Comm‘n, 840 F.3d 853, 859 n.2 (D.C. Cir. 2016). The immediate custodian rule implicates personal jurisdiction, not subject matter jurisdiction; likewise, the requirement to file in the district of confinement concerns venue, not subject matter jurisdiction. Ramsey, 840 F.3d at 859 n.2. A habeas respondent thus forfeits these defenses by failing to raise them, and a district court, sua sponte, may properly decline to enforce either requirement. See id.; Chatman-Bey v. Thornburgh, 864 F.2+d 804, 813 (D.C. Cir. 1988). The Commission‘s suggestion that courts must address these rules “notwithstanding the possibility of [their] waiver,” Appellee‘s Br. 18, is meritless. The Commission never raised the immediate custodian rule in the district court, and it explicitly disclaimed any reliance on the habeas venue rule, stating that the district court could “[i]gnore” considerations of venue. Reply Mem. Supp. Mot. to Dismiss at 3-4, Dufur, 314 F. Supp. 3d 10 (No. 17-cv-677), ECF No. 13; see Mem. Supp. Mot. to Dismiss, Dufur, 314 F. Supp. 3d 10 (No. 17-cv-677), ECF No. 9. The district court deemed both arguments forfeited based on the Commission‘s complete omission of one and only glancing reference to the other, Dufur, 314 F. Supp. 3d at 17, and this court declines to disturb that reasonable conclusion. Although the Commission warns that deeming the immediate custodian and habeas venue defenses forfeited will invite forum shopping by federal prisoners, and district courts would do well to be alert to that possibility, it was the Commission‘s forfeiture that allowed Dufur aсcess to this forum. The government is a frequent and sophisticated litigant capable of enforcing its own procedural rights and defenses.
The dissent, based on the Commission‘s passing reference to the habeas venue rule in its district court briefing, concludes the Commission preserved these defenses. Yet the district court carefully analyzed the forfeiture issue, see Dufur, 314 F. Supp. 3d at 16-17, and was in the best position to assess the positions taken by the parties before it. Because the district court reasonably ruled that the Commission‘s muddled, skeletal arguments did not assert a habeas venue defense, this court has no basis to second-guess that determination. See Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019).
3. The Commission also maintains that even if it were deemed to have forfeited these defenses, and even if the district court was not required to consider thеm sua sponte when addressing the Commission‘s motion to dismiss, the district court should have dismissed Dufur‘s complaint at the screening stage because Dufur did not sue his immediate custodian in the district of his confinement. Under the Prison Litigation Reform Act of 1995,
Because the district court‘s jurisdictional analysis was correct, the court turns to the merits of Dufur‘s claims.
B.
The 1976 Parole Commission and Reorganization Act, as amended, contemplates two routes to obtaining release on parole. The first route is discretionary parole, which is available after a federal prisoner has served at least one-third of his sentence (or at least ten years, if the sentence is longer than thirty years).
Section 4206(d) provides for release after a prisoner has served a longer portion of his sentence:
Any prisoner, serving a sentence of five years or longer, who is nоt earlier released under this section or any other applicable provision of law, shall be released on parole after having served two-thirds of each consecutive term or terms, or after serving thirty years of each consecutive term or terms of more than forty-five years including any life term, whichever is earlier: Provided, however, That the Commission shall not release such prisoner if it determines that he has seriously or frequently violated institution rules and regulations or that there is a reasonable probability that he will commit any Federal, State, or local crime.
The Commission treats
Section 4207, however, directs that “[i]n making a determination under this chapter (relating to release on parole) the Commission shall consider, if available and relevant,” the following factors:
- reports and recommendations which the staff of the facility in which such prisoner is confined may make;
- official reports of the prisoner‘s prior criminal record, including a report or record of earlier probation and parole experiences;
- presentence investigation reports;
- recommendations regarding the prisoner‘s parole made at the time of sentencing by the sentencing judge;
- a statement, which may be presented orally or otherwise, by any victim of the
offense for which the prisoner is imprisoned about the financial, social, psychological, and emotional harm done to, or loss suffered by such victim; and - reports of physical, mental, or psychiatric examination of the offender.
Amicus, on Dufur‘s behalf, contends that a remand to the Commission is required because its denial of parole was based on both exceptions in
1. According to Amicus, the Commission based its decision denying parole on both
The Commission, however, never rested on the institutional rules exception. The Initial Decision referred only to the “reasonable probability” that Dufur would recidivate. See Initial Decision. The Appeal Decision upheld that determination, reasoning that the Commission was permitted to consider Dufur‘s attempted escape and his offense of conviction in assessing Dufur‘s eligibility for parole. It also observed that the Commission “could have found that [Dufur] seriously violated institution rules, by escaping on October 14, 1979.” Appeal Decision (emphasis added). That hypothetical phrasing does not suggest that the Commission viewed the Initial Decision as making or resting on any finding on the institutional rules ground, nor that the Appeal Decision purported to do so. Instead, both orders, whether read separately or in combination, are clear that the parole denial rested on the Commission‘s finding that Dufur was reasonably likely to commit another crime. Therefore, the question is whether Dufur has alleged a plausible challenge to the merits of the recidivism risk finding.
2. Judicial review of the Commission‘s parole decisions is available in habeas proceedings but must accord great deference to the Commission as the factfinder in the first instance and as the decisionmaker whom “Congress has decided ... is in the best position to determine when release is appropriate.” United States v. Addonizio, 442 U.S. 178, 189 (1979). Reviewing courts therefore consider “whethеr there is a rational basis in the record for the [Commission‘s] conclusions embodied in its statement of reasons.” Bailey v. Fulwood, 793 F.3d 127, 135 (D.C. Cir. 2015) (quoting Furnari v. U.S. Parole Comm‘n, 531 F.3d 241, 247-48 (3d Cir. 2008)). “Parole authorities deprive an offender of due process only if their decisions are ‘either totally lacking in evidentiary support or [are] so irrational as to be fundamentally unfair.‘” Ford v. Massarone, 902 F.3d 309, 321 (D.C. Cir. 2018) (alteration in original) (quoting Duckett v. Quick, 282 F.3d 844, 847 (D.C. Cir. 2002)).
Dufur contends that the Commission both exceeded its statutory discretion and
First, the Commission was permitted to consider the nature and seriousness of Dufur‘s offense when it made this decision pursuant to
The design of
The legislative history of the parole statute underscores this reading of the text. See Sierra Club v. EPA, 353 F.3d 976, 988 & n.1 (D.C. Cir. 2004). The Conference Report on the 1976 Parole Act noted that the “nature and circumstances of the offense” and the record of “institutional behavior” are the two “most significant [factors] in making equitable release determinations” under
In a similar vein, the absence of a reference to the nature and seriousness of the offense criterion from
Second, the Commission did not rest its decision solely on the nature of Dufur‘s offense. Amicus maintains that even if the Commission was not wholly precluded from considering Dufur‘s offense and criminal history, it could not rest solely on those factors, because that would effectively nullify the judgment of the sentencing court. Amicus Br. 43-44. In looking only at Dufur‘s offense conduct and criminal history, Amicus maintains, the Commission converted Dufur‘s sentence to one of lifе without the possibility of parole because the die was cast before Dufur ever began serving his federal sentence and no amount of good behavior could alter the Commission‘s thinking. And the Commission also acted contrary to the statutory scheme, Amicus maintains, because
The Commission did not limit its inquiry solely to the nature and seriousness of the offense of conviction and Dufur‘s criminal history. Rather, the Commission acknowledged and assessed Dufur‘s record of good behavior and rehabilitation while incarcerated. In particular, the Commission noted in its Initial Decision that Dufur had “completed substantial programming including the Challenge Progrаm in September 2009 and the Code Program,” and weighed those positive efforts against “the nature and seriousness of [Dufur‘s] repetitive violent criminal behavior,” including Dufur‘s attempted escape while in federal custody for this offense. Initial Decision. On balance, the Commission concluded that there remained a reasonable probability that Dufur would reoffend. Id. Given the deference owed to the Commission, the court cannot conclude that the Commission‘s balancing exceeded its wide discretion to determine whether there was a “reasonable probability,” if released at that time, “that [Dufur would] commit any Federal, State, or local crime.”
Third, the Commission‘s findings were not irrational by failing to account in the Initial Decision for the substantial body of social-science research showing that individuals of Dufur‘s age are unlikely to recidivate. Amicus Br. 44-47. The Commission was well aware of Dufur‘s age. Its failure to reference explicitly the “aging out of crime” phenomenon, see Appellant‘s Br. 45, hardly rendered its decision “so irrational as to be fundamentally unfair,” Ford, 902 F.3d at 321 (internal quotation marks omitted). In Ford, the court upheld a Cоmmission order denying parole against a due process challenge where the parole candidate‘s criminal record included three murders, one of which he broke into prison to commit. Id. at 321. Dufur‘s similar record provided the Commission a rational basis to find he was reasonably likely to reoffend.
Fourth, the Commission‘s decision to deny release was not irrational for omitting that Dufur has an outstanding life sentence awaiting him in California when it determined that his release posed “a threat to the community.” Initial Decision. Amicus has not pointed to any authority suggesting that the Commission was required to assume that the State of California would enforce its detainer whereby Dufur would resume serving his state prison sentence. Further, although the Initial Decision phrased the finding in terms of “a threat to the community,” the statutоry exception requires only that the Commission address whether a parole candidate is reasonably likely to commit another crime, so Amicus‘s focus on whether Dufur would endanger “the community” is misplaced. As Dufur‘s record demonstrates, moreover, it is possible to commit a crime while imprisoned.
Accordingly, because the district court had subject matter jurisdiction over Dufur‘s complaint and could properly conclude that Dufur has not plausibly alleged that the decision to deny parole was irrational or contrary to the parole statute, as amended, the court affirms the dismissal of the complaint.
RANDOLPH, Senior Circuit Judge, dissenting,
This should have been a rather straightforward appeal but I am afraid the majority opinion has turned it upside down, inside out and back to front.
Artie Dufur is serving a life sentence for murder. He was confined in a federal prison in West Virginia at the time he filed his habeas petition but has now been moved to a federal prison in California. Dufur sued the United States Parole Commission in the United States District Court for the District of Columbia.1 His complaint alleged that the Parole Commission violated its regulations and deprived him of due process at his last parole hearing. The district court rejected those claims in a well-reasoned opinion. Dufur v. U.S. Parole Comm‘n, 314 F. Supp. 3d 10, 21-26 (D.D.C. 2018). Dufur has not appealed that aspect of the court‘s judgment.
Dufur‘s complaint also presented one other claim: that the Parole Commission erred in deciding that he was not entitled to immediate release from confinement pursuant to
Precedent of the Supreme Court dictates that rather than deciding Dufur‘s immediate-release claim on the merits, this court and the district court should have simply dismissed it.
Here is the law. When a federal prisoner challenges his imprisonment and “success on the merits will ‘shorten its duration,‘” Davis v. U.S. Sentencing Comm‘n, 716 F.3d 660, 666
(D.C. Cir. 2013) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)), his sole remedy is a writ of habeas corpus. Id. In a habeas case, the prisoner must bring his petition against the “warden of the facility where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004); Al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir. 2004). This requirement, reflecting habeas corpus tradition (id.), is embodied in the statutes governing habeas proceedings for federal prisoners (
Therefore, with respect to Dufur‘s claim for immediate release, he invoked the wrong cause of action in the wrong court against the wrong defendant.
Wolff v. McDonnell, 418 U.S. 539 (1974), thus controls the disposition of this appeal. As here, the prisoner in Wolff brought a civil action combining what amounted to a habeas claim with claims dealing with procedural due process. Id. at 553. As to the claim sounding in habeas (restoration of good-time credit), the Supreme Court affirmed the Eighth Circuit‘s dismissal of the claim as one on which relief could not be granted,3 but held that the other claims were properly before the district court and the
court of appeals. Id. at 554-55. Dufur‘s case presents the same situation. Dufur had a habeas claim and, as in Wolff, our court should have ordered the claim dismissed without pronouncing on the merits.4
This brings me to the majority‘s contention that the Parole Commission “explicitly disclaimed any reliance on the habeas venue rule, stating that the district court could ‘[i]gnore’ considerations of venue.” Maj. Op. at 11. There are two things wrong with this astounding assertion. The first is that the Parole Commission did just the opposite - it explicitly relied on lack of habeas venue. In support of its motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Parole Commission wrote: “[T]o the extent that Dufur‘s substantive due process claim rests upon his misinterpretation of mandatory parole as requiring his release by September 24, 2016, that is a claim that sounds in habeas . . .” and “[t]his [c]ourt is an improper
The second thing wrong with the majority‘s assertion perhaps explains its mistakes. The Parole Commission did not state, as the majority supposes, that “the district court could ‘[i]gnore’ considerations of venue.” Maj. Op. at 11 (emphasis
added). The word “ignore” appears only in a caption to the Commission‘s reply memorandum in the district court. The caption refers only to Dufur‘s venue claims, not to considerations of venue in general, as the majority thinks. The caption read: “The Court May Ignore Dufur‘s . . . Venue Argument[].” R. Doc. 13, at 4. What was Dufur‘s venue argument? That the court should not transfer the case to West Virginia nor dismiss the case without prejudice for lack of venue. But the Parole Commission was not advocating a transfer. Nor was the Commission arguing for a dismissal without prejudice. The Commission was urging an outright dismissal under Rule 12(b)(6) because Dufur sued the wrong person in the wrong court.
The majority opinion аlso asserts that the Parole Commission waived an objection to personal jurisdiction. Maj. Op. at 10-11. This too is inscrutable. It would perhaps make sense if Dufur had sued the West Virginia warden in Washington, D.C. and the warden failed to object to the lack of personal jurisdiction. But Dufur‘s suit in D.C. was against the Parole Commission; the Parole Commission is headquartered in D.C.; and it was properly served in D.C. The Commission could hardly have waived an objection to personal jurisdiction when it had no objection to waive.
One final note. There is a suggestion in the majority opinion that the district court thought it was acting as a habeas court. Maj. Op. at 8-9. That is not an accurate depiction of what the district court stated. See Dufur, 314 F. Supp. 3d at 20. The giveaway is this: Rule 12(b)(6) does not apply in habeas cases.5 See Browder v. Dir., Dep‘t of Corrections of Ill., 434 U.S. 257, 269 n.14 (1978); Banister v. Davis, 140 S. Ct. 1698, 1714-15 (2020) (Alito, J., dissenting).
The procedural rules governing Dufur‘s habеas claim can be found in