Brian A. DAVIS, Appellant v. UNITED STATES SENTENCING COMMISSION, Appellee.
No. 11-5264.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 12, 2013. Decided May 28, 2013.
716 F.3d 660
In a similar case, the Eighth Circuit held that it lacked jurisdiction under
Accordingly, because the injunction against the Service serves no function beyond the remand order, and pursuant to County of Los Angeles this court must ignore the injunction for jurisdictional purposes, we dismiss Sunflower‘s appеal for lack of jurisdiction. We thus can express no position on the merits of the injunction or Sunflower‘s contention that the Sierra Club‘s case was moot when filed. “If we lack jurisdiction, we cannot vacate the district court‘s order for lack of jurisdiction because we lack the power to do so.” Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1328, 2013 WL 1729598, at *8 (D.C. Cir. April 23, 2013).
Brian A. Davis, pro se, filed the brief for appellant.
Alan Burch, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge, and GINSBURG, Senior Circuit Judge.
GRIFFITH, Circuit Judge:
Appellant Brian Davis was sentenced to prison for crimes involving powder and crack cocaine before Congress and the Sentencing Commission took steps to reduce the disparity in sentencing ranges between the two. Unfortunately for Davis, these efforts were directed at crimes involving lesser amounts of cocaine than his. In a suit that seeks declaratory relief and possibly damages, Davis claims that these efforts violate the Equal Protection Clause because they do not rеach his crimes. This appeal does not take up the merits of Davis‘s claims, but their form. The district court dismissed his suit on the ground that the only relief available to Davis is in habeas. For the reasons set forth below, we reverse.
I
For years, the Sentencing Guidelines treated one gram of cocaine base, commonly known as “crack cocaine,” the same as one hundred grams of powder cocaine. See Dorsey v. United States, — U.S. —, 132 S.Ct. 2321, 2327-28, 183 L.Ed.2d 250 (2012). This 100-to-1 ratio came in for heavy criticism from many quarters, and both Congress and the Sentencing Commission took steps to reduce the sentencing disparities it created. Id. at 2328-29. In 2007, the Commission issued Amendment 706, which lowered base offense levels for crimes involving less than 4.5 kg of crack cocaine.
In 1993, Davis was convicted of conspiracy to possess with intent to distribute and the distribution of powder and crack cocaine. The sentencing court assigned him a base offense level of 42, which at the time applied to offenses involving 15 kg or more оf crack cocaine. The court sentenced Davis to life imprisonment. Davis has sought relief from this sentence, but because neither Amendment 706 nor Amendment 750 applies to offenses involving 15 kg or more of crack cocaine, they are of no help to him. In fact, a district court has twice denied his attempts to reduce his sentence under Amendment 706. He did find some relief elsewhere. In 2008, the district court reduсed his sentence from life to 360 months based on an unrelated amendment to the Guidelines.
In 2011, Davis brought this pro se lawsuit seeking relief under the
The question before us is whether he has selected the proper vehicles for his equal protection challenges. Neither the Declaratory Judgment Act nor Bivens has carried Davis far. Even before the Commission had answered Davis‘s complaint, the district court dismissed his claims for lack of jurisdiction under
II
We first consider whether Davis must bring his equal protection challenge by means of a habeas petition. The answer turns on whether his claim for relief is at the “core of habeas.” The Supreme Court has held that Congress has channeled state prisoners’ claims for relief—however styled—into habeas alone if the prisoners seek a remedy that is at the “core of habeas.” See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 79, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). In order to
The modern habeas-channeling rule emerged in Preiser v. Rodriguez, when the Supreme Court held that a prisoner may not challenge “the fact or duration of his confinement” by means of an action brought under
Wе applied Preiser‘s habeas-channeling rule fifteen years later in Chatman-Bey v. Thornburgh, 864 F.2d 804, 808-10 (D.C.Cir. 1988) (en banc). That case was distinguishable from Preiser in two ways. First, it involved a federal, not state, prisoner. Id. at 808-09. Second, that prisoner would not necessarily secure an earlier release if he succeeded on the merits of his claim. Success on the merits would have won him nothing more than an earlier appointment with the parole bоard, which retained discretion to deny him parole. Id. at 809. We saw no legal significance in either distinction. With regard to the first distinction, we noted that channeling federal prisoners’ claims into habeas raised even fewer concerns than channeling state prisoners’ claims because federal prisoners have greater access to federal courts. Id. (citing Preiser, 411 U.S. at 501, 93 S.Ct. 1827 (Brennan, J., dissenting)). Regarding the second distinction, we explained that “Preiser cannot ... be limited to [claims that] would result in immediate release or a definite reduction in the actual amount of time to be spent in prison.” Id. Preiser taught us that “Congress’ provision of an express remedy for unlawful detentions means” that it intended prisoners to rely on that remedy exclusively. Id. This intention covered all claims relating to terms of detention, we reasoned, including Chatman-Bey‘s claim “that he [was] being deprived of the chance to secure his release.” Id.
Both Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), the next two Supreme Court cases to apply Preiser‘s habeas-channeling rule, involved state prisoners whose successful claims would, like those of the prisoners in Preiser, result in earlier or immediate release. Heck, 512 U.S. at 479-80, 114 S.Ct. 2364; Balisok, 520 U.S. at 648, 117 S.Ct. 1584. Each decision described the rule in terms that cast doubt on our view, expressed in Chatman-Bey, that its scopе extended beyond claims for immediate release or a definite reduction in the length of imprisonment. In both cases, the Court stated that a prisoner must bring his claim in habeas if “a judgment in [his] favor ... would necessarily imply the invalidity of his conviction or sentence....” Heck, 512 U.S. at 487, 114 S.Ct. 2364 (emphasis added); Balisok, 520 U.S. at 643, 117 S.Ct.
In Anyanwutaku v. Moore, we relied on the fact that the plaintiffs in Heck and Balisok were state prisoners to hold that prisoners in the custody of the District of Columbia are required tо bring their claims in habeas only when success on the merits would “necessarily imply, or automatically result in, a speedier release from prison.” 151 F.3d 1053, 1056 (D.C.Cir. 1998) (internal quotation marks omitted). The Anyanwutaku habeas-channeling rule for District prisoners was narrower than the Chatman-Bey rule for federal prisoners. It channeled into habeas only claims that would guarantee a speedier release from prison. The Anyanwutаku panel distinguished Chatman-Bey on the basis that it “dealt expressly with federal prisoners.” Id. at 1057. In light of this distinction, the panel declined to “decide whether Chatman-Bey ha[d] any continuing vitality after Heck and Balisok.” Id. As a result, we were left with a narrow habeas-channeling rule for state and District prisoners and a broad rule for federal prisoners.
Two years later, we were required to confront the issue Anyanwutaku “left open“—Chatman-Bey‘s “continuing vitality after Heck and Balisok.” Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371, 375 (D.C.Cir. 2000) (quoting Anyanwutaku, 151 F.3d at 1057). Razzoli involved a federal prisoner who brought an action challenging the decision of the United States Parole Commission to delay his eligibility for parole by two years. Razzoli, 230 F.3d at 373. Because success on the merits would entitle Razzoli to earlier consideration for parole, but not necessarily earlier release from prison, the rule in Chatman-Bey required him to seek relief in habeas, but the rule in Anyanwutaku did not. Deciding that Heck and Balisok had not “flatly contradicted” the Chatman-Bey holding, id. at 375, we held that a federal prisoner must still bring his claim in habeas even when success on the merits “would have a merely probabilistic impact on the duration of custody.” Id. at 373.
Davis does not dispute that, under our decision in Razzoli, he must bring his equal protection challenge by means of a habeаs petition even though his claim has only a “probabilistic impact on the duration of custody.” If his equal protection challenge succeeds, Davis is at best one step closer to an earlier release from prison. A victory would not secure his immediate release or even a reduction in his time served because the district court would retain discretion to deny him any sentence reduction under
Seeking to avoid the force of Razzoli, Davis argues instead that two Supreme Court decisions—Wilkinson and Skinner—have undermined its reasoning. As Davis points out, we are not bound by circuit precedent that has been “eviscerated by subsequent Supreme Court cases.” Dellums v. U.S. Nuclear Regulatory Comm‘n, 863 F.2d 968, 978 n. 11 (D.C.Cir. 1988).
The Razzoli court offered four reasons for its decision to retain Chatman-Bey‘s broader habeas-channeling rule for federal prisoners instead of taking direction from Heck and Balisok. 230 F.3d at 375-76. First, both Heck and Balisok involved claims that would have a definite impact on the duration оf custody, and the Supreme Court had yet to decide whether a “proba
Because three of these four reasons are no longer sound, we overturn Razzoli. Like Razzoli, the state prisonеrs in Wilkinson v. Dotson challenged their parole eligibility dates, and success on the merits of their claims would not necessarily have resulted in earlier release. 544 U.S. at 76-77, 125 S.Ct. 1242. Confronting such “probabilistic” claims for the first time, the Supreme Court held that they need not be brought in habeas. Claims that “will not necessarily imply the invalidity of confinement or shorten its duration” are not at the “core” of habeas and therefore may be pursued through other causes of action. Id. at 82, 125 S.Ct. 1242 (emphasis added). After Wilkinson, the Seventh Circuit no longer channels “probabilistic” claims into habeas. See, e.g., Grennier v. Frank, 453 F.3d 442, 444 (7th Cir. 2006).
In Skinner v. Switzer, the Supreme Court suggested that habeas might not even be available for “probabilistic” claims, undercutting another reason for the Razzoli rule. — U.S. —, 131 S.Ct. 1289, 1299, 179 L.Ed.2d 233 (2011) (“Switzer has found no case ... in which the Court has recognized habeas as the sole remedy, or even an available onе, where the relief sought would neither terminate[ ] custody, accelerate[ ] the future date of release from custody, nor reduc[e] the level of custody.” (quoting Wilkinson, 544 U.S. at 86, 125 S.Ct. 1242 (Scalia, J., concurring)) (alterations in original)). In other words, “probabilistic” claims may not even lie within the bounds of habeas, much less at its core. If habeas is not even “proper” for claims with only a probabilistic impact on custody, see Razzoli, 230 F.3d at 375, it could not be the case that Congress intended that prisoners asserting such claims should be limited to habeas.
Because they involve state prisoners, Wilkinson and Skinner leave untouched the Razzoli panel‘s final reason for adopting a broad habeas-channeling rule for federal prisoners: the concentration in the D.C. Circuit of the agencies commonly named in federal prisoner actions. See Razzoli, 230 F.3d at 376. Wе hold that this reason is not strong enough, standing alone, to support the continued use of the Razzoli rule. Statutes and rules governing venue are adequate to protect the interests of justice in other cases. See Starnes v. McGuire, 512 F.2d 918, 929-33 (D.C.Cir. 1974) (en banc). We see no reason they cannot work just as well here. Anxiety over case congestion cannot foreclose a remedy created by Congress, as with the Declaratory Judgment Act, or by the Constitution, as with Bivens.
Because the Supreme Court has knocked out three of the pillars on which Razzoli rests, we now allow that holding to fall.2 Adopting Wilkinson‘s habeas-channeling rule, we hold that a federal prisoner need bring his claim in habeas only if success on the merits will “necessarily imply the invalidity of confinement or shorten its duration.” Wilkinson, 544 U.S. at 82, 125 S.Ct. 1242. Otherwise, he may bring his claim through a variety of causes of action.3 And so it is with Davis. Success with his equal protection challenges to Amendment 706 or Amendment 750 will not “necessarily imply the invalidity of [his] confinement or shorten its duration.” Id. Success would do no more than allow him to seek a sentence reduction, which the district court retains the discretion to deny.
III
The district court also dismissed Davis‘s Bivens action for lack of subject matter jurisdiction because it found the claim “patently insubstantial.” Davis, 812 F.Supp.2d at 2. We disagree with that finding. We have cautioned that “patently insubstantial” presents an especially high bar for dismissing a claim for lack of subject matter jurisdiction and is no substitute for a dismissal on the merits under Rule 12(b)(6). Best v. Kelly, 39 F.3d 328, 330-31 (D.C.Cir. 1994). Patently insubstantial claims must be “essentially fictitious,” consisting of such things as “bizarre conspiracy theories, ... fantastic government manipulations of [the claimant‘s] will or mind, [or] supernatural intervention.” Id. at 330.
Davis‘s complaint is admittedly flawed under Bivens, and possibly fatally so. He does not identify an individual federal officer, and he does not request damages. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (stating that Bivens recоgnizes a cause of action for damages against federal officers in their personal capacity). But Davis‘s claim, flawed though it may be, is not based on plainly fictitious allegations, and his pleading errors may be corrected through the liberal construction or amendment we are accustomed to providing a pro se prisoner. Of course, his claim might also be dismissed for failure to state a сlaim. We take no view on that matter. What we do determine, however, is that the district court had jurisdiction to take up the merits of his inartfully pled Bivens claim.
IV
For the foregoing reasons, we reverse the district court‘s dismissal of Davis‘s complaint and remand for further proceedings consistent with this opinion.
So ordered.