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BOYER v. CONABOY

November 5, 1997

RONALD LEWIS BOYER, Plaintiff,
v.
RICHARD P. CONABOY, CHAIRMAN, UNITED STATES SENTENCING COMMISSION, et al., Defendants.



The opinion of the court was delivered by: KOLLAR-KOTELLY

 Ronald Boyer, pro se, petitions the Court for a writ of mandamus to compel the United States Sentencing Commission ("Commission") to amend retroactively its guidelines to omit conspiracy as a predicate offense from the "career offender" enhancement provision. Pending before the Court are the Commission's Motion To Dismiss and Plaintiff's opposition thereto. Because Boyer's action attacks the legitimacy of his sentence and seeks a corresponding reduction in its terms, the Court holds that he must proceed exclusively by habeas corpus. See 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997); Preiser v. Rodriguez, 411 U.S. 475, 486-87, 93 S. Ct. 1827, 1834-35, 36 L. Ed. 2d 439 (1973); Chatman-Bey v. Thornburgh, 274 U.S. App. D.C. 398, 864 F.2d 804, 808-09 (D.C. Cir. 1988). Accordingly, Defendant's Motion To Dismiss is granted.

 I. BACKGROUND

 In 1989, a federal grand jury returned a three-count indictment against Boyer, which charged him with two counts for distributing cocaine in excess of sixty-three grams and one count for conspiracy to possess more than five-hundred grams of cocaine. *fn1" The government dropped the first two counts after plea negotiations deteriorated. At trial, Judge William Stiehl presiding, a jury convicted Boyer of the conspiracy offense.

 During sentencing, Boyer's prior convictions for three counts of armed robbery and one count of second-degree murder were considered two relevant prior convictions. Judge Stiehl aggregated these two prior convictions with the conspiracy-to-possess conviction to render Boyer a "career offender" under § 4B1.1. of the United States Sentencing Guidelines ("Guidelines"). Based on this calculus, the district court sentenced Boyer to 216 months in prison and a four-year term of supervised release.

 The Seventh Circuit Court of Appeals affirmed Boyer's conviction, see United States v. Boyer, 931 F.2d 1201 (7th Cir. 1991), and the Supreme Court denied certiorari, see United States v. Boyer, 502 U.S. 873, 112 S. Ct. 209, 116 L. Ed. 2d 167 (1991). Boyer subsequently filed his first habeas corpus proceeding pursuant to 28 U.S.C. § 2255. In an unpublished opinion, the Seventh Circuit affirmed the district court's denial of Boyer's § 2255 motion. See Boyer v. United States, 989 F.2d 502 (7th Cir. 1993) (text of opinion provided in Westlaw at 1993 WL 83488). Boyer then filed a second § 2255 motion, which asserted that the Commission unlawfully exceeded its delegated authority when it included conspiracy as a predicate offense to the Guidelines' career-offender enhancement provision. The impetus for Boyer's renewed habeas action was this Circuit's decision in United States v. Price, 301 U.S. App. D.C. 97, 990 F.2d 1367 (D.C. Cir. 1993), which held that 28 U.S.C. § 994(h) did not authorize the Commission to classify an individual as a career offender based on a conspiracy conviction. *fn2" See 990 F.2d at 1370. The Seventh Circuit once again affirmed the lower court's decision to deny Boyer's § 2255 motion; this time for his failure to raise the argument during his previous appeals. See Boyer v. United States, 55 F.3d 296, 300 (7th Cir. 1995). The Supreme Court denied certiorari. See Boyer v. United States, 516 U.S. 904, 116 S. Ct. 268, 133 L. Ed. 2d 190 (1995).

 Styled as a "Complaint Pursuant to 28 U.S.C. § 1331 for Declaratory and Injunctive Relief," Boyer filed his pro se Complaint in this Court on February 7, 1996. Although he omitted reference to it in his Complaint, Boyer has indicated in his Opposition to the Defendants' Motion To Dismiss that the Court should construe his Complaint as one seeking a writ of mandamus pursuant to 28 U.S.C. § 1361.

 II. DISCUSSION

 This Court will not grant a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). At this stage in the litigation, "the complaint must be 'liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 199 U.S. App. D.C. 23, 617 F.2d 605, 608 (D.C. Cir. 1979). Accordingly, the Court assumes that all factual allegations forwarded by the Complaint are true for purposes of adjudicating a motion to dismiss. See Doe v. United States Dep't of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C. Cir. 1985).

 Boyer's Complaint must be dismissed because, notwithstanding Plaintiff's novel and creative litigation strategy, his action sounds exclusively in habeas corpus. The Court will first reaffirm a principle that has unwaveringly governed federal-court practice for almost a quarter-century: that a prisoner who attacks the legality or duration of his sentence must proceed by habeas corpus. Second, the Court will refute Boyer's claim that his habeas remedy is sufficiently ineffective and inadequate to justify his present mandamus action.

 A. Prisoners mounting challenges to the legality of their sentences must proceed by 28 U.S.C. § 2255.

 In Chatman-Bey v. Thornburgh, 274 U.S. App. D.C. 398, 864 F.2d 804 (D.C. Cir.1988), this Circuit, sitting en banc, held that where "habeas is an available and potentially efficacious remedy, it is clear beyond reasonable dispute that mandamus will not appropriately lie." 864 F.2d at 806. This decision borrowed extensively from the logic and rationale of the Supreme Court's opinion in Preiser v. Rodriguez, 411 U.S. 475, 486-87, 93 S. Ct. 1827, 1834-35, 36 L. Ed. 2d 439 (1973), which held that state prisoners who challenged the lawfulness of their confinement had to proceed in habeas. From Preiser, this Circuit extrapolated the following general rule of federal-court practice: "As a matter of Congressional intent, prisoners mounting a challenge to the lawfulness of their custody are to proceed by means of habeas." Chatman-Bey, 864 F.2d at 809.

 By contesting the Commission's authority to promulgate Guidelines that render conspiracy a predicate offense for the career-offender enhancement, Boyer is attacking the legality of his sentence. Section 2255 explicitly provides a prisoner in federal custody with a remedy by which to test the legality of his sentence:

 
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violations of the Constitution or laws of the United States . . . or is otherwise subject to collateral attack, may move the ...

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