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Dufur v. U.S. Parole Commission

United States District Court, District of Columbia

May 24, 2018

ARTIE DUFUR, Plaintiff,



         This case presents the question whether mandatory parole in the federal prison system is mandatory. It is not. That counterintuitive result understandably led Plaintiff Artie Dufur, a pro se prisoner who is serving a parole-eligible federal life sentence, to challenge the decision of Defendant United States Parole Commission (“the Commission”) denying him parole. Dkt. 1 at 2-3 (Compl. ¶¶ 2-3, 5). As relevant here, there are two paths to parole for inmates in Dufur's position. First, the Commission applies a “two-thirds” rule for what it terms mandatory parole. Under that rule, the Commission is required to release an eligible prisoner, “serving a sentence of five years or longer, ” after the prisoner has served two-thirds of his sentence or after serving thirty years of a sentence of “more than forty-five years.” 18 U.S.C. § 4206(d).[1] The mandatory parole rule, however, is subject to exceptions; among other things, it does not apply if the Commission determines “that there is a reasonable probability that [the prisoner] will commit any Federal, State, or local crime.” Id. Second, the Commission also possesses the discretion, subject to certain exceptions, to parole inmates who have served at least one-third of their sentence, or ten years in the case of a life sentence. 18 U.S.C. § 4205. Dufur's principal claim is that the Commission's recent decision to deny him mandatory parole violated various statutory, regulatory, and constitutional provisions. He also alleges that the Commission's earlier decisions denying him discretionary parole were unlawful. The Commission has moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.[2] Dkt. 9.

         For the reasons explained below, the Court agrees with Commission that Dufur has failed to state a claim. The Court will, accordingly, GRANT the Commission's motion, Dkt. 9, and will DISMISS the case.

         I. BACKGROUND

         On a motion to dismiss, the Court accepts the plaintiff's “well-pleaded factual allegations” as true. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court also considers “any documents either attached to or incorporated in the complaint and matters” subject to judicial notice. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). The Court may, as a result, consider the three administrative decisions attached to Dufur's complaint. The Court may also consider the copies of Dufur's administrative appeal and amended administrative appeal, which are attached to the Commission's motion to dismiss. Although those latter documents were not attached to the complaint, they are referred to in it and are “integral to [the plaintiff's] claim.” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015) (quoting Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004)); see also Dkt. 1 at 4-5, 6-7 (Compl. ¶¶ 7, 10-11); id. at 10. More importantly, Dufur does not object to the Commission's reliance on these documents and, indeed, relies on them himself. See Dkt. 11 at 5 n.1. Under these circumstances, the Court concludes that it may rely on Dufur's administrative appeal and amended administrative appeal, which in any event only further explicate Dufur's claims, “without converting the motion into one for summary judgment.” Banneker Ventures, 798 F.3d at 1133.

         The events giving rise to Dufur's claims date back to the 1970s, when Dufur was serving a life sentence in California state prison for a double murder. Dkt. 1 at 9, 11. Dufur escaped in 1977, id. at 2-3 (Compl. ¶ 4); id. at 9, and eventually made his way to Canada, Dkt. 1 at 2-3 (Compl. ¶ 4). On May 24, 1979, Dufur entered the United States “at a customs check point on the Canadian border near Lynden, Washington.” United States v. Dufur, 648 F.2d 512, 513 (9th Cir. 1980); Dkt. 1 at 2-3 (Compl. ¶ 4). After refusing to submit to a search by a United States Customs inspector, Dufur drew a firearm and shot the inspector to death. Dkt. 1 at 2-3 (Compl. ¶ 4). Dufur was apprehended and, on September 17, 1979, found guilty of first-degree murder of the inspector and armed assault on another federal officer. Id. (Compl. ¶ 5). On October 14, 1979, before he was sentenced on that conviction, he escaped from King County Jail in Seattle, Washington, where he was being held on the federal charges. Id. at 11-12. During the course of the second escape, he attempted to murder additional law enforcement officers, id., and another inmate was killed, id. at 9. After his apprehension, Dufur pleaded guilty to further charges, including escaping custody while awaiting sentencing. Id. at 3 (Compl. ¶ 5). He was sentenced on October 17, 1979, on these new charges and the prior murder and assault charges to a minimum of ten years and a maximum of life with the possibility of parole. Id. (Compl. ¶ 5).

         On June 22, 2004, the Commission calculated that Dufur would become eligible for mandatory parole on September 24, 2016. Id. at 11. The Commission also set a hearing for June 2006. Id. at 12. The record reveals no details about that proceeding, next referencing a May 25, 2016 parole hearing to consider Dufur's eligibility for mandatory parole. Id. at 3 (Compl. ¶ 6). After that hearing, the Commission concluded that Dufur should not be paroled because of the risk that he would commit a crime in the future, id. at 3-4 (Compl. ¶ 6), one of the enumerated exceptions in the mandatory parole statute, 18 U.S.C. § 4206(d). Specifically, the Commission determined that “there [was] a reasonable probability that [Dufur would] commit [a] Federal, State or local crime.” Dkt. 1 at 3-4 (Compl. ¶ 6). It “still viewed” Dufur “to be a high risk for violent crime on the basis of [(1)] the evidence that[, ] while serving a prison sentence[, ] [he] coordinated [an] [e]scape from prison custody for [himself] and other inmates[, ] which resulted in the death of an inmate and injury to a law enforcement officer, ” and (2) the evidence that he previously “murder[ed] a U.S. Border Patrol Agent . . . after . . . escap[ing] from California [s]tate [c]ustody while serving another sentence for murder.” Id. (Compl. ¶ 6). The Commission recognized that Dufur had “completed substantial program[m]ing” in prison, but found that “the nature and seriousness of [his] violent criminal behavior indicate[d] to the Commission that [he] remain[ed] a threat to the community if” he were to be paroled. Id. (Compl. ¶ 6). The Commission set a further hearing for June 2018, at which time it will once again review Dufur's eligibility for mandatory parole. Id. (Compl. ¶ 6).

         Dufur appealed that decision to the Commission's National Appeals Board. Id. at 4-5 (Compl. ¶ 7). In that setting, he argued that the Commission (1) lacked “jurisdiction” over his escape from federal custody in 1979 because it occurred prior to the imposition of a sentence on the federal changes; (2) violated 28 C.F.R. § 2.14(b)(4)(i) by using the state and federal escapes to deny mandatory parole after having previously used those escapes to deny discretionary parole in 1989; and (3) violated 18 U.S.C. § 4206(d) by failing to grant him mandatory parole despite a “sentence expiration date of” September 24, 2016. See Dkt. 9-1 at 3-5, 8-10. He later amended his appeal, dropping the references to violations of Commission regulations and supplementing his other arguments. Id. at 7-9.

         On November 25, 2016, the National Appeals Board affirmed the Commission's earlier decision denying mandatory parole. Dkt. 1 at 10. The Board first rejected Dufur's argument that it could “not take into account [his] escape on October 14, 1979, because it occurred before [he was] federally sentenced.” Id. As the Board explained, Dufur was in federal custody at the time of his escape, and, indeed, that period of federal custody “was credited towards [his] federal sentence.” Id. The Board also rejected Dufur's argument that he was denied mandatory parole in violation of 18 U.S.C. § 4206(d). Id. Although recognizing that § 4206(d) gives rise to “a presumption of mandatory parole release, ” the Board observed that, “if the Commission finds, after a hearing, that there is a reasonable probability that [a prisoner] would commit any crime if released, or that [a prisoner] ha[s] frequently or seriously violated institution rules, it ‘shall not release such prisoner.'” Id. (quoting 18 U.S.C. § 4206(d)). The Board also concluded that it “could have found that [Dufur] seriously violated institution rules[] by escaping” in 1979. Id. Finally, the Board did not address Dufur's initial contention that the Commission had violated 28 C.F.R. § 2.14(b)(4)(i), presumably having determined that Dufur had abandoned the argument in his amended appeal. Dkt. 9 at 3 n.2.

         Dufur brought the present action on April 17, 2017, seeking (1) a declaratory judgment that the Commission violated its regulations and the Due Process Clause of the Fifth Amendment in denying him parole; and (2) an order directing that the Commission conduct a new parole hearing. Dkt. 1 at 7 (Relief Requested). He advances several theories as to why he is entitled to this relief. First, Dufur claims that the Commission violated § 4206(d) by failing to release him after he reached his mandatory parole date. Id. at 3-5 (Compl. ¶¶ 6-7); id. at 7 (Compl. ¶ 11). Second, he argues that the Commission violated 18 U.S.C. §§ 4161, 4163, 4205, and 4206(a) by denying him discretionary parole “at previous hearings.” Id. at 7 (Compl. ¶ 11). Third, he argues that the Commission violated its own regulations by considering his original offense conduct and violations of prison regulations that occurred in 2001 when denying him discretionary parole in 2004 and mandatory parole in 2016. Id. at 4-6 (Compl. ¶¶ 7-9); id. at 7 (Compl. ¶ 11). Fourth, he asserts that the Commission violated its regulations regarding victim interest statements by considering statements by law enforcement groups when denying him mandatory parole in 2016. Id. at 6-7 (Compl. ¶¶ 10-11). Fifth, he claims that the Commission violated his substantive and procedural due process rights, both when it denied him mandatory parole in 2016 and when it previously denied him discretionary parole. Id. at 7 (Compl. ¶ 11).

         The Commission moves to dismiss on the ground that Dufur has failed to state a claim upon which relief can be granted. See Dkt. 9. It first asserts that he has not alleged a due process violation because the denial of parole does not implicate any protected liberty interest. Id. at 3- 6. Second, the Commission argues that Dufur has not stated a claim for violation of 18 U.S.C. §4206(d) because “mandatory” parole is not really mandatory. Id. at 6-7. Third, it contends that none of the regulations Dufur cites were actually violated. Id. The Commission does not address in detail Dufur's contention that its earlier denials of discretionary parole violated Commission regulations or additional statutory provisions beyond 18 U.S.C. § 4206(d) because “his complaint fails to provide any factual content regarding such previous parole hearings or decisions, including the relevant dates and whether he filed any administrative appeal.” Id. at 3.


         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is designed to “test[] the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating such a motion, the Court “must first ‘tak[e] note of the elements a plaintiff must plead to state [the] claim' to relief, and then determine whether the plaintiff has pleaded those elements with adequate factual support to ‘state a claim to relief that is plausible on its face.'” Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015) (alterations in original) (internal citation omitted) (quoting Iqbal, 556 U.S. at 675, 678). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to ‘state a claim to relief that is plausible on its face, '” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Finally, pleadings filed by pro se litigants are held to less stringent standards than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

         III. ANALYSIS

         Dufur's allegations broadly fall into three categories: violations of statutes, violations of regulations, and violations of the Constitution. Before turning to these issues, however, the Court must consider whether Dufur's claims sound in habeas and, if so, whether and how that affects the Court's authority to adjudicate them.

         The courts have long held that claims “lying at the ‘core' of the writ must be brought in habeas.” Aamer v. Obama, 742 F.3d 1023, 1037 (D.C. Cir. 2014) (citing Preiser v. Rodriguez, 411 U.S. 475, 498 (1973), and more recent cases). Over time, the D.C. Circuit came to interpret what lies at the “core” of the writ more capaciously in cases brought by federal prisoners than in cases brought by state prisoners. With respect to cases brought by state prisoners, the court adopted a relatively narrow “channeling” rule requiring a claim to “first be brought in habeas only when, if successful, it would ‘necessarily imply, ' or automatically result in, a speedier release from prison.” Anyanwutaku v. Moore, 151 F.3d 1053, 1056 (D.C. Cir. 1998). In Razzoli v. Federal Bureau of Prisons, 230 F.3d 371 (D.C. Cir. 2000), in contrast, the court applied a more expansive channeling rule to claims brought by federal prisoners, id. at 375-76. Under that rule, a federal prisoner was required to proceed in habeas not only “when, if successful, ” the prisoner's claim “would necessarily imply . . . a speedier release from prison, ” but also when success would have “a merely probabilistic impact on the duration of custody.” Id. at 375 (internal quotation marks omitted). The D.C. Circuit overruled Razzoli in 2013, however, and thereby aligned the rules applicable to state and federal prisoners. See Davis v. U.S. Sentencing Comm'n, 716 F.3d 660 (D.C. Cir. 2013). Under the now prevailing rule, a federal prisoner, like a state prisoner, “need bring his claim in habeas only if success on the merits will ‘necessarily imply the invalidity of confinement or shorten its duration.'” Id. at 666 (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)).

         Although this rule is clear, it does not neatly map on to Dufur's claims. Consistent with the post-Razzoli rule, Dufur at times states that he “is not requesting this Court to order his release on parole” and, instead, is asking only that the Court order the Commission to hold a further “hearing to decide if he can be released to his California detainer to begin serving [his state-law] life sentence.” Dkt. 11 at 3 (emphasis omitted). But, at other times, he seems to press claims that, if successful, would “necessarily . . . shorten [the] duration” of his sentence. He asserts, for example, that his “federal sentences have been satisfied and by law the [Bureau of Prisons] must process the [California] detainer.” Id. at 5.

         This lack of clarity is resolved, in part, by contours of the Commission's motion to dismiss, which does not invoke the channeling defense and which makes only glancing reference to the habeas venue rules. As an initial matter, the Court concludes that the habeas channeling rule is not jurisdictional in the sense that the Court has a duty to consider the defense sua sponte. Rather, the rule is a prudential one, which was established by the courts to ensure that prisoners do not evade the procedural requirements that Congress has enacted to govern habeas proceedings. See, e.g., Preiser, 411 U.S. at 489-90; Aamer, 742 F.3d at 1031-32; Davis, 716 F.3d at 662-63. The relevant habeas procedural rules, moreover, are either inapplicable in this case or are themselves subject to waiver. Were the Court to treat this case as an action sounding in habeas, two procedural hurdles would likely apply. First, the immediate custodian rule requires that a habeas petitioner name as the respondent “the person who has custody over him.” 28 U.S.C. § 2242; see also Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). Here, Dufur has named the Commission and not the warden of the prison where he is held. Second, the territorial jurisdiction rule requires “that the court issuing the writ have jurisdiction over the custodian.” Padilla, 542 U.S. at 442 (citation omitted). Neither of those requirements, however, limits the subject matter jurisdiction of the federal district courts, and both requirements-like venue and personal jurisdiction-are subject to waiver, at least where the named respondent “is fully capable of granting the requested relief.” See Lane v. United States, No. 14-731, 2015 WL 6406398, at *3-7 (D.D.C. Oct. 21, 2015). The question, then, is whether the Commission has waived the channeling rule and, by implication, the immediate custodian and territorial jurisdiction rules.

         The Commission's motion to dismiss makes no mention of the channeling rule or of the immediate custodian rule. For the most part, moreover, it does not challenge venue (or, in other words, territorial jurisdiction) and, indeed, expressly disavows that venue is at issue. Dkt. 13 at 3-4. But, despite that concession, and seemingly at odds with it, the Commission also states the following in both its opening and reply briefs: “[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 because it seeks to shorten the duration of his ...

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