United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
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). 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. Dkt. 9.
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.
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
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.
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).
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.
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
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).
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.
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).
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.
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
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.
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.
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