Artie Dufur v. USPC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 27, 2022 Decided May 20, 2022

No. 18-5233

ARTIE DUFUR,

APPELLANT

v.

UNITED STATES PAROLE COMMISSION,

APPELLEE

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.

2

Opinion for the Court by Circuit Judge ROGERS.

Dissenting opinion by Senior Circuit Judge RANDOLPH.

ROGERS, Circuit Judge: Upon escaping from a California

state prison where he was serving a life sentence for two

murders, Artie Dufur killed a federal law enforcement officer.

After his conviction for that murder, he led several other

inmates in another attempted escape. A federal district judge

sentenced Dufur to life in prison in 1979, and he has now served

more than forty years of that sentence. Dufur sued the United

States Parole Commission, alleging that the Commission

violated his due process rights and exceeded its statutory

discretion when it denied him parole in 2016. This court

concludes that although the district court had subject matter

jurisdiction to consider the merits of Dufur’s claims, Dufur has

not plausibly alleged that the Commission exceeded its

statutory discretion or violated his constitutional right to due

process. Accordingly, the district court’s dismissal of his

complaint is affirmed.

I.

In 1976, Congress enacted the Parole Commission and

Reorganization Act, Pub. L. No. 94-233, 90 Stat. 219 (1976),

citing “almost universal dissatisfaction with the parole process

at the beginning of [the 1970s],” H.R. REP. NO. 94-838, at 20

(1976) (hereinafter, “Conf. Rep.”). The Act codified revisions

to the federal parole process that had met with success when

implemented administratively, including, “most importantly,

the promulgation of guidelines to make parole less disparate

and more understandable.” Id. It created the United States

Parole Commission “as an independent agency in the

Department of Justice,” 18 U.S.C. § 4202, to “promulgate rules

and regulations establishing guidelines for” parole

3

determinations, id. § 4203(a)(1), and to “grant or deny an

application or recommendation to parole any eligible prisoner,”

id. § 4203(b)(1).

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 sentence, id.

§ 4205, based on the Commission’s evaluation of their

behavior record while incarcerated, their offense conduct and

criminal record, and whether release would “promote

disrespect for the law” or “jeopardize the public welfare,” id.

§ 4206(a). Upon serving a significant portion of a longer

sentence, the statute provided that a prisoner “shall be released

on parole” unless the Commission finds that the prisoner “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.” Id. § 4206(d). By contrast with

discretionary parole, this provision was intended to provide

“more liberal criteria for release on parole.” Conf. Rep., at 27.

Congress overhauled the parole system again in 1984,

amid continuing concerns about the federal parole regime. It

replaced parole with supervised release 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, Pub. L. No. 98-

473, 98 Stat. 1987; see Tapia v. United States, 564 U.S. 319,

323–25 (2011). The provisions of the 1976 Parole Act,

however, remained in effect for federal prisoners sentenced

under that regime. See Howard v. Caufield, 765 F.3d 1, 2 n.1

(D.C. Cir. 2014); Pub. L. No. 116-159, § 4202, 134 Stat. 709,

741 (2020).

Artie Dufur’s criminal record culminated in a federal

sentence that remains parole eligible. In the early 1970s, Dufur

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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

18 U.S.C. § 4206(d) on September 24, 2016. Prior to that date,

the Commission held a parole hearing to determine whether

either of the two § 4206(d) exceptions — frequent or serious

violations of institution rules or a reasonable probability of

recidivism — applied to Dufur. At the hearing, Dufur testified

that he had accepted responsibility for the death of the officer

and the escape attempt and that he reflects daily about the

impact of his actions and feels sorrow and shame.

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

5

2009 and the Code Program,” but concluded that 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, pursuant to § 4206(d), in about two years’

time.

Dufur filed an administrative appeal arguing, among other

things, that the Commission had violated § 4206(d) in denying

him parole since he had served enough time to qualify for

release and had a clean disciplinary record dating as far back as

2001. He also argued that the Commission was not permitted

to deny a § 4206(d) release based on the nature of the original

offense and should not have considered the postconviction

escape attempt because he had been separately convicted and

sentenced for that offense.

Upon review, the Initial Decision was affirmed.

Reiterating that the escape 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 § 4206(d) is commonly

referred to as providing for “mandatory parole,” it in fact offers

only “a presumption of mandatory parole release,” provided the

Commission finds that neither of the two statutory exceptions

applies. Id. In Dufur’s case, the Commission had “found there

was a reasonable probability that [Dufur] would commit a

Federal, State, or local crime if released.” Id. “In addition,”

the Appeal Decision stated, “the Commission could have found

that [Dufur] seriously violated institution rules, by escaping on

October 14, 1979.” Id.

Dufur filed a civil action seeking judicial review of the

denial of parole in the U.S. District Court for the District of

6

Columbia. The Commission moved to dismiss the complaint,

pursuant to Federal Rule of Civil Procedure 12(b)(6), on the

ground that Dufur had not plausibly alleged a due process

violation, “because the denial of parole does not implicate any

protected liberty interest,” and that he had not plausibly alleged

a violation of § 4206(d), “because ‘mandatory’ parole is not

really mandatory.” Dufur v. U.S. Parole Comm’n, 314 F. Supp.

3d 10, 15 (D.D.C. 2018). The district court considered, sua

sponte, the implications for its subject matter jurisdiction of

“whether Dufur’s claims sound in habeas and, if so, whether

and how that affects the Court’s authority to adjudicate them.”

Id. at 16. The court explained that the habeas channeling rule

requires prisoners to “proceed in habeas” if “success on the

merits will ‘necessarily imply the invalidity of confinement or

shorten its duration.’” Id. (quoting Davis v. U.S. Sent’g

Comm’n, 716 F.3d 660, 666 (D.C. Cir. 2013)). Even assuming

Dufur’s claims sounded in habeas, the district court concluded

that “the habeas channeling rule is not jurisdictional in the

sense that the Court has a duty to consider the defense sua

sponte.” Id. If it were to treat Dufur’s claims as seeking habeas

relief, the court ruled that the applicable procedural rules were

waivable and were in fact forfeited by the Commission, which

did not raise them in its motion to dismiss. Id. at 17. On the

merits, the district court ruled that Dufur had not plausibly

alleged that the Commission violated either Dufur’s due

process rights or § 4206(d), id. at 19–20, 26, and dismissed the

complaint, id. at 27.

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

7

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 failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6), Daniel v. Fulwood,

766 F.3d 57, 61 (D.C. Cir. 2014), and its subject matter

jurisdiction analysis, see Am. Hosp. Ass’n v. Azar, 895 F.3d

822, 825 (D.C. Cir. 2018). For the following reasons, this court

finds no error in the district court’s jurisdictional analysis or its

conclusion on the merits.

A.

Regarding jurisdiction, the habeas channeling 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, 28 U.S.C.

§ 2254, beginning with Preiser v. Rodriguez, 411 U.S. 475

(1973). In Preiser, the Court held that a prisoner may not

challenge “the fact or duration of his confinement” in a civil

action brought under 42 U.S.C. § 1983 because habeas actions

are subject to additional procedural requirements not applicable

to other civil actions. Id. at 489. Allowing prisoners to bring

§ 1983 suits that effectively challenge the validity of their

convictions or the duration of their incarceration would create

a workaround to the habeas requirements. Id. at 489–90.

Rather, the sole remedy for assertedly unlawful incarceration is

through habeas corpus. Id. In a series of cases, the Court has

refined this rule to identify the relief at “the core of habeas

corpus” that must be brought in a habeas petition. Wilkinson v.

1

The court appreciates court-appointed Amicus’s assistance in this

appeal.

8

Dotson, 544 U.S. 74, 82 (2005) (quoting Preiser, 411 U.S. at

489); see Skinner v. Switzer, 562 U.S. 521, 533–36 (2011);

Muhammad v. Close, 540 U.S. 749, 754–55 (2004); Heck v.

Humphrey, 512 U.S. 477, 480–87 (1994).

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 channeling 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 question. Even if the channeling

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defense were not or could not be forfeited by the Commission,

the district court treated Dufur’s complaint as seeking habeas

relief, analyzed it as such, and determined that the

government’s habeas-specific defenses were either forfeited or

affirmatively waived by the Commission.

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

according 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

2

See Rules Governing Section 2254 Cases in the United States

District Courts, R. 5, 28 U.S.C. following § 2254, advisory

10

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 does 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 28 U.S.C. § 2242). Second, Dufur violated the habeas

venue rule, which requires habeas petitions to be filed in “the

district of confinement.” Id. at 443.

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.2d 804, 813 (D.C. Cir. 1988). The

Commission’s suggestion that courts must address these rules

committee’s note to 2004 amendment (acknowledging the practice

of responding to a habeas petition with a “pre-answer motion to

dismiss the petition” and noting that “revised Rule 4 permits that

practice”); 16A Federal Procedure, Lawyers’ Edition § 41:370 (“The

respondent has the option of responding to a habeas corpus petition

by way of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or a

motion for summary judgment under Fed. R. Civ. P. 56.”).

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“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 access 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 them sua sponte when

addressing the Commission’s motion to dismiss, the district

court should have dismissed Dufur’s complaint at the screening

12

stage because Dufur did not sue his immediate custodian in the

district of his confinement. Under the Prison Litigation Reform

Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321–66 (1996)

(codified as amended in scattered sections of 11, 18, 28, and 42

U.S.C.), courts screen prisoner civil suits soon after they are

docketed, dismissing a prisoner’s complaint if it is “frivolous,”

“malicious,” “fails to state a claim upon which relief can be

granted,” or “seeks monetary relief from a defendant who is

immune from such relief.” 28 U.S.C. § 1915A(b). Although

district courts “may use the occasion of section 1915A review

to dismiss” a case on other grounds, Thompson v. DEA, 492

F.3d 428, 439 (D.C. Cir. 2007) (emphasis added), such as the

immediate custodian rule, they are not required to do so, and

the Commission has identified no authority suggesting that a

mistaken non-dismissal at the screening stage can be reversible

error. Moreover, if the district court overlooks a defect in a

prisoner’s complaint in its screening analysis, then the

defendant may bring the defect to the court’s attention in a

motion to dismiss. The Commission neglected to do so here.

Finally, the Commission maintains that the district court

should have transferred the case to the appropriate district

court. But as the Commission itself recognizes, transferring

venue would be the next logical step after concluding that

venue was inappropriate in this district, an issue the court did

not reach because the Commission forfeited it. Dufur, 314 F.

Supp. 3d at 16–17, 17 n.3.

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

13

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). 18 U.S.C. § 4205(a). After that time, the Parole

Commission has discretion to grant parole to “an eligible

prisoner” who “has substantially observed the rules of the

institution” provided the Commission determines that “release

would not depreciate the seriousness of his offense or promote

disrespect for the law” and that “release would not jeopardize

the public welfare.” Id. § 4206(a). The second route is so-

called “mandatory parole” under § 4206(d).

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 not 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 § 4206 as creating a rebuttable

presumption in favor of parole. See Appeal Decision; see also

Bruscino v. True, 708 F. App’x 930, 935 (10th Cir. 2017)

(unpublished). Section 4206(d) creates two exceptions to

“mandatory” parole: The presumption in favor of release is

rebutted, and the Commission “shall not” release a prisoner

14

otherwise eligible for parole under this provision, if it finds

either that he has “seriously or frequently violated institution

rules” or that “there is a reasonable probability that he will

commit any Federal, State, or local crime.” 18 U.S.C.

§ 4206(d). Section 4206(d) does not provide a list of factors

for the Commission to consider in determining whether a

parole candidate has violated institution rules or is likely to

recidivate.

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:

(1) reports and recommendations which the staff

of the facility in which such prisoner is confined

may make;

(2) official reports of the prisoner’s prior

criminal record, including a report or record of

earlier probation and parole experiences;

(3) presentence investigation reports;

(4) recommendations regarding the prisoner’s

parole made at the time of sentencing by the

sentencing judge;

(5) 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

[(6)] reports of physical, mental, or psychiatric

examination of the offender.

15

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 § 4206(d) and it now declines to defend

one of them. Alternatively, Amicus contends that even under

the deferential standard of review that applies to Commission

decisions, the denial of parole to Dufur should be reversed on

the merits.

1. According to Amicus, the Commission based its

decision denying parole on both § 4206(d) exceptions, finding

that Dufur was reasonably likely to recidivate and that he had

seriously violated institution rules. Affirming the Initial

Decision denying parole, the Appeal Decision reiterated that

Dufur was reasonably likely to recidivate and also observed

that “the Commission could have found that [Dufur] seriously

violated institution rules, by escaping on October 14, 1979.”

Appeal Decision. Amicus maintains that if either ground is

infirm, then the entire decision must be set aside because the

order did not make clear whether one ground alone would

suffice to support the denial of parole. Amicus Br. 50–51. And

because the Commission on appeal has not sought to defend

the denial of parole on grounds of a serious violation of

institution rules, Amicus maintains a remand is required.

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

16

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 “whether 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 violated his constitutional right to due

process in finding there was a reasonable probability he would

commit another crime. Amicus Br. 41–50. None of the four

reasons offered in support of those claims is persuasive.

First, the Commission was permitted to consider the

nature and seriousness of Dufur’s offense when it made this

17

decision pursuant to § 4206(d). 18 U.S.C. § 4207 provides that

when making parole determinations, the Commission “shall

consider, if available and relevant,” information including

“official reports of the prisoner’s prior criminal record,” as well

as any victim impact statement or presentence investigation

report, both of which necessarily reflect on the nature and

seriousness of the offense. Those factors are to be applied to

determinations “under this chapter,” 18 U.S.C. § 4207, not

merely to discretionary parole decisions under § 4206(a).

The design of § 4206(d), Amicus states, renders those

factors not “relevant,” id. § 4207, to so-called mandatory parole

determinations because the statute contemplates parole even

for those serving life sentences, who presumably committed the

most serious offenses. Considering that factor in the parole

process thus unfairly ignores that the sentencing judge already

weighed the seriousness of the offense and concluded that a

sentence without the possibility of parole was not warranted.

Reply Br. 20–21. Yet the plain meaning of the phrase “if . . .

relevant” is that the Commission need not always consider

every listed factor; it is a leap to read that innocuous phrase as

suggesting that some of the factors are categorically irrelevant

in certain kinds of cases. Typically, evidence is deemed

relevant if “it has any tendency to make a [material] fact more

or less probable than it would be without the evidence.” FED.

R. EVID. 401. Here, § 4206(d) and § 4207, when read together,

mandate an analysis of the probability of recidivism, and the

nature of the offense of conviction is at least sometimes

relevant to the probability that a parole candidate will commit

another crime. Undoubtedly, a goal of the federal parole

regime was to encourage and reward rehabilitation, and a

parole candidate’s record while incarcerated is highly relevant

to whether there is a reasonable probability they will recidivate.

See Conf. Rep., at 25. Yet Congress viewed rehabilitation as a

relative matter, id., and allowed the Commission more readily

18

to find a reasonable probability of recidivism where a parole

candidate’s history demonstrates a pattern of repeated violent

conduct than where a candidate’s offense was isolated or

nonviolent. Nor does the structure of § 4206(d), which the

Commission treats as establishing a rebuttable presumption in

favor of parole, require the Commission to ignore the nature of

the offense. The presumption simply orders the analysis:

release on parole is available, unless the candidate’s

disciplinary record or risk of reoffending persuades the

Commission otherwise.

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 § 4206 as a whole. Id. at 25; see Sierra

Club, 353 F.3d at 988 n.1. According to the Report, § 4206(d)

was designed to provide “more liberal criteria for release on

parole,” not entirely different criteria for release on parole

compared to § 4206(a). See Conf. Rep., at 27 (emphasis added).

So while the balance shifts toward favoring parole for prisoners

having served a significant portion of a long sentence, the

factors relevant to discretionary parole determinations,

including the nature and seriousness of the offense, are not

necessarily beyond the appropriate analysis. Rather, Congress

intended that “in making each parole determination, [the

Commission] shall recognize and make a determination as to

the relative severity of the prospective parolee’s offense.” Id.

at 25 (emphasis added). The Commission did so here and

stated that it would reweigh the contours of Dufur’s case at

regular intervals. Initial Decision; see Dufur v. U.S. Parole

Comm’n, No. 18-2156, 2020 WL 2198049, at *2 (D.D.C. May

6, 2020).

19

In a similar vein, the absence of a reference to the nature

and seriousness of the offense criterion from § 4206(d) — as

compared to § 4206(a), which explicitly directs the

Commission to consider that factor — does not indicate that

Congress intended to preclude the Commission from

considering it in mandatory parole determinations. Section

4206(d) offers no criteria for the Commission to consider in

evaluating whether a parole candidate is “reasonabl[y]” likely

to recidivate or has “seriously or frequently” violated prison

rules, so the absence of that particular criterion is not especially

noteworthy. More likely, Congress intended the

comprehensive listing in § 4207 to apply to determinations

under § 4206(d). See Johnson v. U.S. Parole Comm’n, 419 F.

App’x 438, 439 (5th Cir. 2011) (per curiam) (unpublished).

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 life 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

§ 4206(d) applies even to the most serious offenses, which

suggests that mandatory parole ought not be denied solely

because of the seriousness of the offense.

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

20

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 Program 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.” 18 U.S.C.

§ 4206(d). Nor was the Commission “irrational,” Ford, 902

F.3d at 321, to conclude that any factors suggesting a decreased

risk of recidivism paled in comparison to Dufur’s criminal

record, which includes three murders, a successful escape, and

another escape attempt in which others were killed and injured.

Thus, the court has no occasion to decide whether the

Commission would have violated due process had it given no

consideration to Dufur’s record while incarcerated and denied

parole based solely on his pre-sentencing conduct.

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

Commission order denying parole against a due process

21

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 statutory 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 18 U.S.C.

§ 4206(d). The district court upheld the Parole Commission’s

decision on the merits of this claim, Dufur, 314 F. Supp. 3d at

19–21, and now the majority opinion does the same. Maj. Op.

at 12–21.

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

1

Dufur invoked federal question jurisdiction (28 U.S.C. § 1331),

mandamus (28 U.S.C. § 1361) and the All Writs Act (28 U.S.C.

§ 1651(a)).

2

(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 (28

U.S.C. §§ 2242, 2243). The third prerequisite for bringing a

habeas corpus action naturally follows: the prisoner must file his

habeas petition in the district of his confinement. Padilla, 542

U.S. at 443.2

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

2

“Requiring prisoners to litigate where they are confined . . . not

only distributes business among the district courts and circuits but also

allows important issues to percolate through multiple circuits before

the Supreme Court must review a disputed question.” Al-Marri, 360

F.3d at 710.

3

Relief could not be granted on the habeas claim in Wolff because

the state prisoners there had not exhausted their state remedies. See

McDonnell v. Wolff, 483 F.2d 1059, 1064 (8th Cir. 1973).

3

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 venue

for any habeas claim because Dufur is not in custody in this

District.” R. Doc. 9, at 5; see also R. Doc. 13, at 5 (reply mem.)

(repeating this sentence). Thus, Dufur had – in the words of

Rule 12(b)(6) – failed “to state a claim upon which relief can be

granted.” That is how the Supreme Court has described

defective habeas claims. See, e.g., Heck v. Humphrey, 512 U.S.

477, 486–87 (1994); Preiser v. Rodriguez, 411 U.S. 475, 500

(1973).

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

4

That the Parole Commission’s brief on appeal did not cite Wolff

is of no moment. A federal court must consider a precedent that has

come to the court’s attention before its final decision. See Elder v.

Holloway, 510 U.S. 510, 516 (1994).

4

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 also 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

5

The Federal Rules of Civil Procedure “apply to proceedings for

habeas corpus” only “to the extent that the practice in those

proceedings . . . is not specified in a federal statute.” Fed. R. Civ. P.

5

U.S. 257, 269 n.14 (1978); Banister v. Davis, 140 S. Ct. 1698,

1714–15 (2020) (Alito, J., dissenting).

81(a)(4)(A). The procedural rules governing Dufur’s habeas claim

can be found in 28 U.S.C. § 2243, because his habeas claim is one that

must be brought under 28 U.S.C. § 2241. See Habeas Relief for

Federal Prisoners, 31 ANN. REV. CRIM. PROC. 1981, 1981–82 n.2676

(2002) (“A § 2241 petition must be used to challenge actions of the

U.S. Parole Commission in connection with a prisoner’s sentence.”).

Those rules do not include anything about waiver of the habeas venue

rule. In fact, section 2241 explicitly limits the ability of district courts

to issue writs of habeas corpus only “within their respective

jurisdictions.”