Davis v. United States Sentencing Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 12, 2013 Decided May 28, 2013

No. 11-5264

BRIAN A. DAVIS,

APPELLANT

v.

UNITED STATES SENTENCING COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-01433)

Robert S. Silverblatt, Student Counsel, argued the cause as

amicus curiae in support of appellant. With him on the briefs

were Steven H. Goldblatt, appointed by the court, Nilam A.

Sanghvi and Rita K. Lomio, Supervising Attorneys, and Roshni

J. Patel, Student Counsel.

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.

2

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 reach 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 (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. U.S. SENTENCING GUIDELINES MANUAL amend.

706 (2011). Then, in response to the Fair Sentencing Act of

2010, Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372, the

Commission issued Amendment 750, which reduced the ratio

to 18-to-1 for crimes involving less than 8.4 kg of crack

cocaine. U.S. SENTENCING GUIDELINES MANUAL app. C,

amend. 748 (temporarily reducing the ratio); id., amend. 750

3

(making Amendment 748 permanent). The Commission made

both amendments retroactive, U.S.S.G. § 1B1.10(c), allowing

inmates convicted based on the old sentencing ranges to seek

discretionary sentence reductions under 18 U.S.C.

§ 3582(c)(2).

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 of 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 reduced 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 Declaratory Judgment Act, 28 U.S.C. § 2201(a), and

Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971). This latest resort to the courts

differs from his previous efforts. Davis does not request a

sentence modification pursuant to 18 U.S.C. § 3582(c)(2).

Instead, he seeks a declaration that Amendments 706 and 750

deny him equal protection of the laws because they fail to

reduce the sentencing disparity for defendants convicted of

crimes involving higher quantities of crack cocaine. Only if

Davis succeeds on the merits will the sentencing reductions in

Amendments 706 and 750 be made applicable to his offense,

allowing him to seek a discretionary reduction of his sentence

under 18 U.S.C. § 3582(c)(2).

4

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 Federal Rule of Civil Procedure 12(h)(3). Davis v. U.S.

Sentencing Comm’n, 812 F. Supp. 2d 1, 1 (D.D.C. 2011).

Declaratory relief was unavailable, the court held, because “an

adequate remedy is available by petitioning the sentencing

court for a writ of habeas corpus.” Id. at 2 (citations omitted).

And Davis’s Bivens action was “patently insubstantial”

because he neither sued an individual nor requested damages.

Id. (internal quotation marks omitted). Davis appealed, and we

appointed an amicus to brief and argue the case on his behalf.1

We have jurisdiction under 28 U.S.C. § 1291, and review the

district court’s dismissal de novo. Doe v. Metro. Police Dep’t,

445 F.3d 460, 465 (D.C. Cir. 2006).

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 (2005)

(quoting Preiser v. Rodriguez, 411 U.S. 475, 487 (1973)). In

order to determine whether Davis, a federal prisoner, must

bring his equal protection challenge by means of a habeas

1

From this point forward, references to Davis’s arguments

mean those made by the amicus on his behalf. We appreciate the

amicus counsel’s able assistance in this case.

5

petition, this court must resolve two interrelated questions:

Does the scope of the habeas-channeling rule differ for federal

and state prisoners? And is the rule for federal prisoners so

broad that it includes equal protection challenges to Guidelines

amendments?

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 42 U.S.C. § 1983. 411 U.S.

at 489. The state prisoners in Preiser alleged that their period

of incarceration had been unlawfully extended when the New

York State Department of Correctional Services revoked their

good-conduct credits towards early release. Id. at 476-77. The

Court held that Congress set out the procedures prisoners must

follow to attack their confinement in the habeas statute. To

allow them to pursue release by other means would frustrate

the intent of Congress. Id. at 489-90.

We 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

board, 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 (Brennan, J., dissenting)). Regarding the second

distinction, we explained that “Preiser cannot . . . be limited to

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[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 (1994), and

Edwards v. Balisok, 520 U.S. 641 (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; Balisok, 520 U.S.

at 648. Each decision described the rule in terms that cast doubt

on our view, expressed in Chatman-Bey, that its scope

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 (emphasis added); Balisok, 520 U.S. at 643 (quoting

Heck, 512 U.S. at 487).

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 to 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

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from prison. The Anyanwutaku 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 contradict[ed]” 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

habeas 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 § 3582(c)(2) even if he were to prevail on his

equal protection challenge. See Dillon v. United States, __ U.S.

8

__, 130 S. Ct. 2683, 2691-92 (2010). Under Razzoli, that

makes no difference for federal prisoners. Razzoli channels

their claims into habeas based on the possibility of an earlier

release, not on its certainty. See Razzoli, 230 F.3d at 373.

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 of custody, and the Supreme Court had yet to decide

whether a “probabilistic” claim like Razzoli’s “need be

brought in habeas.” Id. at 375. Second, the Razzoli panel

reasoned that habeas cannot be exclusive if it is not available,

and habeas is at least available for “probabilistic” claims. Id.

Third, the Seventh Circuit had interpreted Preiser, Heck, and

Balisok to call for habeas-channeling even of “probabilistic”

claims. Id. at 376. Fourth, the Supreme Court had yet to decide

a habeas-channeling case that involved federal prisoners,

leaving the panel without guidance on whether the distinction

between federal and state prisoners was significant. The panel

decided it was significant because extending Anyanwutaku’s

narrower rule to federal prisoners might lead to congestion in

the D.C. Circuit. The habeas statutes require prisoners to bring

their petitions in the places they are imprisoned or were

sentenced. This works to distribute prisoners’ cases across the

nation. By contrast, many other federal prisoner causes of

action could be brought in the D.C. Circuit, where many of the

9

federal agencies that might be defendants, like the

Commission, are found. Id.

Because three of these four reasons are no longer sound,

we overturn Razzoli. Like Razzoli, the state prisoners 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. Wilkinson, 544 U.S. at 76-77.

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 (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 (2011) (“Switzer has found no case . . . in

which the Court has recognized habeas as the sole remedy, or

even an available one, where the relief sought would neither

terminat[e] custody, accelerat[e] the future date of release from

custody, nor reduc[e] the level of custody.” (quoting

Wilkinson, 544 U.S. at 86 (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.

10

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.

We 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.

Acknowledging the weakness of the venue consideration,

Appellee’s Br. 30, the Commission insists that there is another

distinction between state and federal prisoners that justifies

Razzoli’s broader habeas-channeling rule for federal prisoners:

They have readier access to federal courts. Appellee’s Br.

19-30. The Commission argues that Razzoli’s broader rule

would not be appropriate for state prisoners because the high

procedural barriers of the habeas statute would undermine

§ 1983’s policy of providing access to federal courts for

victims of state abuses of civil rights. This argument does not

amount to much. It might be true that a broad

habeas-channeling rule would be inappropriate for state

prisoners, but this argument does not explain why a narrow

habeas-channeling rule is not also appropriate for federal

prisoners. Our decision in this case will neither advance nor

inhibit § 1983’s policy. Federal prisoners are unlikely to bring

claims arising from their imprisonment by means of this

statute, which creates a cause of action against individuals

acting under color of state or District of Columbia law. The

11

Commission’s reasoning does not justify perpetuating

Razzoli’s distinction between state and federal prisoners.

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. 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. 18 U.S.C.

§ 3582(c)(2). His claim for declaratory relief avoids the

habeas-channeling rule we announce today, and its dismissal

was improper. In so holding, we take no position on whether

2

In so doing, we acknowledge that a prior panel of this court

reaffirmed Razzoli in the wake of Wilkinson. See Davis v. Fed.

Bureau of Prisons, 334 Fed. App’x 332 (D.C. Cir. 2009). Because it

was unpublished, while that decision is precedential, it is not binding

on this panel. See In re Grant, 635 F.3d 1227, 1232 (D.C. Cir. 2011).

Moreover, it issued before the Supreme Court’s decision in Skinner

further undermined Razzoli.

3

Our decision to reject the distinction between state and federal

prisoners for the purposes of habeas-channeling is consistent with

the congruity the Supreme Court has generally recognized in the area

of habeas. For example, in Davis v. United States, the Court held that

the grounds for habeas relief are the same for state and federal

prisoners. 417 U.S. 333, 344 (1974); see also Wilkinson, 544 U.S. at

87 (Scalia, J., concurring) (expressing concerns about creating

habeas incongruity between state and federal prisoners).

12

dismissal for failure to state an equal protection claim might

otherwise be proper.

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 Correctional

Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (stating that

Bivens recognizes 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 claim. 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.

13

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.