Dufur v. U.S. Parole Comm'n

• Decision Date: 20 May 2022
• Docket Number: 18-5233
• Citation: 34 F.4th 1090
• Parties: Artie DUFUR, Appellant v. UNITED STATES PAROLE COMMISSION, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

34 F.4th 1090

Artie DUFUR, Appellant

v.UNITED STATES PAROLE COMMISSION, Appellee

No. 18-5233

United States Court of Appeals, District of Columbia Circuit.

Argued January 27, 2022

Decided May 20, 2022

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.

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 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, 131 S.Ct. 2382, 180 L.Ed.2d 357 (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 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 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 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 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 ...