United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided November 2, 2001
No. 00-5422
Michael Bourke,
Appellee
v.
Kathleen M. Hawk-Sawyer,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 99cv02960)
---------
On Motion for Summary Reversal
---------
Wilma A. Lewis, U.S. Attorney at the time the motion was
filed, and R. Craig Lawrence and W. Mark Nebeker, Assis-
tant U.S. Attorneys, were on the motion for summary rever-
sal filed by appellant Kathleen M. Hawk-Sawyer.
Michael Bourke, pro se.
Before: Ginsburg, Chief Judge; Henderson and Garland,
Circuit Judges.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge: The question presented by this
appeal is whether a federal prisoner claiming the Bureau of
Prisons unlawfully declared him ineligible to be considered
for a reduction of sentence may challenge that determination
by a petition for mandamus. We hold that he may not; a
writ of habeas corpus is the exclusive remedy for such a
claim.
Appellee Michael Bourke was convicted in the United
States District Court for the District of Hawaii of violating 18
U.S.C. s 922(o)(1) (possession of a machine gun), and 21
U.S.C. s 841(a) (possession of a controlled substance).
Bourke is serving his sentence in a federal prison in Texas.
Bourke sought a reduction of his sentence pursuant to 18
U.S.C. s 3621(e)(2)(B), which authorizes the Bureau of Pris-
ons to grant a one-year reduction of sentence to a nonviolent
offender who has successfully completed a qualified substance
abuse program. The BOP determined that Bourke was not
eligible to be considered for a sentence reduction because the
possession of a machine gun is, in its view, a crime of violence.
Bourke filed in the United States District Court for the
District of Columbia a petition for writ of mandamus in which
he challenged the BOP's determination. In response the
Director of the Bureau argued that the case must be dis-
missed without prejudice or transferred to the United States
District Court for the Northern District of Texas because
Bourke is required to proceed by way of a habeas petition,
and must therefore file his petition in the jurisdiction of his
confinement. The district court held that Bourke need not
bring his claim in habeas because Bourke did not seek early
release but merely the opportunity to be considered for early
release. Accordingly, the district court addressed the merits
of Bourke's claim and granted judgment in his favor. The
Director appealed and moved this court for summary reversal
on the ground that, because Bourke's sole remedy is a habeas
petition in the jurisdiction of his confinement, the district
court here lacked jurisdiction.
At the time the district court rendered its decision, the law
of this circuit was somewhat unclear regarding whether a
federal prisoner is required to proceed by a petition for
habeas corpus where a judgment in his favor would not
necessarily or immediately result in his earlier release, but
would set in motion a process that will have that consequence
if he prevails. In Chatman-Bey v. Thornburgh, 864 F.2d 804,
808-10 (D.C. Cir. 1988) (en banc), this court had held that a
federal prisoner seeking to challenge his parole eligibility
date was required to proceed in habeas, even though success
upon his claims would not necessarily result in his earlier
release. Later, however, in Anyanwutaku v. Moore, 151
F.3d 1053, 1055-57 (D.C. Cir. 1998), we permitted a District
of Columbia prisoner to challenge his parole eligibility date in
a suit for damages under 42 U.S.C. s 1983. In the latter
case, we relied primarily upon two Supreme Court cases,
Edwards v. Balisok, 520 U.S. 641 (1997) (holding that a state
prisoner must bring his claim in habeas only if by prevailing
he would necessarily "prove the unlawfulness of his conviction
or confinement"), and Heck v. Humphrey, 512 U.S. 477 (1994)
(same). We distinguished Chatman-Bey as involving a feder-
al prisoner--the court in Chatman-Bey had emphasized that
"what federal habeas corpus accomplishes for federal prison-
ers [is] having federal claims adjudicated in a federal forum,"
864 F.2d at 810--and we expressly reserved the question
whether Chatman-Bey was still valid in the light of Balisok
and Heck.
Shortly after the district court rendered judgment in favor
of Bourke, however, this court upheld the continuing vitality
of Chatman-Bey. See Razzoli v. Federal Bureau of Prisons,
230 F.3d 371 (D.C. Cir. 2000). A federal prisoner had sought
declaratory relief and damages under the Privacy Act, argu-
ing that the United States Parole Commission had wrongly
delayed the time at which he would be eligible for parole.
We adhered to the holding of Chatman-Bey that habeas
corpus is the exclusive remedy for a federal prisoner chal-
lenging his parole eligibility date. 230 F.3d at 375-76.
Moreover, this court made clear that habeas is the exclusive
remedy for a federal prisoner bringing any claim that would
have a "probabilistic impact" upon the duration of his custody.
See id. at 373.
Clearly, therefore, if Bourke is to pursue his claim he must
seek a writ of habeas corpus. As in Razzoli and Chatman-
Bey, the crux of the appellant's claim is that he was illegally
denied the "chance to secure his release." Chatman-Bey, 864
F.2d at 809. Although Bourke's success on this claim would
not necessarily result in his being released any earlier, it
would raise that possibility and thus have a "probabilistic
impact" upon the duration of his custody. Accordingly, the
motion for summary reversal is granted and this matter is
remanded to the district court either to dismiss the case
without prejudice or to transfer it to the district court for the
district in which the appellant and his custodian are located.
See 28 U.S.C. ss 1404(a), 1406(a), 1631.
So ordered.