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
 4
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
 9
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.”).
 11
“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.”