United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
CONNOR UNITED STATES DISTRICT JUDGE
the Court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 filed by petitioner, Jennifer Lynn
Brown, a federal prisoner confined in the Federal Medical
Center in Fort Worth, Texas (FMC-Carswell), against Jody R.
Upton, warden of FMC-Carswell, Respondent. After considering
the pleadings and relief sought by Petitioner, the Court has
concluded that the petition should be denied.
is confined pursuant to her 2010 federal conviction in the
District of Nebraska for distribution of crack cocaine. J.,
United States v. Brown, Case No. 4:10-CR-2042-001, ECF No.
80. Petitioner asserts that the Clemency Project of 2014
denied clemency review to her in 2015 based on her failure to
meet the requisite criteria set by the Department of Justice
and the President. Id. 1-2 & Ex. A. She further
contends that this Court has jurisdiction to consider the
petition under the Administrative Procedures Act, which
“provides that a reviewing court may set aside an
agency action that violates the law.” Id. at
claims that “[c]onstitutional law has been violated in
the administration and review of clemency requests.”
Pet. 2, ECF No. 1. More specifically, she contends that the
Clemency Project of 2014 has violated her right to equal
treatment under the law by granting clemency review to
prisoners who, like her, also failed to meet the criteria and
by granting clemency to more male prisoners than female
prisoners. Id. at 2-3. She also contends that the
“DAPA executive order” (Deferred Action for
Parents of American and Lawful Permanent Residents) “is
clemency for illegal aliens” and violates her right to
equal treatment under the law by “granting amnesty,
deferred prosecution to illegal aliens, while continuing to
prosecute United States citizens.” Id. at 3-4.
Finally, she contends that DAPA, by “giving privileges
and immunity to non-citizens over U.S. citizens, ”
violates her rights under the Privileges and Immunities
Clause. Id. at 3-4.
preliminary matter, this Court must determine whether it has
jurisdiction to consider Petitioner's claims. The
Administrative Procedures Act (“APA”) provides
that “[a] person suffering a legal wrong because of
agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled
to judicial review thereof.” 5 U.S.C. § 702.
Petitioner fails to establish that judicial review under the
APA is available in this case. The Clemency Project 2014,
defined in the “Notice to Inmates” as “a
group of experienced criminal defense and non-profit
lawyers” who offer “to assist qualifying inmates
with their [clemency] petitions at no cost, ” is not an
“agency” within the meaning of the APA. Pet., Ex.
A, ECF No. 1. See 5 U.S.C. 701(b)(1) (an agency is
“each authority of the Government of the United
States”). “Federal clemency is exclusively
executive: Only the President has the power to grant clemency
for offenses under federal law.” Harbison v.
Bell, 556 U.S. 180, 187 (2009). And, “the
substantive discretion of the president in the exercise of
his clemency power is all but absolute.”
Spinkellink v. Wainwright, 578 F.2d 582, 618 (5th
Cir. 1978), cert. denied, 440 U.S. 976 (1979).
even assuming Petitioner's claims were properly presented
under § 2241, to obtain federal habeas relief, a
petitioner must show a federal constitutional violation. 28
U.S.C. § 2241(c)(3). Petitioner has made no such
showing. As she concedes, she was denied clemency, and she
has no constitutional right to clemency. See Connecticut
Bd. of Pardons v. Dumschat, 452 U.S. 458, 464-67 (1981).
Because she has no constitutional right to clemency, she was
not entitled to due process or equal protection in connection
with the procedure by which her petition for clemency was
considered. See Griggs v. Fleming, 88 Fed. App'x
705, 2004 WL 315195 at *1 (5th Cir.), cert. denied,
542 U.S. 931 (2004).
Petitioner's claim under DAPA is meritless. DAPA set
forth criteria for exercising prosecutorial discretion under
immigration laws through the use of deferred action, on a
case-by-case basis, to allow individuals who otherwise were
not legally within the United States to remain for some
period of time. See Texas v. United States, 787 F.3d
733, 744 (5th Cir. 2015). Petitioner fails to establish how a
ruling in her favor as to this claim would result in her
immediate release or a reduction of her sentence. Moreover,
implementation of DAPA was enjoined on a nationwide basis by
the Fifth Circuit's 2015 decision in Texas v. United
States, 809 F.3d 134 (5th Cir. 2015),
aff'd, 136 S.Ct. 2271 (2016).
reasons discussed, Petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 is DENIED,
and a certificate of appealability is DENIED.