United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'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, Rhonda Fleming,
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 convictions in the
Southern District of Texas for aiding and abetting health
care fraud. J., United States v. Fleming, Case No.
4:07-CR-00513-001, ECF No. 626. According to Petitioner, she
filed a petition for clemency in 2014, which was denied
around April 2016 on the basis that she did not meet the
“Clemency Project of 2014 criteria.” Pet. 2, ECF
No. 1. She 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 2.
claims that the President and the Department of Justice (DOJ)
have exercised presidential clemency power and executive
action in violation of the United States Constitution. Pet.
1, ECF No. 1. Specifically, Petitioner asserts that the
Clemency Project 2014, under the control of the DOJ, has
violated her constitutional right to due process and equal
protection of the law by granting clemency to other inmates,
who, like her, do not meet the criteria, granting clemency to
more men than women, and discriminating against non-violent,
white-collar prisoners. Pet. 2 & Ex. A, ECF No. 1. She
also claims that Deferred Action for Parents of American and
Lawful Permanent Residents (“DAPA) violates her right
to equal protection of the law by granting illegal aliens
various privileges, such as amnesty and deferred prosecution,
while maintaining her imprisonment and subjecting her to
collateral consequences upon her release not applied to DAPA
beneficiaries. Am. Pet. 2-4, ECF No. 10. She seeks
declaratory relief and immediate release from custody.
Id. at 4-5.
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 as to his claims regarding the denial of
clemency. Although the DOJ is an “agency” within
the meaning of the Act, “[f]ederal 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). Thus,
the president can grant or deny clemency at will,
notwithstanding the DOJ's procedures or criteria.
even assuming the 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 or the President's clemency decision. 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. 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.