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, Diana Osteen, a
federal prisoner confined at FCI- Greenville Camp, in
Greenville, Illinois, against Tom Werlick, warden of
FCI-Greenville Camp, 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 2016 federal conviction in the
Southern District of Illinois for possession of a listed
chemical knowing it would be used to manufacture a controlled
substance. Resp't's App. 1, ECF No. 20. Petitioner
neither alleges nor demonstrates that she filed a petition
for presidential clemency. Nevertheless, 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
President and the DOJ, in violation of her right to equal
treatment under the law, have administered the criteria for
the Clemency Project 2014 in a discriminatory manner by
rendering clemency recommendations and granting clemency
“outside of their set criteria, ” by granting
clemency to more men than women, and by denying clemency to
inmates convicted of white-collar, non-violent crimes. Pet.
3, ECF No. 1. She also claims that Deferred Action for
Parents of American and Lawful Permanent Residents
(“DAPA) violates her right to equal treatment under 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 that do not apply to DAPA beneficiaries.
Id. at 3. 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 her 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 cannot make such a showing as 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 is
not entitled to equal protection in connection with the
procedure by which a petition for clemency is considered or a
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.