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, Robin Clarice
Parezanin, a federal prisoner currently residing at
RRM-Phoenix in Phoenix, Arizona, against Jody R. Upton,
warden of FMC-Carswell in Fort Worth, Texas,
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 California for transportation of certain
aliens for financial gain. Resp't's App. 1, ECF No.
10-1. Petitioner neither alleges nor demonstrates that she
filed a formal 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 is arbitrary, capricious, abuse
of discretion, or otherwise not in accordance with the
law.” Pet. 2, ECF No. 1.
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 rights to due
process and equal treatment under the law, have administered
the criteria for the Initiative on Executive Clemency (IEC)
in a discriminatory manner by rendering clemency
recommendations and granting clemency to inmates
“outside of their set criteria, ” by granting
clemency to more men than women, and by discriminating
against inmates convicted of white-collar, non-violent
crimes. Id. at 3; Am. Pet. 1, ECF No. 12. She also
claims that the IEC made it more difficult for her to
qualify, apply, and receive a recommendation for clemency in
violation of the ex post facto clause. Am. Pet. 3-4, ECF No.
12. Finally, she 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. Pet. at 3,
ECF No. 1. She seeks declaratory relief, immediate release
from custody or a reduction in her sentence, and expungement
of her criminal conviction. Id. at 4-5.
preliminary matter, this Court must determine whether it has
jurisdiction to consider Petitioner's claims in the
context of a habeas petition under § 2241. The 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. According to Petitioner, “the new clemency
regulations set by the Obama Administration, IEC, as posted
nationwide in every prison . . . [represent] a substantive
rule change which required the [DOJ] to comply ‘with
the notice and comment' requirement” of the APA.
Am. Pet. 2, ECF No. 12; 5 U.S.C. §§ 551, 553. The
Court finds no support for this argument. The APA establishes
the procedures federal administrative agencies use for
“rule making, ” defined as the process of
“formulating, amending, or repealing a rule.” 5
U.S.C. § 551(5). The APA distinguishes between two types
of rules: So-called “legislative rules” are
issued through notice-and-comment rule making and have the
“force and effect of law.” Id.
§§ 553(b), (c); Chrysler Corp. v. Brown,
441 U.S. 281, 302-303 (1979). On the other hand,
“interpretive rules” are “issued . . . to
advise the public of the agency's construction of the
statutes and rules which it administers.” Shalala
v. Guernsey Memorial Hospital, 514 U.S. 87, 99 (1995).
The latter do not require notice-and-comment rule making, and
“do not have the force and effect of law.”
the IEC and the criteria set out therein, are not legislative
rules with the force and effect of law. The regulations that
do affect clemency are found at 28 C.F.R. §§
1.0-1.11 and are not binding on the president. 28 C.F.R.
§ 1.11. Therefore, Petitioner cannot establish that
judicial review under the APA is available as to her claims
regarding 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). 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, or even clemency
proceedings. See Connecticut Bd. of Pardons v.
Dumschat, 452 U.S. 458, 464-67 (1981). See also
Greenholtz v. Inmates of the Neb. Penal and Corr.
Complex, 442 U.S. 1, 7 (1979) (providing
“[d]ecisions of the Executive Branch, however serious
their impact, do not automatically invoke due process
protection; there simply is no constitutional guarantee that
all executive decision making must comply with standards that
assure error-free determinations.”). Because she has no
constitutional right to clemency, she is not entitled to due
process or 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).
ex post facto argument is equally frivolous. She asserts that
retroactive application of the IEC's new criteria, which
make it more difficult for her to qualify, apply, and receive
presidential clemency, violate ex post facto principles by
applying laws that were not in effect at the time she
committed the offense. Am. Pet. 3, ECF No. 12. The IEC was
announced before November 11, 2015, the date of the offense
for which she is confined. Complaint, United States v.
Parezanin, No. 3:15-CR-03054-AJB, ECF No. 1.
Petitioner's claim under DAPA lacks merit. 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,