United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNER 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, Linda
Highfield, a federal prisoner confined at FMC-Carswell in
Fort Worth, Texas, 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 2015 conviction by guilty plea in
the Eastern District of Kentucky for conspiracy to distribute
oxycodone. Resp't's App. 4, ECF No. 11-1. This case
involves the Initiative on Executive Clemency (IEC) for
federal prisoners. Petitioner neither alleges nor
demonstrates that she filed a formal petition for clemency.
Nevertheless, she contends that this Court has jurisdiction
to consider the petition under the Administrative Procedures
Act (APA), 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
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 and
federal regulations. Id. at 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 new criteria for the IEC
in a discriminatory manner by rendering clemency
recommendations and granting clemency to inmates who did not
meet their “set criteria, ” by granting clemency
to more men than women, by discriminating against inmates
convicted of white-collar and other non-violent crimes, and
by denying her “meaningful access” to a fair
clemency review process. Id. at 3; Am. Pet. 4, ECF
No. 8. 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, ECF No. 8. 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 3-4, ECF No. 1. She seeks release from custody or a
reduction in her sentence and expungement of her criminal
conviction. Id. at 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 5 U.S.C.
§§ 551, 553, the ‘notice and comment'
requirement” of the APA. Am. Pet. 2, ECF No. 8. 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). Notice-and- comment requirements of the
APA apply only to so-called “legislative” or
“substantive” rules, which have the “force
and effect of law”; they do not apply to
“interpretive rules, general statements of policy, or
rules of agency organization, procedure, or practice, ”
which do not. Id. § 553(b); Shalala v.
Guernsey Mem'l Hosp., 514 U.S. 87, 99 (1995)
Chrysler Corp. v. Brown, 441 U.S. 281, 302-303
(1979). Clearly, 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 for her
claims regarding clemency. Although the DOJ is an
“agency” within the meaning of the APA,
“[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 or fundamental right to clemency or
clemency proceedings. See Conn. 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 or fundamental right to clemency, she is not
entitled to due process or equal protection in connection
with the procedures 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. 8. However, the
new criteria did not result in increased punishment
retroactively for Petitioner. As there is no “risk of
increasing the measure of punishment attached to”
Petitioner's crime as a result of the new criteria, their
application to her does not violate the ex post facto clause,
if it applies at all. See Garner v. Jones, 529 U.S.
244, 250 (2000).
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,
and a certificate of appealability is DENIED.