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 26 U.S.C. § 2241 filed by petitioner, Jeanette
Driever, a federal prisoner who was confined at FMC-Carswell
in Fort Worth, Texas, at the time the petition was filed,
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
case involves the Initiative on Executive Clemency (IEC) for
federal prisoners and Deferred Action for Parents of American
and Lawful Permanent Residents (“DAPA”).
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 offenses, and
by denying her “meaningful access” to a fair
clemency review process. Id. at 3; Am. Pet. 4, ECF
No. 5. 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. 5. Finally, she claims that DAPA violates her
right to equal treatment under the law by granting illegal
aliens various privileges, such as
“amnesty/clemency” 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 3-5, ECF No. 1. She seeks
declaratory relief, release from custody or a reduction in
her sentence, and expungement of her criminal conviction(s).
Id. at 5; Am. Pet. 5, ECF No. 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. 5. 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 26 C.F.R.
§§ 1.0-1.11 and are not binding on the president.
26 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, Petitioner must show
that she is being held in “violation of the
Constitution, or laws, or treaties of the United
States.” 26 U.S.C. § 2241(c)(3). Petitioner cannot
make such a showing as she has no statutory or constitutional
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
such 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.
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. 5. 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(s) 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, 609 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 26 U.S.C. § 2241 is DENIED,
and a certificate of appealability is DENIED.