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, Kalin Thanh
Dao, 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
District of Minnesota for conspiracy to commit mail fraud and
wire fraud and money laundering. Am. J., United States v.
Dao, Case No. 0:09-CR-00048-JNE-JJG, ECF No. 126. This
case involves the Initiative on Executive Clemency (IEC) for
federal prisoners and Deferred Action for Parents of American
and Lawful Permanent Residents (“DAPA”).
claims that President Obama and the Department of Justice
(DOJ) exercised presidential clemency power and executive
action in violation of the United States Constitution and
federal regulations. Pet. 1, ECF No. 1. Specifically, she
contends that the president and the DOJ, in violation of her
rights to due process and equal treatment under the law, have
denied meaningful access to the clemency process based on the
new limiting criteria for the IEC and have administered the
criteria in an arbitrary and 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, and by
discriminating against white-collar and other low-level
offenders. Id. at 3; Pet'r's Sur-Reply 1,
3-4, ECF No. 8. She also contends that the IEC made it more
onerous for her to qualify, apply, and receive a
recommendation for clemency in violation of the ex post facto
clause. Pet'r's Sur-Reply 5, ECF No. 8. Finally, she
contends that DAPA violates her right to equal treatment
under the law by giving “protective services” and
privileges, such as “amnesty/clemency, ” deferred
prosecution, and immunity from prosecution to non-citizens
over U.S. citizens, while maintaining her imprisonment and
subjecting her to collateral consequences upon her release
that do not apply to DAPA beneficiaries. Pet. 3-4, ECF No. 1;
Pet'r's Sur-Reply 6, ECF No. 8. She seeks declaratory
relief, clemency review “under the valid clemency
process as stated in Section 1.1-1.11 in 10 days” or
immediate release, a reduction in her sentence, expungement
of her criminal conviction, remission of restitution,
assessment fees, and fines, and a hearing for
“compensation of time spent in custody due to the
denial of access to a fair and just clemency process under
existing clemency statutes.” Pet. 5, ECF No. 1;
Pet'r's Sur-Reply 7, ECF No. 8.
preliminary matter, this Court must determine whether it has
jurisdiction to consider Petitioner's claims in the
context of a habeas petition under § 2241. Petitioner
contends that this Court has jurisdiction to consider the
petition under the Administrative Procedures Act (APA). Pet.
2, ECF No. 1. 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 criteria established by the IEC constitutes
a substantive rule change requiring compliance with the
notice-and-comment requirements of the APA. Pet'r's
Sur-Reply 5, 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 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. Furthermore, although the DOJ is
an “agency” within the meaning of the APA, its
regulations affecting clemency, found at 26 C.F.R.
§§ 1.0-1.11, are not binding on the president. 26
C.F.R. § 1.11. “Federal 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, and
judicial review of clemency decisions is rarely, if ever,
appropriate. See Conn. Bd. of Pardons v.
Dumschat, 452 U.S. 458, 464-67 (1981). Petitioner fails
to establish that judicial review of her clemency claims
under the APA is appropriate in this case.
even assuming Petitioner's 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 regulations that are more onerous than those in
effect at the time she committed the offense. Pet'r's
Sur-Reply 5, 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 crimes 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 fails. DAPA set forth
criteria for exercising prosecutorial discretion under
immigration laws through the use of deferred action, on a
case-by-case basis, to allow individuals who otherwise were
not legally within the United States to remain for some
period of time. See Texas v. United States, 787 F.3d
733, 744 (5th Cir. 2015). 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 “Motion for
Judgment on the Pleadings” (Mot., ECF No. 10.),
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, and a certificate of appealability are DENIED.