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, Isabel Soto, 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.
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) 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 denied meaningful access to the
clemency process based on the 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” and by discriminating against
inmates convicted of white-collar and other non-violent
offenses. Id. at 3. She also claims that 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 4. She seeks release from custody, a reduction in her
sentence commensurate to that received by unqualified
clemency recipients, and/or expungement of her criminal
conviction(s). 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. Petitioner
contends that this Court has jurisdiction to consider the
petition under the Administrative Procedures Act (APA).
Id. at 2. 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. Petitioner fails to
establish that she has petitioned and been denied executive
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.
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 favorable 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).
equal protection claim is conclusory. The equal protection
clause requires essentially that all persons similarly
situated be treated alike. City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985). To prevail on an
equal protection claim, Petitioner must show that an official
actor intentionally discriminated against her because of her
membership in a protected class or that she received
treatment different from that received by similarly situated
inmates and that unequal treatment was irrational or based on
some constitutionally protected interest. Gibson v. Tex.
Dep't of Ins., 700 F.3d 227, 238 (5th Cir. 2012);
Piaster v. Landaus Cty., 354 F.3d 414, 424 (5th Cir.
2004). Petitioner fails to establish that she is a member of
a protected class; that similarly situated inmates have been
treated differently on an irrational basis or improper
discriminatory motive; or that she has a constitutionally
protected right under the equal protection clause to clemency
or clemency review. See Thompson v. Patteson, 985
F.2d 202, 207 (5th Cir. 1993). Moreover, Petitioner does not
assert that she has yet filed a clemency petition and was
personally denied clemency. As such, any possible harm from
the alleged defects in the process is purely hypothetical.
See New Orleans Public Serv., Inc. v. Council of City of
New Orleans, 833 F.2d 583, 587 (5th Cir. 1987).
claim under DAPA also 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.Furthermore, 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
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.