United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
Q'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, Sonja Renee
Callahan, a federal prisoner who was confined in the Federal
Medical Center in Fort Worth, Texas (FMC-Carswell), when 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 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) 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
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 intentionally discriminating against women, white-collar,
nonviolent offenders, and low-level, first-time offenders.
Id. at 3; Pet'r's Sur-Reply 1, 3-4, ECF No.
13. 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. 13. Finally, she
contends that DAPA violates her right to equal treatment
under the law by giving privileges, entitlement program
benefits, and “protective services, ” such as
class-wide deferred prosecution, amnesty, and immunity from
prosecution, to non-citizens over U.S. citizens and
“known criminal aliens, similarly situated to”
her, 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 3-4, ECF No. 13. She seeks clemency review
“under the valid clemency process as stated in Section
1.1-1.11 in 10 days” or immediate release, clemency and
amnesty, a reduction in her sentence commensurate to that
received by unqualified clemency recipients, 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. 1, 5, ECF No. 1; Pet'r's
Sur-Reply 7, ECF No. 13.
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,
DAPA and the clemency criteria established by the IEC
constitute substantive rule changes requiring compliance with
the APA's notice-and-comment requirements. Pet. 2, ECF
No. 1; Pet'r's Sur-Reply 5, ECF No. 13. 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). Although there is support for Petitioner's
argument that DAPA is subject to the APA's
notice-and-commit requirements, clearly the IEC and the
criteria set out therein are not legislative rules with the
force and effect of law. See Texas v. United States,
809 F.3d 134, 178, 186 (5th Cir. 2015) (as revised) (finding
that plaintiff states were likely to succeed on their claim
that the 2014 DAPA Memo should have been made through
notice-and-comment procedures), aff'd by an equally
divided court, 136 S.Ct. 906 (2016). Thus, although the
DOJ is an “agency” within the meaning of the APA,
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. “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 concedes that clemency is not a “per se
entitlement” but asserts that it is nevertheless an
“opportunity for release, with constitutional
protections, because the President's clemency power is
not absolute.” Pet'r's Sure-Reply 4, ECF No.
13. Although the president's clemency power may be
“limited by other constitutional provisions, ”
the Supreme Court has cautioned courts “to avoid
interference with the . . . clemency powers vested in the
Executive Branch.” Schick v. Reed, 419 U.S.
256, 266-67 (1974) (holding “the pardoning power is an
enumerated power of the Constitution and that its
limitations, if any, must be found in the Constitution
itself”); Affronti v. United States, 350 U.S.
79, 83 (1955). The Court sees no reason to do so here.
Petitioner has no statutory or constitutional right to
clemency or clemency proceedings. See Dumschat, 452
U.S. at 464-67. 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. 931 (2004).
ex post facto argument is equally frivolous. She asserts that
retroactive application of the IEC's 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. 13. However, the 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 IEC's 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 also fails. In addition to
other benefits, 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 accelerated release or a
reduction of her sentence. See Clarke v. Stalder,
154 F.3d 186, 189 (5th Cir. 1988) (en banc). Nevertheless,
implementation of DAPA was enjoined on a nationwide basis by
the Fifth Circuit's 2015 decision in Texas v. United
States. 809 F.3d at 186.
reasons discussed, Petitioner's petition for
habeas-corpus relief under 28 U.S.C. § 2241 and a
certificate of appealability are DENIED.