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, Kristina
Erickson, 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 be denied.
is serving a 264-month term of imprisonment for her
conviction in the Eastern District of North Dakota for
conspiracy to possess with intent to distribute and to
distribute a controlled substance. Resp't's Resp. 2,
doc. 12. This habeas petition involves the Initiative on
Executive Clemency (IEC) for federal prisoners. Petitioner
neither alleges nor demonstrates that she has filed a formal
petition for clemency.
claims that former President Obama and the DOJ exercised
presidential clemency power and executive action in violation
of the United States Constitution and federal regulations
“in reviewing and granting clemency and/or sentence
commutations.” Am. Pet. 1, ECF No. 5. Specifically, she
lists the following alleged constitutional and statutory
violations (all spelling, punctuation, and/or grammatical
errors are in the original):
1. Ex Post Facto Clause violation where the DOJ changed the
criteria for qualifying for clemency, making it more onerous
to qualify under the IEC than 28 CFR §§ 1.0-1.11.
The criteria for the IEC were not in effect when the
Petitioner committed her offense.
2. Equal Protection Clause violation where many male
prisoners were released, who had not served 10 years, were
not first offenders, and had firearms, were granted clemency
and/or sentence reductions, while less than 10% of the
inmates granted clemency were women.
3. Substantive Due Process violation where violent, career
offenders were released after serving less than 10 years, but
the Petitioner, a offender with no history of violence, and a
good prison disciplinary record, was denied release.
4. APA violation, where the DOJ made substantive changes to
the clemency regulations and procedures, but failed to comply
with the “notice and comment” requirements of
Sections 551 and 553, which makes all decisions granting or
denying clemency void ab initio.
5. In accordance with the Accardi Doctrine,
Accardi v. Shaughnessy, 347 U.S. 260 (1954),
agencies are required to comply with their own regulations.
If exceptions are made, then the same must be applied to
those similarly situated. As stated above, many male
prisoners with violent criminal histories, in and out of
prison, were granted release.
Am. Pet. 2, ECF No. 5. Petitioner seeks immediate release
from custody. Id. at 1.
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 review her
claims under the Administrative Procedures Act (APA), which
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.” Am. Pet. 2, ECF
No. 5; 5 U.S.C. § 702. Petitioner fails to demonstrate
that she is entitled to relief under the APA as she has
suffered no “legal wrong” nor has she been
adversely affected by the DOJ's actions within the
meaning of a relevant statute. “Clemency is a matter of
grace.” Ohio Adult Parole Auth. v. Woodard,523 U.S. 272, 281 (1998). There is no statutory or
constitutional right to clemency or clemency proceedings.
See Conn. Bd. of Pardons v. Dumschat,452 U.S. 458,
464-67 (1921) (stating an appeal for clemency “is
simply a unilateral hope”). 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). The president can grant or deny clemency at will,
notwithstanding the DOJ's procedures or criteria. It
seems clear that the IEC and the criteria set out therein
were primarily intended for the internal guidance of the
personnel of the DOJ. Nothing in the regulations says that
they are designed to create new and enforceable rights in
persons applying for executive clemency. 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. Further, the United States Supreme Court has