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Erickson v. Upton

United States District Court, N.D. Texas, Fort Worth Division

May 2, 2018

JODY R. UPTON, Warden, FMC-Carswell, Respondent.



         Before 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.[1] After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. BACKGROUND

         Petitioner 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.

         II. ISSUES

         Petitioner 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.


         As a 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 ...

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