Sandoval v. Upton

Filing 12

Memorandum Opinion and Order: For the 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. (Ordered by Judge Reed C. O'Connor on 1/3/2018) (skg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
FRANCES SANDOVAL,
Petitioner,
VS.
JODY R. UPTON, Warden,
FMC-Carswell,
Respondent.

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Civil Action No. 4:16-CV-1124-O

OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus pursuant to 26 U.S.C. § 2241 filed
by petitioner, Frances Sandoval, 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.
I. BACKGROUND
This case involves the Initiative on Executive Clemency (IEC) for federal prisoners.
Petitioner neither alleges nor demonstrates that she filed a formal petition for clemency.
Nevertheless, she contends that this Court has jurisdiction to consider the petition under the
Administrative Procedures Act (APA), which “provides [that] a reviewing court may set aside an
agency action that is arbitrary, capricious, abuse of discretion, or otherwise not in accordance with
law.” Pet. 2, ECF No. 1.
II. ISSUES
Petitioner claims that the President 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 administered the new
criteria for the IEC in a 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, by discriminating against inmates convicted of white-collar and other non-violent offenses,
and by denying her “meaningful access” to a fair clemency review process. Id. at 3; Am. Pet. 4, ECF
No. 8. She also claims that the IEC made it more difficult for her to qualify, apply, and receive a
recommendation for clemency in violation of the ex post facto clause. Am. Pet. 3, ECF No. 8.
Finally, she claims that Deferred Action for Parents of American and Lawful Permanent Residents
(“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.
Pet. at 3-5, ECF No. 1. She seeks declaratory relief, release from custody or a reduction in her
sentence, and expungement of her criminal conviction(s). Id. at 5; Am. Pet. 5, ECF No. 8.
III. DISCUSSION
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. 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 regulations set by the Obama
Administration, IEC, as posted nationwide in every prison . . . [represent] a substantive rule change
which required the [DOJ] to comply with 5 U.S.C. §§ 551, 553, the ‘notice and comment’
requirement” of the APA. Am. Pet. 2, ECF No. 8. The Court finds no support for this argument. The
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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. 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).
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). The president can grant or deny clemency at will, notwithstanding the DOJ’s procedures or
criteria.
Furthermore, even assuming the claims were properly presented under § 2241, to obtain
federal habeas relief, Petitioner must show that he 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
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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).
Petitioner’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 laws that were not in
effect at the time she committed the offense. Am. Pet. 3, 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 crime(s) as a result of the new criteria, their
application to her does not violate the ex post facto clause, if it applies at all.1 See Garner v. Jones,
529 U.S. 244, 250 (2000).
Lastly, Petitioner’s claim under DAPA 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.
Moreover, 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 (2016).
III. CONCLUSION
For the reasons discussed, Petitioner’s petition for a writ of habeas corpus pursuant to 26

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Petitioner’s pleadings do not indicate the date of the offense(s) or the offense(s) for which she was convicted
and is confined.

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U.S.C. § 2241 is DENIED, and a certificate of appealability is DENIED.
SO ORDERED on this 3rd day of January, 2018.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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