Jones v. Upton

Filing 11

Opinion and Order: 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 2/15/2018) (plp)

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

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Civil Action No. 4:17-CV-335-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, Mamie Louise Jones, 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 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 the president and the DOJ, in violation
of her constitutional rights to due process and equal protection, have administered the criteria for

the IEC in a discriminatory manner by rendering clemency recommendations and granting clemency
to inmates who did not meet their criteria, by discriminating against inmates based on their “criminal
offense and sex,” and by denying her “meaningful access” to a fair clemency review process. Id. at
3-4. 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. Id. at 3. Finally, she claims
that the IEC is “void ab initio because the Respondents failed to comply with the notice and
comment requirements of Sections 551 and 553” of the APA. Id. at 3 (emphasis added). She seeks
declaratory relief and a reduction in her sentence commensurate “to the average reduction given
other inmates who received clemency under the voided regulations.” Id. at 5.
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. Pet. 2, ECF No. 1. The Court finds no support for this argument. 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

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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. 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.
Petitioner fails to establish that judicial review of her clemency claims under the APA is appropriate
in this case.
Furthermore, even 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 in connection with the procedures by which a petition for clemency is

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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 claims that President Obama and the DOJ violated her right to equal protection
and meaningful access to the IEC by:
1.

Making exceptions to the new clemency regulations for some prisoners that
did not meet the new regulations, but not for all prisoners;

2.

[By discriminating] against women prisoners who were less than 5% of
clemency recipients; and

3.

[By] [p]retextually [discriminating] against white collar and other low-level
offenders.

Pet. 4, ECF No. 1. According to Petitioner, the president and the DOJ violated her right to equal
protection “by selectively denying a benefit to certain disfavored groups, but misleading the
Petitioner and the public to believe that the clemency process would be available to ‘worthy
candidates.’” Id. This 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 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
wholly fails to establish that she is a member of a protected class; that she was treated differently
than similarly situated inmates whose clemency petitions were granted based on intentional
discrimination; or that she has a constitutionally protected right under the equal protection clause
to clemency or an unbiased decisionmaker in the clemency process. Nevertheless, Petitioner does
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not assert that she has yet filed a clemency petition and was personally denied or provide proof that
such denial was attributable to an improper animus or bias. 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).
Petitioner’s 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 were not in effect
on the date of the offense. Pet. 3, ECF No. 1. 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).
III. CONCLUSION
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.
SO ORDERED on this 15th day of February, 2018.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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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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