Bailey v. Upton et al
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 4/13/2018) (skg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JODY R. UPTON, Warden,
Civil Action No. 4:17-CV-364-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, Jacqueline Bailey, 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.
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.
Petitioner 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. Id. at 1. Specifically, Petitioner asserts the president and the DOJ, in violation
of her constitutional rights to due process and equal protection, 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 prisoners who received clemency under the voided regulations.” Id. at 5.
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 Department of Justice 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 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
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:
Making exceptions to the new clemency regulations for some prisoners that
did not meet the new regulations, but not for all prisoners;
[By discriminating] against women prisoners who were less than 5% of
clemency recipients; and
[By] [p]retextually [discriminating] against white collar and other low-level
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 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
a recommendation for presidential clemency, violates 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).
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 13th day of April, 2018.
UNITED STATES DISTRICT JUDGE
Petitioner’s pleadings do not indicate the date of the offense(s) or the offense(s) for which she was convicted
and is confined.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?