Gardner v. Boyle et al

Filing 5

MEMORANDUM OPINION AND ORDER dismissing without prejudice 1 Petition for Writ of Habeas Corpus, denying 4 MOTION for Order to Show Cause (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
January 19, 2018

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ALICIA PLESHETTE GARDNER,
BOP #50369-177,

David J. Bradley, Clerk

§
§
§
§

Petitioner,

§

v.

CIVIL ACTION NO. H-18-0067

§
§
§
§
§
§
§
§

MARNE BOYLE, Warden,
Federal Prison Camp,
Bryan, Texas, and Department
of Justice,
Respondents.

MEMORANDUM OPINION AND ORDER

Alicia
prisoner

Pleshette

incarcerated

Gardner
in

the

(BOP

#50369-177)

United

a

federal

Bureau

States

is

of

Prisons

("BOP") at the Federal Prison Camp in Bryan, Texas.
filed
§

a

2241

" [Petition]
("Petition")

for

Habeas

(Docket

Corpus
Entry

Relief"

No.

1),

Gardner has

under

28

U.S. C.

challenging

the

administration of her sentence with respect to her consideration
for

executive

clemency and

the

conditions

of

her

confinement.

After reviewing all of the pleadings and the applicable law, the
court concludes that this case must be dismissed for the reasons
explained below.
I .

Background

In a judgment entered on May 5, 2017, Gardner was convicted of
aggravated identity theft and sentenced to 24 months' imprisonment.

See United States v. Gardner, No. 3:15-cr-0465-D1 (N.D. Tex.).

She

did not pursue an appeal.
Gardner does not challenge her conviction or the validity of
her sentence here.

She seeks relief in the form of a writ of

habeas corpus under 28 U.S.C.

§

2241 to challenge procedures used

to select prisoners for executive clemency.
Entry No.

1,

pp.

1-5.

See Petition, Docket

Gardner estimates that former President

Barack Obama granted clemency to 1700 prisoners, most of whom were
not "worthy candidates" in her opinion under criteria outlined in
the Initiative on Executive Clemency ("IEC"), which reportedly went
into effect in April 2014.

See id. at 3-4.

Noting further that

female inmates made up less that 5% of the clemency recipients,
Gardner contends that the President's clemency decisions were made
in a discriminatory manner that violates her constitutional rights.
See id. at 4-5.
In addition, Gardner objects to the enforcement of a policy by
the Bureau of Prisons,

outlined in a

January 2017

"Transgender

Offender Manual," that has resulted in housing male transgender
inmates in facilities designated for female prisoners.
5-6.

See id. at

Gardner contends that this policy violates the constitution

because

these

transgender

inmates

pose

a

"constant

physical and sexual assault" to female inmates.

-2-

danger

See id. at 6.

of

Gardner requests relief in the form of clemency and a court
order

transferring

prisons."

"all

male

inmates

out

of

female

federal

See id. at 10.
II.

Discussion

A writ of habeas corpus is available only where a prisoner can
establish

that

she

is

unlawfully

confined

or

"in

custody

in

violation of the Constitution or laws or treaties of the United
States[.]"

28 U.S.C. § 2241(c)(3).

In that respect, the federal

habeas corpus statutes provide an avenue to attack the
duration

of

physical

imprisonment

and

to

obtain

speedier release from confinement. See Preiser v.

fact

or

immediate

or

Rodriguez,

411

U.S. 475, 485-86, 93 S. Ct. 1827, 1834 (1973) (clarifying the scope
of federal habeas review) .

Habeas corpus is not the proper vehicle

to challenge the process by which clemency decisions are made when
issuance of a writ would not actually or impliedly invalidate a
sentence. 1 See Valle v.
654 F.3d 1266, 1267

Secretary,

(11th Cir. 2011)

Florida Dep't of Corrections,
(citations omitted).

Claims concerning the conditions of confinement also are not
actionable in a

federal

habeas corpus proceeding.

See Cook v.

Texas Dep't of Criminal Justice Transitional Planning Dep't,

1

37

To the extent that the petitioner claims she has a right to
clemency, this argument is without merit because executive clemency
is granted as "a matter of grace."
Ohio Adult Parole Auth. v.
Woodard, 523 U.S. 272, 280-81, 118 S. Ct. 1244, 1250 (1998); see
Joubert v. Nebraska Bd. of Pardons, 87 F.3d 966, 968 (8th Cir.
1996)
("It
is
well-established
that
prisoners
have
no
constitutional or fundamental right to clemency.").
-3-

F.3d 166, 168
U.S.

637,

644,

(5th Cir. 1994); see also Nelson v. Campbell,
124

S.

Ct.

2117,

2122

(2004)

(explaining

541
that

"constitutional claims that merely challenge the conditions of a
prisoner's

confinement,

whether

the

inmate

seeks

monetary

or

injunctive relief, fall outside of [the core of habeas corpus]" and
must be pursued in a civil rights suit); Spina v. Aaron, 821 F.2d
1126, 1127-28
customs,

(5th Cir. 1987)

(allegations that challenge rules,

and procedures affecting conditions of confinement are

properly brought in a civil rights action) .
Because none of the petitioner's allegations are actionable in
a

habeas

corpus petition,

this

case must be dismissed without

prejudice for lack of jurisdiction.
III.

Conclusion

Based on the foregoing, the court ORDERS that the Petition for
Writ of Habeas Corpus filed by Alicia Pleshette Gardner

(Docket

Entry No. 1) is DISMISSED without prejudice.
Petitioner's

Motion

Pursuant to 28 U.S.C.

§

for

Issuance

of

Order

to

Show

Cause

2243 (Docket Entry No. 4) is DENIED.

The Clerk will provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 19th day of January, 2018.

UNITED STATES DISTRICT JUDGE
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