Ratliff
v.
Upton

This case is not covered by Casetext's citator
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISIONNov 2, 2018
2:17-CV-136-D (N.D. Tex. Nov. 2, 2018)

2:17-CV-136-D

11-02-2018

KIMBERLY ANN RATLIFF, Petitioner, v. JODY R. UPTON, Warden, FMC Carswell, Respondent.


FINDINGS , CONCLUSIONS AND RECOMMENDATION TO DENY PETITION FOR HABEAS CORPUS RELIEF PURSUANT TO 28 U.S.C. § 2241

Petitioner KIMBERLY ANN RATLIFF, a federal prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, petitioner's habeas corpus application should be denied.

ISSUES

In her section 2241 habeas application, petitioner appears to challenge the Department of Justice's (DOJ) creation of the Initiative on Executive Clemency (IEC) for federal prisoners and possible violations of the notice and comment requirements of the Administrative Procedure Act, 5 U.S.C. section 702 (APA) in developing the IEC. Petitioner contends the IEC has been implemented or administered in a manner that violates the DOJ's "own agency regulations" and federal law, as well as the United States Constitution. Petitioner argues not only that the maladministration of the IEC by the DOJ and/or the former president of the United States is subject to this Court's judicial review, but that the only appropriate remedy for any misconduct on the part of the DOJ is petitioner's "immediate release" from confinement. Petitioner appears to contend she has been harmed because the IEC made the criteria for qualifying for clemency more onerous, resulting in petitioner being denied clemency (although petitioner does not identify any petitions for clemency). Petitioner appears to assert violations of her constitutional rights to due process and equal protection, as well as a violation of the ex post facto clause.

On April 23, 2014, the Department of Justice announced its initiative to encourage qualified federal inmates to petition to have their sentences commuted, or reduced, by the President of the United States. Under the new initiative, the Department prioritized clemency applications from inmates who meet all of the following factors:

•They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
•They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
•They have served at least 10 years of their prison sentence;
•They do not have a significant criminal history;
•They have demonstrated good conduct in prison; and
•They have no history of violence prior to or during their current term of imprisonment.


DISCUSSION

In Callahan v. Upton, 2018 WL 993783 (N.D. Tex. February 21, 2018), the Fort Worth Division district court addressed nearly identical issues raised in a habeas petition under section 2241 [see attached]. The undersigned finds that court's discussion and opinion to be directly on point as to the issues raised herein. For the same reasons and judicial findings made therein, the undersigned finds petitioner has failed to establish that judicial review of her clemency claims under the APA is appropriate in this case. Id. at *2. Likewise, the undersigned finds that even assuming petitioner's claims are properly brought under section 2241, for the same reasons and judicial determinations set forth in Callahan, petitioner "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" because petitioner has no statutory or constitutional right to clemency or clemency proceedings. Id. Further, for the same reasons discussed in Callahan, the undersigned finds that to the extent, if any, the ex post facto clause applies to the facts of this case, there is no ex post facto violation as there is no "risk of increasing the measure of punishment attached to " petitioner's crime as a result of the IEC's criteria. Id. Petitioner's federal habeas application should be denied.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States Senior District Judge that the petition for a writ of habeas corpus filed by petitioner KIMBERLY ANN RATLIFF should be DENIED.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusions and Recommendation to each party by the most efficient means available.

Petitioner was confined at FMC Carswell when she filed her petition, however, the BOP's inmate locator website reflects she is currently confined at FCI Hazelton located in Bruceton Mills, West Virginia. Although petitioner has not provided notice of her change of address, the United States District Clerk is directed to send a copy of these Findings, Conclusions and Recommendation to both her address of record and to FCI Hazelton, P.O. Box 5000, Bruceton Mills, WV 26525. --------

IT IS SO RECOMMENDED.

ENTERED November 2, 2018.

/s/_________


LEE ANN RENO


UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is fourteen (14) days from the date of filing as indicated by the "entered" date directly above the signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the fourteenth (14th) day after this recommendation is filed as indicated by the "entered" date. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled "Objections to the Findings, Conclusions and Recommendation." Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district court. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

https://www.justice.gov/pardon/clemency-initiative (October 25, 2018).