Herrod v. Bondi

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
FREDERICK HERROD 	PLAINTIFF
v. 	Civil No. 	5:25-cv-05070-TLB
PAMELA JOE BONDI,
United States Attorney General 	DEFENDANT
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff Frederick Herrod (“Herrod”), a federal inmate housed in the Federal Correctional
Center—FCI Seagoville—in Seagoville, Texas, has filed a “non-Bivens” civil rights action
alleging the Court has jurisdiction under 5 U.S.C. § 702 and 28 U.S.C. § 1331 and statutory venue
under 28 U.S.C. § 1391(b)(2). 	(ECF No. 1 at 3 & 7); (ECF No. 3 at 1). 	Herrod seeks leave to
proceed in forma pauperis. 	(ECF No. 2). 	In apparent anticipation of this Court determining
Herrod has three strikes under the Prison Litigation Reform Act, he also filed a motion to prove
imminent danger of physical injury for purposes of 28 U.S.C. § 1915(g).
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3), U.S. District Judge Timothy
L. Brooks referred this case to the undersigned for the purpose of making a Report and
Recommendation. 	The case is before the Court for preservice screening pursuant to 28 U.S.C. §
1915A.0F
1 	Under § 1915A, the Court is required to screen any complaint in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity. 	28 U.S.C. §
1915A(a).
1 Enacted as part of the Prison Litigation Reform Act.
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I. 	Relevant Background
Herrod alleges his “habeas privilege” was violated. 	(ECF No. 1 at 3). 	He describes this
case as one about an alleged violation of the suspension clause under Article 1, Section 9, clause
2 of the United States Constitution. 	Id. 	The suspension clause states: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.” 	U.S. Const. Art. 1, § 9, cl. 2. 	Specifically, Herrod states he “must bring
a claim to this court that his suspension clause protection was violated after he made claims that
US Statutes, [28 U.S.C. §§ 2255(e) and 2243], prevented him from proper adjudication of his
habeas petition that alleged the court that committed him did not have competent or proper
jurisdiction pursuant to the US Constitution.” 	(ECF No. 3 at 6) (memorandum brief in support of
the Complaint).
Herrod seeks declaratory relief, clarifying that he is not asking for monetary damages.
(ECF No. 3 at 1-2). 	Specifically, he seeks a declaration that the suspension clause, defined as the
privilege of habeas corpus, can be used to challenge the formal jurisdiction of the committing
court. 	Id. at 3. 	Herrod names only United States Attorney General Pamela J. Bondi and brings
his claims against Bondi in her official capacity. 	Id. at 1-2. 	Herrod maintains Defendant Bondi
is liable because she leads the United States Attorney’s office that “is responsible for the plaintiff’s
injury because they are apart of the executive branch of government charged with administering
and carrying out the law under the statute that adversely affected and aggrieved the plaintiff.” 	Id.
at 2.
According to Herrod, he is not seeking release from custody; rather, he is seeking an
additional opportunity to obtain asylum. 	(ECF No. 3 at 4). 	He thus alleges his claim falls outside
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the scope of the writ of habeas corpus. 	Id. 	Herrod articulates that as applied to him, 28 U.S.C.
§§ 2255(a) & (b), 2255(e), and 2243 “failed to protect his constitutional guarantee and violated his
‘privilege’ of habeas corpus as defined by the Supreme Court.” 	Id. at 13.
Herrod makes no factual allegations in the Complaint or memorandum in support until
page thirteen. 	At page 13, Herrod reminds the Court that he filed a motion to vacate his sentence
under 28 U.S.C. § 2255. 	(United States v. Herrod, 5:19-cr-50094-1-TLB (ECF No. 103) (motion
to vacate); (ECF No. 107) (amended motion to vacate); (ECF No. 149) (supplement); (ECF No.
151) (supplement)). 	Herrod pled guilty to a one-count information charging him with possession
with 	intent 	to 	distribute 	a 	mixture 	or 	substance 	that 	contained 	a 	detectable 	amount 	of
methamphetamine, 21 U.S.C. §§ 841(a)(1) & (b)(1)(C), Herrod v. United States, 5:21-cv-05154-
TLB (civil case) (all filings docketed to the criminal case); United States v. Herrod, 5:19-cr-50094-
1-TLB (criminal case). 	He was sentenced to 108 months of imprisonment, 3 years of supervised
release, a $4,900 fine and special assessment of $100. 	In his § 2255 motion, Herrod’s primary
contention was that the United States District Court for the Western District of Arkansas,
Fayetteville Division, lacked jurisdiction to prosecute him for violations of federal drug laws.
(5:19-cr-50094-1 (ECF No. 154 at 6)).
The undersigned determined that a procedural bar existed to Herrod’s § 2255 claim because
the Court of Appeals for the Eighth Circuit rejected his jurisdictional challenge, United States v.
Herrod, 825 Fed. Appx. 406 (8th Cir. 2020) (per curiam). 	(5:19-cr-50094-1 (ECF No. 154 at 6-
7)) (report and recommendation)). 	Dismissal with prejudice of the § 2255 habeas corpus action
was recommended. Id. 	Herrod objected to the recommendation. (5:19-cr-50094-1 (ECF No.
155)). 	Judge Brooks adopted the report and recommendation in its entirety and dismissed the
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petition to vacate with prejudice. 	(5:19-cr-50094-1 ECF No. 158). 	A certificate of appealability
was denied. 	Id. 	Herrod then filed a motion to reduce his sentence. 	(5:19-cr-50094-1 ECF No.
178). 	The motion was granted; Herrod’s sentence was reduced to ninety-seven months. 	(5:19-
cr-50094-1 (ECF No. 179)). 	Herrod filed a second motion for reduction of sentence which was
denied. 	(5:19-cr-50094-1 (ECF No. 184)).
Here, Herrod once again claims this Court lacked formal jurisdiction; that he was illegally
detained; and that he was detained under color of state law rather than federal law. 	(ECF No. 3
at 13). 	Specifically, he states he “has been convicted and is illegally detained by the US
Government under legislative statutes that did not provide the court with proper competent
jurisdiction. 	Ark. Code Ann. 16-88-101 and 28 USC 1251.” 	Id. 	Herrod maintains the “State
of Arkansas enforced the above statutes abridging his privilege to have his case heard by the US
Supreme Court and his immunity from State prosecution without a court of competent
jurisdiction.” 	Id. 	As a result, Herrod maintains he has twice been placed in jeopardy for the
same offense. 	Id. 	Herrod further argues that the committing court was the state court. (ECF
No. 3 at 14). 	Herrod contends application of the judge made doctrine of res judicata in his habeas
case “failed to protect [his] constitutional guarantee which allows me to inquire into the formal
jurisdiction of the committing court. 	Because 28 USC 2243 allowed the court/judges to use
judge-made law/doctrines that failed to protect my constitutional guarantee, the statute is
responsible for my injury.” 	Id. at 15. 	Herrod continues to object to the Court construing his
petition as one under § 2255 rather than under § 2241. 	Id. at 17.
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II. 	SCREENING STANDARD
The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are
frivolous, malicious, or fail to state a claim upon which relief may be granted, or (2) seek monetary
relief from a defendant who is immune from such relief. 	28 U.S.C. § 1915A(b).
A claim is frivolous if “it lacks an arguable basis either in law or in fact.” 	Neitzke v.
Williams, 490 U.S. 319, 325 (1989). 	An action is malicious when the allegations are known to be
false, or it is undertaken for the purpose of harassing or disparaging the named defendants rather
than to vindicate a cognizable right. 	Spencer v. Rhodes, 656 F. Supp. 458, 464 (E.D.N.C. 1987);
In re Tyler, 839 F.2d 1290, 1293-94 (8th Cir. 1988). 	A claim fails to state a claim upon which
relief may be granted if it does not allege “enough facts to state a claim to relief that is plausible
on its face.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 	“In evaluating whether a pro
se plaintiff has asserted sufficient facts to state a claim, we hold ‘a pro se complaint, however
inartfully pleaded ... to less stringent standards than formal pleadings drafted by lawyers.’”
Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). 	However, even a pro se Plaintiff must allege specific facts sufficient to support a claim.
Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
III. 	DISCUSSION
Although Herrod has gone to great lengths to reframe his claims to avoid dismissal, he has
done nothing more than repackage the claims he asserted on direct appeal from his guilty plea and
sentencing and one he included in his § 2255 petition. 	When his rather verbose and circuitous
arguments are distilled, his claims are: (1) the United States District Court for the Western District
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of Arkansas lacked jurisdiction to prosecute him in the underlying criminal case; and (2) he was
placed in double jeopardy because the underlying criminal conduct was the same conduct
prosecuted by the state.
The Court of Appeals for the Eighth Circuit rejected Herrod’s arguments, noting that 18
U.S.C. § 3231 gave the district courts original jurisdiction over all offenses against the laws of the
United States. 	United States v. Herrod, 825 Fed. Appx. 406, 497 (8th Cir. 2020) (per curiam).
Herrod’s arguments were again rejected in the Order adopting the undersigned’s report and
recommendation with respect to his § 2255 petition. 	Judge Brooks noted Herrod’s jurisdictional
arguments challenged “the so called ‘dual sovereignty’ doctrine.” 	(5:19-50094-1 (ECF No. 158
at 2)). In short, Herrod believed the federal government lacked jurisdiction to charge him with
drug crimes because the state was also charging him with drug crimes on same set of facts. 	Judge
Brooks clarified:
The state and federal governments are different sovereigns with different
laws. 	They may each prosecute an individual for the same unlawful conduct
without offending the U.S. Constitution. 	See Heath v. Alabama, 474 U.S. 82, 90
(1985) (“[T]he dual sovereignty doctrine is founded on the common law conception
of crime against the sovereignty of the government. 	When a single act violates the
peace and dignity of two sovereigns by breaking the laws of each, [the defendant]
has committed two distinct offences.”).
Id.
These prior decisions operate as a procedural bar to Herrod’s current claims. 	Hillary v. Trans
World Airlines, Inc., 123 F.3d 1041, 1044 n.2 (8th Cir. 1997) (“Under federal law, the doctrine of
rest judicata bars litigation of a claim if: 	‘(1) the prior judgment was rendered by a court of
competent jurisdiction; (2) the prior judgment was a final judgment on the merits; and (3) the same
cause of action and the same parties or their privies were involved in both cases’”) (citations
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omitted), cert. denied, 522 U.S. 1090 (1998). 	Herrod has therefore failed to state any plausible
claims.
To the extent Herrod seeks to invoke the Administrative Procedures Act (“APA”), 5 U.S.C.
§§ 701-706, to review the decision of the United States Attorney’s Office to prosecute him, his
claim fails. 	While the APA allows review of final agency decisions, it does not permit review of
an individualized decision on whether to federally prosecute an individual. 	In Heckler v. Chaney,
470 U.S. 821, 831 (1985), the Supreme Court recognized a distinction between an individualized
prosecutorial decision and a broadly applicable enforcement policy. 	Id. (“The Court has
recognized on several occasions over many years that an agency’s decision not to prosecute or
enforce, whether through civil or criminal process, is a decision generally committed to an
agency’s absolute discretion.); United States v. Armstrong, 517 U.S. 456 (1996) (“The Attorney
General and United States Attorneys retain ‘broad discretion’ to enforce the Nation’s criminal
laws. 	They have this latitude because they are designated by statutes as the President’s delegates
to help him discharge his constitutional responsibility to ‘Take Care that the Laws be faithfully
executed.’ U.S. Const., Art. II, § 3.”). 	“In the ordinary case, ‘so long as the prosecutor has
probable cause to believe that the accused committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file or bring before the grand jury, generally rests
in his discretion.’” 	Id. (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). 	Herrod
makes no argument he is challenging a specific Department of Justice (“DOJ”) policy regarding
the prosecution of drug offenders. 	See e.g., WildEarth Guardians v. United States Department of
Justice, 181 F. Supp. 3d 651 (D. Ariz. 2015) (challenge to the DOJ’s McKittrick policy is
permissible under the APA). 	Herrod has failed to state a claim under the APA.
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IV. 	CONCLUSION
For the reasons stated above, it is recommended that:
(1) 	the case be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state
a claim upon which relief may be granted;
(2) Plaintiff/Petitioner be warned that, in the future, this dismissal may be counted
as a strike for purposes of 28 U.S.C. § 1915(g) and thus, the Clerk is directed to
place a § 1915(g) strike flag on the case for future judicial consideration; and
(3) the Court certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
dismissal would not be taken in good faith.
The parties have fourteen days from receipt of the Report and Recommendation in which
to file written objections pursuant to 28 U.S.C. § 636(b)(1). 	The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
Status of Referral: 	The referral terminates upon the filing of this Report and
Recommendation.
RECOMMENDED this 14th day of April 2025.
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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