United States District Court, E.D. Texas, Tyler Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL
RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE.
Petitioner Todd Alley, proceeding pro se, filed this
application for writ of habeas corpus under 28 U.S.C.
§2254 complaining of a pending prosecution in state
court. This Court referred the matter to the United States
Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and
(3) and the Amended Order for the Adoption of Local Rules for
the Assignment of Duties to United States Magistrate Judges.
stated that he is a pre-trial detainee being held in the
Smith County Jail and is being denied due process because he
does not have access to legal research material or discovery.
He asserted that Judge Christi Kennedy forced an attorney
named Lajuanda Lacy on him on October 26, 2017, even though
Alley had filed a bar grievance against Lacy. Alley
complained that this was retaliation by Judge Kennedy and
asked that the charges against him be dismissed or moved to a
different county or a different district court.
review of the pleadings, the Magistrate Judge issued a Report
recommending that the petition be dismissed without prejudice
for failure to exhaust state remedies. The Magistrate Judge
observed that in response to a question on the standard
habeas corpus form concerning exhaustion, Alley stated that
he had sought relief from the Texas State Commission on
Judicial Conduct. He did not allege that he had sought relief
from the Texas state appellate courts and the on-line records
of the Texas Court of Criminal Appeals do not show that Alley
had sought relief from that court. Instead, the on-line
records of Smith County, Texas showed that Alley was
represented by a retained attorney named Edward Estrada and
the case was set for trial in January of 2018.
did not file objections to the Report. However, after the
Report issued, he filed a document entitled “Motion to
suspend and post-pone the trial of cause no. 114-1204-17,
State of Texas v. Todd Alley in the 114th District Court of
Smith County, Texas.” In this motion, Alley asks that
his case “be transferred to a different court because
of violations of due process and my rights to a fair trial,
by the 114th District Court of Smith County, Texas.” He
does not give any further details, nor does he mention the
Report of the Magistrate Judge.
assuming Alley's motion could be construed as objections,
the Magistrate Judge correctly determined that Alley failed
to exhaust his state remedies and thus cannot obtain federal
habeas corpus relief, and Alley's motion does not dispute
this. Instead, he asks that his case be transferred to
another court. This Court cannot order cases transferred from
one state district court to another, and Alley has wholly
failed to show any legal basis for removal of the prosecution
from state to federal court. See 28 U.S.C.
§1443(1); Johnson v. Mississippi. 421 U.S. 213,
219, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975) (removal under
§1443(1) requires a showing that the right allegedly
denied the removal petitioner arises under a federal law
providing for specific civil rights stated in terms of racial
equality, and the removal petitioner cannot enforce the
specified federal rights in the courts of the state, as
manifest in a formal expression of state law). To the extent
Alley's motion may be read as objections to the
Magistrate Judge's Report, these have no merit.
Court has conducted a careful de novo review of
those portions of the Magistrate Judge's proposed
findings and recommendations to which the Plaintiff objected.
See 28 U.S.C. §636(b)(1) (District Judge shall
“make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”) Upon such
de novo review, the Court has determined that the
Report of the Magistrate Judge is correct and the
Plaintiff's objections are without merit. It is
that the Petitioner's objections, as found in his motion
to suspend and postpone the trial of his case in state court,
are overruled and the Report of the Magistrate Judge (docket
no. 6) is ADOPTED as the opinion of the
District Court. It is further
that the above-styled application for the writ of habeas
corpus is DISMISSED WITHOUT PREJUDICE for
failure to exhaust state remedies. It is further
that the Petitioner Todd Alley is DENIED a
certificate of appealability sua sponte. The denial
of the certificate of appealability relates only to an appeal
of the present case and has no effect upon Alley's right
to present his claims and defenses to the courts of the State
of Texas, nor upon his right to again seek relief in federal
court in the event that he does not obtain the relief which
he seeks in state court. Finally, it is
that any and all motions which may be pending in this action,
specifically including but not limited to the motion to
suspend and postpone ...