Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kelley v. Creasy

United States District Court, W.D. Texas, Austin Division

April 5, 2018

TOMMY JOE KELLEY
v.
ANGIE CREASY, Assistant District Attorney, and JUDGE JULIE KOCUREK

          THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN, UNITED STATES MAGISTRATE JUDGE.

         The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rules 1(e) and 1(f) of Appendix C of the Local Rules. Before the Court is Petitioner Tommy Joe Kelley's “Formal Complaint, ” which has been construed as a petition for writ of mandamus. Also before the Court is Petitioner's Motion for Leave to File Writ of Mandamus. Petitioner, proceeding pro se, has been granted leave to proceed in forma pauperis.

         STATEMENT OF THE CASE

         At the time he filed his “Formal Complaint, ” Petitioner was confined in the Segovia Unit of the Texas Department of Criminal Justice - Correctional Institutions Division. Petitioner was convicted in the 390th Judicial District Court of Travis County, Texas in Cause No. D-1-DC-11-300379 of unlawful use of a criminal instrument and sentenced to ten years' imprisonment.

         Petitioner unsuccessfully challenged his conviction in multiple state applications for habeas corpus relief and was recently barred from filing future applications pertaining to his conviction unless he is able to show he could not have presented his claims in a previous application. Ex parte Kelley, Nos. WR-83, 623-17, -18, -19, -20, -21, 2018 WL 525318 (Tex. Crim. App. Jan. 24, 2018). Petitioner also unsuccessfully challenged his conviction in a federal application for habeas corpus relief. The Court dismissed Petitioner's application as time-barred on June 2, 2016. Kelley v. Davis, No. A-16-CV-346-SS (W.D. Tex.) (DE #10).

         In his complaint Petitioner requests the Court to look into obstruction of justice by the Travis County District Attorney's Office and Judge Kocurek as it relates to his criminal case and his state applications for habeas corpus relief. He challenges Assistant District Attorney Angie Creasy's answer to his state application for habeas corpus relief. He also challenges Creasy's denial that the weapon was illegally seized by a police officer and that the officer lied in his report. Petitioner further challenges Creasy's denial of his claim that the State suppressed evidence at his trial and failed to turn over evidence subject to discovery. He also asserts the State fabricated a police report, and he faults the DA's Office for appeal to the Third Court of Appeals being dismissed for want of jurisdiction. He admits his claims against Creasy are time-barred but argues she can be prosecuted.

         Petitioner also requests this Court hold a hearing with regard to the claims he made in his state applications for habeas corpus relief. Petitioner asserts he requested Judge Kocurek hold a hearing to investigate his allegations, but the judge denied his request. Petitioner contends Judge Kocurek's refusal to hold a hearing in his state habeas corpus case violates criminal law. Similarly, in his Motion for Leave to File Writ of Mandamus Petitioner requests the Court to order the state courts to hold a hearing to investigate his claims of prosecutorial misconduct.

         DISCUSSION AND ANALYSIS

         A. Standard Under 28 U.S.C. § 1915(e)

         An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e) if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal for frivolousness or maliciousness may occur at any time, before or after service of process and before or after the defendant's answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).

         When reviewing a plaintiff's complaint, the court must construe plaintiff's allegations as liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However, the petitioner's pro se status does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation and abuse already overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).

         B. Criminal Charges

         Although Plaintiff's Formal Complaint is not clear, he appears to contend criminal charges should be brought against Assistant District Attorney Creasy and Judge Kocurek. However, Petitioner does not have a constitutional right to have ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.