Kelly v. US Department of Justice

Filing 4

MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 1/22/16. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AARON HERBERT KELLY,
Petitioner,
V.

U.S. DEPARTMENT OF JUSTICE and
UNITED STA TES OF AMERICA,
Respondents.

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Civil Action No. 15-382-GMS

MEMORANDUM
I.

BACKGROUND
Petitioner Aaron Herbert Kelly submitted a false individual income tax return for the tax

year 2006. See Plea Agreement

at~

6(a), United States v. Kelly, Cr. Act. No. 14-97-PWG (D.

Md. July 1, 2014), ECF No. 26. On July 1, 2014, Kelly pled guilty in the United States District
Court for the District of Maryland to willfully aiding and assisting in the preparation of a false
tax return in violation of26 U.S.C. § 7206(2). See Plea Agreement at~ 1, United States v. Kelly,
Cr. Act. No. 14-97-PWG (D. Md. 2014), ECF No. 26. He was sentenced to three years of
probation. See Judgment, United States v. Kelly, Cr. Act. No. 14-97-PWG (D. Md. Feb. 3,
2015), ECF No. 38.
Pending before the court is Kelly's petition for writ of habeas corpus ("petition") and a
petition for a writ of mandamus asking the Special Consular's Office to order the court to grant
his habeas petition. (D.I. I; D.I. 3 at 2) Kelly contends his conviction is unlawful, and he asks
the court to order the expungement of his record and remove the "governmental restraint" on his
liberty. (D.1. I at 32)

II.

STANDARD OF REVIEW
Federal courts are required to liberally construe pro se filings. See Royce v. Hahn, 151

F.3d 116, 118 (3d Cir. 1998). Nevertheless, a district court may summarily dismiss a habeas
petition "if it plainly appears from the face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief." See Rule 4, 28 U.S.C. foll. § 2254.

III.

DISCUSSION
After reviewing the face of the petition, the court concludes that summary dismissal is

appropriate in this case. Kelly is not in custody in the State of Delaware, he does not challenge a
sentence or conviction imposed by the State of Delaware, and he does not challenge a sentence or
conviction imposed by this court. See 28 U.S.C. § 2254; 28 U.S.C. § 224l(d)(petition may be
filed either in the district "wherein such person is in custody or ... the district within which State
court was held which convicted and sentenced him"); 28 U.S.C. § 2242; Rule 2(a), 28 U.S.C.
foll. § 2254. Therefore, the court does not have jurisdiction over the instant proceeding.
The court also does not have jurisdiction to consider Kelly's petition for a writ of
mandamus. First, to the extent Kelly's petition for a writ of mandamus should be construed as
directed toward this court, the court's lack of jurisdiction over Kelly's habeas proceeding renders
his mandamus request moot which, in turn, deprives the court of jurisdiction over the mandamus
request. See North Carolina v. Rice, 404 U.S. 244, 246 (1971)("mootness is ajurisdictional
question" and a federal district court does not have jurisdiction to review moot habeas claims).
Second, to the extent Kelly's mandamus request should be construed as directed toward the
Special Consular' s Office, Kelly has improperly filed the petition for mandamus relief in this
court which, once again, deprives the court of jurisdiction over the mandamus request.

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IV.

CONCLUSION
For the aforementioned reasons, the court will dismiss Kelly's habeas petition and his

petition for a writ of mandamus for lack of jurisdiction. The court also declines to issue a
certificate of appealability because Kelly has failed to make a "substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2); 3d Cir. L.A.R. 22.2 (2011); United States v.
Eyer, 113 F.3d 470 (3d Cir. 1997). A separate Order will be entered.

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IN THE UNITED STATES DISTRICT COURT

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