Kelley v. United States of America
Filing
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ORDER Dismissing Case. Certificate of appealability is denied. Signed by U. S. District Judge Lawrence L. Piersol on 6/26/13. (DJP)
UNITED STATES DISTRICT COURT
FILED
DISTRICT OF SOUTH DAKOTA
JUN 26 2013
SOUTHERN DIVISION
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THOMAS R. KELLEY,
CN.13-4064
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Movant,
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ORDER
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-vs
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UNITED STATES OF AMERICA,
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Respondent.
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Petitioner, Thomas R. Kelley, ("Kelley") filed a pro se Motion to Vacate, Set Aside, or
Correct his Sentence pursuant to 28 U. S. C. § 2255. Kelley is incarcerated at the Federal Correctional
Institution in Sandstone, Minnesota.
BACKGROUND
Thomas Kelley is well known to this Court. He was indicted in 2008 on criminal charges
relating to his failure to comply with the tax code. See United States v. Kelley, CR 08-40173. On
October 6,2009, Kelley was charged in twenty-three count Second Superseding Indictment with
various criminal charges including filing a false tax refund, impeding the IRS, tax evasion, willful
failure to file a tax return, and issuing fictitious obligations. On May 16, 2010, a jury convicted
Kelley on twenty-two out of the twenty-three counts. (One of the counts was dismissed by the
government ).
Kelley was ordered to appear on August 2,2010 for sentencing. Kelley did not appear, and
a warrant was issued for his arrest. On September 8,2010, Kelley was indicted and charged with
failure to appear. See United States v. Kelley, CR 10-40100. Kelley was on the lam for four months.
Kelly was found and arrested in Minnesota and subsequently returned to South Dakota. On April
6,2011, Kelley was tried and convicted by a jury on the failure to appear charge.
On July 29,2011, Kelley was sentenced on both the tax evasion and the failure to appear
charges. Judgment was entered in both cases on August 1,2011. For the tax evasion charges, Kelley
was sentenced to 46 months imprisonment (total) I ,restitution in the amount of$96,710.00, a special
assessment, costs of$49,749, and five years of supervised release. For the failure to appear charges
Kelley was sentenced to 24 months imprisonment (to be served consecutively to the tax evasion
sentence), a special assessment and 2 years of supervised release (to be served concurrently with the
term of supervised release for the tax evasion charges). Kelleys direct appeal to the Eighth Circuit
Court of Appeals was unsuccessful. See United States v. Kelley, Nos. 11-2660, 11-2662, United
States Court of Appeals for the Eighth Circuit. On August 16, 2012, Kelley filed a lawsuit which
was, at his insistence, ultimately construed as a civil rights lawsuit pursuant to 42 U.S.C. § 1983.
See Kelley v. U.S. Attorney's Office, et. at. Civ. No. 12-4150, United States District Court, District
of South Dakota. That lawsuit was dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(I)
and 1915A(b)(1). See Doc. 5 and Doc. lOin that case. Kelley has now filed a Motion to Vacate,
Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255.
DISCUSSION
A Motion to Vacate, Set Aside or Correct a Sentence pursuant to 28 U.S.C. § 2255 allows
a federal prisoner to attack his sentence collaterally on constitutional grounds, because it is otherwise
illegal, or because the court that imposed it was without jurisdiction. The Rules Governing § 2255
Motions impose certain requirements upon both the Movant and the Court.
Rule 2. The Motion.
(a) Applying for Relief. The application must be in the form of a motion to vacate,
set aside, or correct the sentence.
(b) Form. The motion must:
(1) specify all the grounds for relief available to the moving party;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the movant or by a person authorized to
sign it for the movant.
IKelley was sentenced to various tenus of imprisonment for each of the 22 counts for which
he was convicted, to be served concurrently. The total term of imprisonment equals 46 months.
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(c) Standard Form. The motion must substantially follow either the form appended to these
rules or a form prescribed by local district court rule. The clerk must make forms available
to moving parties without charge.
(d) Separate Motions for Separate Judgments. A moving party who seeks relief from
more than one judgment must file a separate motion covering each judgment.
Rule 4. Preliminary Review.
(a). Referral to a Judge. The clerk must promptly forward the motion to the judge who
conducted the trial and imposed sentence or, ifthe judge who imposed sentence was not the
trial judge, to the judge who conducted the proceedings being challenged. Ifthe appropriate
court's
judge is not available, the clerk must forward the motion to a judge under the
assignment procedure.
(b). Initial Consideration by the Judge. The judge who receives the motion must promptly
examine it. If it plainly appears from the motion, any attached exhibits, and the record of
prior proceedings, that the moving party is not entitled to relief, the judge must dismiss the
motion and direct the clerk to notify the moving party. If the motion is not dismissed, the
judge must order the United States attorney to file an answer, motion or other response
within a fixed time, or to take other action the judge may order.
A dismissal of the § 2255 Petition is appropriate upon a Rule 4 Preliminary Review if the
allegations in the Petition are "incomprehensible," or are "unreasonably vague, conclusory, or
incredible, or if the factual matters raised by the motion may be resolved on the record before the
district court." Quintero-Hernandez v. United States, 2011 WL 2447451 (W.D.N.C.) at *2; United
States v. Hull, 2006 WL 752481 (N.D. Ind.) at *3. See also Ouwenga v. McKeague, 2008 WL
3979003 (W.D. Mich.).
In his Petition, Kelley cites Two Grounds for Relief,2 They are cited, verbatim, in their
entirety below:
GROUND ONE: Ineffectiveness of trial and appeal counsel for unprofessional
conduct, unpreparedness, and non-investigation.
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that
support your claim.): Besides other elements to be shown in memorandum to
follow the 8th Circuit is divided into several districts for judicial administration each
having an administrative head one of whom is the 8th Circuit district court of the
2In the space for the Third Ground for Relief, Kelley wrote "see memorandum to be
submitted for all other grounds and disclosures: unreasonableness. " In the space provided to
elaborate with supporting facts, he wrote "see memorandum and affidavits." He did not submit a
memorandum or any affidavits. In the space provided for the Fourth Ground for Relief, Kelley
wrote "see ground three (3)."
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United States and the authority for whom the 5 U.S.C. 302 delegation of authority
U.S. district court proceeded under policy and not law of the land causing
circumvention of the law ofthe land and bill ofrights without violating the wording
by and through the use of procedure and procedural policy and statute and rules to
alter rules of decision on substantive rights.
GROUND TWO: Violation of due process oflaw and equal protection by routine
concealment and refusals to rebut affidavits.
(a). Supporting facts (Do not argue or cite law. Just state the specific facts that
support your claim.): Several affidavits were presented, but remain unaddressed
such that in proceeding by the judges (appeal & U.S.D.C.) denials were impairing
and effecting interstate commerce such that by law they ceased to act as a judge at all.
Jurisdictional challenges stand un-met and instrument originals and initiator of
liability remains undisclosed in violation of the rights of Kelley.
The grounds for relief articulated by Kelley are incomprehensible and unreasonably vague,
conclusory, or incredible. As such, the Petition will be dismissed upon preliminary review pursuant
to Rule 4(b).
EVIDENTIARY HEARING AND CERTIFICATE OF APPEALABILITY
If the motion, files and records of the case conclusively establish that the Petitioner is not
entitled to relief, the Court is not required to conduct an evidentiary hearing. Garcia v. United
States, 679 F.3d 1013, 1014 (8 th Cir. 2012). There is no need for an evidentiary hearing in this case
because it is clear from the record that the motion that Kelley has not raised a claim cognizable under
28 U.S.C. § 2255.
When the district court has denied a motion under 28 U.S.C. § 2255, the movant may not
appeal without a certificate of appealability. Such a certificate may issue "only if the applicant has
made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A
"substantial showing" under this section is a showing that "reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S.
473,484 (2000). In other words, a "substantial showing" is made if a "court could resolve the issues
differently, or the issues deserve further proceedings." Cox v. Norris, 133 F.3d 565, 569 (8 th Cir.
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1997). Kelley has not made a substantial showing of the denial of a constitutional right. Therefore,
a certificate of appealability is denied.
Dated this
a
1.,J;=day of June, 2013.
BY THE COURT:
~SOl
United States District Judge
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