Kelly v. US Department of Justice, No. 1:2015cv00382 - Document 4 (D. Del. 2016)

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

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Kelly v. US Department of Justice Doc. 4 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. ) ) ) ) ) ) ) ) ) ) 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 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 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) Dockets.Justia.com 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. 2 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. r--.... <J ""'\ 'l..'L ')e) L (p / DATE IN THE UNITED STATES DISTRICT COURT 3

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