Tommy Kelley v. Angie Creasy ( 2019 )

Case: 18-50701 Document: 00515045256 Page: 1 Date Filed: 07/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-50701 FILED
Summary Calendar July 23, 2019
Lyle W. Cayce
Clerk
TOMMY JOE KELLEY,
Plaintiff-Appellant
v.
ANGIE CREASY; JUDGE JULIE KOCUREK,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:18-CV-143
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Tommy Joe Kelley, Texas prisoner # 1768715, appeals the district court’s
dismissal of his “Formal Complaint,” which the district court construed as a
petition for a writ of mandamus under 28 U.S.C. § 1361, and of his
postjudgment “Application for Novodamus.” The district court dismissed
Kelley’s mandamus petition and postjudgment motion without prejudice for
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-50701 Document: 00515045256 Page: 2 Date Filed: 07/23/2019
No. 18-50701
lack of jurisdiction. We review such dismissals de novo. See Lane v.
Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
With the benefit of liberal construction, we conclude that Kelley contends
the district court erred in dismissing his mandamus petition and postjudgment
motion because the court had jurisdiction to investigate and prosecute the state
officers’ alleged violations of the United States Constitution. To the extent
Kelley sought to have the district court prosecute the state officers, the district
court was correct that Kelley does not have a constitutional right to have an
individual criminally prosecuted. See Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973). To the extent Kelley sought to have the district court direct the
state courts to investigate his prosecutorial misconduct allegations and hold a
hearing on his applications for postconviction relief, the district court correctly
determined that it lacked the authority to do so. See Moye v. Clerk, DeKalb
County Super. Ct., 474 F.2d 1275, 1276 (5th Cir. 1973). To the extent Kelley
sought to challenge the validity of his state convictions and obtain federal
habeas relief, the district court correctly determined that it lacked jurisdiction
to entertain an unauthorized successive 28 U.S.C. § 2254 application. See 28
U.S.C. § 2244(b)(3)(A); Strickland v. Thaler, 701 F.3d 171, 174 (5th Cir. 2012).
Finally, Kelley has abandoned any argument that the district court erred in
failing to construe his complaint as a civil rights action pursuant to 42 U.S.C.
§ 1983. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Kelley’s motion for leave to file an “Application for Writ of Supervisory
Control,” which we have construed as a supplemental appellate brief, is
GRANTED. Because Kelley has not shown that the district court erred in
dismissing his mandamus petition and postjudgment motion, however, the
district court’s judgment is AFFIRMED.
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