Donald Ray Violett v. Larry E. Thompson
This text of Donald Ray Violett v. Larry E. Thompson (Donald Ray Violett v. Larry E. Thompson) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 19, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0447-OA
DONALD RAY VIOLETT PETITIONER
V. IN SUPREME COURT
HONORABLE LARRY THOMPSON, CHIEF RESPONDENT JUDGE, KENTUCKY COURT OF APPEALS
AND
COMMONWEALTH OF KENTUCKY REAL PARTIES IN INTEREST AND ANNA VALENTINE, WARDEN
MEMORANDUM OPINION OF THE COURT
DENYING WRIT OF MANDAMUS
Petitioner, Donald Ray Violett, seeks writs of mandamus and prohibition
from this Court to the Court of Appeals, first, to order the Court of Appeals to
consider the legal merits of his appeal regarding a writ of habeas corpus, which
was denied by the Oldham Circuit Court; and second, to prohibit the Court of
Appeals from invoking so-called “frivolous and vexatious” procedural rules to
deny review of his claims in the future. 1 For the following reasons, the
requested writs have no basis and the petition is denied.
1 This claim, insofar as it is properly before the Court, is meritless on its face as
entirely too speculative. See Barnes v. Goodman, 626 S.W.3d 631, 638-39 (Ky. 2021) (denying writ of prohibition because alleged injury was speculative); Caldwell v. Chauvin, 464 S.W.3d 139, 159 (Ky. 2015) (same). Thus, we will not waste time nor ink in treating it. Donald Ray Violett is no stranger to this Court. Since his convictions in
1993 on more than one hundred counts of first-degree sexual abuse and five
counts of first-degree rape, “Violett has filed more than eighty-four appeals and
original actions in an attempt to relitigate his convictions.” Violett v. Grise, 664
S.W.3d 481, 482 (Ky. 2022). Violett has become so prolific in his collateral
attacks on his convictions that the Court of Appeals sought to disallow his
filing of pleadings in that court without prior review by a three-judge panel.
Perceiving a threat to Violett’s constitutional right to access the courts, we
disapproved that practice and instead ordered “the lower courts to permit the
filing of the pleadings in the record, even without responsive pleadings, so that
any further review as may be undertaken is based on as complete a record as
possible.” Id. at 486. Now we must yet again address another of Violett’s
collateral attacks.
Substantively, Violett filed a petition for a writ of habeas corpus in the
Oldham Circuit Court, alleging his convictions are void ab initio for several
reasons. 2 The Oldham Circuit Court denied the petition on January 10, 2023,
though its order is not included in the record. Instead of appealing that denial,
Violett filed a CR 60.02 motion for reconsideration. That too was denied by the
2 The merits of the habeas petition are not before the Court. We nonetheless
note that Violett “has filed several petitions for writs of habeas corpus in the courts of the Commonwealth as well as in federal courts.” Violett v. Commonwealth, No. 2003- CA-000466-MR, 2004 WL 1103670, at *1 (Ky. App. May 14, 2004). It is a useful reminder to the lower courts that Kentucky has long held successive habeas petitions may be denied without a hearing so long as three conditions, unnecessary to detail now, are met. Baker v. Davis, 383 S.W.2d 125, 125-26 (Ky. 1964).
2 trial court on February 21, 2023. Violett appealed the denial of the CR 60.02
motion, which the Court of Appeals dismissed as frivolous on June 8, 2023.
Violett then filed a motion for reconsideration and a motion to proceed in forma
pauperis regarding the motion for reconsideration. The Court of Appeals denied
the in forma pauperis motion on the basis of KRS 454.410(5). 3 The Court of
Appeals stated that no further action would be taken in the matter until the
filing fee had been paid. Violett filed a motion for reconsideration of the denial
of in forma pauperis status on September 29, 2023, despite the fact that this
Court had already received his petition for writ of mandamus on September 21,
2023.
The basic elements necessary to issue a writ of mandamus are
that the lower court is proceeding or about to proceed without jurisdiction, and there is no adequate remedy by law, or to establish that the lower court, although acting with jurisdiction, is about to act incorrectly and there is no adequate remedy by appeal and great injustice or irreparable injury would result.
Bock v. Graves, 804 S.W.2d 6, 9 (Ky. 1990). The confused procedural history of
the present action alone suggests denial of the petition. Similarly, Violett has
devoted the entirety of his brief before this Court to argue the merits of the
habeas petition. Because his petition was received by this Court prior to the
motion for reconsideration regarding in forma pauperis status, we consider that
3 This statute reads, “In no event shall an inmate bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the inmate has, on three (3) or more occasions within a five (5) year period, while incarcerated or detained in any facility, brought an action or appeal in any court that was dismissed on the grounds that it was frivolous, malicious, or harassing, unless the prisoner is under imminent danger of serious physical injury, without paying the entire filing fee in full.”
3 issue preserved. But neither the merits of the dismissal as frivolous nor the
merits of the habeas petition as such are before us, as the Court of Appeals
expressly declined to rule on the merits of the motion for reconsideration
pending payment of the filing fee.
Motions to proceed in forma pauperis in the appellate courts are governed
by Rule of Appellate Procedure (RAP) 54. There is an unambiguous right to
appeal denials of such motions. RAP 55(A). Therefore, the petition, insofar as it
concerns the in forma pauperis issue, fails because there is an adequate
remedy on appeal. See also Gabbard v. Lair, 528 S.W.2d 675, 677-78 (Ky.
1975) (establishing that writs of mandamus are no longer the proper procedure
for appellate review of a denial to proceed in forma pauperis).
But even were the substantive issue of whether the appeal was
incorrectly dismissed as frivolous before this Court, it too would not merit the
issuance of a writ of mandamus. First, a conclusion that an appeal is frivolous
is subject to appeal. Leasor v. Redmon, 734 S.W.2d 462 (Ky. 1987). Secondly,
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