Kelley v. Davis

Fifth Circuit

Kelley v. Davis

708 F. App'x 795

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 2, 2017

DocketNo. 16-11744

StatusPublished

Cited by3 cases

This text of 708 F. App'x 795 (Kelley v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelley v. Davis, 708 F. App'x 795 (5th Cir. 2017).

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Opinion

ORDER:

JERRY E. SMITH, United States Circuit Judge

James Kelley, Texas prisoner #1894193, is imprisoned for possessing cocaine in a drug-free zone and fraudulently possessing identifying information. He moves for a certifícate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 application in which he raised claims that (1) trial counsel was ineffective because (a) counsel did not object to the absence of a court reporter during the plea and sentencing proceedings and (b) counsel was not present and did not insist that Kelley be present at sentencing; (2) several documents in the state trial court records were fraudulent; and (3) the trial court did not orally impose consecutive sentences.

Kelley is entitled to a COA if he makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). He must establish that reasonable jurists would find the decision to deny relief debatable or wrong, see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), or that the issues he presents deserve encouragement to proceed further, see Miller-El, 537 U.S. at 327, 123 S.Ct. 1029.

Kelley has not made the required showing. Accordingly, the motion for a COA is DENIED. All outstanding motions are also DENIED.

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ORDER:

JERRY E. SMITH, United States Circuit Judge

James Kelley, Texas prisoner #1894193, is imprisoned for possessing cocaine in a drug-free zone and fraudulently possessing identifying information. He moves for a certifícate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 application in which he raised claims that (1) trial counsel was ineffective because (a) counsel did not object to the absence of a court reporter during the plea and sentencing proceedings and (b) counsel was not present and did not insist that Kelley be present at sentencing; (2) several documents in the state trial court records were fraudulent; and (3) the trial court did not orally impose consecutive sentences.

Kelley is entitled to a COA if he makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). He must establish that reasonable jurists would find the decision to deny relief debatable or wrong, see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), or that the issues he presents deserve encouragement to proceed further, see Miller-El, 537 U.S. at 327, 123 S.Ct. 1029.

Kelley has not made the required showing. Accordingly, the motion for a COA is DENIED. All outstanding motions are also DENIED.

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708 F. App'x 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-davis-ca5-2017.

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