State Of Texas v. Carley

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
State of Texas
v.
Jerry Lavon Carley
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Civil Action No. 4:25-cv-05574
MEMORANDUM AND RECOMMENDATION
Several motions are pending in this criminal case, all filed by Defendant
Jerry Lavon Carley. After this Court issued its final order remanding the case
to state court, see Dkt. 27, Defendant Jerry Carley filed a motion to vacate
that order (Dkt. 28) and three motions for leave to pursue an appeal in forma
pauperis (Dkts. 29, 30, 31). His motions should be denied.
Analysis
I. 	There is no valid basis to revisit the final order.
On 	March 	6, 	2026, 	this 	Court 	entered 	a 	final 	order 	adopting 	the
undersigned’s recommendation that this case be remanded to state court.
Dkt. 27 (adopting Dkt. 12). In doing so, the Court concluded that Carley lacked
a 	cognizable 	basis 	to 	remove 	this 	criminal 	case 	to 	this 	Court, 	meriting
summary remand under 28 U.S.C. § 1455(b)(4). As detailed in the opinion that
this Court adopted, Dkt. 12, such a removal must satisfy both procedural
United States District Court
Southern District of Texas
ENTERED
May 19, 2026
Nathan Ochsner, Clerk
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requirements under 28 U.S.C. § 1455 and be supported by an underlying
statutory basis. See Dkt. 12 at 4. Carley, however, failed to identify any valid
statutory basis to remove the case. He did not allege that he is a federal officer
or member of the armed forces entitled to remove the case under 28 U.S.C.
§§ 1442 or 1442a. And he failed to satisfy any of the requirements for removal
under 28 U.S.C. § 1443(1) because his complaints about the state court’s
rulings invoke only generally applicable rights to due process, confrontation,
and equal protection, none of which implicate federal laws “stated in terms of
racial 	equality,’” 	and 	none 	of 	which 	evince 	the 	State 	of 	Texas’s 	“formal
expression of state law, ... ‘rather than a denial first made manifest in the trial
of the case.’” Johnson v. Mississippi, 421 U.S. 213, 219-20 (1975) (quoting
Georgia v. Rachel, 384 U.S. 780, 792, 799, 803 (1966)).
Carley’s March 16, 2026 motion for relief from judgment, styled as a
request under Fed. R. Civ. P. 60(b), does not fit within the “extraordinary
circumstances” 	that 	would 	merit 	relief. 1 	See 	Liljeberg 	v. 	Health 	Servs.
Acquisition Corp., 486 U.S. 847, 864 (1988) (quoting Ackermann v. United
States, 	340 	U.S. 	193 	(1950)). 	For 	instance, 	Carley’s 	complaints 	about
deficiencies in the underlying state case merely rehash prior contentions,
which is insufficient to satisfy Rule 60(b)’s standard. 	See Triple Tee Golf, Inc.
1 Because Carley timely filed the motion less than 28 days after the final order was
entered, this Court retains jurisdiction to resolve his motion.
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v. Nike, Inc., 485 F.3d 253, 269(5th Cir. 2007) (agreeing that “a 60(b) motion is
not an opportunity for a party to ‘relitigate its case’”). Notably, Carley does not
engage 	the 	merits 	of 	the 	binding 	authority 	that 	this 	Court 	concluded
necessitated remand under 28 U.S.C. § 1455.
Moreover, Carley’s assertion that the final order is “void” is premised on
the mistaken belief that remand was untimely. See Dkt. 28 at 3 (asserting 30
day deadline). To the contrary, the controlling statute imposes no deadline by
which a district court can issue a summary order remanding the case upon
concluding “it clearly appears on the face of the notice [of removal] and any
exhibits annexed thereto that removal should not be permitted ....” 	28 U.S.C.
§ 1455(b)(4).
The remainder of Carley’s contentions consists of spurious allegations of
“fraud,” “bias,” or “obstruction of justice” by the undersigned and a conspiracy
between the undersigned and the presiding District Judge. See Dkt. 28 at 4-7.
Those assertions are facially frivolous and are readily rejected. Carley’s mere
dissatisfaction with the Court’s rulings provides no basis for relief. 2
2 The result is the same even if Carley’s motion were construed as a motion to alter
or amend under Fed. R. Civ. P. 59(e). 	That avenue is likewise reserved for
“extraordinary cases,” Rollins v. Home Depot USA, 8 F.4th 393, 396 (5th Cir. 2021),
and is “not the proper vehicle” for Carley to revisit arguments that were raised and
rejected, see Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004). Also,
Carley’s baseless accusations of wrongdoing by the undersigned and the presiding
District Judge fare no better under Rule 59(e) than they do under Rule 60(b)(4).
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II. 	Because Carley lacks a non-frivolous basis for appeal, he is not
entitled to proceed in forma pauperis.
The remaining motions concern Carley’s request to proceed in forma
pauperis on appeal. 	Dkts. 29, 30, 31. 	Those requests are governed by
28 U.S.C. § 1915 and Rule 24(a) of the Federal Rules of Appellate Procedure.
Section 	1915 	permits 	a 	district 	court 	to 	authorize 	an 	appeal 	“without
prepayment of fees or security therefore” if the applicant shows, by affidavit,
that he “is unable to pay such fees” or provide such security. 	See 28 U.S.C.
§ 1915(a)(1). 	Carley’s affidavit, which discloses that he is unemployed with
expenses far exceeding his monthly unemployment payment, reflects that he
lacks the financial resources to pay the fees. See Dkt. 29 at 2-4.
Nevertheless, Rule 24 authorizes a district court to deny certification of
IFP status if it concludes that “the appeal is not taken in good faith ....” 	Fed.
R. App. P. 24(a)(4)(B). 	Good faith requires an objectively non-frivolous basis
for the appeal. 	See Coppedge v. United States, 369 U.S. 438, 445 (1962) (“We
consider a [party’s] good faith in this type of case demonstrated when he seeks
appellate review of any issue not frivolous.”). 	In this context, an appeal is
“frivolous” if it lacks “legal points arguable on their merits ....” See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983) (quoting Anders v. California, 386 U.S.
738, 744 (1967)).
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Carley has not met the good faith requirement. There is no arguable
legal basis for his challenge to the order remanding this criminal case to state
court. To the contrary, as noted above, Carley articulated no cognizable basis
to remove the case, and the removal contravened U.S. Supreme Court
authority. As a result, Defendant does not qualify for leave to appeal in
forma pauperis. His application for IFP should be denied.
Recommendation
For the foregoing reasons, it is RECOMMENDED that Defendant Jerry
Lavon Carley’s motion to vacate (Dkt. 28) be DENIED.
It is further RECOMMENDED that Carley’s applications to proceed in
forma pauperis on appeal (Dkts. 29, 30, 31) be DENIED.
The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b). Failure to file timely objections will preclude
appellate review of factual findings and legal conclusions, except for
plain error. Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
Signed on May 19, 2026, at Houston, Texas.
______________________________
Yvonne Y. Ho
United States Magistrate Judge
___________________________________
Yvooon	n	nn	n	ne Y. Ho
United States Magistrate Judge
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