Paul J. Kelly Jr.
How Judge Kelly rules, drawn from 42 signed orders. Every observation links to the order it came from.
How Judge Kelly decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
In criminal-defense contexts he insists that a defendant's own testimony be fully credited when a court decides whether the evidence warrants a requested jury instruction: the jury, not the trial judge, resolves whether to believe it, and the burden to earn the instruction is deliberately light.
“when deciding whether the evidence supports a particular jury instruction, a court ‘must give full credence to [the] defendant's testimony.’”
He applies the rule of lenity to genuinely ambiguous criminal statutes, reading an uncertain 'any person' unit-of-prosecution term in the defendant's favor rather than pyramiding punishment, and canvassing sister-circuit and Supreme Court authority before settling on the narrower reading.
“we conclude that ‘any person’ as used in § 2113(e) could be interpreted either in the singular or plural, making it sufficiently ambiguous as to require lenity.”
In his Scannell concurrence, Kelly focused the mootness comparison on whether the replacement ordinance disadvantaged the businesses in the same fundamental way, even if to a lesser degree.
“That ‘[t]he new ordinance may disadvantage [Plaintiffs] to a lesser degree than the old one’ matters little because it still ‘disadvantages them in the same fundamental way.’”
Procedural preferences
He treats preservation requirements as jurisdictional gatekeepers to the merits: a party who moves for judgment as a matter of law under Rule 50(a) but never renews it under Rule 50(b), or who raises a theory outside the final pretrial order, forfeits the point on appeal even where the underlying argument might have had force.
“the precise subject matter of a party's Rule 50(a) motion -- namely, its entitlement to judgment as a matter of law -- cannot be appealed unless that motion is renewed pursuant to Rule 50(b).”
In statutory interpretation he starts from a close, structural reading of the text, parsing how a modifier attaches across a disjunctive 'or,' and contrasting parallel provisions Congress drafted differently, and will adopt the reading that best serves the statute's purpose even when it means choosing the minority side of a circuit split.
“We agree that the language of the statute is best read as tolling the limitations period for ‘State post-conviction review’ and for ‘other collateral review,’ including federal habeas review.”
In the same concurrence, he would not decide whether the ordinance changed materially because the plaintiffs had not briefed the point and the parties had not addressed it.
“Therefore, I would not address this argument based upon waiver.”
Cautions
He enforces appellate briefing rules strictly: an appellant who fails to challenge every independent, alternative ground on which the judgment rests concedes those grounds and waives the appeal, no matter how strong its argument on the ground it did brief.
“Even if Digital Ally could persuade us that the district court's summary judgment decision was incorrect on the issue of ‘bad faith’ ... Digital Ally would still have to address in its opening brief the other grounds on which the district court decision rests. The failure to do so amounts to a concession as to the proof.”
In prisoner deliberate-indifference cases he holds a firm line between negligence and a constitutional violation: a doctor who exercises considered medical judgment, even a mistaken one, does not violate the Eighth Amendment, and expert opinion about what a reasonable physician would have done cannot be used to redefine the subjective standard.
“The subjective component of a deliberate indifference claim ‘is not satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises his considered medical judgment.’”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“The judgment of the United States District Court for the District of Wyoming is REVERSED, and the case is REMANDED with directions to enter judgment for the Plaintiffs-appellants.”
“The judgment of the United States District Court for the District of New Mexico is REVERSED, and the case is REMANDED to the district court for remand to the Secretary for further proceedings consistent with this opinion.”
“We have jurisdiction under 28 U.S.C. § 1291 and we reverse and remand.”
“Having reviewed the entire record, we are not in grave doubt as to the harmlessness of the error, and as such, Mr. Fowler's claim for relief on this ground fails.”
“The judgment of the district court is therefore REVERSED, and the case is REMANDED to the district court for further proceedings consistent with this opinion.”
“We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm in part, reverse in part, and remand for further proceedings.”
“Defendant-Appellant Jeff Yarbrough appeals the district court's denial of his motion for summary judgment based on qualified immunity.”
“The district's response was not clearly unreasonable so as to be deliberately indifferent to the harassment. Accordingly, we conclude that summary judgment was appropriate on the Title IX claim.”
“We hold that a reasonable officer could have reacted in the manner Agent Durastanti did, and therefore he is entitled to qualified immunity. Accordingly, we REVERSE.”
“For the reasons stated, Mr. Gallego's voluntary departure claim is dismissed and the petition for review is otherwise denied.”
“Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.”
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