United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Joseph Kelly, a Virginia state prisoner proceeding pro
se, brings this petition pursuant to 28 U.S.C. §
2254 ("§ 2254 Petition, " ECF No. 1). Kelly
challenges his convictions in the Circuit Court for the
County of Stafford, Virginia, for robbery and use of a
firearm in the commission of a robbery. In his § 2254
Petition, Kelly seeks relief upon the following grounds:
Claim One Kelly failed to receive the effective assistance of
counsel because counsel failed to file an appeal as directed.
(§ 2254 Pet. 5.)
Claim Two Kelly failed to receive the effective assistance of
counsel because his attorney abandoned him. (Id. at
Claim Three "Denial of the right to appeal. Because
attorney has abandoned Petitioner, he has lost his right to
appeal; as well, the Clerk of Court, whether state Court for
Appeals had a duty to contact petitioner but failed to do
Claim Four "Involuntary guilty plea . . . Petitioner was
not allowed to withdraw his guilty plea after discovering the
State was using information obtained from Petitioner while
under immunity from the Federal Government . . . ."
Claim Five Kelly failed to receive the effective assistance
of counsel because:
(a) counsel failed to request material regarding any meetings
Kelly had with "federal and state agents surrounding the
robberies in Virginia, " (Mem. Supp. § 2254 Pet. 8,
ECF No. 1-1);
(b) counsel failed to request a continuance "so that he
could possibly gain access [to] any information . . .
relating to his client's claims of . . . immunity, "
(c) counsel failed to ensure that Kelly's Fifth Amendment
right to self-incrimination was not violated by his
prosecution in Virginia. (Id.)
reasons set forth below, the Court agrees with the Respondent
that Kelly "should be granted a delayed appeal of the
criminal judgments to the Court of Appeals of Virginia. All
other claims should be denied and dismissed." (Br. Supp.
Mot. Dismiss 37, ECF No. 22.)
Court notes that Kelly's fourth and fifth claims are
predicated on his assertion that his guilty pleas were not
knowingly and voluntarily entered because he labored under
the mistaken assumption that his Federal Plea Agreement
immunized him from criminal liability for all federal and
state charges. Kelly suggests that he merely pled guilty to
Virginia charges as part of a formality to having the charges
dismissed. As explained below, review of the pertinent
history refutes Kelly's current suggestion that his
guilty pleas to the Virginia charges were induced by his
mistaken belief that the Federal Plea Agreement immunized him
from criminal liability.
Applicable Constraints Upon Federal Habeas Review
order to obtain federal habeas relief, at a minimum, a
petitioner must demonstrate that he is "in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). The
Antiterrorism and Effective Death Penalty Act
("AEDPA") of 1996 further circumscribed this
Court's authority to grant relief by way of a writ of
habeas corpus. Specifically, " [s]tate court factual
determinations are presumed to be correct and may be rebutted
only by clear and convincing evidence." Gray v.
Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28
U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C.
§ 2254(d), a federal court may not grant a writ of
habeas corpus based on any claim that was adjudicated on the
merits in state court unless the adjudicated claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). The Supreme Court has emphasized
that the question "is not whether a federal court
believes the state court's determination was incorrect
but whether that determination was unreasonable-a
substantially higher threshold." Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (citing Williams
v. Taylor, 529 U.S. 362, 410 (2000)).
Factual And Procedural History For Guilty Plea
Federal Charges And The Federal Plea Agreement
to his arrest in North Carolina, Kelly was involved in
approximately fifty-three (53) robberies. (ECF No. 1-3, at 9,
15-16.) On March 24, 1998, Kelly entered in a plea agreement
with the United States in the United States District Court
for the Western District of Virginia. (ECF No. 1-2.)
Kelly pled guilty to one count of conspiracy to commit and to
attempt to commit armed robbery of several restaurants,
supermarkets, and convenience stores, in violation of the
Hobbs Act, 18 U.S.C. § 1951 (2000), and two counts of
using a firearm during a crime of violence, in violation of
18 U.S.C. § 924(c) (2000). The district court sentenced
Kelly to 312 months in prison.
United States v. Kelly, 102 F.App'x 838, 839
(4th Cir. 2004).
Plea Agreement for the above charges ("Federal Plea
Agreement, " ECF No. 1-2) waived his right against
self-incrimination (id. ¶ 13 (d)), and required
him to assist the Government (id. ¶ 17) .
Specifically, the Plea Agreement provided:
If requested by the United States, but only if so requested,
the defendant agrees to cooperate with the United States,
including but not limited to the following:
a. The defendant will provide truthful information about the
subject charges and about any other criminal activity within
the defendant's knowledge to any government agent or