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Kelly v. Director of Virginia Department of Corrections

United States District Court, E.D. Virginia, Richmond Division

September 2, 2016

LEROY JOSEPH KELLY, Petitioner,
v.
DIRECTOR OF THE VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         Leroy 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 6.)
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 so." (Id.)
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 . . . ." (Id.)
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, " (id.); and,
(c) counsel failed to ensure that Kelly's Fifth Amendment right to self-incrimination was not violated by his prosecution in Virginia. (Id.)

         For the 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.)

         The 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.

         I. Applicable Constraints Upon Federal Habeas Review

         In 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; or
(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)).

         II. Factual And Procedural History For Guilty Plea Claims

         A. Federal Charges And The Federal Plea Agreement

         Prior 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).

         Kelly's 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 ...

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