United States District Court, E.D. Virginia, Richmond Division
LEROY J. KELLY, Petitioner,
VIRGINIA DEPT. OF CORR, Respondent.
MEMORANDUM OPINION (DISMISSING 28 U.S.C. § 2254
RODERICK C. YOUNG UNITED STATES MAGISTRATE JUDGE.
J. Kelly, a Virginia state prisoner proceeding pro
se, brings this petition pursuant to 28 U.S.C. §
2254 ("§ 2254 Petition, " ECF No. 10)
challenging his convictions in the Circuit Court for the
County of Stafford, Virginia (hereinafter, "Circuit
Court") for robbery and use of a firearm in the
commission of a robbery. Kelly has previously filed a §
2254 petition in this Court challenging his convictions in
the Circuit Court. The matter is before the Court on
Kelly's Response to the Court's Memorandum Order
directing Kelly to show good cause for his failure to exhaust
his state court remedies. For the reasons that follow,
Kelly's § 2254 Petition will be DISMISSED WITHOUT
PREJUDICE for lack of exhaustion.
to his arrest in North Carolina, Kelly was involved in
approximately fifty-three (53) robberies. See Kelly v.
Va. Dep't of Corr., No. 3;I5CV243, 2016 WL 4702476,
*2 (E.D. Va. Sept. 6, 2016) (citation omitted). On March 24,
1998, Kelly pled guilty in the United States District Court
for the Western District of Virginia to one count of
conspiracy to commit and to attempt to commit armed robbery,
and two counts of use of a firearm during a crime of
violence. See Id. (citation omitted). On January 7,
1999, the court sentenced Kelly to 312 months of
incarceration. See Kelly v. Va. Dep't of Corr.,
No. 3;I5CV243 (ECF No. 1-3, at 25.) Kelly is currently
serving his federal sentence and is incarcerated in USP
Stafford County Proceedings
August 3, 1998, Kelly was charged in the Circuit Court with
robbery, use of a firearm during the commission of a robbery,
possession of a firearm after having been convicted of a
felony, and shooting into an occupied building.
Kelly, 2016 WL 4702476, *3 (citation omitted). On
May 22, 2000, the Circuit Court arraigned Kelly on his then
pending state charges. See id at *4 (citation
omitted). Kelly initially pled not guilty and requested a
bench trial, but on the day of trial agreed to plead guilty
to the robbery charge and the use of the firearm in the
commission of the robbery charge in exchange for the
prosecution's agreement to dismiss the remaining charges.
See Id. at *3-4 (citation omitted). Kelly attempted
to withdraw his guilty plea several times thereafter. See
Id. at *4-5. The Circuit Court refused to permit Kelly
to withdraw his guilty plea and sentenced Kelly to an active
prison term often years. Id. at *5 (citation
did not appeal. See Id. at *6-7.
First Habeas Proceeding in this Court
2015, Kelly filed his first § 2254 petition challenging
his Stafford County convictions in this Court. See
Id. at *1. By Memorandum Opinion and Order entered
September 6, 2016, this Court granted in part, and denied in
part, Kelly's § 2254 petition. See Id.
*l-7. In his first § 2254 petition, Kelly raised a
number of claims including challenges to his guilty plea and
ineffective assistance of counsel. The Court granted relief
for his claim that counsel failed to file a direct appeal in
the form of granting Kelly a delayed appeal of the criminal
judgments to the Court of Appeals of Virginia. Id.
at *7. The Court dismissed all of his other claims including
his attempts to challenge his convictions and challenges to
his guilty pleas. Id.
Belated Appeal Proceedings in the Virginia Courts
September 21, 2016, the Court of Appeals of Virginia granted
Kelly a belated appeal and appointed counsel to represent
him. (ECF No. 1-1, at 2.) In his Petition for Appeal, Kelly
argued that the Circuit Court erred when it denied his motion
to withdraw his guilty plea. (ECF No. 20-3, at 10.) On May 5,
2017, the Court of Appeals of Virginia denied Kelly's
Petition for Appeal. (ECF No. 20-4, at 1.) On May 8, 2017,
Kelly noted an appeal to the Supreme Court of Virginia. (ECF
No. 20-5, at 1.) As discussed below, counsel for Kelly did
not file a petition for appeal and thus, no appeal was
pursued in the Supreme Court of Virginia.
Second Habeas Petition in this Court
November 23, 2016, prior to the litigation of his belated
appeal, this Court received a second 28 U.S.C. § 2254
Petition from Kelly challenging the same Stafford County
convictions. By Memorandum Order ...