Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kelly v. Virginia Dept. of Corr

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

March 12, 2018

LEROY J. KELLY, Petitioner,
v.
VIRGINIA DEPT. OF CORR, Respondent.

          MEMORANDUM OPINION (DISMISSING 28 U.S.C. § 2254 PETITION)

          RODERICK C. YOUNG UNITED STATES MAGISTRATE JUDGE.

         Leroy 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.

         I. PROCEDURAL HISTORY

         A. Federal Convictions

         Prior 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 Allenwood.

         B. Stafford County Proceedings

         On 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 omitted).

         Kelly did not appeal. See Id. at *6-7.

         C. First Habeas Proceeding in this Court

         In 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.

         D. Belated Appeal Proceedings in the Virginia Courts

         On 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.

         E. Second Habeas Petition in this Court

         On 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.