Kelley v. United States of America

Filing 3

OPINION AND ORDER: DENYING request for relief pursuant to 28 U.S.C. § 2255. To the extent Mr. Kelley is attempting to advance claims relating to the current proceedings against him in Missouri, those claims are not properly brought in this court and so wont be considered. ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 9/26/12. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

MICHAEL A. KELLEY,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent

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CAUSE NO. 2:12-CV-373 RM
(Arising out of H CR 74-154)

OPINION and ORDER
Michael Kelley was sentenced to a seven-year term of imprisonment in June
1975 based on his plea of guilty to two counts of distribution of heroin in violation
of 21 U.S.C. § 841(a)(1). An additional charge against Mr. Kelley was dismissed at
the time of sentencing. Judge Allen Sharp of this court imposed Mr. Kelley’s
sentence under 18 U.S.C. § 5010(c), a provision of the Youth Corrections Act,
which was repealed in October 1984.
In August 2012, Mr. Kelley filed a petition asking that his 1975 sentence be
vacated or set aside pursuant to 28 U.S.C. § 2255 based on his claim that his
1975 convictions should have been vacated and because they weren’t, his counsel
was ineffective, he was improperly induced into pleading guilty, and/or the
government breached a specific performance condition of the plea agreement.
The rules governing petitions filed under 28 U.S.C. § 2255 provide that once
a motion is filed,

The motion, together with all the files, records, transcripts, and
correspondence relating to the judgment under attack, shall be
examined promptly by the judge to whom it is assigned. If it plainly
appears from the face of the motion and any annexed exhibits and
the prior proceedings in the case that the movant is not entitled to
relief in the district court, the judge shall make an order for its
summary dismissal and cause the movant to be notified.
Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District
Courts. Too, petitions filed pursuant to 28 U.S.C. § 2255 are governed by a oneyear limitations period, which runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the Constitution or
laws of the United States is removed, if the movant was prevented
from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized
by the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
Judgment in Mr. Kelley’s criminal case was entered on June 6, 1975, and when
no appeal was taken, the judgment became final that date. Mr. Kelley’s August 3,
2012 filing, then, is untimely by more than thirty-five years.
Mr. Kelley hasn’t argued that the one-year limitations period is somehow
inapplicable to his claims or that equitable tolling is justified in this case. A
petitioner is “entitled to equitable tolling if he shows (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549,

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2553 (2010). In his petition, Mr. Kelley reports that “[f]or the past (37) yrs, I was
led to believe this conviction had been vacated. I just learned for the first time in
December of 2011 that the prosecutor for the Western District of Missouri was
intending on using this case as a prior conviction for enhancement.” Petn, ¶ 11(e).
Mr. Kelley hasn’t pointed to any extraordinary circumstance(s) beyond his control
that prevented him from inquiring into the status of his 1975 conviction – his
belief that the convictions had been vacated doesn’t warrant equitable tolling of
the statute of limitations. See Holland v. Florida, 130 S. Ct. at 2553 (holding that
equitable tolling is only appropriate when an “extraordinary circumstance” stood
in the way of a timely filing); Nolan v. United States, 358 F.3d 480, 483 (7th Cir.
2004) (“[U]nless [the court is] persuaded that the statute of limitations can and
should be equitably tolled for his claims, they are time-barred.”). Mr. Kelley’s
claims are untimely and, so, are time-barred.
Even if the court were to find the doctrine of equitable tolling applicable to
Mr. Kelley’s claims, he still wouldn’t be entitled to the relief he seeks. His claims
that his plea agreement specifically provided that his convictions would be vacated
and his attorney “improperly induced [him] into a plea agreement to a crime he
maintains he was actually innocent of and only pled guilty because he was led to
believe he was getting an opportunity to have this conviction completed vacated
without any disabilities attached,” Memo., at 15, aren’t supported by the record
of the 1974 criminal action, which has been located by the clerk of the court.

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The court’s review of the two page Stipulation of Plea Agreement document,
filed with the court on January 6, 1975, revealed the following: Mr. Kelley agreed
he would plead guilty to Counts 4 and 5 of the indictment and the government
agreed to dismiss Count 1 at the time of sentencing, Plea Agree., ¶ 1; the parties
agreed that Mr. Kelley would be sentenced to a term of eight years under the
Federal Youth Corrections Act, 18 U.S.C. §§ 5010(a)-(c), with the understanding
that if the court determined that an eight-year sentence was inappropriate, Mr.
Kelley could withdraw his guilty plea and proceed to trial before another judge,
Plea Agree., ¶ 2; Mr. Kelley agreed to testify truthfully about his acquisition of
heroin on September 13 and 16, 1974 and his knowledge of facts about Richard
Peyton, Plea Agree., ¶ 3; Mr. Kelley and the government agreed that he would be
committed for observation and study pursuant to 18 U.S.C. § 5010(e), Plea Agree.,
¶ 4; and the parties agreed that the Stipulation “contains all promises and
representations made by the government to the defendant, Michael Allen Kelly
[sic], with respect to his plea.” Plea Agree., ¶ 5. The second page of the document
contains Mr. Kelley’s signature, along with the signatures of Assistant United
States Attorney Andrew Baker and defense counsel James Wieser. The plea
agreement contains no mention of any potential or promised expungement or
vacation of Mr. Kelley’s convictions on Counts 4 and 5 of the indictment, and Mr.
Kelley hasn’t pointed to or provided any evidence of such an agreement, so he

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can’t prevail on his claim that the government breached a non-existent condition
of the plea agreement.
In addition, the transcript of the change of plea proceeding disproves Mr.
Kelley’s claim of “actual innocence” and, in fact, evinces his admission to the
crimes charged:
THE COURT:

MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:

One of the other items I must determine as to whether or
not you are pleading guilty is whether you actually are
guilty of what you are charged with doing in Counts 4
and 5. Both of those charges are brought under the
same section of the statute and the dates are the 13th of
September, 1974 in Count 4, and the 16th of September,
1974 in Count 5. You are charged with knowingly and
intentionally and unlawfully distributing heroin or a
substance, a mixture containing heroin. First of all,
generally are you guilty of the conduct that is alleged
against you in Counts 4 and 5?
Yes, sir.
Specifically, on the 13th of September, or about that
date, where did the acts take place, what address?
It was at my home address, 6703 Schneider, in
Hammond, Indiana.
About what time of day or night, if you remember?
It was about in the afternoon, about twelve, one.
Right after noon?
Right.
Who else was involved in this, that you know their
names and so forth, in this transaction?
It was a man, John Eckenrode. He introduced another
man, I don’t remember his name, he was the agent.
Working undercover?
Right.
Obviously, you did not know he was an agent?
He introduced me to him on September 13 and asked me
to buy for him, so I got in the car with the agent and
Eckenrode and we drove over to a house, about two or
three miles away, I can’t remember the name of the
street.

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THE COURT:
MR. KELLEY:

THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:

MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:

Was that also in Hammond?
Yes, sir. And he gave me the money. I got out of the car,
I went to this house and went up there and exchanged
the money for a packet containing heroin and brought it
back and gave it to the agent.
How much money?
$125.
Was that in 10's and 20's, or what denomination?
It was 10's and 20's and a 5.
Who gave you the money?
The agent did.
The person who turned out to be an agent?
Right.
Whose car did you go over in?
The agent’s.
Did you know this John Eckenrode before?
Yes.
Was he the one who initially called you about this?
Yes, sir.
Was there anyone else involved in this transaction, was
any [other] person present?
There was a friend that was with me, John Medvid.
Who was a [co-]defendant in this case?
Right, he rode along with me.
Now, in Count 5 you are charged with a similar offense
on the 16th of September, 1974. Are you in truth and
fact guilty of that count?
Yes, sir.
Can you tell me basically what happened?
Basically the same thing.
About what time of day?
Then it was around I would say about five, five-thirty.
Later in the day?
Yes.
That was P.M.?
5:30 p.m.
Who was involved?
John Eckenrode and a man that turned out to be the
agent.
The same man you were talking about before?
Yes, and John Medvid also.

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THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:
THE COURT:
MR. KELLEY:

Again, how much money was involved in that
transaction?
$125.
*
*
*
Who initially contacted you?
John Eckenrode.
You went and got a substance that you knew to be
heroin, is that right?
Yes.
You knew this was heroin at the time, is that right?
Yes, sir.
At least it was bought to be heroin in both instances?
Yes, sir.

Plea Hrg. Tr., at 15-18.
Mr. Kelley also told Judge Sharp at the change of plea hearing that no
threats had been made or coercion used against him to get him to plead guilty,
Plea Hrg. Tr., at 14; he had had no trouble communicating with his counsel,
understanding the terms of the plea agreement, or understanding the court
proceedings, Plea Hrg. Tr., at 14, 20; he agreed that, if asked to do so by the
government, he would provide information and/or testimony about other people
involved in his September 1974 acquisition of heroin, Plea Hrg. Tr., at 22, 25; and
he was satisfied with the representation his counsel had provided, Plea Hrg. Tr.,
at 6. Because the record supports a finding that Mr. Kelley’s guilty plea was “a
voluntary and intelligent choice among the alternate courses of actions open to
him,” Berkey v. United States, 318 F.3d 768, 773 (7th Cir. 2003) (quoting North
Carolina v. Alford, 400 U.S. 25, 31 (1970)), and Mr. Kelley admitted that he
purchased and distributed heroin, he can’t prevail on his claim that he is actually

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innocent of the charges in Counts 4 and 5 of the indictment or that his attorney
wrongfully induced him to plead guilty.
Thus, Mr. Kelley’s claims are untimely and without merit, and the court
DENIES his request for relief pursuant to 28 U.S.C. § 2255. To the extent Mr.
Kelley is attempting to advance claims relating to the current proceedings against
him in Missouri, those claims are not properly brought in this court and so won’t
be considered.
SO ORDERED.
ENTERED:

September 26, 2012

/s/ Robert L. Miller, Jr.
Judge, United States District Court
cc:

M. Kelley
AUSA – Hammond

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