Kelly v. Bishop et al

Filing 26

MEMORANDUM. Signed by Judge Richard D. Bennett on 4/12/2018. (jb5, Deputy Clerk)(c/m-04-13-2018)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ANTHONY QUINTIN KELLY, #352736
Petitioner,
v.

•

WARDEN FRANK B. BISHOP, JR.
JOHN MCCARTHY, Stale's Allorney
ATTORNEY GENERAL OF MARYLAND
Respondents.

•
•

•

CIVIL ACTION NO. RDB-I 7-2065

*****
MEMORANDUM
I.

Procedural History in this Court
A brief overview of Petitioner Anthony Quinten Kelly's ("Kelly") writ history in the

Court is in order. On August 14,2009, Kelly filed a 28 U.S.C. ~ 2254 "Emergency" Petition for
habeas corpus relief raising a direct attack on his 2008 convictions on murder, rape, and other
related offenses arising out of three separate trials in the Circuit Court for Montgomery County.
See Kelly v. Shearin. el aI., Civil Action No. AW-09-2241 (D. Md.).

I

The matter was fully

briefed and on November 19, 2009, the Petition was dismissed without prejudice for the failure
to exhaust state court remedies as to all three convictions.

Certificates of appealability and the

appeals which followed were denied.
On January 28, 201 I, the Court received three Petitions for writ of habeas corpus
representing Kelly's attempt to re-file a 28 U.S.C. ~ 2254 attack on his three 2008 convictions.

See Slate v. Kelly, Criminal No. 96433C, Slale v. Kelly, Criminal No. 97749C,
and Slale v. Kelly, Criminal No. 97760C (Circuit Court for Montgomery Cty.)

See Kelly v. Shearin. et a/., Civil Action Nos. AW-11-262, AW-11-263 & AW -11-264.2

The

cases were consolidated and, after briefing, the Petitions were dismissed without prejudice for
non-exhaustion

of remedies.

Certificates of appealability

',vere denied.

The Fourth Circuit

subsequently denied certificates of appealability and dismissed the appeal.
On July 21, 2017, the Court received the above-captioned

case, representing Anthony

Kelly's ("Kelly") most recent 28 U.S.C. ~ 2254 attack on one of his three 2008 convictions in the
Circuit Court for Montgomery

County.

The instant case attacks Kelly's

first-degree

rape

conviction in State v. Kelly. Case No. 97760 and, as best determined by the Court, sets out the
following grounds:
I.

Kelly was convicted on the basis of an unconstitutionally suggestive
identification;

II.

Evidence used to convict Kelly was obtained through an illegal search and
seizure; and

III.

Kelly's sentence was illegally enhanced on the basis of a prior conviction.

ECF No. I, pp. 3-5.
In their Answer Respondents argue that the Petition is subject to dismissal because the
ground are un exhausted and/or time-barred.

ECF NO.9.

Kelly has filed a Traverse3 (ECF No.

With the retirement of Judge Alexander Williams, Jr. in January of2014, Kelly's cases
were assigned to the undersigned judge.
The legal definition of a Travers is "the formal denial of a fact in the opposite party's
pleading." See https://legal-dictionary.thefreedictionary.com/traverse. Kelly's Traverse may be viewed
as a reply to Respondents' Answer.
3

2

10), along with a number of letters,4 and several "Emergency" Motions seeking a Speedy Ruling,
Release, Partial Judgment, and .!InEvidentiary Hearing, along with a Motion for Reassignment of
the Case to a Different Judge, all filed after Respondents'

Answer.

reasons to follow, Kelly's Motions shall be denied and the Petition

ECF Nos. 12-16.

For

shall be DISMISSED as

time-barred.
II.

Motion for Reassignment
The undersigned observes that's Kelly's previous federal habeas corpus cases

were

assigned to Judge Alexander Williams, Jr., who issued dispositive Memoranda and Orders.
Kelly's cases were assigned to the undersigned judge after Judge Williams' 2014 retirement.
Kelly requests that this case be reassigned to a different judge.

He claims that the undersigned

"has a strong personal interest" in this case and has "substantial difficulty putting out of his mind
previously-expressed

views or. findings determined to be erroneous or based on evidence that

must be rejected." ECF No. 16, p. 2. He questions the Court's competency and impartiality.

ld.

Kelly's Motion, construed as a motion for recusal, shall be denied. To be disqualifYing,
the alleged bias or prejudice must stem from an extrajudicial source.

Grinnell Corp., 384 U.S. 563, 583 (1966).

See United States v.

In other words, it must arise from "events,

proceedings, or experiences outside the courtroom."

Sales v. Grant, 158 F.3d 768, 781 (4th Cir.

1998). Therefore, on their own, judicial rulings "almost never constitute a valid basis for a bias
or partiality motion."

United States v. Lentz, 524 F.3d 501, 530 * (4th Cir. 2008) (citing Liteky v.

,
The letters request an updated status of the case, a docket sheet and copy work, as well as
an inquiry on the evidentiary hearing, the reassignment of the case to another judge, the grounds for
argument at Kelly's "upcoming" evidentiary hearing, and the activities of the Warden at the North Branch
Correctional Institution. ECF Nos. I J & 17-25.

3

United Stales, 510 U.S. 540, 555 (1994) (internal quotation marks omitted). Moreover, opinions
formed by the judge during the current proceeding, or a prior one, do not generally warrant
recusal.

Id.

A judge is neither required to recuse himself "simply because of unsupported,

irrational or highly tenuous speculation," nor "simply because [he] possesses some tangential
relationship to the proceedings."

United Slales v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003)
, ,

(internal citation omitted).
Finally, the judge against whom the affidavit of bias is filed may rule on its legal
sufficiency.

See Marty's Floor Covering Co., Inc. v. GAF Corp.,

604 F.2d 266, 268 (4th Cir.

1979) (internal citation omitted). The affidavit shall be construed "strictly against the movant to
prevent abuse."

United Slales v. Miller, 355 F.Supp.2d 404, 405 (D. D.C. 2005).

Kelly has

failed to present an affidavit which points to an extra-judicial source of alleged bias. He has not
articulated a claim that demonstrates a need for recusal. .
111.

State Court Record
The record presented t6 the Court shows that in May of 2003, Kelly was charged with

first-degree rape and armed robbery in Slale v. Kelly, Case No. 97760. The charges were filed in
, ,
the Circuit Court for Montgomery County.

At the conclusion of pre-trial hearings, on June 3,

2004, Kelly was declared incompetent to stand trial.

ECF No.9-I,

p. 37.

After subsequent

competency hearings commenced on January 3 I. 2008, on February 5, 2008, Circuit Court Judge
Durke G. Thompson determined that Kelly was competent to stand trial. Id., p. 51.

On July 2,

2008, a jury found Kelly guilty of first-degree rape. On September 8, 2008, Kelly was sentenced
to a life term by Judge Thompson.

Id., pp. 70 & 73.

4

Kelly noted a pro se appeal to the Court of Special Appeals of Maryland. The appeal was
dismissed on grounds of non-compliance with the rules of appellate procedure.

Kelly's petition

for writ of certiorari was denied by the Court of Appeals of Maryland on July 22, 2009.
According to Respondents, Kelly's reconsideration request was denied by the Court of Special
Appeals on or about August 31, 2009.

Id., p. 76. Respondents argue that Kelly's conviction

became final for direct review purposes on October 19, 2009. See Clay v. United States. 537
U.S. 522, 525 (2003) (holding state judgment becomes final for habeas purposes when the time
I

expires for filing a petition for writ of certiorari to the Supreme Court or ninety days following
the decision of the state's highest court).
Respondents maintain that in the years which followed the completion of the direct
appeal process Kelly filed a petition for writ of actual innocence on September 13, 2010, but
sought permission to withdraw the petition on November 17,2010 and April 1,2011.

ECF No.

9-1, pp. 78 & 80. He has not filed a petition for post-conviction relief in Slale v. Kelly, Case No.
97760, but did submit an application for writ of habeas corpus on February 8, 2011.

The

application was denied by Circuit Court Judge John W. Debelius, III that same date. Id., p. 79.
Kelly also filed a motion to correct an illegal sentence 'on April 14, 2017, which was denied by
Circuit Court Judge Ronald B. Rubin on May 4, 2017. Id., p. 83. Finally, Kelly filed another
application for issuance of a writ of habeas corpus on May 10,2017.

It was denied by Judge

Rubin on May 18, 2017. Id. A recent review of the state cou;1 docket shows that Kelly has filed
no further post-conviction motions seeking to vacate his conviction and sentence.

5

See Stale v.

Kelly,

Case

97760

No.

(Circuit

Court

for

http://casesearch.courts.state.md.us/casesearch/inquiryDelail.jis?

Montgomery

Cty.).

See

(last reviewed April II, 2018).

In his Traverse, Kelly contends that his custody is unconstitutional.

He further alleges

that he filed a petition for writ of habeas corpus in the Circuit Court for Montgomery County on
May 17,2017.
IV.

ECFNo.IO.

Limitations Period
Respondents argue that the Petition is time-barred.

A one-year statute of limitations

applies to habeas petitions in non-capital cases for a person convicted in state court.
U.S.C.

S 2244(d).

Section 2244(d) provides that:

(1)
A I-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of(A)
the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B)
the date on which the impediment to filing an
application created by State action in violation of the
constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C)
the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
()
the date on which the factual predicate of the claim
or claims presented could have been discovered through the
exercise of due diligence.
(2)
the time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment

6

See 28

or claim is pending shall not be counted toward any period of limitation
under this subsection.
Kelly's conviction became final for direct appeal pu.-poses on October 19, 2009, when
the time for filing his petition for writ of certiorari with the V.S. Supreme Court expired.

The

one-year limitations period began to run on October 20, 2009. Even assuming, arguendo, that
Kelly's September 13, 2010 petition for writ of actual innocence tolled the limitation period
under 28 V.S.c.

S

2244( d)(2), the petition was withdrawn, at the latest on April I, 2011.

Consequently, well over one year expired where Kelly had no proceedings in state court that
would have tolled the limitation period.s Indeed, this petition, filed on July 14, 2017,6 was
received more than six-years later.
It is true that under certain circumstances the AEDPA's

statute of limitations may be

I

subject to equitable tolling. See, e.g., Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000);
United States v. Prescoll, 221 F.3d 686, 687-88 (4th Cir:'2dOU); see also Wall v. Kholi, 562 U.S.
545,549 (2011). The Fourth Circuit has consistently held that a party seeking to avail himself of
equitable tolling must show that (I) extraordinary circumstances,

(2) beyond his control or

,

The Court previously advised Kelly of the need to exhaust his remedies in state court by
post-conviction petition. See Kelly v. Shearin, et al., Civil Action No. AW-09-224I and Kelly v. Shearin,
et al., Civil Action No. AW-II-262, et seq. He did not avail himself of this particular remedy; instead, he
filed: a petition for habeas corpus on February 8, 20 II, which was dismissed that same date; a motion to
correct an illegal sentence on April 14,2017, which was denied 20 days later; and another petition for
habeas corpus relief on May 10, 2017, which was denied eight days later. In any event, the short
pendency of these petitions and motion does not save Kelly's'Petition from the limitations' period.
6

The petition is dated July 14, 2017, and shall be deemed filed as of that date. See
HOllstonv. Lack, 487 U.S. 266, 270-76 (1988); United States v. McNeill, 523 Fed. Appx. 979, 983 (4th
Cir. 2013); United States v. Dorsey, 988 F. Supp. 917, 919-920 (D. Md. 1998) (holding a petition shall be
deemed to have been filed on the date it was deposited with prison authorities for mailing under the
"prison mailbox" rule.)

7

external to his own conduct, (3) prevented him from filing on time. Rouse v. Lee, 339 F.3d 238,
246 (4th Cir. 2003) (en bane). Further, to be entitled to equitable tolling a petitioner must show:
"(I) 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, 560 U.S. 631, 649 (2010),

citing Paee v. DiGulielmo, 544 U.S. 408, 418 (2005).

If "the person seeking equitable tolling

has not exercised reasonable diligence in attempting to file 'aher the extraordinary circumstances
began, the link of causation between the extraordinary circumstances and the failure to file is
broken, and the extraordinary circumstances therefore did not prevent timely filing."

Valverde v.

Slinson, 224 F.3d 129, 134 (2d Cir. 2000). Kelly raises no grounds for equitable tolling.
petition for habeas corpus relief is time-barred under 28 U.S.C.

S

His

2244(d)(1 )(A-D) and shall be

dismissed and denied with prejudice.
V.

Certificate of Appealability
Rule II(a) of the Rules Governing Section 2254 Cases provides that the district court

"must issue or deny a certificate of appealability when it enters a final order adverse to the
,
applicant" in such cases.

Because the accompanying

Order is a final order adverse to the

.
applicant, 28 U.S.C.

S

,

2253( c)(I) requires issuance of a Certificate of Appealability before an

appeal can proceed.
A Certificate of Appealability may issue if the prisoner has made a "substantial showing
of the denial of a constitutional right."
constitutional
"reasonable

28 U.S.C.

S

2253( c)(2).

When a district court rejects

claims on the merits, a petitioner satisfies the standard by demonstrating
jurists would find the district court's

8

,

assessment

of the constitutional

that

claims

debatable or wrong."

Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a petition is denied

on procedural grounds, the petitioner meets the standard with a showing that reasonable jurists
"would find it debatable whether the petition states a valid claim of the denial of a constitutional
right" and "whether the district court was correct in its procedural ruling,"
Buck v. Davis, _

U.S. _'

[d. at 478; see also

137 S. Ct. 759, 773-74 (2017).

Kelly's claims are dismissed on procedural grounds, and, upon review of the record, this
Court finds that he has not maae the requisite showing. The Court therefore declines to issue a
Certificate of Appealability.

Kelly may still request that. th,e United States Court of Appeals for

the Fourth Circuit issue such a certificate.

See Lyons v. Lee, 316 F.3d 528, 532 (4th Cir. 2003)

(considering whether to grant a Certificate of Appealability after the district court declined to
issue one).
VI.

Conclusion
For the foregoing reasons, the Court dismisses the Petition for Writ of Habeas Corpus

with prejudice as time-barred' and declines to issue a Certificate of Appealability.s

A separate

Order shall issue.

/2tt

J). .z..:If

RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

7

Given the untimeliness of the Petition, the Court need not address Respondents' nonexhaustion argument.
In light of the decision to dismiss the Petition as time-barred, Kelly's "Emergency"
Motions for a Speedy Ruling, Release, Partial Judgment, and Evidentiary Hearing (ECF Nos. 12-15) shall
be denied.
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9