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. State's Attorney
ATTORNEY GENERAL OF MARYLAND
Respondents.

CIVIL ACTION NO. RDB-I 7-2066

*

*
*****

MEMORANDUM
I.

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

Court is necessary.

On August 14,2009,

Kelly filed a 28 U.S.C.

9

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, et 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, 2011, the Court received three Petitions for writ of habeas corpus
representing Kelly's attempt to re-file a 28 U.S.c.

9

2254 attack on his three 2008 convictions.

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

See Kelly v. Shearin, el al., Civil Action Nos. AW-II-262,

AW-II-263

& AW-1l-264.

The

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

of remedies.

Certificates of appealability

were denied.

The Fourth Circuit

subsequently denied certificates of appealability and dismissed the appeal.
On July 21, 2017,

2

the Court received the above-captioned case, representing Anthony

Kelly's ("Kelly") most recent 28 U.S.C.
Circuit Court for Montgomery County.3

9 2254

attack on one of his three 2008 convictions in the

The instant case attacks Kelly's convictions on first-

degree rape, first-degree assault and use of a handgun in the commission of a felony or crime of
violence in Slale v. Kelly, Case No. 96433. As best determined by the Court, the Petition 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.

The State unconscionably delayed in bringing Kelly to trial.

ECFNo.l,pp.3-7.

The petition is dated July 14, 2017, and shall be deemed filed as of that date. See
HOlls/on v. Lack, 487 U.S. 266, 270-76 (1988) (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.)
2

3

With the retirement of Judge Alexander Williams, Jr. in January of 2014, Kelly's cases
were assigned to the undersigned judge.

2

In their Answer Respondents argue that the Petition is subject to dismissal because the
ground are unexhausted and/or time-barred.

ECF NO.9.

Kelly has filed a Traverse4 (ECF No.

10), along with a number of letters,5 and several "Emergency" Motions seeking Speedy Ruling,
Release, Partial Judgment under Rule 54, and an Evidentiary Hearing, along with a Motion for
Reassignment of the Case to a Different Judge, all filed 'after Respondents' Answer.
12-16.

ECF Nos.

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

DISMISSED as time-barred.
II. Motion for Reassignment
The undersigned

observes that Kelly's

prevIOus federal habeas corpus cases were

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

/d.

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.

See United States v.

4

The legal definition of a Traverse is "the fonnal denial of a fact in the opposite party's
pleading." See htlps://legal-dictionary.thefreedictionary.com/traverse. Kelly's Traverse may be viewed
as a reply to Respondents' Answer.

,

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

3

Grinnell Corp., 384 U.S. 563, 583 (1966); In other words, it must anse from "events,
proceedings, or experiences outside the courtroom."
1998).

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

Therefore, on their ovm, 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.

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

Beille v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011).

required to recuse himself "simply because of unsupported,
speculation,"
proceedings."

nor "simply

because

[he] possesses

some

irrational
tangential

A judge is neither
or highly tenuous
relationship

to the

United States 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 States 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.
III. State Court Record
The record presented to the Court shows that in May of 2003, Kelly was charged in the
Circuit Court for Montgomery County with first-degree rape, first-degree assault, and use of a
handgun in the commission of a felony or crime of violence in State v. Kelly, Case No. 96433C.

4

At the conclusion of pre-trial proceedings, on June 3, 2004, Kelly was declared incompetent to
stand trial. ECF No.9-I,

p. 53. At a subsequent competency hearing, commencing on January

31,2008, Circuit Court Judge Durke G. Thompson detennined that Kelly was competent to stand
trial. [d., p. 72.

On June II, 2008, a jury found Kelly guilty of first-degree rape, first-degree

assault, and use of a handgun in the commission of a felony or crime of violence. On September
8,2008, Judge Thompson sentenced Kelly to a life tenn on the first-degree rape conviction and a
consecutive twenty-year tenn on the handgun offense. by Judge Thompson.

[d., pp. 98 & 103.

Kelly noted an appeal to the Court of Special Appeals of Maryland. ECF No. 9-1, p. 104.
The appeal was dismissed on grounds of non-compliance ~ith 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. [d., p. 107. According to Respondents, Kelly's reconsideration request was denied by the
Court of Special Appeals on or about August 31, 2009.

[d.

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 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 on March 18,2010, Kelly filed a petition for post-conviction
relief, which was withdrawn by Circuit Court Judge John Debelius, 1II at Kelly's request on
April 14,2010.

[d., pp. 108-109. Kelly has not further pursued post-conviction relief in State v.

Kelly, Case No. 96433C, but did submit 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. [d., pp. 120-

5

121. 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. !d., p. 121 A recent review of the state
court docket shows that Kelly has filed no further post-conviction motions seeking to vacate his
convictions and sentences.

See State v. Kelly, Case No. 96433C (Circuit Court for Montgomery

Cty.). See http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis?

(last reviewed April

11,2018).
In his Traverse, Kelly contends that his custody is unconstitutional.

He further alleges

the provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) "arguably don't
apply."

ECF No. 10, p. 2 He later states that the AEDPA controls the disposition of this case,

but the State court decisions were contrary to and resulted from an unreasonable determination of
clearly established law. Id., pp' 1-3. Kelly appears to allege that this Court did not notifY him of
the "stay and abeyance procedure" related to unexhausted claims and this Court is obligated to
look beyond a "state procedural forfeiture" and to consider a State prisoner's contention that his
constitutional rights have been violated. Id., p. 2.
IV. 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. ~ 2244(d). Section 2244(d) provides that:
(I)
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-

6

See 28

(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
(D)
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
or claim is pending shall not be counted toward any period of limitation
under this subsection.
Kelly's conviction became final for direct appeal purposes on October 19, 2009, when
the time for filing his petition for writ of certiorari with the U.S. Supreme Court expired.
one-year limitations period began to run on October 20, 2009.
March 18, 2010 filing of a post-conviction

Even assuming that Kelly's

petition tolled the limitation period, the one-year

limitation clock started to run again on April 14,2010,
motion to withdraw the post-conviction

The

petition.

when Judge Debelius granted Kelly's

Consequently,

well over one year expired

where Kelly had no proceedings in state court that would have tolled the limitation period.6

6

In November of 2009 and 20 II, 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. While Kelly did file
a post-conviction petition in 2010, it only remained pending for 27 days. Kelly's subsequent filing ofa

7

It is true that under certain circumstances the AEDPA's

statute of limitations may be

subject to equitable tolling. See. e.g.. Harris v. Hutchinson. 209 F.3d 325, 328 (4th Cir. 2000);
United States v. Prescoff. 221 F.3d 686, 687-88 (4th Cir. 2000); 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 (1) extraordinary circumstances,

(2) beyond his control or

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

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

If "the person seeking equitable tolling

has not exercised reasonable diligence in attempting to file after 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.

Stinson, 224 F.3d 129, 134 (2d Cir. 2000). Kelly rais~s no grounds for equitable tolling.
petition for habeas corpus relief is time-barred under 28 U.S.c.

S 2244(d)(1

His

)(A)-(D) and shall be

dismissed and denied with prej udice.
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

motion to correct a illegal sentence and petition for habeas corpus relief in 2017 does not protect him
from the limitations' bar.

8

i

.
applicant" in such cases,
applicant, 28 U.S.C.

S

Because the accompanying

2253(c)(l)

,
Order is a final order adverse to the

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

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 made the requisite showing. The Court therefore declines to issue a
J

Certificate of Appealability.

Kelly may still request that the 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 Appeal1\bility after the district court declined to
issue one).
VI. Conclusion

"

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

9

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

8

A separate

Order shall issue.

. ,

Date:

#,,",L

.&t.£)o

/4, .2.'" ~

<

x...i2

RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

.

,

7

Given the untimeliness of the Petition, the court need not address Respondents' nonexhaustion argument.
'.
.
8

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.
.

.
10

,