Kelly v. Bishop, Jr. et al

Filing 22

MEMORANDUM. Signed by Judge Richard D. Bennett on 4/18/2018. (c/m 4/19/18 bas, Deputy Clerk)

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-17-2330

*

,

"

*****
MEMORANDUM

I.

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

Court is required. On August 14,2009, Kelly filed a 28 U.S.C.

S 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 al., Civil Action No. AW-09-2241 (D. Md.).
?

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.

S

2254 attack on each of his three 2008

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

convictions.
264.2

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

AW-l1-263 & AW-ll-

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 August 11, 2017,

3

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the Court received the above-taptioned case, representing Anthony

Kelly's ("Kelly") most recent 28 U.S.C. 92254 attack on one of his three 2008 convictions in the
Circuit Court for Montgomery County.

The instant case attacks Kelly's convictions on first-

degree murder, burglary, armed robbery, theft, and use of a handgun in State v. Kelly, Case No.
97749C. As best determined by the Court, the Petition sets out the following grounds:
I.

The jury instructions were unconstitutional because the trial judge did not inform
the jury that the prosecution must prove all crucial elements of guilt beyond a
reasonable doubt and the instructions did not inform the jury that the prosecution
must overcome a presumption of innocence in orqer to convict Kelly;4

II.

The trial judge gave the jury an unconstitutional "defective" reasonable doubt
instruction in violation of his Fifth and Sixth Amendment rights;
~

III.

Kelly was denied a fair trial as the trial court "improperly restricted"
present evidence of "significant probative value;"
.
"

IV.

fJ

his right to

•

Kelly's convictions were based on evidence known to be false;

2
With the retirement of Judge Alexander Williams, Jr. in January of 2014, Kelly's cases
were assigned to the undersigned judge.

3
The petition is dated August 4, 2017, and shall be deemed filed as of that date. See
Houston 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.)

4
In his "supporting facts" related to this ground Kelly claims the indictment was flawed
because it did not discuss how the victim was murdered and thus did not "include all elements of the
double homicide." ECF No.1, p. 3.

2

-"

!)

V.

Kelly is "actually innocent" of committing the charged crime;

VI.

The trial judge showed bias towards Kelly both before and during trial;

VII.

Montgomery County Police had no probable cause to obtain an arrest warrant
against Kelly;

VIII.

The state and trial court forced and threatened Kelly's wife to testify against
Kelly;

IX.

The jury instructions were unconstitutional because the trial court misled the jury
into believing that Kelly committed the crimes of burglary, robbery and murder
which were not eharged in this case; and

X.

The jury instructions were unconstitutional because the trial court misled the jury
into believing that Kelly fled the crime scene the day of the homicide and to this
date Montgomery County Police do not know who committed the double
homicide

ECF No.1, pp. 2-10.
Respondents argue that the Petition is subject to dismissal because the grounds are
unexhausted and/or time-barred. ECF NO.4.

Kelly has filed a Traverse5 (ECF No.5), along

with a number of letters,6 and several "Emergency" Motions seeking a Speedy Ruling, Release,
Partial Judgment under Rule 54, an Evidentiary Hearing, and Reassignment of the Case to a
Different Judge, all filed after Respondents' Answer. ECF Nos. 7-11. For reasons to follow,
Kelly's Motions shall be denied and the Petition shall be DISMISSED as time-barred.
i'.

The legal definition of a Traverse is ''the fOITna1denial 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.
6

The letters request an update regarding the status of the case, as well as Kelly's request
for an evidentiary hearing, reassignment of the case and copy work. Kelly's correspondence further
presented his grounds for argument at Kelly's "upcoming" evidentiary hearing and discussed the alleged
activities of North Branch Correctional Institution staff. ECF Nos. 6, 12-14 & 16-21.

3

.~ to

I]

II. Motion for Reassignment
The Court observes that's Kelly's previous federal habeas corpus cases were assigned to
Judge Alexander

Williams, Jr., who issued the dispositive Memoranda

dismissed those Petitions.

and Orders which

The undersigned judge did not have any involvement with Kelly's

cases until after Judge Williams' 2014 retirement. Kelly nonetheless 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.

Id.

Kelly requests that the case be ~eassigned to a different judge.
Plainly, the undersigned

did not take part in decisions related to Kelly's

prevIOUS

Petitions and Kelly's cases have already been assigned to a different judge. In spite of that lack
of involvement and reassignment,
standard. The undersigned's

the Court shall examine the Motion under the applicable

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. Grinnell Corp., 384 U.S. 563, 583 (1966). In other words, it must arise from
"events, proceedings, or experiences outside the courtroom."
(4th Cir. 1998).

Sales v. Grant, 158 F.3d 768, 781

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

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

4

A judge is neither

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

nor

"simply

because

[he] possesses

some

irrational
tangential

or highly tenuous
relationship

to the

10

proceedings."

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 not
presented an affidavit which points to an extra-judicial source of alleged bias. He has failed to
articulate 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
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Circuit Court for Montgomery County with first-degree murder, burglary, armed robbery, theft,
and use of a handgun in State v. Kelly, Case No. 91749C.

At the conclusion of pre-trial

proceedings, on June 3, 2004, Kelly was declared incompetent to stand trial. ECF No.4-I,
40-41.

pp.

On February 5, 2008, at the conclusion of a subsequent competency hearing, Circuit

Court Judge Durke G. Thompson determined that Kelly was competent to stand trial. Id., p. 58.
On August 4, 2008, a jury found Kelly guilty of two counts of first-degree murder, first-degree
burglary, armed robbery, and two counts of use of a handgun in the commission of a felony or
crime of violence.

Id., pp. 94-95. On September 8, 2008, Judge Thompson sentenced Kelly to

two consecutive life without parole sentences for the first-degree murders, plus an additional 80

5

years in prison on the remaining offenses, to be served consecutive to each other and to Kelly's
other sentences. !d., p.97.
Kelly noted an appeal to the Court of Special Appeals of Maryland.

ECF No. 4-1, p. 99.

"-

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
2009.

Court of Appeals

of Maryland on July 22,

Id., p. 101. According to Respondents, Kelly's reconsideration request was denied by the

Court of Special Appeals on or about August 31, 2009.

Id., p. 102. 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 and Kelly does not dispute that on September 13,2010, he filed a
petition for post-conviction relief, which was withdrawn by Circuit Court Judge John Debelius,
III at Kelly's request on December 16, 2010. Id., pp. 104-105. Kelly has not further pursued
post-conviction relief in State v. Kelly, Case No. 97749C, but did submit a petition for habeas
corpus "ad subjectendum"

and an application for issuance of

a writ of habeas corpus

on

February 8, 2011, which were denied by Judge Debelius that same date. Id., pp. 106-107. Kelly
filed two other applications for issuance of a writ of habeas corpus on March 7, 2011, which
were denied by Judge Debelius on that same date. Id., pp. 107-108. On April 18, 2017, Kelly
filed a motion to correct an illegal sentence, which was denied by Judge Debelius on May 11,
2017. Id., p. 110. Kelly filed yet another application for issuance of a writ of habeas corpus on
'"'-

"

6
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. IJ

May 11, 2017, which was denied by Circuit Court Judge Ronald B. Rubin on May 18, 2017. Id.
110-111.

His appeal was dismissed by the Court of Special Appeals of Maryland.

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. 97749C (Circuit

Court for Montgomery Cty.).7
In his Traverse, Kelly contends that his custody is unconstitutional.
filed a petition for writ of habbs

He alleges that he

corpus in the Circuit Court for Montgomery County on May

17, 2017 and requests an evidentiary hearing in this case. ECF No.5, p. 2.
"_Ii.

Kelly appears to

'{J

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.
3. Kelly further argues that the Court may resolve constitutional claims without deference to the
Anti- Terrorism and Effective Death Penalty Act (AEDP A).
AEDPA,

He later states that under the

a federal court "may grant habeas relief, as relevant,

only if the state courts

'adjudication of a claim on the merits ... resulted in a decision that. .. involved an unreasonable
application'

of the relevant law." He contends that the AEDPA controls the disposition of this
f

.

case and the State court decisions denying his habeas claims were contrary to and resulted from
an unreasonable determination of clearly established law.. Jri., pp. 3:::4.
IV. Limitations Period
Respondents argue that the Petition is time-barred.
7

A one-year statute of limitations

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

13,2018).

7

(last reviewed April

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

S 2244(d).

See 28

Section 2244(d) provides that:

(l)
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
(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 app~,al purpq,ses 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 b~an

to run on October 20, 2009.

The

Even assuming that Kelly's

September 13,2010 filing of a post-conviction petition tolled the Jimitation period, the one-year
"_110

,8

limitation clock started to run anew on December 16, 2010, when Judge Debelius granted
Kelly's motion to withdraw the post-conviction

8

petition.

Consequently, well over one year

expired where Kelly had no proceedings in state court that would have tolled the limitation
".'
~
period.8
Under certain circumstances the AEDPA's statute of limitations may be subject to
equitable tolling. See, e.g., Harris v. Hutchinson, 209 F.3d 32~•..
.328 (4th Cir. 2000); United
States v. Prescott, 221 F.3d 686, 687-88 (4th Cir. 2000); see also Wall v. Kholi, 562 U.S. 545,

549 (2011). However, 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 bane). 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 timelyfil.ing." 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 ex'ercised reasonable diligence in attempting to file after the
extraordinary circumstances began, the link of~a~~sation

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 raises
no grounds for equitable tolling. His petition for habeas corpus relief is time-barred under 28

8

In November of 2009 and 2011, 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-09-2241 and Kelly v. Shearin, et al., Civil Action No. AW-II-262, et seq. While Kelly did file
a post-conviction petition in September of 2010, it only remained pending for 91 days or until December
16, 2010. Kelly's subsequent filing of a motion to correcL,an illegal sentence and petitions for habeas
corpus relief in 2011 and 2017 do not protect him from the limitations' bar.

9
'~ a

• I'J

'~ I>

U.S.C.

S 2244(d)(l)(A)-(D)

'(J

and shall be dismissed and denied with prejudice.

V. Certificate of Appealability
Rule 11(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,
applicant, 28 U.S.C.

Because the accompanying Order -is a final order adverse to the

S 2253(c)(l)

requires issuance of a Certificate of Appealability before an

appeal can proceed.
A Certificate of Appealability may issue if the prisQner 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. _'

Id. at 478; see also

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

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
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 Appealability after the district court declined to

10

issue one).
VI. Conclusion
For the foregoing reasons, the Court dismisses the Petition for Writ of Habeas Corpus
with prejudice as time-barred9 and declines to issue a Certificate of Appealability.

10

A separate

Order shall issue.

/Yt.PJ'-J6

Date: April 18, 2018

RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

9
Given the untimeliness of the Petition, the Court need not address Respondents'
exhaustion argument.
,.
10

non-

In light of the decision to dismiss the Petition as time-barred, Kelly's "Emergency"
Motions for a Speedy Ruling, Release, Partial Judgment, and.Ev,identiafYHearing (ECF Nos. 7-10) shall
be denied.

11