Kelly v. Mahoney

Filing 11

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 9 in full. The Petition 1 is DENIED. A certificate of appealability is DENIED. Signed by Judge Richard F. Cebull on 2/21/2012. Mailed to Kelly. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA

FILED
FEB '2,\ 2012

BILLINGS DIVISION
DANNY RAY KELLY,

BY--"-':De='puty~C;oq;;iii1i~-)

U.S. DISTRICT COURT

Cause No. CV-11-72-BLG-~GS DIVISION

)
Petitioner,

v.
WARDEN MIKE MAHONEY;
ATTORNEY GENERAL OF
THE STATE OF MONTANA,
Respondents.

PATRICK E. DUFFY CLERK

)
)
)
)
)
)
)
)
)

ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE

-----------------------)

United States Magistrate Judge Carolyn Ostby has entered Findings and
Recommendation (Doc. 9) with respect to Kelly's 28 U.S.C. § 2254 petition for
writ of habeas corpus. Doc. 1. Judge Ostby recommends the petition be denied.
Upon service of a magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(1). Kelly has filed
timely objections. Doc. 10. Accordingly, the Court must make a de novo
determination of those portions of the Findings and Recommendations to which
objection is made. 28 U.S.C. § 636(b)(1). For the following reasons, Kelly's
objections are overruled.

1

Generally, a state prisoner must file a federal habeas petition within one
year of the date his conviction becomes final by the conclusion of direct appeal.
28 U.S.C. § 2244(d)(1)(A). Kelly's conviction became final ninety days after the
Montana Supreme Court ruled, that is, on June 19, 1995, when his time to file a
petition for writ of certiorari in the United States Supreme Court expired. U.S. S.
Ct. R. 13(1), (3); Gonzalez v. Thaler, 565 U.S. _, No. 10-895, slip op. at 15 (U.S.
Jan. 10,2012); Clay v. United States, 537 U.S. 522, 527-28 (2003); Bowen v. Roe,
188 F.3d 1157, 1159 (9th Cir. 1999).
Although Kelly's conviction became final on June 19, 1995, his federal
petition was not due on June 19, 1996, because the one-year limitations period did
not exist until April 24, 1996, when Congress passed the Anti-Terrorism and
Effective Death Penalty Act of 1996 ("AEDP A"). Instead, Kelly should have filed
his federal petition within one year of AEDPA's enactment, that is, on or before
April 24, 1997. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Thus,
Kelly must explain why he filed his federal petition more than fourteen years too
late.
The federal limitations period is tolled while a properly filed action is
pending in state court. 28 U.S.C. § 2244(d)(2). Here, however, the federal
limitations period expired more than seven years before Kelly filed his
2

postconviction petition in the trial court, so there is no foundation for statutory
tolling under (d){2).
Kelly has offered two responses to the time bar. First, he asserts that he is
actually innocent. His claim is based on a general allegation that "the person ...
who had custody/physical control of his crime evidence ... was found guilty of
contaminating and damaging crime evidence in numerous cases ... and had to
leave/quit his job." Doc 1-1 at 3. Second, Kelly also argues that an alleged error
of constitutional dimension by the trial court - that is, violation of his Fifth
Amendment right to remain silent - deprived the trial court ofjurisdiction to
adjudge Kelly guilty.
Kelly does not dispute the correctness of the Court's analysis ofthe
limitations period's application. Nor does he suggest he might be able to prove
either actual innocence or entitlement to equitable tolling.
A petitioner "who is able to state facts showing a real possibility of
constitutional error should survive Rule 4 review." Calderon v. United States Dist.

Court, 98 F.3d 1102, 1109 (9th Cir. 1996) ("Nicolaus") (Schroeder, C.J.,
concurring) (referring to Rules Governing § 2254 Cases). But where the petitioner
does not state such facts and "does not dispute that the facts reported in the state
court opinions faithfully and accurately reflect the record," the district court need
3

not go further and independently review the record. Clark v. Waller, 490 F.3d
551,555 (6th Cir.), cert. denied, 552 U.S. 1030 (2007). Consequently, Kelly's
petition challenging a 1993 conviction must be dismissed with prejudice as
time-barred.
"The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant." Rule I 1(a), Rules Governing § 2254
Cases. A COA should issue as to those claims on which the petitioner makes "a
substantial showing of the denial of a constitutional right." 28 U.S.C. §
2253( c)(2). The standard is satisfied if "jurists of reason could disagree with the
district court's resolution of [the] constitutional claims" or "conclude the issues
presented are adequate to deserve encouragement to proceed further." Miller-EI v.

Cockrell, 537 U.S. 322,327 (2003) (citing Slack v. McDaniel, 529 U.S. 473,484
(2000)).
Here, a state prisoner filed a petition in federal court in 2011 challenging a
conviction he incurred in 1993. Although Kelly claims he was without legal
assistance for several years, he admits he had legal assistance for several years. He
did not file when he had assistance. In addition, Kelly falls far short of raising
even a realistic possibility that he might show actual innocence. Reasonable

4

jurists would not prolong this proceeding. A certificate of appealability is not
warranted.
After a de novo review, the Court detennines the Findings and
Recommendation of Magistrate Judge Ostby are well grounded in law and fact and
HEREBY ORDERS they be adopted in their entirety.
Accordingly, IT IS HEREBY ORDERED that the Petition (doc. 1) is
DENIED. A certificate of appealability is DENIED.

The Clerk of Court is directed to enter by separate document a judgment in
favor of Respondents and against Petitioner Kelly. The Clerk of Court shall notify

the parties of the makingr d e r and close this case accordingly.
DATED this

--2J...: day of February,

2.

CHARD F. CEBULL
UNITED STATES DISTRICT JUDGE

5