Kelly v. Zikefoose

Filing 26

MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 09/02/2016. Copy mailed to Petitioner. (walk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

~

SEP - 6 2016

Richmond Division
LEROY JOSEPH KELLY,

CLERK. U.S. DIS

Petitioner,
Civil Action No. 3:15CV243

v.
DIRECTOR OF THE VIRGINIA
DEPARTMENT OF CORRECTIONS,
Respondent.

MEMORANDUM OPINION

Leroy Joseph
pro

se,

brings

("§ 2254

Virginia,

Kelly,

this

Petition,"

convictions

in

the

a

Virginia

petition
ECF

Circuit

No.

state

pursuant

28

Kelly

1) •

Court

to

prisoner proceeding

for

the

U.S.C.

§

challenges

County of

2254
his

Stafford,

for robbery and use of a firearm in the commission of

a robbery.

In his

COURT

RICHMOND VA

§

2254 Petition,

Kelly seeks relief upon the

following grounds:
Claim One

Kelly failed to receive the effective assistance
of counsel because counsel failed to file an
appeal as directed.
(§ 2254 Pet. 5.)

Claim Two

Kelly failed to receive the effective assistance
of counsel because his attorney abandoned him.
(Id.at6.)

Claim Three

"Denial of the right to appeal.
Because attorney
has abandoned Petitioner, he has lost his right
to appeal; as well, the Clerk of Court, whether
state Court for Appeals had a duty to contact
petitioner but failed to do so."
(Id.)

Claim Four

"Involuntary guilty plea . . . Petitioner was not
allowed
to
withdraw
his
guilty
plea
after
discovering
the
State
was
using
information

obtained from Petitioner while under immunity
. . ."
(Id. }
from the Federal Government
Kelly failed to receive the effective assistance
of counsel because:
(a} counsel failed to request material regarding
any meetings Kelly had with "federal and state
agents surrounding the robberies in Virginia,"
(Mem. Supp. § 2254 Pet. 8, ECF No. 1-1};
(b) counsel failed to request a continuance "so
that he could possibly gain access [to] any
information . . . relating to his client's claims
of . . . immunity,"
(id.}; and,
(c}
counsel failed to ensure that Kelly's Fifth
Amendment right to self-incrimination was not
violated by his prosecution in Virginia.
(Id.)

Claim Five

For the reasons set forth below, the Court agrees with the
Respondent that Kelly "should be granted a delayed appeal of the
criminal

judgments to the Court of Appeals of Virginia.
(Br.

other claims should be denied and dismissed."

All

Supp. Mot.

Dismiss 37, ECF No. 22.}
The Court notes that Kelly's fourth and fifth claims are
predicated

on

his

assertion

that

his

guilty

pleas

were

not

knowingly and voluntarily entered because he labored under the
mistaken assumption

that

his

Federal

Plea Agreement

immunized

him from criminal liability for all federal and state charges.
Kelly suggests that he merely pled guilty to Virginia charges as
part

of

a

formality

to

having

the

charges

dismissed.

As

explained below, review of the pertinent history refutes Kelly's
current suggestion that his guilty pleas to the Virginia charges
were

induced

by

his

mistaken

belief

that

the

Agreement immunized him from criminal liability.
2

Federal

Plea

I.

Applicable Constraints Upon Federal Habeas Review

In order to obtain federal habeas relief,

at a minimum,

a

petitioner must demonstrate that he is "in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C.

§

The

2254{a).

Antiterrorism

and

Effective

Death

Penalty Act {"AEDPA") of 1996 further circumscribed this Court's
authority to grant relief by way of a
Specifically,

writ of habeas

corpus.

"[s] tate court factual determinations are presumed

to be correct and may be rebutted only by clear and convincing
Gray v.

evidence."

{citing 28 U.S.C.
§

§

Branker,

529 F.3d 220,

2254{e) (1)).

228

Additionally,

{4th Cir.

2008)

under 28 U.S.C.

2254{d}, a federal court may not grant a writ of habeas corpus

based on any claim that was adjudicated on the merits in state
court unless the adjudicated claim:
(l) resulted in a decision that was contrary to, or
involved an unreasonable application of,
clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.

28

u.s.c.

§

2254 (d}.

question

"is

court's

determination

determination
threshold."

not

The Supreme Court has emphasized that the

whether

was
Schriro

a
was

federal

court

incorrect

unreasonable-a
v.

Landrigan,

believes
but

the

state

whether

that

substantially
550

U.S.

465,

{citing Williams v. Taylor, 529 U.S. 362, 410 {2000)).

3

473

higher
(2007)

II.

Factual And Procedural History For Guilty Plea Claims

A.

Federal Charges And The Federal Plea Agreement

Prior to his arrest in North Carolina,
in approximately fifty-three

(53)

Kelly was involved
(ECF No.

robberies.

1-3,

at

9, 15-16.) On March 24, 1998, Kelly entered in a plea agreement
with the United States in the United States District Court for
the Western District of Virginia.

(ECF No. 1-2.)

Kelly pled guilty to one count of conspiracy to commit
and to attempt to commit armed robbery of several
restaurants, supermarkets, and convenience stores, in
violation of the Hobbs Act, 18 U.S.C. § 1951 (2000),
and two counts of using a firearm during a crime of
violence, in violation of 18 U.S.C. § 924 (c) (2000).
The district court sentenced Kelly to 312 months in
prison.
United States v. Kelly, 102 F. App'x 838, 839 (4th Cir. 2004).
Kelly's Plea Agreement for the above charges ("Federal Plea
Agreement,"

ECF

incrimination
Government

No.

(id.

(id.

,
~

1-2)
13 (d)),
17).

waived
and

his

right

required

Specifically,

him
the

against
to
Plea

assist

the

Agreement

provided:
If requested by the United States, but only if so
requested, the defendant agrees to cooperate with the
United States,
including but not limited to the
following:
a.
The
defendant
will
provide
truthful
information about the subject charges and about any
other
criminal
activity
within
the
defendant's
knowledge to any government agent or agency that the
United States designates.

4

self-

b. The defendant will testify truthfully in any
trial, hearing, or grand jury proceeding, including
but not limited to testimony against any co-defendants
as the United States designates.
h.
Nothing that the defendant discloses pursuant
to this Plea Agreement will be used against him in any
other criminal proceeding, except if necessary in a
prosecution for perjury.
(Id.

(emphasis added).)
Al though the foregoing highlighted language could be read

to

insulate

Kelly

from

any

state

prosecution based upon

the

information he provided, it is clear that the parties understood
that

Kelly was not insulated from any state prosecution simply

because

he

Specifically,

had

entered

during

into

the

the

sentencing

Federal

Plea

proceeding

Agreement.
on

Kelly's

federal charges on January 7, 1999, Kelly's counsel acknowledged
that he hoped that the states would simply forego state charges
based

upon

Kelly's

federal

prosecution

and

cooperation

federal authorities:
I will say to the Court, and I want to put this
on the record, . . . one other benefit that my client
is going to receive by virtue of his plea and his
participation and cooperation is that the government's
going to write a letter to two North Carolina counties
that have pending cases for him right now and ask that
- - and inform the DA' s there that those cases have
been resolved, hopefully that those will be dismissed
so he will have a clean slate in North Carolina once
all of these matters are -- once he serves his time.
(ECF No. 1-3, at 18-19.)

5

with

B.

Stafford County Proceedings

On August

3,

1998,

the

Circuit

Court

for

the

County of

Stafford, Virginia ("Circuit Court") charged Kelly with robbery,
use of a firearm during the commission of a robbery,
of

a

firearm

after

having

been

convicted

of

(ECF No.

shooting into an occupied building.

a

possession
felony,

22-1,

and

at 31-32;

ECF 1-11, at 2.) 1
1.

Testimony At JR's Trial

Kelly's

nephew,

JR,

also

was

charged

for

his

committing a robbery in Stafford County with Kelly.
No. 22-5.)

acknowledged
criminal

in

(See ECF

Kelly testified against JR at JR's trial on May 25,

Contrary

1999.

role

he

to

his

current

assertions,

had

no

deal

that

prosecution

in

Virginia

would

based

on

Kelly
insulate
the

repeatedly
him

testimony

from
he

provided:
THE COURT:
You have
a
Fifth Amendment
right,
guaranteed by the Constitution of the United
States and the Constitution of Virginia, not to
be compelled to testify as to any matter that
might tend to incriminate you, and by that I mean
might tend to show that you are guilty of a
criminal
offense.
Do
you
understand
that
language? You cannot be compelled to testify.
[KELLY] :

Yes, I do.

THE COURT:

You understand that?

[KELLY] :

Yes, I do.

1

The Court employs
transcript by CM/ECF.

the
6

pagination

assigned

to

this

THE COURT:
All right, sir.
That doesn't mean that
you can't testify. It's a right that's personal
to you. You can either say yes, I will, or no, I
won't.
Now, it's my understanding that there's
been no agreement whatsoever with respect to you
by the Commonwealth of Virginia with respect to
this crime in exchange for your testimony, is
that correct?
Correct.

[KELLY] :

They haven' t
THE COURT:
that correct?

promised you anything,

is

Correct.

[KELLY] :

(ECF No. 22-5, at 163-64.) 2
During

JR's

trial,

Detective

Leonard

also

testified and

confirmed that

Kelly had not been promised any immunity from

state

for

charges

his

Leonard testified that,

testimony.
on July 1,

Carolina to interview Kelly,
15,

at

advised

221.)
Kelly

Prior
of

to
his

Specifically,
1998,

he traveled to North

who was in custody.

interviewing
rights

under

Kelly,

(ECF No.

Detective

Miranda 3

and

statements he provided could be used against him.
at 221,

225.)

Detective

22-

Leonard

that

the

(ECF 22-15,

Detective Leonard further confirmed that "there

was nothing promised to [Kelly]

in exchange for the statements"

he gave to Detective Leonard about the Stafford County robbery.
(ECF No. 22-15, at 225).

2

Kelly acknowledged that at the time of his testimony he
had had over twenty felony convictions.
(ECF No. 22-5, at 203.)
3

Miranda v. Arizona, 384 U.S. 436 (1966).
7

2.

Kelly's Arraignment And Guilty Plea

on May 22,

2000,

the Circuit Court arraigned Kelly on his

then pending state charges for robbery,
the

commission

of

a

robbery,

use of a firearm during

possession

having been convicted of a felony,

and requested a bench trial.

a

firearm

after

and shooting into an occupied

(ECF No. 22-1, at 27, 31-33.} 4

building.

of

Kelly pled not guilty

(ECF No. 22-1, at 33.}

Court set the matter for a bench trial on June 15,

The Circuit
2000.

(ECF

No. 22-1, at 34.}
On

June

15,

2000,

Kelly

agreed

to

plead

guilty

to

the

robbery charge and the use of the firearm in the commission of
the robbery charge in exchange for the prosecution's agreement
to dismiss the remaining charges.

(ECF No. 22-1 at 40.}

the

Kelly

course

charges

of

those

proceedings,

to which he was

eight years

to

life

he had sufficient

time

that

the

pleading guilty would subject him to

imprisonment

(ECF No. 22-1, at 42.}

acknowledged

During

"in the state penitentiary."

When Kelly equivocated regarding whether
to discuss

the

case

with counsel,

the

Circuit Court took a break to allow Kelly to discuss the case
with counsel.
proceedings,
plead guilty.

4

(ECF No. 22-1, at 44-45.)

Upon resumption of the

Kelly assured the Circuit Court that he wished to
(ECF No.

22-1,

As previously noted,
assigned to this document
system.

at 47.)

Kelly acknowledged that

the Court employs the pagination
by the Court's CM/ECF docketing
8

he was currently serving a twenty-six year federal sentence and
expressed no confusion that any state sentences could be imposed
(ECF No. 22-1, at 49-51.)

in addition to that federal sentence.

The Circuit Court accepted Kelly's pleas and found him guilty.
(ECF No.

22-1,

(ECF No. 22-1, at 57.)

July 20, 2000.

Kelly's Attempt To Withdraw His Pleas

3.

20,

July

On

The matter was set for sentencing on

at 54.)

Kelly,

2000,

(ECF No.

withdraw his guilty pleas.
sought

obtained

and

witnesses.
On

to

at 61-62.)

22-1,

continuance

a

sought

counsel,

through

so

Counsel

could

subpoena

he

(ECF No. 22-1, at 62-63.)

September

22,

2000,

the

Circuit

Court

conducted

hearing on Kelly's motion to withdraw his guilty pleas.
No. 22-1,

at

67.}

At

that

hearing,

Kelly

pursuant to his Federal Plea Agreement:
that,

if I

respect

that,

any charges

had mentioned during that cooperation,

be charged with. "
to his

(ECF

"My understanding was

cooperated with the federal government,

or any crimes that I
wouldn' t

testified

pleas

to

the

( ECF No .
state

a

2 2 -1 ,

at

charges,

7 6 - 77 . )

I

With

Kelly stated,

"I

understood that the charges would be dismissed, that it was just
a formality that the state was going through."
at

86-87.}

Kelly

expressed

that

after

( ECF No . 2 2 -1,

entering

his

guilty

pleas, his impression changed and he "felt that . . . the state

9

,,

wasn't living up to its agreement . . .

(ECF No.

22-1,

at

91.)

On

cross-examination,

the

prosecution

confronted

Kelly

about his statements during JR's trial that no promises had been
made to him in exchange for his cooperation.

(ECF No. 22-1, at

Kelly offered no satisfactory explanation as to why he

94-97.)

then denied having agreement with Virginia about his testimony.
(ECF No. 22-1, at 94-97.)
Kelly

then

took

a

different

tact

and

suggested

that

he

believed Virginia would not prosecute him on the state charges,
because of what Detectives Leonard and Bowler told him.
No. 22-1, at 109.)
Bowler

told

him

(ECF

Specifically, Kelly stated that Leonard and
"when

[he]

came

to

this

court

building

to

testify in [his] nephew's trial . . . that the state of Virginia
would not pick up these charges."
Detective
absolutely no

Bowler,

however,

assurances

Stafford County.

that

(ECF No.

(ECF No. 22-1, at 109.)
testified

he

22-1,

would

that

not

at 134-37.)

he

be

gave

Kelly

prosecuted

in

Furthermore,

as

noted previously, Detective Leonard had testified that Kelly had
not

been

testimony.

promised

any

immunity

from

state

charges

for

his

See supra Part II.B.1.

After hearing

the

foregoing

testimony,

the

Circuit Court

rejected Kelly's assertion that his guilty pleas were entered

10

into

under

the

mistaken

belief

that

he

was

immune

from

any

criminal liability by virtue of his Federal Plea Agreement:
the Court finds, Mr. Kelly, that your testimony is not
credible.
It defies logic that you would, being an
experienced person, familiar with the criminal justice
system, by your own admission, numerous times, would
remain mute when the Court went through a series of
questions to ask you about the voluntariness of your
plea and whether or not anyone had coerced or induced
or made any promises to you concerning your plea.
. . . Part of the questions that were asked of
you determined whether or not you had discussed your
case, the defenses, the elements, the circumstances of
the charges with Mr. Wall.
There's been no evidence
to indicate that . . . your agreement with federal
authorities had any bearing on your plea of guilty.
The Court specifically finds that you understood
the proceedings when you presented your plea of guilty
on June 15th, 2000 and that your plea was freely and
voluntarily made after advice from competent counsel.
I have looked and I cannot find that there is any
inducement from any outside source, sir, considering
all the circumstances that would allow this Court to
grant your motion to withdraw your guilty plea at this
time.
(ECF No.

22-1,

at

153-55.)

The Circuit Court then sentenced

Kelly to an active prison term of ten years.

(ECF No. 22-1, at

172.)
III.

In Claim Four,
aside because:

"l.)

Analysis Of Guilty Plea Claims

Kelly contends that his plea should be set
He was under immunity from prosecution for

these crimes just admitted to; and 2.) He was told by both state
and

federal

authorities

that

he

would

not

prosecuted

anything that he said because of the immunity in place. "
Supp.

§

2254 Pet. 3, ECF 1-1.)
11

for
(Mem.

As

a

Federal

legal

Plea

matter,

Kelly

Agreement

bound

defendant voluntarily reveals

fails

to

Virginia

demonstrate

that

his

"[W] hen

officials.

information in exchange

for

a

use

immunity and only one government is a party to an agreement, the
United States v.

other cannot be necessarily bound."
905 F. Supp. 2d 877,

v.

Eliason,

3

F.3d

representative of
Kelly's

Federal

Virginia

was

Agreement.
Cir.

885

(C.D. Ill. 2012)

1149,

1153-54

could

not

bound

by

1995) .

prosecutors,

If

of

terms

1993)).

to
he

his

counsel

Commonwealth

the

Federal

of

Plea

279

(9th

65 F.3d 1552,

1554

limit

the

use Virginia

provided

were

No

party to

87 F.3d 276,

Cordova-Perez,

information

and

the
of

Sparks,

Kelly wanted

the

"he

Thus,

the

See United States v.

make

Cir.

(7th

Agreement.

1996); United States v.

(9th Cir.

(citing United States

the Commonwealth of Virginia was a
Plea

Bryant,

obliged

to
to

federal

follow

the

accepted procedures and at least make an attempt to obtain such
an agreement or promise from" Virginia.
(citing United States v.
United States v.

Palumbo,

Brimberry,

Eliason, 3 F.3d at 1153

897 F.2d 245

744 F.2d 580

(7th Cir. 1990);

(7th Cir.

1984)); see

United States v. Roberson, 872 F.2d 597, 610-12 (5th Cir. 1989).
Moreover,

as

firmly establishes

a

factual

noted

above,

the

record

in

this

case

that Kelly did not have any agreement with

Virginia officials not
As

matter,

at

to utilize his
JR's

trial,

12

statements against him.

contrary

to

his

current

assertions,

Kelly repeatedly acknowledged he had no deal

that

would insulate him from criminal prosecution in Virginia based
on

the

testimony

he

provided.

See

supra

Part

II.B.l.

Additionally, Detective Leonard and Bowler refuted Kelly's prior
suggestion that they had promised him immunity.
hearing Kelly testify,
testimony,
officials

that
or

he

even

Finally, after

the Circuit Court concluded that Kelly's

had
that

been

provided

Kelly

immunity

believed

he

had

by

Virginia

immunity

Virginia for his testimony about his crimes in Virginia,
was not credible.

simply

Absent clear and convincing evidence to the

contrary, the Court is bound by this factual determination.
28

u.s.c.

2254 (e) (1).

§

in

In

light

of

the

foregoing

See

record,

Kelly's claim that he had immunity and that his guilty plea was
less

than

knowing

and

voluntary

immunity lacks factual merit.
403 F.3d 216,

222

(4th Cir.

because

he

believed

See United States v.

2005)

he

had

Lemaster,

(observing that the truth of

sworn statements made during a Rule 11 colloquy is conclusively
established,

and a

evidentiary hearing,
relies

district

court

dismiss any

on allegations

that

§

should,

without

holding

an

2255 motion that necessarily

contradict

the

sworn

statements) .

Accordingly, Claim Four will be dismissed.
Kelly's ineffective assistance of counsel claims set forth
in Claim Five

fail

for

similar reasons.

In Claim Five

(a) ,

Kelly asserts that counsel failed to request material regarding

13

any

meetings

Kelly

had

with

"federal

surrounding the robberies in Virginia."
8.)

In Claim Five

request
[to]

a

(b),

continuance

and

state

(Mem. Supp.

§

agents

2254 Pet.

Kelly complains that counsel failed to

"so that he could possibly gain access

information . . . relating to his client's claims of . .
Given

immunity."

the

present

record,

Kelly

fails

to

demonstrate any reasonable probability that additional time or
requests

from

supporting

counsel

Kelly's

would

claim

of

have

revealed

immunity.

any

information

Accordingly,

Claims

Five (a) and Five (b) will be dismissed.
In Claim 5 (c),
that

Kelly's

Kelly faults counsel for failing to ensure

Fifth

Amendment

right

against

compelled

self-

incrimination was not violated by his prosecution in Virginia.
(Id.)

Kelly fails to demonstrate that his testimony to Virginia

investigators was compelled.
Kelly first

Rather,

the record reflects that

told Detective Leonard about his participation in

the Virginia robberies after Detective Leonard had read Kelly
his Miranda rights.

(ECF 22-15,

voluntarily

at

testified

JR's

at 225.)

trial

after

Thereafter,
the

Circuit

advised him that he was under no obligation to testify.

Kelly
Court
Given

these circumstances, Kelly fails to articulate how counsel could
have

mounted

a

Virginia charges.

successful

Fifth

Amendment

challenge

to

his

Because Kelly fails to demonstrate prejudice,

Claim 5 (c) will be dismissed.

14

IV.
In Claim One,

Appeal Related Claims

Kelly asserts

that he did not receive

the

effective assistance of counsel because counsel failed to file
The standard set forth by the Supreme

an appeal as directed.

Court of the United States in Strickland v.
claims

of

( 1984) .

ineffective

assistance

In Strickland,

of

Washington governs
466

counsel.

U.S.

668

the Supreme Court held that the Sixth

Amendment guaranteed a criminal defendant's right to reasonably
effective

assistance

of

counsel.

Id.

at

To

687.

prove

constitutional claim for ineffective assistance of counsel,
petitioner

must

representation
reasonableness."

first
"fell
Id.

show
below

at

688.

that
an

his

or

her

objective

Second,

the

demonstrate actual prejudice from the deficiency.

a

the

counsel' s

standard
petitioner

of
must

Id. at 694.

In conjunction with Strickland, the decision of the Supreme
Court in Roe v.

Flores-Ortega governs ineffective assistance of

counsel claims for failure to file a notice of appeal.
U.S. 470 (2000).

See 528

In Flores-Ortega, the Supreme Court held that:

[C]ounsel has a constitutionally imposed duty to
consult with the defendant about an appeal when there
is reason to think either
(1)
that a
rational
defendant would want to appeal (for example, because
there are nonf ri volous grounds for appeal) , or ( 2)
that this particular defendant reasonably demonstrated
to counsel that he was interested in appealing.
Id. at 480.

This determination must take into account "all the

information counsel knew or should have known."

Id.

If

a

consultation

about

appeal

has

occurred,

counsel

performs deficiently only by failing to follow the defendant's
express
''[A]

instructions with respect

criminal defense attorney's

failure

to

file

appeal when requested by his client deprives
his

Sixth

Amendment

notwithstanding

right

that

the

to

lost

the

a

at 478.

notice

may

of

not

counsel,

have

had

United States v. Peak,

Moreover,

of

the defendant of

assistance

appeal

reasonable probability of success."
F.2d 39, 42 (4th Cir. 1993).

Id.

to an appeal.

a
992

"an attorney is required

to file a notice of appeal when unequivocally instructed to do
so by his client, even if doing so would be contrary to the plea
agreement [because the defendant has waived his right to appeal]
and

harmful

to

the

client's

interests."

United

States

v.

Poindexter, 492 F.3d 263, 273 (4th Cir. 2007).
Kelly contends that his attorney,

Timothy Wall,

file an appeal when requested to do so.

failed to

Kelly filed a pro se

notice of appeal, which was dismissed by the Court of Appeals of
Virginia because it was
~

62.}

filed

late.

(Br.

Supp.

Mot.

Dismiss

Respondent represents that despite numerous efforts to

contact Kelly's trial counsel, Mr. Wall, he "has been unable to
consult with Mr. Wall regarding Kelly's denial of appeal claim.
In light of the factual basis of the dismissal of the appeal and
respondent's
counsel
(Id.

,,

counsel's

is not able
63-64

to

inability
dispute

(paragraph

to
the

numbers
16

consult
denial

with

of

omitted) . )

Mr.

appeal

Wall,
claim."

Respondent

acknowledges that "petitioner should be granted a delayed appeal
of the criminal judgments to the Court of Appeals of Virginia."
(Id. at 37.)
One.

Accordingly, Kelly will be granted relief on Claim

Within

Respondent

thirty

shall

(30)

submit

days

of

further

the

date

briefing

of

with

entry
respect

hereof,
to

the

form of the order granting Kelly relief on Claim One.
In Claims Two and Three,

Kelly complains

that his rights

were violated in conjunction with the processing of his direct
In light of

appeal.

the

relief

to be granted on Claim One,

Claims Two and Three will be dismissed as moot.

v.

Conclusion

Respondent's Second Motion to Dismiss
granted.
dismissed.
One.

(ECF No.

20)

will be

Claims Four, Five (a), Five (b), and Five (c) will be
Kelly will be granted relief with respect to Claim

Within

thirty

( 3 o)

days

of

the

date

of

entry

hereof,

Respondent shall file further briefing with respect to the form
of relief to be granted on Claim One.

Claims Two and Three will

be dismissed as moot.
The Clerk of the Court is directed to send a copy of this
Memorandum Opinion to Kelly and counsel of record.
It is so ORDERED.

/s/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia

Oat~;..-;' 2016

~~

17