Kelly v. Zikefoose

Filing 29

MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 10/17/2016. Copy mailed to Petitioner. (walk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
LEROY JOSEPH KELLY,

m:f I

8 2016

CLERK, U.S. DISTRICT COURT
RICHMOND VA

Petitioner,
Civil Action No. 3:15CV243

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

MEMORANDUM OPINION
Leroy Joseph Kelly,
pro

se,

brings

("§ 2254

this

Petition,"

convictions
("Circuit
commission

in

of

a

Virginia state prisoner proceeding

petition
ECF

the

Court"),

a

No.

Circuit
for

pursuant

Court

By

28

Kelly

1) .

for

robbery and

robbery.

to

the

use

of

Memorandum

U.S.C.

challenges

County of
a

2254

§

Stafford

firearm

Opinion

his

in

and

the

Order

entered on September 6, 2016, the Court dismissed all of Kelly's
claims except for Claim One wherein Kelly claimed that he failed
to receive the effective assistance of counsel because counsel
failed to file an appeal as directed.
Corr., No. 3:15CV243,
2016).

Kelly v. Dir. Va. Dep't

2016 WL 4702476, at *7

(E.D. Va. Sept. 6,

With respect to Claim One, Respondent acknowledged that

"petitioner should be granted a delayed appeal of the criminal
judgments

to

the

Court

of Appeals

of

Virginia."

Id.

at

*7

(internal quotation marks and citation omitted).

Therefore, the

Court

briefing

ordered

the

Director

to

submit

further

with

respect to the form of the order granting Kelly relief on Claim
One.

Id.
The

Director

has

The

responded.

following the entry of the September 6,
and Order,

Director

notes

that,

2016 Memorandum Opinion

the Director moved the Court of Appeals of Virginia

to grant Kelly permission to perfect an appeal from the October
3,

2000 judgment of the Circuit Court and make arrangements to

appoint counsel for Kelly for that appeal.
No.
2016,

28

(citation

omitted).)

By

Order

(Resp't's Br. 2, ECF
entered

September

21,

the Court of Appeals of Virginia granted the Director's

motion and appointed counsel to assist Kelly in litigating his
appeal.

{Resp't's Br. Ex. 2, at 1.)

all

relief

the

to

dismissed as moot.

which

he

is

As Kelly has been granted

entitled,

Claim

One

will

be

The action will be dismissed and the Court

will deny a certificate of appealability.
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/

flE.

f

Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: October --11_, 2016

2