Kelley v. Zoeller

• Decision Date: 28 August 2015
• Docket Number: No. 14–2961.,14–2961.
• Citation: 800 F.3d 318
• Parties: Michael A. KELLEY, Petitioner–Appellant, v. Greg ZOELLER, Indiana Attorney General, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

800 F.3d 318

Michael A. KELLEY, Petitioner–Appellant

v.Greg ZOELLER, Indiana Attorney General, Respondent–Appellee.

No. 14–2961.

United States Court of Appeals, Seventh Circuit.

Argued May 21, 2015.

Decided Aug. 28, 2015.

Rehearing En Banc Denied Oct. 19, 2015.^*

Alexandra McTague, Attorney, Winston & Strawn LLP, Palo Alto, CA, for Petitioner–Appellant.

Michael A. Kelley, El Reno, OK, pro se.

Stephen R. Creason, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent–Appellee.

Before WOOD, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges.

Opinion

ROVNER, Circuit Judge.

On October 1, 1974, a then-eighteen-year-old Michael Kelley walked into a Hammond, Indiana, sandwich shop with a gun and demanded that an employee hand over all of the money in the store. Kelley walked out with $28 and a robbery conviction that would shadow him for more than thirty-seven years. In 2011, a federal judge in Missouri used that robbery conviction to enhance Kelley's sentence for a firearms offense. Kelley now claims that the State of Indiana should have expunged the robbery conviction under a plea deal that he struck in 1975, and that the Missouri court should not have used the conviction to lengthen his federal sentence. We affirm the judgment of the Indiana district court dismissing for lack of jurisdiction.

I.

In January 1975, Kelley entered a plea of “not guilty” to state charges stemming from the sandwich shop robbery, and his case was continued to April 1975 for trial. But between the time of his plea and the trial date, Kelley was charged by federal authorities with conspiracy to distribute a controlled substance. Represented by counsel, he later pled guilty to both the state and federal charges. Kelley claims to have struck a deal with both state and federal authorities: he would plead guilty to all charges and serve a federal sentence of seven years. His state sentence of ten to twenty-five years would be suspended while he served the federal sentence. Upon successful completion of the federal sentence, his federal conviction would be expunged pursuant to the Federal Youth Corrections Act of 1950 (“FYCA”). See 18 U.S.C. § 5021(b) (repealed 1984); Tuten v. United States, 460 U.S. 660, 662–68, 103 S.Ct. 1412, 75 L.Ed.2d 359 (1983) ; United States v. Woolsey, 535 F.3d 540, 549 (7th Cir.2008). Kelley claims that state authorities similarly agreed to “set aside” his robbery conviction upon successful completion of his federal sentence. At the time of Kelley's state guilty plea, Indiana did not require plea agreements to be in writing and there is no state plea document in the record. A few pages of notes from the state court show the conviction but not the terms of any plea agreement. Of the parties to the deal, only Kelley has survived long enough to recount the details.

Kelley was paroled on the federal sentence after approximately two years and received an early discharge from parole four years later, in May 1981. At that time, his federal conviction was set aside under the FYCA. He never served any part of the state sentence for the 1975 robbery conviction. The main purpose of the FYCA was to “rehabilitate persons who, because of their youth, are unusually vulnerable to the danger of recidivism.” Ralston v. Robinson, 454 U.S. 201, 206, 102 S.Ct. 233, 70 L.Ed.2d 345 (1981). The expungement provision of the FYCA enabled “an eligible youth offender to reenter society and conduct his life free from the disabilities that accompany a criminal conviction.” Tuten, 460 U.S. at 665, 103 S.Ct. 1412. Kelley made little use of the extraordinary second chance afforded by the FYCA, though. Within a year, he was charged with robbery and with murder in the course of another robbery. After two trials and two convictions, he was sentenced in 1982 to forty years' imprisonment on the murder charge, and in 1983 to fifteen years on the second robbery, to be served concurrently with the murder sentence.

Prior to his 1982 sentencing for murder, a presentence investigation report (“PSR”) was prepared, detailing his criminal history. The PSR noted that his 1975 federal conviction had been set aside. But the PSR listed the 1975 sandwich shop robbery in his criminal history with no indication that the conviction had been “set aside” or expunged. Kelley objected to the PSR as containing a number of errors, including the failure to indicate that the 1975 state robbery conviction had been set aside. A 1982 report from the National Crime Information Center (“NCIC”), which had been used as a basis for the PSR, showed that a robbery charge had been dismissed in 1982, and Kelley believed that this entry reflected the state's compliance with the plea agreement. There is no indication in the record of how or even whether the sentencing court resolved Kelley's objection to the PSR. Although the sentencing court relied on Kelley's history of prior criminal activity in setting the forty-year murder sentence, the court did not specifically mention the 1975 robbery conviction as part of that history. When the same judge sentenced Kelley to fifteen years' imprisonment in 1983 for the second robbery, he noted that the “reason for imposing the foregoing sentence is that [Kelley] has a lengthy prior record of criminal behavior dating from his pre-teen years in the juvenile division of the Lake Superior Court culminating in a narcotic conviction in the federal court and an Armed Robbery conviction in the Lake Superior Court in 1975 and again in the Murder conviction in 1982.” Kelley was thus on notice as early as 1982, and certainly no later than 1983, that the 1975 sandwich shop robbery was still on his record, and that a court had even weighed it against him for sentencing purposes.

Kelley was released from prison in 2000, well short of the forty years to which he had been sentenced. And although his appointed counsel in this appeal tells us that he earned three college degrees during his lengthy imprisonment, he again failed to use his early release in a positive manner. In 2003, he was convicted of felony check fraud, and in 2005 of felony theft, both in state court. In 2011, he was indicted in the Western District of Missouri on federal charges of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1) and 924(e)(2)(B), and distribution of a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The firearms charge normally carries a ten year maximum prison term, but the government sought to enhance the sentence under the Armed Career Criminal Act (“ACCA”), which would increase the mandatory minimum to fifteen years. 18 U.S.C. § 924(e). Under the ACCA, the government must demonstrate that the defendant has at least three previous convictions for a violent felony or a serious drug conviction or both. 18 U.S.C. § 924(e)(1). In Kelley's case, the government relied on the convictions for the 1975 sandwich shop robbery, the 1982 murder, and the 1983 robbery.

In 2011, after learning that the government intended to use the 1975 robbery conviction to enhance his federal sentence, Kelley began a series of attacks on that conviction. He started in the Indiana state trial court with a pro se motion to withdraw his guilty plea, arguing that the State of Indiana had breached the terms of the plea agreement. The state trial court denied the motion and informed Kelley that if he wished to attack his 1975 conviction or sentence, he would have to file a petition for post-conviction relief. In 2012, Kelley filed a pro se petition for post-conviction relief, challenging his conviction and claiming ineffective assistance of counsel. In response, the State of Indiana asserted the affirmative defense of laches, contending that Kelley had waited too long to challenge the 1975 conviction. The post-conviction trial court agreed, finding that the 1982 PSR used in Kelley's murder trial clearly listed the 1975 sandwich shop robbery conviction as part of Kelley's criminal history. The court found that “Kelley was aware as early as December 29, 1982, that the conviction for Robbery in case CR374–707 had not been expunged or vacated.” Kelley v. Indiana, No. 45G03–1202–PC–00003, slip op. at 4 (Super.Ct. Jan. 25, 2013). Moreover, the court concluded, a lapse of more than thirty years before challenging the conviction was unreasonable, and the State had been prejudiced by the delay. The complaining witness, who would have been ninety-four years old if she were still alive, could not be found. One of the original responding police officers had died, one had moved to Florida and a third could not be located. The file of the Office of the Prosecuting Attorney of Lake County could not be located and was believed to have been destroyed. And both the prosecutor and the defense attorney had died. In short, the court found that laches barred consideration of the merits of Kelley's claims.

The Indiana Court of Appeals affirmed. Kelley v. Indiana, No. 45A04–1303–PC–161, slip op. (Ind.Ct.App. Nov. 7, 2013). The court noted that only the minutes of the trial court survived, and that those minutes confirmed the 1975 conviction and suspended sentence but contained no indication that the conviction was ever set aside or that there was any agreement to expunge the conviction. The court noted that, although the FYCA provided a basis for expunging Kelley's federal conviction, Kelley cited no legal basis to expunge his state sentence. As for Kelley's claim that he reasonably believed the NCIC report from 1982 had demonstrated the State's compliance with the plea agreement (showing that a robbery charge had been dismissed), the court noted that Kelley had been charged with another robbery during that time frame, and that the dismissed case had a different case number than the 1975 sandwich shop robbery conviction. The court therefore affirmed the trial court's finding that Kelley had been on notice as early as 1982 that the State had not expunged the 1...