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Kelly v. Bishop

United States District Court, D. Maryland

April 12, 2018

ANTHONY QUINTIN KELLY, #352736 Petitioner,
v.
WARDEN FRANK B. BISHOP, JR. JOHN MCCARTHY, State 's Attorney ATTORNEY GENERAL OF MARYLAND Respondents.

          MEMORANDUM

          RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE.

         I. Procedural History

         A brief overview of Petitioner Anthony Quinten Kelly's ('"Kelly") writ history in the Court is necessary. On August 14, 2009, Kelly filed a 28 U.S.C. § 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, [1]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. § 2254 attack on his three 2008 convictions. See Kelly v. Shearin, el al, Civil Action Nos. AW-11-262, AW-11-263 & AW-11-264. 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 July 21, 2017, [2]the Court received the above-captioned case, representing Anthony Kelly's ("Kelly") most recent 28 U.S.C. § 2254 attack on one of his three 2008 convictions in the Circuit Court for Montgomery County.[3] The instant case attacks Kelly's convictions on first-degree rape, first-degree assault and use of a handgun in the commission of a felony or crime of violence in State v. Kelly, Case No. 96433. As best determined by the Court, the Petition sets out the following grounds:

I. Kelly was convicted on the basis of an unconstitutionally suggestive identification;
II. Evidence used to convict Kelly was obtained through an illegal search and seizure; and
III. The State unconscionably delayed in bringing Kelly to trial.

ECF No. 1. pp. 3-7.

         In their Answer Respondents argue that the Petition is subject to dismissal because the ground are unexhausted and/or time-barred. ECF No. 9. Kelly has filed a Traverse[4] (ECF No. 10), along with a number of letters, [5] and several "Emergency" Motions seeking Speedy Ruling, Release, Partial Judgment under Rule 54, and an Evidentiary Hearing, along with a Motion for Reassignment of the Case to a Different Judge, all filed after Respondents' Answer. ECF Nos. 12-16. For reasons to follow, Kelly's Motions shall be denied and the Petition shall be DISMISSED as time-barred.

         II. Motion for Reassignment

         The undersigned observes that Kelly's previous federal habeas corpus cases were assigned to Judge Alexander Williams, Jr., who issued dispositive Memoranda and Orders, and Kelly's cases were assigned to the undersigned judge after Judge Williams' 2014 retirement. Kelly requests that the case be reassigned to a different judge. He 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'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." Sales v. Grant, 158 F.3d 768, 781 (4th Cir. 1998). 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); see also Moreover, opinions formed by the judge during the current proceeding, or a prior one, do not generally warrant recusal. Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011). A judge is neither required to recuse himself "simply because of unsupported, irrational or highly tenuous speculation, " nor "simply because [he] possesses some tangential relationship to the 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 failed to present an affidavit which points to an ...


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