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Kelly v. Bishop

United States District Court, D. Maryland

April 18, 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 required. 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 each of his three 2008 convictions. See Kelly v. Shearin, et al, Civil Action Nos. AW-11-262, AW-11-263 & AW-11-264.[2] 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 August 11, 2017, [3] 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. The instant case attacks Kelly's convictions on first-degree murder, burglary, armed robbery, theft, and use of a handgun in State v. Kelly, Case No. 97749C. As best determined by the Court, the Petition sets out the following grounds:

I. The jury instructions were unconstitutional because the trial judge did not inform the jury that the prosecution must prove all crucial elements of guilt beyond a reasonable doubt and the instructions did not inform the jury that the prosecution must overcome a presumption of innocence in order to convict Kelly;[4]
II. The trial judge gave the jury an unconstitutional "defective" reasonable doubt instruction in violation of his Fifth and Sixth Amendment rights;
III. Kelly was denied a fair trial as the trial court "improperly restricted" his right to present evidence of "significant probative value;" .......
IV. Kelly's convictions were based on evidence known to be false;
V. Kelly is "actually innocent" of committing the charged crime;
VI. The trial judge showed bias towards Kelly both before and during trial;
VII. Montgomery County Police had no probable cause to obtain an arrest warrant against Kelly;
VIII. The state and trial court forced and threatened Kelly's wife to testify against Kelly;
IX. The jury instructions were unconstitutional because the trial court misled the jury into believing that Kelly committed the crimes of burglary, robbery and murder which were not eharged in this case; and
X. The jury instructions were unconstitutional because the trial court misled the jury into believing that Kelly fled the crime scene the day of the homicide and to this date Montgomery County Police ...

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