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United States v. Kelly

United States District Court, Third Circuit

June 27, 2013

JAMES KELLY, JR. Criminal Action No. 07-123


John R. Padova, J.

Before the Court is James Kelly, Jr.’s Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. We held an evidentiary hearing on the Motion on May 8, 2013. For the following reasons, the Motion is denied.


On January 17, 2008, Kelly was convicted by a jury of one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The charge arose from his February 4, 2007 arrest for DUI in Lower Southampton Township, Bucks County, Pennsylvania. The evidence admitted at trial established that around 10:00 p.m. on Sunday, February 4, 2007, Police Officer Luis W. Montalbano of the Lower Southampton Township Police Department was on patrol in a marked police car in the area of Street Road and Central Avenue when he observed a white Dodge Intrepid (the “Dodge”) go through a steady red light. (1/14/08 N.T. at 122, 124-25.) He followed it and observed it traveling between 55 and 60 m.p.h. in an unsafe manner in an area with a speed limit of 45 m.p.h. (Id. at 125-26.) He pulled the Dodge over in the area of Street Road and Buck Road. (Id. at 127.)

Officer Montalbano approached the driver=s side of the vehicle, which was registered to Kelly’s wife. (Id. at 130; 1/15/08 N.T. at 61; Gov=t Trial Ex. 27.) Kelly was the only person in the car. (1/14/08 N.T. at 130.) Officer Montalbano observed that Kelly appeared glassy eyed and that there were empty and full beer bottles on the floor of the car in front of the front passenger seat. (Id.) Officer Montalbano asked Kelly to walk to the rear of the Dodge and detected an odor of alcohol from him. (Id. at 133-34.) The weather was cold, but Kelly was not wearing a jacket when he got out of the car. (Id. at 135.) Officer Montalbano administered field sobriety tests to Kelly, who either declined to take or failed those tests. (Id. at 136-38.) Officer Montalbano concluded that Kelly “was intoxicated and incapable of safe driving.” (Id. at 138.) Officer Montalbano asked Police Officer Eric Landamia, also of the Lower Southampton Township Police Department, who had arrived at the scene, to administer a portable breath test. (Id. at 132, 138.) Kelly admitted to Officer Landamia that he had been drinking. (1/15/08 N.T. at 8.) According to the portable breath test, Kelly had a blood alcohol level of 0.09 (id. at 13), which, in Pennsylvania, “is considered legally under the influence and can produce unsafe driving.” (1/14/08 N.T. at 139.)

Officer Montalbano placed Kelly under arrest. (Id. at 140.) Officer Montalbano then asked Officer Landamia to call the duty tow so that the Dodge could be impounded and also directed Officer Landamia to conduct an inventory search of the car and to wait with it until it was towed.[1] (Id. at 144-45.) When Officer Landamia found that the Dodge was locked, Kelly claimed that he must have locked the keys in the car. (1/15/08 N.T. at 17.) Officer Montalbano looked into the Dodge and noticed a black jacket lying on the driver’s seat where Kelly had been sitting. (1/14/08 N.T. at 145.) Later, after Officer Montalbano took Kelly to the police station, he searched Kelly and found the key to the Dodge in Kelly’s left sock. (Id. at 149.)

Harkins Auto Body, the duty tow, came out to tow the Dodge and opened it for Officer Landamia. (1/15/08 N.T. at 19-20.) Officer Landamia then opened the driver’s side door and noticed “a black leather jacket on the driver [sic] seat.” (Id. at 21.) The jacket appeared to have been sat on. (Id. at 22-23.) Officer Landamia picked the jacket up by the collar and heard a clanking sound. (Id. at 23.) He looked down and observed a revolver between the driver’s seat and the kick plate. (Id.) The revolver had not been there when Officer Landamia opened the door. (Id.) Later, after Kelly was taken to the police station, he identified the jacket as his. (Id. at 38-39.)

Kelly filed a pro se Motion for Judgment of Acquittal on June 25, 2008, asserting two grounds for relief: (1) there was insufficient evidence for the jury to convict him of violating 18 U.S.C. § 922(g)(1); and (2) the copy of Indictment No. 07-123 which was provided to the jury during deliberations contained a reference to 18 U.S.C. § 924(e) and thus created a serious danger that a miscarriage of justice occurred. See United States v. Kelly, Crim. A. No. 07-123, slip op. at 4-6 (E.D. Pa. July 1, 2008). We examined the evidence admitted at trial and concluded that any rational juror could have found beyond a reasonable doubt that Kelly possessed the gun found in the front seat of the Dodge, that the gun was a firearm, and that it had passed in interstate commerce. Id. at 3-6. We further concluded that Kelly had not established that the provision of Indictment No. 07-123 to the jury was plain error that affected the outcome of his trial. Id. at 7-8. We therefore denied Kelly’s Motion for Judgment of Acquittal in its entirety.

We sentenced Kelly on July 1, 2008. Title 18, United States Code, Section 924(a)(2) provides that the sentence for violation of 18 U.S.C. § 922(g) is a fine, imprisonment for not more than ten years, or both. 18 U.S.C. § 924(a)(2). However, at the time of his sentencing, we found that Kelly had an extensive criminal history, including three previous convictions for violent felonies or drug offenses, making him eligible for sentencing as an armed career criminal, which gave rise to a statutory mandatory minimum term of imprisonment of fifteen years pursuant to the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e)(1). Consequently, we sentenced Kelly to fifteen years of imprisonment, five years of supervised release, a $500.00 fine, and a $100.00 special assessment.

Kelly appealed his conviction and sentence on July 14, 2008. He argued on appeal that the Government had not proven that he was in possession of the gun, but only that he was in close proximity to it. United States v. Kelly, 403 F. App’x 722, 725 (3d Cir. Dec. 7, 2010). The Third Circuit rejected this argument, determining that “there was substantial evidence from which a jury could reasonably conclude that Kelly had knowledge of the gun’s presence.” Id. Kelly also argued that he wasn’t subject to sentencing pursuant to the ACCA because the Court did not require the Government to prove the applicability of the ACCA to the jury, even though § 924(e) was cited in the Indictment. Id. at 725-26. The Third Circuit also rejected this argument. Id. at 726. Kelly filed a petition for writ of certiorari to the Supreme Court on March 4, 2011. The Supreme Court denied certiorari on April 4, 2011. Kelly v. United States, 131 S.Ct. 1837 (2011).

Kelly filed the instant Motion on April 26, 2012.[2] He raises five grounds for relief, all of which are based on the alleged ineffective assistance of his trial counsel. Kelly asserts that: (1) his attorneys were ineffective in failing to notify him that the Government had made a plea offer; (2) his trial counsel was ineffective for advising him not to testify in his own defense; (3) his trial counsel was ineffective for failing to call his brother as a defense witness; (4) his trial counsel was ineffective for allowing him to be convicted on insufficient evidence; and (5) his trial counsel was ineffective for failing to challenge a prior conviction that was used to enhance his sentence pursuant to the ACCA. We appointed counsel to represent Kelly in connection with this Motion on February 13, 2013 and held an evidentiary hearing on May 8, 2013 (the “Hearing”).


Kelly has moved for relief pursuant to 28 U.S.C. § 2255, which provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). “‘Section 2255 does not provide habeas petitioners with a panacea for all alleged trial or sentencing errors.’” United States v. Perkins, Crim. A. No. 03-303, Civ. A. No. 07-3371, 2008 WL 399336, at *1 (E.D. Pa. Feb. 14, 2008) (quoting United States v. Rishell, Crim. A. No. 97-294-1, Civ. A. No. 01-486, 2002 WL 4638, at *1 (E.D. Pa. Dec. 21, 2001)). In order to prevail on a Section 2255 motion, the movant’s claimed errors of law must be constitutional, jurisdictional, “a fundamental defect which inherently results in a complete miscarriage of justice, ” or “an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428 (1962).

Kelly’s claims are all based on the alleged ineffective assistance of his attorneys. In order to prevail on a claim for ineffective assistance of counsel, a criminal defendant must demonstrate both that (1) his attorney’s performance was deficient, i.e., that the performance was unreasonable under prevailing professional standards, and (2) that he was prejudiced by his attorney’s performance. Strickland v. Washington, 466 U.S. 668, 687–88, 690-92 (1984). Prejudice is proven if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Consequently, counsel cannot be found to be ineffective for failing to pursue a meritless claim. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (“There can be no Sixth Amendment deprivation of effective counsel based on an attorney’s failure to raise a meritless argument.” (citations omitted)); see also Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998)).


A. The Plea Offer

Kelly asserts in his Motion that the Government communicated a plea offer to his then attorney, Dina Chavar, between March and June 2007. (Kelly Mem. at 1.) He further asserts that he did not learn about the plea offer until months later, when his trial attorney, Ellen Brotman, found a note about the plea offer that had been written by Chavar in her case file. (Id.) According to Kelly, the note did not mention the terms of the offer, and he never learned the terms of the Government’s plea offer. (Id.) Kelly contends that Chavar was ineffective for failing to notify him of the plea ...

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