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United States v. Kelly

United States District Court, W.D. Pennsylvania

July 30, 2019

UNITED STATES OF AMERICA,
v.
JEROME LAMONT KELLY, Defendant.

          MEMORANDUM OPINION

          JOY FLOWERS CONTI SENIOR UNITED STATES DISTRICT JUDGE

         Pending before the court are two motions: (1) a pro se § 2255 motion filed by defendant Jerome Lamont Kelly (“Kelly” or “JK”) to vacate his conviction and sentence (ECF No. 1166); and (2) a motion for discovery of attorney-client privileged communications filed by the government (ECF No. 1217). The motions are ripe for decision.

         I. Factual and Procedural Background

         On April 17, 2012, Kelly and co-defendant Alonzo Lamar Johnson (“Johnson”)[1] were convicted by a jury of conspiracy to distribute 5 kilograms or more of cocaine and 50 grams or more of crack cocaine. On March 21, 2013, the court reviewed the trial evidence and denied Kelly's and Johnson's post-trial motions for acquittal pursuant to Federal Rule of Criminal Procedure 29. (ECF No. 916). On July 30, 2013, Kelly was sentenced to a term of imprisonment of 240 months. Kelly filed a direct appeal and his conviction and sentence were affirmed. (ECF No. 1111). Kelly's petition for rehearing en banc was denied on May 26, 2016, and his petition for certiorari was denied on April 17, 2017. Kelly filed his § 2255 motion on April 17, 2018, exactly one year later. The government does not challenge the original motion as being untimely filed. The government does challenge new arguments raised for the first time in Kelly's reply brief, which was not filed until December 2018.

         Two major themes in Kelly's § 2255 motion involve his challenges to the grand jury proceedings and the wiretap authorization. Kelly previously raised similar issues in separate motions, which were fully and finally litigated. On September 20, 2017, the court issued an opinion denying Kelly's post-conviction motions for discovery of grand jury proceedings and wiretap evidence. (ECF No. 1141). On October 24, 2017, the court denied Kelly's motion for reconsideration. (ECF No. 1145). On October 18, 2018, the court of appeals summarily affirmed this court's decisions. (ECF No. 1235).

         On April 17, 2018, Kelly filed a pro se § 2255 motion, with a supplement on April 23, 2018. (ECF Numbers 1166, 1168). As the court noted in its October 29, 2018 memorandum opinion, the briefing schedule in this case has been unduly prolonged. (ECF No. 1216). The government was ordered to respond to the motion by June 11, 2018. On June 8, 2018, the government filed a motion for extension of time, which the court granted. The court ordered the government's response to be filed by July 10, 2018. (ECF No. 1178). The government failed to do so. On August 1, 2018, the government filed another motion for extension of time. (ECF No. 1187). On August 2, 2018, the court issued an order for the government to show cause why it should not be sanctioned for its failure to timely respond. The government filed its response to the “show cause” order on August 3, 2018. (ECF No. 1189). On August 8, 2018, the court granted the government an extension of time until September 1, 2018. (ECF No. 1191).

         On August 30, 2018, Kelly filed a motion to compel the government to send him copies of all documents pertaining to his § 2255 motion. (ECF No. 1198). Kelly's motion was written on August 22, 2018. Kelly represented that as of that date, he had not received the government's filings at ECF Nos. 1187 and 1189.

         The government filed its substantive response to Kelly's § 2255 motion on September 4, 2018. (ECF No. 1201). In its response, the government requested various pieces of documentary evidence and correspondence with counsel on which Kelly based his claims. On September 26, 2018, Kelly submitted copies of his correspondence with counsel and a supporting affidavit. (ECF Nos. 1206-1208). The court granted Kelly's motion to file a reply brief by November 13, 2018. On December 7, 2018, the court accepted Kelly's reply brief (ECF No. 1224) as timely because it was lost in the mail and granted the government leave to file a surreply brief. (ECF No. 1223). The government filed a surreply (ECF No. 1227) and Kelly filed a response to the surreply (ECF No. 1239). The § 2255 motion is now ripe for decision.

         II. Kelly's Allegations

         Kelly's original § 2255 motion (ECF No. 1166) asserted the following four grounds: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) prosecutorial misconduct; and (4) newly discovered evidence, namely, the affidavit of Eric Alford (“Alford”) dated November 13, 2015 (the “Alford affidavit”). Kelly submitted a 36-page attachment to his motion (ECF No. 1168) in which he asserted a fifth ground for relief: actual innocence. Kelly also reorganized his arguments into eight grounds: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) prosecutorial misconduct; (4) newly discovered evidence; (5) actual innocence of being a career offender and unconstitutional sentencing enhancements in light of Mathis v. United States, 136 S.Ct. 2243 (2016) (“Mathis”), and Johnson v. United States, 135 S.Ct. 2552 (2015) (“Johnson”); (6) challenging the denial of his request for discovery of grand jury and wiretap materials[2]; (7) unconstitutional conviction; and (8) lack of indictment by the grand jury. The specific arguments are summarized below.

         1. Trial Counsel

         Kelly contends that trial counsel was ineffective by: (1) lying about interviewing Alford as a potential witness; (2) abandoning him at certain stages of the case; (3) not pursuing suppression of evidence; (4) not pursuing an actual innocence claim; and (5) not contesting sentencing enhancements. In the attachment, Kelly itemized ten alleged shortcomings. (ECF No. 1168 at 5-8).

         2. Appellate Counsel

         Kelly argues that appellate counsel failed to maintain an objective standard of reasonableness, failed to raise all his issues and took a half-hearted approach to his case. In particular, Kelly contends that appellate counsel failed to investigate the grand jury and the wiretap authorization. (ECF No. 1168 at 8-10).

         3. Prosecutorial Misconduct

         Kelly contends that the prosecution refused to provide documentation that Kelly was actually indicted by the grand jury, misled the court regarding the amount of cocaine attributed to Kelly compared to Adolph Campbell (“Campbell”), and did not provide proper discovery. In his attachment, Kelly argues that the government committed a fraud on the court by presenting false evidence to the grand jury, charging Campbell (the seller) with less than 5 kilograms of cocaine while Kelly (the buyer in the same transaction) was charged with more than 5 kilograms, and introducing 8 kilograms of cocaine into evidence because Kelly would not cooperate. (ECF No. 1168 at 10-13).

         4. Newly Discovered Evidence

         In his § 2255 motion, Kelly points to an affidavit from Alford in 2015. (ECF No. 1207-1). Kelly seeks to use the affidavit to contradict trial counsel's reason for not calling Alford as a defense witness during the trial. In the attachment, Kelly argues about the government's alleged failure to comply with the statutory requirements to seek a wiretap and the government's alleged failure to provide Jencks Act materials involving the grand jury. (ECF No. 1168 at 18-23).

         5. Actual Innocence/ improper sentencing enhancements

         Kelly contends that the recorded phone conversations were distorted by the government and that there was no evidence of drug trafficking by him. He also argues that he is actually innocent of being a career offender and the § 851 information was improper. (ECF No. 1168 at 23-27).

         6. Challenges to discovery

         Kelly again seeks discovery about grand jury and wiretap authorization matters. Kelly's arguments in this section of his § 2255 motion were raised in separate motions and subsequently rejected by the court of appeals. (ECF No. 1235).

         7. Unconstitutional conviction

         Although Kelly discusses decisions about prosecutorial misconduct and fraud on the court, the only concrete accusation discernible to the court is an alleged failure to turn over Jencks Act, Brady and Giglio materials by a different prosecutor in a different case, United States v. Kubini, 2017 WL 2573872 (W.D. Pa. June 14, 2017), several years after Kelly's trial. (ECF No. 1168 at 33-34).

         8. Grand jury indictment

         Kelly cites 18 U.S.C. § 3504 for the proposition that he was not properly indicted by the grand jury and the wiretaps were not properly authorized. (ECF No. 1168 at 34-36).

         III. Standard of Review

         Under 28 U.S.C. § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside, or correct the sentence upon the ground that “the sentence was imposed in violation of the Constitution or laws of the United States, or 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.” 28 U.S.C. § 2255. The Supreme Court reads § 2255 as stating four grounds upon which relief can be granted:

(1) “that the sentence was imposed in violation of the Constitution or laws of the United States;” (2) “that the court was without jurisdiction to impose such sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” and (4) that the ...

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