Expungement bid for 1975 crime fails at 7th Circuit

August 28, 2015

A career criminal lost his appeal before the 7th Circuit Court of Appeals that sought to throw out a 1975 conviction.

Michael A. Kelley claimed authorities said his conviction on a state robbery charge 40 years ago would be set aside if he pleaded guilty to it and to a contemporaneous federal narcotics charge, and completed the federal sentence. Kelley subsequently was convicted of murder and other felonies.

There is no written plea agreement, and the panel concluded it seems unlikely such a deal contained the terms Kelley asserts.

Kelley began to attack his 1975 robbery conviction for holding up a Hammond sandwich shop when he learned in 2011 the government intended to use it to enhance a firearms conviction under the Armed Career Criminal Act.

The 7th Circuit affirmed dismissal of Kelley’s suit in the U.S. District Court for the Northern District of Indiana. The case is Michael A. Kelley v. Greg Zoeller, Indiana Attorney General, 14-2961.

“Kelley contends that this is one of those rare instances where a defendant had no prior opportunity to challenge the state court conviction being used as a predicate under the ACCA,” Judge Ilana Rovner wrote for the panel. But she wrote state courts concluded Kelley knew about the conviction as early as 1982 or 1983 and concluded his delay in seeking a remedy was unreasonable.

“Finally, we note that the State of Indiana did not have a statute allowing for expungement of criminal convictions until 2013,” Rovner wrote.  “Although Kelley cited the (Federal Youth Corrections Act of 1950) as the law authorizing expungement of his federal conviction, he has never cited any law that would have allowed expungement of a state conviction in 1975.”



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