Kelley v. Zoeller, No. 14-2961 (7th Cir. 2015)
Annotate this CaseIn 1974, Kelley robbed a sandwich shop of $28, using a gun. He was also charged with conspiracy to deliver a controlled substance. Kelley claims to have struck a deal: he would plead guilty and upon successful completion of a seven-year federal sentence, his federal conviction would be expunged under the Federal Youth Corrections Act, 18 U.S.C. 5021(b) (repealed 1984). Kelley claims that Indiana authorities agreed to “set aside” his robbery conviction. There is no evidence of such an agreement. Kelley was paroled; his federal conviction was set aside. He never served a state sentence. Within a year, he was charged with robbery and with murder in the course of another robbery and was sentenced to 40 years’ imprisonment for murder. Kelley became aware that the 1975 robbery was still on his record by 1983. Released in 2000, he was convicted in 2003 of felony check fraud, and, in 2005, of felony theft. In 2011, he was indicted as a felon in possession of a firearm and distribution of a controlled substance. The court enhanced the sentence under the Armed Career Criminal Act, 18 U.S.C. 924(e). Kelley began attacks on the 1975 conviction, arguing that the state breached the terms of the plea agreement. Unsuccessful in Indiana courts, Kelley sought relief under 28 U.S.C. 2254. The Seventh Circuit affirmed dismissal for lack of jurisdiction, noting that Indiana did not have an expungement statute until 2013.
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