Kelly v. Zikefoose, No. 3:2015cv00243 - Document 29 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 10/17/2016. Copy mailed to Petitioner. (walk, )
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Kelly v. Zikefoose Doc. 29 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division LEROY JOSEPH KELLY, m:f I 8 2016 CLERK, U.S. DISTRICT COURT RICHMOND VA Petitioner, Civil Action No. 3:15CV243 v. DIRECTOR OF THE VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent. MEMORANDUM OPINION Leroy Joseph Kelly, pro se, brings ("§ 2254 this Petition," convictions ("Circuit commission in of a Virginia state prisoner proceeding petition ECF the Court"), a No. Circuit for pursuant Court By 28 Kelly 1) . for robbery and robbery. to the use of Memorandum U.S.C. challenges County of a 2254 § Stafford firearm Opinion his in and the Order entered on September 6, 2016, the Court dismissed all of Kelly's claims except for Claim One wherein Kelly claimed that he failed to receive the effective assistance of counsel because counsel failed to file an appeal as directed. Corr., No. 3:15CV243, 2016). Kelly v. Dir. Va. Dep't 2016 WL 4702476, at *7 (E.D. Va. Sept. 6, With respect to Claim One, Respondent acknowledged that "petitioner should be granted a delayed appeal of the criminal judgments to the Court of Appeals of Virginia." Id. at *7 (internal quotation marks and citation omitted). Therefore, the Court briefing ordered the Director to submit further with Dockets.Justia.com respect to the form of the order granting Kelly relief on Claim One. Id. The Director has The responded. following the entry of the September 6, and Order, Director notes that, 2016 Memorandum Opinion the Director moved the Court of Appeals of Virginia to grant Kelly permission to perfect an appeal from the October 3, 2000 judgment of the Circuit Court and make arrangements to appoint counsel for Kelly for that appeal. No. 2016, 28 (citation omitted).) By Order (Resp't's Br. 2, ECF entered September 21, the Court of Appeals of Virginia granted the Director's motion and appointed counsel to assist Kelly in litigating his appeal. {Resp't's Br. Ex. 2, at 1.) all relief the to dismissed as moot. which he is As Kelly has been granted entitled, Claim One will be The action will be dismissed and the Court will deny a certificate of appealability. The Clerk of the Court is directed to send a copy of this Memorandum Opinion to Kelly and counsel of record. It is so ORDERED. /s/ flE. f Robert E. Payne Senior United States District Judge Richmond, Virginia Date: October --11_, 2016 2
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