Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

KELLY v. LAMARQUE

May 19, 2003

RICHARD W. KELLY, PETITIONER, V A.A. LAMARQUE, WARDEN, RESPONDENT


The opinion of the court was delivered by: Susan Illston, United States District Judge

JUDGMENT

The petition for writ of habeas corpus is denied on the merits.

IT IS SO ORDERED AND ADJUDGED.

ORDER DENYING PETITON FOR WRIT OF HABEAS CORPUS

INTRODUCTION

This matter is now before the court for consideration of the merits of the pro se petition for writ of habeas corpus filed by Richard W. Kelly. For the reasons discussed below, the court will deny the petition on the merits. The court also will deny Kelly's motion for appointment of counsel.

BACKGROUND

Richard W. Kelly got into an argument with his live-in girlfriend and shot her in the face. As a result of the shooting, the victim suffers continuing vision and hearing impairment.

Kelly was charged with attempted murder, assault with a firearm, infliction of injury on a cohabitant while having suffered a prior conviction under Cal. Penal Code § 273.5 within seven years, being a felon in possession of a firearm, and being a convicted misdemeanant in possession of a firearm. The information also alleged sentence enhancements for personal and intentional discharge of a firearm causing great bodily injury, infliction of great bodily injury, infliction of great bodily injury under circumstances involving domestic violence, personal use of a firearm, and having suffered a prior felony conviction subject to California's Three Strikes law. During the jury selection process for his trial in the San Mateo County Superior Court, Kelly entered a change of plea. Kelly pleaded no contest to infliction of injury on a cohabitant by one having a prior specified conviction, see Cal. Penal Code § 273.5(a) & (e). He also admitted the truth of the special allegations of infliction of great bodily injury, infliction of great bodily injury under circumstances of domestic violence, personal use of a firearm, and that he had suffered a prior conviction.

Kelly was sentenced to 25 years in state prison. This total sentence consisted of a 5-year sentence for the infliction of corporal injury on a cohabitant charge, doubled to 10 years due to the prior strike conviction, plus an enhancement of 10 years for the personal use of a firearm enhancement, plus an enhancement of 5 years for the infliction of great bodily injury under circumstances of domestic violence.

Kelly's counsel filed a Wende brief in the California Court of Appeal.*fn1 Kelly filed a supplemental opening brief in propria persona. The California Court of Appeal affirmed the judgment of conviction. Kelly filed an unsuccessful petition for review in the California Supreme Court.

Kelly then filed this action for a writ of habeas corpus. He alleged a state law error claim, which was promptly dismissed. He also alleged a claim of ineffective assistance of counsel, which the court found cognizable and ordered the parties to brief. The parties have now briefed the merits of the claim, and the matter is ready for decision.

JURISDICTION AND VENUE

This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in San Mateo County, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.