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Kelly v. Mueller

United States District Court, C.D. Illinois

May 2, 2018

JOSEPH KELLY, Petitioner,
ROBERT MUELLER, Warden, Respondent.


          James E. Shadid Chief United States District Judge

         Now before the Court are Petitioner Kelly's Petition (Doc. 1) and Supplemental Petition (Doc. 16) for Writ of habeas corpus under 28 U.S.C. § 2254. For the reasons set forth below, Kelly's Petitions (Docs. 1, 16) are DENIED and the Court declines to issue a Certificate of Appealability.

         Background [1]

         (1) The Burglaries and Kelly's Trial

On the evening of January 17, 2009, following a string of storage shed burglaries in Pontiac and Peru, Illinois, employees of Redwood Storage in Pontiac noticed a truck outside two different sheds at the facility and wrote down the license plate number. People v. Kelly, 2012 WL 7007751, at *1 ( Ill. App. 4th Dist. 2012). When the employees investigated the area where the truck was seen they discovered cut locks on some of the sheds and notified the police. Deputies with the Livingston County Sheriff's Office identified David Przybyla as the owner of the truck and relayed the information to law enforcement officials in Ottawa. Id.

         Later that night, Ottawa police officer Kevin O'Connor saw a truck matching the description provided by the Redwood employees at an Ottawa storage business, U-Store-It, but did not observe any evidence of burgled sheds. Officer O'Conner followed the truck and later initiated a traffic stop for a bad muffler, finding Przybyla in the driver seat and Kelly as his passenger. Kelly first told the officer that they were going to Handy Foods, but O'Conner told them that the store had already closed for the evening. Next, Kelly stated that they were going to Wal -Mart, but O'Conner pointed out that they were driving in the wrong direction. Although he found Kelly and Przybyla's story unbelievable, he did not see anything in the truck that warranted further investigation and let them go with a warning. Id. at *2-3.

         On January 26, law enforcement officers from Ottawa, Livingston County, Princeton, LaSalle County, and Peru met in Ottawa to discuss Kelly's suspected role in storage shed burglaries around the area. Two parole officers were tasked with looking for stolen items from the Redwood burglaries when they visited Kelly at his house. After the parole officers were able to identify several of the items, a search warrant for Kelly's residence was obtained and executed on January 27, 2009. Id. at *3.

         The search of Kelly's residence revealed numerous items reported stolen by the Redwood storage shed victims, and Kelly was arrested and taken to the Ottawa police station. Ottawa Police Officer Dave Gualandri was present during the search and thought Kelly had been drinking beer immediately before the search. Kelly's son, Joe Jr., was also arrested after officers found drugs in his pants pocket. At the police station, Livingston County Sheriff's Detective Tony Childress interviewed Kelly about the Redwood burglaries while Peru Police Officer Dennis Hocking inquired about burglaries in LaSalle County. Kelly waived his Miranda rights and initially denied having any knowledge of the storage shed break-ins. However, he later admitted to burglarizing five storage sheds in Peru by breaking the locks and later replacing them with locks he bought at Menards. He also admitted to selling an antique beer can collection reported stolen from a Peru (LaSalle County) victim. Kelly further admitted to using bolt cutters to break into eight Redwood storage sheds with Przybyla. Kelly later wrote a summary of his oral admissions to the Peru and Redwood burglaries. Id. at *4.

         The State of Illinois charged Kelly in the Livingston County Circuit Court with 11 counts of burglary. Four of the counts were later dismissed. In July 2009, Kelly's public defender filed a motion to suppress his confession as involuntarily made, but the trial court denied the motion in October 2009. Kelly's trial began shortly thereafter. The owners of seven Redwood storage sheds testified at trial. Six of the owners testified that the padlocks on their units had been removed; five of the owners testified regarding specific items missing from their units. The seventh shed owner testified that she rented a unit for her daughter, and her daughter told her that no lock was on the unit after Redwood employees informed her of the break-ins. However, defense counsel raised a hearsay objection to which the trial court sustained. Redwood employees also testified at trial. They recalled that of the several break-ins at Redwood from November to January, one unit that was broken into in December had a new lock placed on it after the old one was broken. Id. at *1-2.

         The defense's case rested largely on the inconsistent and often contradictory testimony of Kelly's wife and his three children. The State then called Przybyla as a rebuttal witness. Przybyla, who previously pleaded guilty to the burglaries, testified that he was high on crack cocaine when he burgled the Redwood units. Contrary to his confession implicating both he and Kelly, and his written statement that Kelly asked him for help selling the stolen items, Przybyla testified that he was the only one responsible for the burglaries. Id. at *6.

         The jury found Kelly guilty of all seven counts of burglary. On January 12, 2010, the trial court denied the defense's post-trial motion and sentenced Kelly to seven concurrent terms of 18 years of incarceration. The sentencing was continued to March 15, 2010 to determine restitution, at which time the court ordered Kelly to pay $25, 156.20 in restitution but sua sponte reduced the term of imprisonment to concurrent sentences of 16 years. Id. Kelly appealed.

         (2) Kelly's Direct Appeal

         On appeal, (different) counsel argued that the State failed to prove him guilty beyond a reasonable doubt as to the seventh burglary charge. The appellate court agreed and reversed Kelly's conviction on that count. Counsel also argued that the trial court erred in refusing to tender a lesser included theft instruction, that the trial court committed plain error in admitting other-crimes evidence of the LaSalle County burglaries, and that the trial court erred in not granting the defense's motions for mistrial when the jury heard about Kelly's prior police contacts. The appellate court disagreed and affirmed the convictions on the remaining six counts. Id. at *7-12. Kelly did not seek further review via a petition for leave to appeal (“PLA”) to the Illinois Supreme Court.

         (3) Kelly's State Postconviction Petition

         Kelly filed a pro se postconviction petition in the Illinois trial court raising the following claims:

(1) appellate counsel was ineffective for not contesting trial counsel's failure to file a motion to suppress evidence;
(2) the trial court erred in failing to call Kelly's family members as witnesses at the hearing on defense counsel's motion to withdraw to testify about the conversation they allegedly overheard between defense counsel, the prosecutor, and the detective;
(3) the trial court erred in failing to conduct a hearing on Kelly's pretrial contention that his lawyer ...

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