UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

MICHAEL ALLEN KELLEY, )

)

Petitioner, )

)

v. ) CAUSE NO. 2:14-CV-196-TLS

)

INDIANA ATTORNEY GENERAL, )

)

Respondent. )

OPINION AND ORDER

Michael Allen Kelley, a pro se prisoner, filed a habeas corpus petition attempting to

challenge his robbery conviction and 10 to 25 year suspended sentence by the Lake Superior

Court under cause number CR-374-707 on July 3, 1975. However, to obtain habeas corpus relief,

a petitioner must be “in custody.” 28 U.S.C. § 2254(a). This requires that the “habeas petitioner

be ‘in custody’ under the conviction or sentence under attack at the time his petition is filed.”

Maleng v. Cook, 490 U.S. 488, 490–91 (1989). Here, Kelley acknowledges that he is not in

custody on the 1975 robbery conviction. This is consistent with the holding of the Court of

Appeals of Indiana which determined that this conviction “had no direct present penal

consequences.” Kelley v. State, No. 45A04-1303-PC-161, *12 (Ind. Ct. App. November 7, 2013),

available at http://www.in.gov/judiciary/opinions/pdf/11071301nhv.pdf). 

Instead, Kelley argues that he is “incarcerated on a federal charge which is using this

State conviction to enhance his sentence beyond the statutory maximum.” (ECF No. 8 at 5.)

However, that is not correct. Though the United States District Court for the Western District of

Missouri has accepted Kelley’s guilty plea, it has not yet sentenced him. Indeed, his attorney is

objecting to the pre-sentence investigation report by arguing that the “Defendant contents [sic]
that the Lake County Indiana Case No. CR374-707 robbery was dismissed by the Lake County

Prosecutor and should not be counted.” See United States v. Kelly, 6:11-cr-3044 (W.D. Mo. filed

June 15, 2011), ECF No. 98-1 at 2. Thus, Kelley is not even in custody on a sentence that has

been enhanced by the 1975 robbery conviction. If Kelley’s sentence is ultimately enhanced as a

result of the 1975 robbery conviction, then Kelley may have a basis for challenging the new

sentence, but he may not directly challenge the 1975 robbery conviction because he is not “in

custody” on that conviction. See Lackawanna Cnty. Dist. Attorney. v. Coss, 532 U.S. 394,

401–02 (2001). 

Finally, Kelley asks to be appointed counsel. The Criminal Justice Act, 18 U.S.C. §

3006A(a)(2)(B), permits the appointment of counsel in a habeas corpus case if, “given the

difficulty of the case and the litigant’s ability, [he] could not obtain justice without an attorney,

he could not obtain a lawyer on his own, and he would have . . . a reasonable chance of winning

with a lawyer at his side.” Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997) (brackets,

quotation marks, and citation omitted). Here, Kelley has no chance of winning because he is not

currently in custody on the 1975 robbery conviction that he is attempting to challenge. Because

this court lacks jurisdiction, the appointment of a lawyer would not alter the result of this case. 

For the foregoing reasons, the court DENIES the request for counsel [ECF No. 7] and

DISMISSES this case for want of jurisdiction.

SO ORDERED on July 8, 2014.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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