Michael A. Kelley v. Greg Zoeller

In the

United States Court of Appeals

For the Seventh Circuit

No. 14-2961

MICHAEL A. KELLEY,

Petitioner-Appellant,

v.

GREG ZOELLER, Indiana

Attorney General,

Respondent-Appellee.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:14-cv-00196-TLS — Theresa L. Springmann, Judge.

ARGUED MAY 21, 2015 — DECIDED AUGUST 28, 2015

Before WOOD, Chief Judge, and ROVNER and WILLIAMS,

Circuit Judges.

ROVNER, Circuit Judge. On October 1, 1974, a then-eighteen-

year-old Michael Kelley walked into a Hammond, Indiana,

sandwich shop with a gun and demanded that an employee

hand over all of the money in the store. Kelley walked out with

$28 and a robbery conviction that would shadow him for more

than thirty-seven years. In 2011, a federal judge in Missouri

2 No. 14-2961

used that robbery conviction to enhance Kelley’s sentence for

a firearms offense. Kelley now claims that the State of Indiana

should have expunged the robbery conviction under a plea

deal that he struck in 1975, and that the Missouri court should

not have used the conviction to lengthen his federal sentence.

We affirm the judgment of the Indiana district court dismissing

for lack of jurisdiction.

I.

In January 1975, Kelley entered a plea of “not guilty” to

state charges stemming from the sandwich shop robbery, and

his case was continued to April 1975 for trial. But between the

time of his plea and the trial date, Kelley was charged by

federal authorities with conspiracy to distribute a controlled

substance. Represented by counsel, he later pled guilty to both

the state and federal charges. Kelley claims to have struck a

deal with both state and federal authorities: he would plead

guilty to all charges and serve a federal sentence of seven

years. His state sentence of ten to twenty-five years would be

suspended while he served the federal sentence. Upon success-

ful completion of the federal sentence, his federal conviction

would be expunged pursuant to the Federal Youth Corrections

Act of 1950 (“FYCA”). See 18 U.S.C. § 5021(b) (repealed 1984);

Tuten v. United States, 460 U.S. 660, 662–68 (1983); United States

v. Woolsey, 535 F.3d 540, 549 (7th Cir. 2008). Kelley claims that

state authorities similarly agreed to “set aside” his robbery

conviction upon successful completion of his federal sentence.

At the time of Kelley’s state guilty plea, Indiana did not require

plea agreements to be in writing and there is no state plea

document in the record. A few pages of notes from the state

court show the conviction but not the terms of any plea

No. 14-2961 3

agreement. Of the parties to the deal, only Kelley has survived

long enough to recount the details.

Kelley was paroled on the federal sentence after approxi-

mately two years and received an early discharge from parole

four years later, in May 1981. At that time, his federal convic-

tion was set aside under the FYCA. He never served any part

of the state sentence for the 1975 robbery conviction. The main

purpose of the FYCA was to “rehabilitate persons who,

because of their youth, are unusually vulnerable to the danger

of recidivism.” Ralston v. Robinson, 454 U.S. 201, 206 (1981). The

expungement provision of the FYCA enabled “an eligible

youth offender to reenter society and conduct his life free from

the disabilities that accompany a criminal conviction.” Tuten,

460 U.S. at 665. Kelley made little use of the extraordinary

second chance afforded by the FYCA, though. Within a year,

he was charged with robbery and with murder in the course of

another robbery. After two trials and two convictions, he was

sentenced in 1982 to forty years’ imprisonment on the murder

charge, and in 1983 to fifteen years on the second robbery, to

be served concurrently with the murder sentence.

Prior to his 1982 sentencing for murder, a presentence

investigation report (“PSR”) was prepared, detailing his

criminal history. The PSR noted that his 1975 federal conviction

had been set aside. But the PSR listed the 1975 sandwich shop

robbery in his criminal history with no indication that the

conviction had been “set aside” or expunged. Kelley objected

to the PSR as containing a number of errors, including the

failure to indicate that the 1975 state robbery conviction had

been set aside. A 1982 report from the National Crime Informa-

tion Center (“NCIC”), which had been used as a basis for the

4 No. 14-2961

PSR, showed that a robbery charge had been dismissed in 1982,

and Kelley believed that this entry reflected the state’s compli-

ance with the plea agreement. There is no indication in the

record of how or even whether the sentencing court resolved

Kelley’s objection to the PSR. Although the sentencing court

relied on Kelley’s history of prior criminal activity in setting

the forty-year murder sentence, the court did not specifically

mention the 1975 robbery conviction as part of that history.

When the same judge sentenced Kelley to fifteen years’

imprisonment in 1983 for the second robbery, he noted that the

“reason for imposing the foregoing sentence is that [Kelley] has

a lengthy prior record of criminal behavior dating from his pre-

teen years in the juvenile division of the Lake Superior Court

culminating in a narcotic conviction in the federal court and an

Armed Robbery conviction in the Lake Superior Court in 1975

and again in the Murder conviction in 1982.” Kelley was thus

on notice as early as 1982, and certainly no later than 1983, that

the 1975 sandwich shop robbery was still on his record, and

that a court had even weighed it against him for sentencing

purposes.

Kelley was released from prison in 2000, well short of the

forty years to which he had been sentenced. And although his

appointed counsel in this appeal tells us that he earned three

college degrees during his lengthy imprisonment, he again

failed to use his early release in a positive manner. In 2003, he

was convicted of felony check fraud, and in 2005 of felony

theft, both in state court. In 2011, he was indicted in the

Western District of Missouri on federal charges of being a felon

in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),

924(e)(1) and 924(e)(2)(B), and distribution of a controlled

No. 14-2961 5

substance, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(C). The firearms charge normally carries a ten year

maximum prison term, but the government sought to enhance

the sentence under the Armed Career Criminal Act (“ACCA”),

which would increase the mandatory minimum to fifteen

years. 18 U.S.C. § 924(e). Under the ACCA, the government

must demonstrate that the defendant has at least three previ-

ous convictions for a violent felony or a serious drug convic-

tion or both. 18 U.S.C. § 924(e)(1). In Kelley’s case, the govern-

ment relied on the convictions for the 1975 sandwich shop

robbery, the 1982 murder, and the 1983 robbery.

In 2011, after learning that the government intended to use

the 1975 robbery conviction to enhance his federal sentence,

Kelley began a series of attacks on that conviction. He started

in the Indiana state trial court with a pro se motion to withdraw

his guilty plea, arguing that the State of Indiana had breached

the terms of the plea agreement. The state trial court denied the

motion and informed Kelley that if he wished to attack his 1975

conviction or sentence, he would have to file a petition for

post-conviction relief. In 2012, Kelley filed a pro se petition for

post-conviction relief, challenging his conviction and claiming

ineffective assistance of counsel. In response, the State of

Indiana asserted the affirmative defense of laches, contending

that Kelley had waited too long to challenge the 1975 convic-

tion. The post-conviction trial court agreed, finding that the

1982 PSR used in Kelley’s murder trial clearly listed the 1975

sandwich shop robbery conviction as part of Kelley’s criminal

history. The court found that “Kelley was aware as early as

December 29, 1982, that the conviction for Robbery in case

CR374-707 had not been expunged or vacated.” Kelley v.

6 No. 14-2961

Indiana, No. 45G03-1202-PC-00003, slip op. at 4 (Super. Ct.

Jan. 25, 2013). Moreover, the court concluded, a lapse of more

than thirty years before challenging the conviction was

unreasonable, and the State had been prejudiced by the delay.

The complaining witness, who would have been ninety-four

years old if she were still alive, could not be found. One of the

original responding police officers had died, one had moved to

Florida and a third could not be located. The file of the Office

of the Prosecuting Attorney of Lake County could not be

located and was believed to have been destroyed. And both the

prosecutor and the defense attorney had died. In short, the

court found that laches barred consideration of the merits of

Kelley’s claims.

The Indiana Court of Appeals affirmed. Kelley v. Indiana,

No. 45A04-1303-PC-161, slip op. (Ind. Ct. App. Nov. 7, 2013).

The court noted that only the minutes of the trial court sur-

vived, and that those minutes confirmed the 1975 conviction

and suspended sentence but contained no indication that the

conviction was ever set aside or that there was any agreement

to expunge the conviction. The court noted that, although the

FYCA provided a basis for expunging Kelley’s federal convic-

tion, Kelley cited no legal basis to expunge his state sentence.

As for Kelley’s claim that he reasonably believed the NCIC

report from 1982 had demonstrated the State’s compliance

with the plea agreement (showing that a robbery charge had

been dismissed), the court noted that Kelley had been charged

with another robbery during that time frame, and that the

dismissed case had a different case number than the 1975

sandwich shop robbery conviction. The court therefore

affirmed the trial court’s finding that Kelley had been on notice

No. 14-2961 7

as early as 1982 that the State had not expunged the 1975

robbery conviction. Moreover, the sentencing court for Kelley’s

1983 robbery also made use of the 1975 robbery conviction in

noting Kelley’s criminal history and justifying the sentence in

that case. The state appellate court also noted that, between his

2000 release from prison and the 2011 federal charge, Kelley

had been convicted in 2003 of felony check fraud, and in 2005

of felony theft, providing additional contacts with the criminal

justice system where he presumably would have been given

notice that the 1975 robbery conviction remained on the books.

In addition to affirming the finding that Kelley was on notice

by 1983 that the 1975 robbery conviction had never been

expunged, the appellate court also affirmed the finding that a

thirty-seven year delay between notice of the alleged defect

and the filing of a collateral challenge was unreasonable and

caused prejudice to the State. As the appellate court noted,

because none of the original witnesses or evidence could be

found after a nearly four-decade delay, “[f]or all practical

purposes, re-prosecution would be impossible.” The court thus

affirmed in full the judgment of the post-conviction court that

the claim was barred by laches. The Indiana Supreme Court

declined Kelley’s request to accept jurisdiction over his case.

After losing his post-conviction claims in Indiana and

shortly before his federal sentencing, Kelley turned to the

federal courts for relief on the 1975 robbery conviction. In May

2014, he filed a petition for habeas corpus relief under 28 U.S.C.

§ 2254 in the district court for the Western District of Missouri,

challenging the constitutionality of the 1975 Indiana robbery

conviction and sentence. Citing 28 U.S.C. § 2241(d), the

Missouri district court transferred the case to the Northern

8 No. 14-2961

District of Indiana “because petitioner’s claims relate to actions

taken in that District, and the relevant records will be located

in that District.” Kelley v. United States, No. 14-0451-CV-W-

ODS-P, slip op. at 2 (W.D. Mo. May 28, 2014).

The court in the Northern District of Indiana dismissed the

case for lack of jurisdiction. Kelley v. Indiana Attorney General,

No. 2:14-CV-196-TLS, slip op. at 2 (N.D. Ind. July 8, 2014). The

court noted that, in order to challenge a conviction under

section 2254, a petitioner must be “in custody” under the

conviction or sentence under attack at the time his petition is

filed. Kelley was not in custody on the 1975 robbery conviction

and in fact agreed that he had never been in custody on that

conviction. He had not yet been sentenced in the Missouri

district court, and so had not yet suffered any direct or

collateral consequences from the 1975 robbery conviction.

Indeed, at the time that his section 2254 petition reached the

district court in Indiana, Kelley was still in the process of

objecting to the use of the 1975 robbery conviction in the

Missouri court, and his sentencing hearing had not yet been

held. He was therefore not even in custody on a sentence that

had been enhanced by the 1975 robbery conviction much less

in custody on the 1975 robbery conviction itself. The court

therefore dismissed for lack of jurisdiction on July 8, 2014. On

July 18, 2014, Kelley filed a motion for reconsideration under

Federal Rule of Civil Procedure 59(e), or for a certificate of

appealability. On July 23, 2014, the court denied the Rule 59(e)

motion and the request for a certificate of appealability.

No. 14-2961 9

On August 4, 2014, the federal court in Missouri held a

sentencing hearing.1 Kelley again objected to the use of the

1975 robbery conviction to enhance his federal firearms

sentence, citing the NCIC report as evidence that it had been

dismissed in 1982. The government pointed out that the entry

showing dismissal of a robbery charge bore no case number

and there was no certified record showing that the conviction

had ever been expunged. The court concluded that the govern-

ment met its burden of demonstrating three prior violent

felonies or serious drug crimes, justifying application of the

ACCA enhancement. The court counted the 1975 sandwich

shop robbery conviction as one of the three qualifying felonies,

and sentenced Kelley to 188 months’ imprisonment.

Three days later, Kelley filed an application in this court

pursuant to 28 U.S.C. § 2244(b)(3), seeking authorization to file

a second or successive petition for a writ of habeas corpus under

section 2254. We construed his application as a notice of appeal

from the Indiana district court’s decision dismissing his habeas

corpus petition. We appointed counsel to address three ques-

tions on appeal:

1. Did the state breach a promise to expunge

Kelley’s 1975 conviction; and

1

To clarify the time line, we note that in 2013, Kelley had formally pled

guilty in federal court in Missouri to the 2011 federal charges of being a

felon in possession of a firearm and distributing a controlled substance. The

Missouri court did not sentence Kelley until August 2014. By then, he had

completed post-conviction proceedings in the State of Indiana, attacking the

1975 robbery conviction, and had also challenged that conviction in the

federal district court in Indiana.

10 No. 14-2961

2. Is Kelley’s 1975 conviction essential to his ACCA

designation; and

3. Whether Kelley has had no other realistic oppor-

tunity to seek expungement, and therefore may

present the sort of rare case contemplated by Daniels

v. United States, 532 U.S. 374, 383 (2001) (“We recog-

nize that there may be rare cases in which no chan-

nel of review was actually available to a defendant

with respect to a prior conviction, due to no fault of

his own.”).

Kelley v. Lemmon, No. 14-2755, Order at 2 (7th Cir. Aug. 28,

2014).

II.

On appeal, Kelley contends that, for the purposes of a

section 2254 petition, he is “in custody” on the 1975 robbery

conviction because that conviction was essential to his designa-

tion under the ACCA. Because the State of Indiana breached its

agreement to expunge the 1975 robbery conviction, he argues,

his custody is in violation of his constitutional rights. This is

the “rare case” to which the Supreme Court referred in Daniels,

he maintains, because he never had any realistic opportunity

to pursue relief for the breach of the plea agreement. The State

counters that Kelley’s petition is untimely, that Kelley does not

meet the “in custody” requirement for a section 2254 petition,

and that even if we construed Kelley’s petition as a section

2255 motion, his claim would still fail. Our review of the

district court's decision to dismiss the habeas petition is de novo.

Stanbridge v. Scott, 791 F.3d 715, 718 (7th Cir. 2015).

No. 14-2961 11

Section 2254 provides, in relevant part:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudi-

cated on the merits in State court proceedings

unless the adjudication of the claim—(1)

resulted in a decision that was contrary to, or

involved an unreasonable application of,

clearly established Federal law, as deter-

mined by the Supreme Court of the United

States[.]

28 U.S.C. § 2254(d)(1). See also Williams v. Taylor, 529 U.S. 362,

402–03 (2000); Bolton v. Akpore, 730 F.3d 685, 693 (7th Cir. 2013).

We must begin with the threshold question of whether Kelley

is “in custody pursuant to the judgment of a State court.”

28 U.S.C. § 2254(d)(1). The Supreme Court has “interpreted the

statutory language as requiring 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); Stanbridge, 791 F.3d at 718. At the time that Kelley filed

his petition, he was not in custody in Indiana on the 1975

robbery conviction. Nor had he been sentenced on the federal

firearms charges and so his 1975 robbery conviction had not

yet been used to enhance his sentence under the ACCA. Under

Maleng, a habeas petitioner is not considered to be in custody

“under a conviction after the sentence imposed for it has fully

expired, merely because of the possibility that the prior

conviction will be used to enhance the sentences imposed for

any subsequent crimes of which he is convicted.” Maleng, 490

12 No. 14-2961

U.S. at 492; Stanbridge, 791 F.3d at 718. The district court was

therefore correct that Kelley was not “in custody pursuant to

the judgment of a State court” for the purposes of the habeas

statute, and the court lacked jurisdiction over his case. Maleng,

490 U.S. at 492; Stanbridge, 791 F.3d at 719–20. See also Talbott v.

Indiana, 226 F.3d 866, 870 (7th Cir. 2000) (noting that a federal

prisoner sentenced under the ACCA is not entitled to wage a

collateral attack in federal court directly against a State

sentence under section 2254 because he is not in custody under

that sentence but rather must proceed under section 2255

because his custody is federal and his ultimate objection is to

the length of his federal sentence). We must therefore affirm

the judgment dismissing the petition for lack of jurisdiction.

Of course, immediately after the district court dismissed the

section 2254 petition, the Missouri district court sentenced

Kelley for the firearms charge, using the 1975 robbery convic-

tion as one of the predicate offenses to enhance the sentence

under the ACCA. Kelley is now in federal custody on the

firearms charge and a federal court would, in general, have

jurisdiction to consider a challenge to the sentence for the

firearms charge as enhanced by the allegedly invalid prior state

conviction:

A prisoner in custody under sentence of a

court established by Act of Congress claim-

ing the right to be released upon the ground

that the sentence was imposed in violation of

the Constitution or laws of the United States,

or that the court was without jurisdiction to

impose such sentence, or that the sentence

was in excess of the maximum authorized by

No. 14-2961 13

law, or is otherwise subject to collateral

attack, may move the court which imposed

the sentence to vacate, set aside or correct the

sentence.

28 U.S.C. § 2255(a). See also Johnson v. United States, 544 U.S.

295, 304 (2005) (a prisoner could proceed under section 2255

after successful review of the prior state conviction on federal

habeas under section 2254 or favorable resort to any post-

conviction process available under state law).

In theory, a court could construe Kelley’s pro se section 2254

petition as a motion under section 2255 in order to consider his

claim. Osagiede v. United States, 543 F.3d 399, 405 (7th Cir. 2008)

(although pro se petitioners at times confuse legal theories or

draw the wrong legal implications from a set of facts, we do

not treat every technical defect as grounds for rejection). “We

have repeatedly emphasized that pro se petitions are to be

construed liberally, and should be held to standards less

stringent than formal pleadings drafted by attorneys.”

Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014). See also

Ray v. Clements, 700 F.3d 993, 1002–03 (7th Cir. 2012) (recogniz-

ing the complexity of the prescriptive procedural rules in

federal court, “we oftentimes relax those rigid requirements

when a litigant appears in federal court unrepresented”), citing

Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, as the

respondent State of Indiana points out here, if Kelley meant to

file a motion under section 2255, he is in the wrong court with

the wrong respondent. The right court for a section 2255

motion would be, ironically, the federal court in Missouri

where Kelley initially filed his section 2254 petition. The correct

respondent would be the United States. We could remand to

14 No. 14-2961

the district court in Indiana with directions to transfer the case

back to Missouri so that the district court there could consider

Kelley’s claims under section 2255 if it wished to do so. But

even if the problems we highlighted could be fixed, we see no

need to remand for such an action because Kelley could not

win his claim even in a properly filed section 2255 proceeding.

Although defendants may generally challenge their federal

sentences as described in section 2255, the Supreme Court has

held that they may not use section 2255 to collaterally attack

the validity of previous state convictions used to enhance a

federal sentence under the ACCA, except in very limited

circumstances. Daniels v. United States, 532 U.S. 374, 376 (2001).

In fact, if at the time of federal sentencing under the ACCA, a

prior conviction has not been set aside on direct or collateral

review, the conviction is considered presumptively valid and

may be used to enhance the federal sentence. Daniels, 532 U.S.

at 382 (citing Custis v. United States, 511 U.S. 485, 497 (1994)).

This rule is subject to only one exception: If

an enhanced federal sentence will be based in

part on a prior conviction obtained in viola-

tion of the right to counsel, the defendant

may challenge the validity of his prior con-

viction during his federal sentencing pro-

ceedings. No other constitutional challenge to

a prior conviction may be raised in the sen-

tencing forum.

Daniels, 532 U.S. at 382 (internal citations to Custis omitted). In

Daniels, the Court extended that exception to section 2255

challenges to federal sentences that have been enhanced under

No. 14-2961 15

the ACCA by prior state court convictions, so long as the

defendant preserved the claim at his federal sentencing

proceeding. Daniels, 532 U.S. at 382 (“A defendant may

challenge a prior conviction as the product of a Gideon viola-

tion in a § 2255 motion, but generally only if he raised that

claim at his federal sentencing proceeding.”).

The Court noted that defendants are not without recourse

for determining whether a state court conviction later used to

enhance a federal sentence was unconstitutionally obtained.

Daniels, 532 U.S. at 380–81. A defendant convicted in state

court may raise constitutional claims on direct appeal, in post-

conviction proceedings available under state law, and in a

section 2254 petition. 532 U.S. at 381. The Court acknowledged

that these pathways to review are subject to their own limita-

tions, noting that if “a prior conviction used to enhance a

federal sentence is no longer open to direct or collateral attack

in its own right because the defendant failed to pursue those

remedies while they were available (or because the defendant

did so unsuccessfully), then that defendant is without re-

course,” except in the case of a conviction obtained in violation

of the right to counsel. Daniels, 532 U.S. at 382.

But a plurality of the Court also recognized that “there may

be rare cases in which no channel of review was actually

available to a defendant with respect to a prior conviction, due

to no fault of his own.” Daniels, 532 U.S. at 383. Because that

scenario was not presented by the facts in Daniels, the Court

reserved the question of whether a defendant could file a

section 2255 motion to challenge such a prior conviction. As we

noted above, we asked appointed counsel to answer, in part,

whether this is one of those rare cases.

16 No. 14-2961

Kelley contends that this is one of those rare instances

where a defendant had no prior opportunity to challenge the

state court conviction being used as a predicate under the

ACCA. He had no reason or opportunity to lodge any chal-

lenge to the state conviction, he argues, because he had no

cause to believe that the State had failed to hold up its end of

the bargain until 2011, when the government sought to use the

1975 conviction against him at federal sentencing proceedings.

By then, his efforts to raise the breach of the plea deal in post-

conviction proceedings were hampered by the passage of time

and the loss of critical records needed to prove his case. But the

underlying factual premise of this argument is faulty: the state

courts concluded that Kelley did in fact know that the 1975

conviction had not been expunged as early as 1982 or 1983

when he was sentenced on murder and robbery charges. The

state courts also concluded that his delay in seeking a remedy

for that breach was not reasonable.

Moreover, the conclusion of the Indiana post-conviction

courts that Kelley’s claim was barred by laches is an adequate

and independent state law ground that prevents collateral

review of the claim. “If a state court clearly and expressly states

that its judgment rests on a state procedural bar and does not

reach the merits of a federal claim, then we are unable to

consider that claim on collateral review.” Gray v. Hardy,

598 F.3d 324, 329 (7th Cir. 2010) (citing Harris v. Reed, 489 U.S.

255, 263 (1989)). See also Coleman v. Thompson, 501 U.S. 722, 729

(1991) (“This Court will not review a question of federal law

decided by a state court if the decision of that court rests on a

state law ground that is independent of the federal question

and adequate to support the judgment.”). Here, the state courts

No. 14-2961 17

rested on the doctrine of laches in denying Kelley’s claim for

post-conviction relief. That adequate and independent state

law ground for denying the claim may not be reviewed by a

federal court. See Rhodes v. Dittmann, 783 F.3d 669, 675–76 (7th

Cir. 2015) (holding that a state court’s decision to deny a

petitioner’s claim based on untimeliness was an independent

and adequate ground for the state court's decision, precluding

federal collateral review).

III.

Finally, we note that the State of Indiana did not have a

statute allowing for expungement of criminal convictions until

2013, nearly forty years after Kelley asserts that Indiana

prosecutors agreed to expunge his conviction upon successful

completion of his federal sentence. See Ind. Code § 35-38-9-1 et

seq. (2013); Taylor v. State, 7 N.E.3d 362, 366–67 (Ind. Ct. App.

2014) (noting that the Indiana legislature passed the ex-

pungement statute in 2013 in order to give “individuals who

have been convicted of certain crimes a second chance by not

experiencing many of the stigmas associated with a criminal

conviction–especially where an individual has completed the

requirements established by the trial court and has since been

a law-abiding citizen”). Although Kelley cited the FYCA as the

law authorizing expungement of his federal conviction, he has

never cited any Indiana law that would have allowed expunge-

ment of a state conviction in 1975. Nor has he ever asserted

that prosecutors tried to mislead him regarding the terms of his

plea agreement or the availability of expungement in Indiana,

and we note that he was represented by counsel at the time. It

therefore seems unlikely that his 1975 plea agreement with the

State of Indiana contained the terms that Kelley asserts. In any

18 No. 14-2961

case, the terms of the plea agreement are no longer relevant:

the Indiana courts have concluded that Kelley waited too long

to challenge the 1975 robbery conviction, and we may not

review that judgment. For all of the foregoing reasons, the

judgment of the district court is

AFFIRMED.