Kennedy v. United States Of America

Filing 34

ORDER granting 32 Motion for Reconsideration re 26 Order Adopting Report and Recommendations of the Denial of a COA. Accordingly, the Court ISSUES Kennedy a COA, which shall be limited to the three grounds noted herein. Signed by Judge Lisa G. Wood on 5/11/2018. (ca)

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WESTLEY KAYEON KENNEDY,
CIVIL ACTION NO.: 2:15-cv-30

Movant,

(Crim. Case. No.: 2:14-cr-12)

V.

UNITED STATES OF AMERICA,

Respondent.

ORDER

Presently before the Court is Westley Kayeon Kennedy's

Kennedy") Motion for Reconsideration of the Denial of a

Certificate of Appealability, dkt. no. 834,^ to which the
Government has not filed a response.

Kennedy moves the Court

for a Certificate of Appealability (^^COA") regarding the denial
of his Motion to Vacate, Set Aside, or Correct his Sentence

pursuant to 28 U.S.C. § 2255.

Dkt. Nos. 818, 826.

For the

reasons and in the matter set forth below, the Court GRANTS

^

The pertinent record documents in this case are filed on the docket

of Kennedy's criminal case. United States v. Kennedy, 2:14-cr-12 (S.D.
Ga. April 3, 2014), and many are not included in Kennedy's civil
docket. Thus, for ease of reference and consistency, the Court cites
to Kennedy's criminal docket in this Order.
A0 72A

(Rev. 8/82)

Kennedy's Motion for Reconsideration^ and ISSUES him a COA in
accordance with the grounds noted herein.
BACKGROUND

In his Section 2255 Motion, Kennedy argued that his

counsel, Mr. Reid Zeh, provided ineffective assistance and

operated under a conflict of interest and that the Government

committed prosecutorial misconduct.

Dkt. No. 809-1.

Magistrate

Judge R. Stan Baker recommended the Court deny Kennedy's 2255
Motion without a hearing because Kennedy could not show Mr. Zeh
was ineffective under either the conflict-of-interest standard

or the Strickland standard and because Kennedy's prosecutorial

misconduct allegations were conclusory and subject to his
comprehensive collateral attack waiver.

Dkt. No. 818.

In

addition. Judge Baker recommended the Court deny Kennedy a COA.

Id. at pp. 29-30.

Kennedy did not file objections, and the

^ A motion for reconsideration, or a Federal Rule of Civil Procedure
59(e) motion, is "an extraordinary remedy, to be employed sparingly."
Smith ex rel. Smith v. Augusta-Richmond County, No. CV 110-126, 2012

WL 1355575, at *1 (S.D. Ga. Apr. 18, 2012) (citation omitted). The
decision to grant a motion for reconsideration is committed to the
sound discretion of the district court.

Fla. Ass'n of Rehab.

Facilities, Inc. v. State of Fla. Dep^t of Health and Rehab. Servs.,
225 F.3d 1208, 1216 (11th Cir. 2000). "A movant must set forth facts

or law of a strongly convincing nature to induce the court to reverse
its prior decision." Id. (citation omitted). "The only grounds for
granting a Rule 59 motion are newly-discovered evidence or manifest
errors of law or fact."

Jacobs v. Tempur-Pedic Intern., Inc., 626
F.3d 1327, 1344 (11th Cir. 2010) (alterations omitted) (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). "A Rule 59(e) motion
cannot be used to relitigate old matters, raise argument or present
evidence that could have been raised prior to the entry of judgment."
Id. (alterations omitted) (quoting Michael Linet, Inc. v. Village of
Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)).

Court adopted Judge Baker's Report and Recommendation as the
opinion of the Court.

Dkt. Nos. 825, 826, 827.

Following the

entry of judgment against him, Kennedy filed a notice of appeal
with the Eleventh Circuit, dkt. no. 830, and now seeks

reconsideration of the Court's COA denial, dkt. no. 834.^
DISCUSSION

A federal prisoner proceeding under Section 2255 must

obtain a COA before appealing the denial of his motion to
vacate.

The Court ^'must issue or deny a [COA] when it enters a

final order adverse to the applicant."

Governing Section 2255 Proceedings.

Rule 11(a) of the Rules

A COA should issue when a

movant makes ^^a substantial showing of the denial of a

constitutional right."

28 U.S.C. § 2253(c)(2).

1. To establish the denial of a constitutional right, a
movant must show ^'that reasonable jurists could debate
whether (or, for that matter, agree that) the [motion]
should have been resolved in a different manner or

that the issues presented were ^adequate to deserve
encouragement to proceed further.'"

Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot
V. Estelle, 463 U.S. 880, 893 & n.4 (1983)).

A

Section 2255 movant need not show that his motion

^

Mr. Ricardo Bascuas, Kennedy's counsel on direct appeal, filed the

Motion for Reconsideration on Kennedy's behalf.

Dkt. Nos. 833, 834.

would necessarily be meritorious, only that it is

debatable, ^^even though every jurist of reason might
agree, after the COA has been granted and the case has
received full consideration, that [movant] will not

prevail."
(2003).

Miller-El v. Cockrell, 537 U.S. 322, 338

The Court's threshold COA ^^inquiry does not

require full consideration of the factual or legal
bases adduced in support of the claims."

Id. at 336.

On the prior record before the Court, it appeared that any

appeal in this matter would be frivolous.

Therefore, finding no

debatable issues worthy of appeal, the Court initially denied
Kennedy a COA.

Dkt. No. 818, p. 30.

However, in light of

Kennedy's recent pleadings, including the arguments raised in
his Motion for Reconsideration, it appears that Kennedy's appeal

will present debatable constitutional issues of which reasonable
jurists could disagree regarding conflicts of interest,
ineffective assistance of counsel, due process, and the

adversarial structure of our justice system.^

Accordingly, the

Kennedy's Motion focuses on whether Mr. Zeh's representation of
Kennedy and another defendant was successive or concurrent. Judge
Baker, relying on arguments of the Government and Mr. Zeh's affidavit,
found that the representation was successive, and the Court adopted
that conclusion. However, Kennedy's appellate counsel raises a
compelling argument that the representation was actually concurrent.
Dkt. No. 834. Nonetheless, this discrepancy may not ultimately be
enough to afford Kennedy relief on appeal. Judge Baker found that
^^even assuming, arguendo, [] Kennedy could show Mr. Zeh had
inconsistent interests such that he was actually conflicted, Kennedy
cannot show that this alleged conflict ^adversely affected' his

Court ISSUES Kennedy a COA.

Kennedy's COA shall be limited to

the following three issues:

(1) whether Kennedy's right to due process was abridged by

the Magistrate Judge's failure to conduct an evidentiary hearing
on this record;

(2) whether Kennedy's Sixth Amendment right to conflictfree counsel was violated given that Mr. Zeh simultaneously, not

successively, represented a person trying to incriminate
Kennedy; and
(3) whether the Government and Mr. Zeh failed to observe

adversarial norms in this prosecution in violation of Kennedy's
right to due process of law.

counsel's performance." Dkt. No. 818, pp. 18-19. In light of the
considerable objective evidence against Kennedy and the substantial
benefit he obtained through his plea agreement. Judge Baker reasoned
that Kennedy's alternative strategy of going to trial was not
reasonable under the facts and that Kennedy failed to establish a
"link" between Mr. Zeh's conflict and the plea deal strategy. Id. at
pp. 19-21 (citing Pegg v. United States, 253 F.3d 1274, 1278 (11th
Cir. 2001)). Thus, Kennedy's Section 2255 Motion may still be denied
due to lack of adverse effect or prejudice any conflict had on the
resolution of his case.

However, this Court need not express any

opinion on the ultimate resolution of Kennedy's appeal except to say
that his arguments do not appear so frivolous that he should not be
allowed to pursue them.

CONCLUSION

For the reasons and in the matter set forth above, the

Court GRANTS Kennedy's Motion for Reconsideration of the Denial
of a COA.

Dkt. No. 834.

Accordingly, the Court ISSUES Kennedy

a COA, which shall be limited to the three grounds noted herein

SO ORDERED, this |
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ON. I/TSA GODBEY WOOD, JUDGE
nit2!i) states district court
SWTHERN DISTRICT OF GEORGIA

, 2018.