Kennard v. Trierweiler

Filing 34

ORDER (1) Denying 1 and 25 Petition for a Writ of Habeas Corpus, (2) Denying a Certificate of Appealability, and (3) Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Matthew F. Leitman. (HRya)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RODNEY KENNARD,
Petitioner,

Case No. 16-cv-12523
Hon. Matthew F. Leitman

v.
TONY TRIERWEILER,
Respondent.
__________________________________________________________________/
ORDER (1) DENYING PETITION FOR A WRIT OF HABEAS CORPUS
(ECF Nos. 1, 25), (2) DENYING A CERTIFICATE OF APPEALABILITY,
AND (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Rodney Kennard is a state prisoner incarcerated at the Alger
Maximum Correctional Facility in Munising, Michigan. On July 5, 2016, Kennard
filed a pro se petition for a writ of habeas corpus in this Court seeking relief under
42 U.S.C. § 2254. (See Pet., ECF No. 1; Am. Pet., ECF No. 25.) In the petition,
Kennard seeks relief from his state-court conviction for first-degree, premeditated
murder, in violation of Mich. Comp. Laws § 750.316(1)(a). (See id.)
The Court has carefully reviewed the petition and concludes that Kennard is
not entitled to federal habeas relief. Therefore, for the reasons explained below, the
Court DENIES Kennard’s petition and DENIES Kennard a certificate of
appealability. However, it GRANTS Kennard leave to proceed in forma pauperis
on appeal.

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I
A
On October 21, 2013, a jury in the Wayne County Circuit Court convicted
Kennard of first-degree, premeditated murder in a joint trial with his co-defendant
Lester Martez Benford. The Michigan Court of Appeals summarized the evidence
presented at Kennard’s jury trial as follows:
Defendants were convicted of murdering Delrico Taylor,
who died from multiple gunshot wounds. The victim’s
body was discovered during the early morning hours of
September 12, 2011, in the garage of a vacant home in
Detroit. The body had been badly burned. An odor of
gasoline was detected when the body was moved. Bullets
removed from the victim’s body and shell casings found
near the scene indicated that two firearms were involved
in the shooting.
Earlier in the evening, the victim was at a nearby home
with his longtime friend, Locaster Croskey. The victim
flagged down defendants Benford and Kennard, who had
known the victim for many years. A few months before
the shooting, the victim had stabbed defendant Benford,
causing him to seek medical treatment. As the men entered
Croskey’s home, defendant Benford threatened to shoot a
small dog that was barking at him. Eventually, the victim
left Croskey’s home with defendants and Antowan Stitts
to go to a liquor store.
Defendants and Stitts were charged with the victim’s
murder, but Stitts pleaded guilty to accessory after the fact,
MCL 750.505, pursuant to a plea agreement. At trial, he
testified that the men were walking when he heard a
clicking sound. According to Stitts, defendant Benford
tried to shoot the victim, but Benford’s gun, described by
Stitts as a .380, jammed. The victim and defendant
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Benford then struggled over the gun, which discharged,
striking defendant Benford in the hands. The victim fled,
but defendant Kennard chased him down and struck him.
The victim fell to the ground, bleeding and unconscious.
The victim was taken to the garage, after which defendant
Kennard retrieved a .22 rifle and shot the victim three
times. Defendant Benford left to seek treatment at a
hospital. Stitts gave defendant Kennard his gas can, and
defendant Kennard set the victim on fire.
A neighbor, Michael Pokladek, heard a loud sound and
went outside where he saw four men. It appeared that three
of the men were fighting one man. One of the taller men
pulled a black Glock handgun and fired a shot at the
victim. Pokladek did not want to get involved and went
into his house where he heard additional shots fired.
Tanise Page lived with her children, Howard Grandberry,
and her cousin Ericka Williams, who was defendant
Kennard’s girlfriend. On September 12, 2011, defendant
Kennard entered the home with Stitts and an unknown
male. They went into the bathroom and washed up for 20
minutes. Later that day, individuals came to the home
looking for defendant Kennard. Within three days of the
offense, Page’s home was firebombed. She went to the
police and attributed the arson to retaliation against
defendant Kennard. In December 2011, Page heard
defendant Kennard tell someone that what happened to the
victim could happen to them, which she interpreted as
bragging.
Nakisha Jenkins, the mother of the victim’s child, was also
a close friend of defendant Benford. Defendant Benford
told Jenkins that he was walking with the victim when two
men jumped out of a car with guns and attacked them.
Defendant Benford was shot in the hands. However,
defendant Benford told a police officer at the hospital that
he was injured when the victim tried to shoot him and the
two men struggled over the gun.
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Defendants presented evidence that Stitts either denied or
minimized his role to the police and his probation officer,
but told other inmates that he committed the murder.
Additionally, on cross-examination, Stitts admitted that he
avoided life imprisonment by entering into the plea
agreement and now faced a maximum penalty of a fiveyear prison term for the charge of accessory after the fact.
Defendant Kennard’s girlfriend, Ericka Williams, offered
an alibi that she saw defendant Kennard at her home
shortly after she heard gunshots.
People v. Kennard, 2015 WL 6438144, at ** 1-2 (Mich. Ct. App. Oct. 22, 2015).
The state trial court sentenced Kennard to life imprisonment without parole.
On direct appeal to the Michigan Court of Appeals, Kennard, through counsel, raised
the following claims: (1) there was an unlawful delay between the offense and his
arrest, (2) the state trial court wrongly declined to appoint him expert witnesses, (3)
the trial court should have granted him a separate trial from his co-defendant, (4) he
was denied the right to confront his accusers at trial, and (5) cumulative error.
Kennard also filed a pro se Standard 4 Brief in which he raised additional claims
concerning: (1) the ineffective assistance of trial counsel, (2) prosecutorial
misconduct, (3) the exclusion of evidence, and (4) an alleged inconsistent verdict.
The Michigan Court of Appeals rejected all of these claims. See id. Kennard then
filed an application for leave to appeal in the Michigan Supreme Court. On May 24,
2016, that court denied leave. See People v. Kennard, 878 N.W.2d 852 (Mich. 2016).

4

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B
On July 5, 2016, Kennard filed a petition for a writ of habeas corpus in this
Court. (See Pet., ECF No. 1.) In that petition, Kennard asserted that: (1) he was
denied due process of law by the lengthy delay between the offense and his arrest;
(2) the state trial court denied him his right to present a defense when the court
denied his request for funds to hire experts, and his trial counsel rendered ineffective
assistance when counsel failed to renew that request; (3) the trial court denied him a
fair trial when it refused to grant him and his co-defendant separate trials or separate
juries; (4) the trial court abused its discretion and deprived him of his right of
confrontation when it permitted a witness’s prior-recorded testimony to be read to
the jury; (5) the trial court violated his right to confront his accuser when it admitted
hearsay in the form of a witness’s testimony from the preliminary examination; (6)
the cumulative effect of errors at his trial deprived him of due process; (7) his trial
counsel rendered ineffective assistance when counsel failed to present impeachment
evidence and failed to recall a prosecution witness; (8) the prosecutor committed
misconduct when the prosecutor introduced false testimony at trial; (9) the trial court
abused its discretion and deprived him of his right to confront witnesses when it
limited his questioning of an important prosecution witness; (10) the trial court
should have granted a mistrial due to the jury’s inconsistent verdict; and (11) he was
denied counsel at a critical stage of the proceedings when his counsel refused to
5

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investigate the case and refused to object to the prosecutor’s misconduct and the trial
court’s failure to control the proceedings. (See id.)
In his answer to the petition, Respondent argued that Kennard failed to
exhaust his state court remedies with respect to all of his claims. (See Ans. to Pet.,
ECF No. 10.) On May 10, 2018, Kennard filed a request in which he asked the Court
to stay consideration of his petition while he returned to state court and pursued postconviction review with respect to his second and eleventh claims for relief. (See
Mot., ECF No. 20.) On June 4, 2018, this Court granted Kennard’s request, and it
stayed this case while Kennard attempted to exhaust his claims in state court (See
Order, ECF No. 21.)
On August 15, 2018, Kennard signed and submitted a motion for relief from
judgment in the state trial court. (See St. Ct. Mot., ECF No. 30-5, PageID.3945.)
The state court docketed that motion on October 3, 2018. (See id.) In that state court
motion, Kennard argued that (1) his trial counsel provided ineffective assistance
when counsel failed to renew Kennard’s request for an expert witness, refused to
investigate Kenanrd’s case, failed to object to prosecutorial misconduct, and failed
to use certain impeachment evidence, (2) his appellate counsel provided ineffective
assistance when counsel failed to raise meritorious claims on appeal, and (3) the
verdict was against the great weight of the evidence. (See id., PageID.3947-3948.)
The trial court denied Kennard’s ineffective assistance of trial counsel claims on
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procedural grounds under Michigan Court Rule 6.508(D)(2)1 because those issues
were previously raised before the Michigan Court of Appeals. (See St. Ct. Op. and
Order, ECF No. 30-6, PageID.4008.) The trial court then denied the ineffective
assistance of appellate counsel and great weight of the evidence claims on the merits.
(See id., PageID.4008-4009.)
Kennard thereafter filed an application for leave to appeal in the Michigan
Court of Appeals. (See ECF No. 30-7.) That court denied leave. The Michigan
Supreme Court also denied Kennard’s application for leave to appeal on the basis
that he “failed to meet the burden of establishing entitlement to relief under
[Michigan Court Rule] 6.508(D).” People v. Kennard, 940 N.W.2d 119 (Mich.
2020).
C
On April 29, 2020, Kennard returned to this Court and filed a motion to reopen these proceedings. (See Mot. ECF No. 24.) Kennard also filed an amended
habeas petition. (See Am. Pet., ECF No. 25.) The Court then re-opened this action.
(See Order, ECF No. 27.) Based on the Court’s review of the petition and amended
petition, it understands Kennard to be raising the following claims:

1

Michigan Court Rule 6.508(D)(2) provides that, absent exceptions that do not apply
here, a court “may not grant relief to the defendant if [a] motion [for relief from
judgment] […] alleges grounds for relief which were decided against the defendant
in a prior appeal or proceeding.”
7

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I.

Petitioner was denied due process of law by the unjustified lengthy
delay between the offense and his arrest.

II.

The trial court denied Petitioner’s constitutional rights to present a
defense, to equal protection and a fair trial by denying him funds to
hire experts to assist the defense; and trial counsel was ineffective
for failing to renew request for expert witness.

III.

Petitioner was denied a fair trial by the trial court’s refusal to grant
a separate trial or separate juries.

IV.

The trial court abused its discretion in ruling the prosecution had
shown due diligence in attempting to subpoena, locate and produce
Tanise Page, and thus permitting her prior recorded testimony to be
read to the jury under MRE 804(a)(5), thereby denying Petitioner
his state and federal constitutional right to confrontation.

V.

Reversal of Petitioner’s convictions is required where the trial court
violated his sixth amendment right to confront his accuser by
admitting at trial testimonial hearsay in the form of Tanise Page’s
preliminary examination testimony where appellant lacked the
opportunity and similar motive to develop her testimony at that time.

VI.

The cumulative effect of the errors in this case deprived Petitioner
of his federal and state due process rights.

VII. Trial counsel denied the defendant effective assistance of counsel
by (1) failing to present impeachment evidence at trial when
testimonial evidence from an absent witness was read into the record
by the prosecution and (2) failing to recall a prosecution witness
when testimony was provided by the P.S.I. Investigator that the
witness did not directly observe the murder, amounting to
ineffective assistance of counsel and the denial of a fair trial.
VIII. The defendant was denied a fair trial where the prosecutor
introduced the knowingly false testimony of an absentee witness
into the record amounting to prosecutorial misconduct and denial of
due process for the defendant.

8

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IX.

The trial court abused its discretion by denying defense counsel’s
request to question the prosecution’s most important witness about
pending murder investigations in which he was the subject along
with other information pertaining to criminal behavior which raised
a question regarding his credibility as a witness against the
defendant, amounting to a denial of the defendant’s Sixth
Amendment constitutional right to confront witnesses against him.

X.

Due process requires a mistrial in this case due to an inconsistent
verdict where the jury acquitted the appellant of felony-firearm, and
felon in possession, but convicted on the charge of murder where a
gun was used to complete the crime.

XI.

Petitioner was denied his fundamental constitutional right to a fair
trial as guaranteed under both State and Federal constitutions, when
Petitioner was denied counsel at the critical “pre-trial” stage of the
proceedings for refusal to investigate the case; for refusal to object
to the court’s failure to control the proceedings; and, for refusal to
object to prosecutorial misconduct, all of which are tantamount to
abandonment by counsel that results in structural error.

XII. Court appointed trial counsel provided ineffective assistance by
neglecting to use Detroi[]t Police Department Crime Report No.
1109150028.1 and the signed witness statement of Tanise Page
despite its obvious exculpatory and impeachment value.
XIII. Defendant was denied his Sixth Amendment right to the effective
assistance of appellate counsel where appellate counsel neglected to
raise significant and obvious issues in the Court of Appeals.
XIV. Defendant’s conviction for First Degree Premeditated Murder was
against the great weight of the evidence.
(ECF Nos. 1, 25.)

9

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On September 4, 2020, Respondent filed an answer in opposition to the
amended petition. (See Ans., 29.) Respondent contends that the Court should deny
the petition because certain claims are procedurally defaulted, the statute of
limitations bars certain claims, and all of the claims lack merit. (See id.)
II
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
requires federal courts to uphold state court adjudications on the merits unless the
state court’s decision (1) “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States,” or (2) “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“The question under AEDPA is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was unreasonable—a
substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
III
A
The Court begins with Respondent’s argument that Kennard has procedurally
defaulted many of his claims. The Court need not address that defense because
procedural default is not a jurisdictional bar that prohibits the Court from reviewing
the merits of Kennard’s claims. See Smith v. Nagy, 962 F.3d 192, 207 (6th Cir. 2020);
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Trest v. Cain, 522 U.S. 87, 89 (1997). Indeed, the Sixth Circuit has explained that
even where a claim may be procedurally defaulted, a district court “may sometimes
reach the merits of [the] claim, particularly when the merits are easily resolvable
against the petitioner while the procedural issues are complicated.” Smith, 962 F.3d
at 207. Here, the Court concludes that because the procedural default analysis will
not affect the outcome of this case, it is more efficient for the Court to proceed
directly to the merits of Kennard’s claims.
Likewise, the Court declines to consider Respondent’s argument that some of
Kennard’s claims are barred by the statute of limitations. As with procedural default,
the statute of limitations is not a jurisdictional bar to habeas review. See Holland v.
Florida, 560 U.S. 631, 645 (2010). Thus, the Court will not address Respondent’s
statute of limitations arguments and will proceed directly to addressing the merits of
Kennard’s claims.
B
Kennard first argues that he is entitled to habeas relief because the 18-month
delay between the date of the murder and his actual arrest violated his due process
rights. Kennard asserts that the prosecution had evidence implicating him in the
murder as early as September 2011, but the prosecution did not charge him until
February 2013. (See Pet., ECF No. 1, PageID.51.) He argues that the loss of

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memories and witnesses, including “Tone,” a witness who allegedly was outside at
the time of the gunshots, prejudiced the outcome of his case.
The Michigan Court of Appeals considered this claim on direct review and
rejected it on the basis that Kennard failed to establish prejudice:
In the present case, defendant Kennard asserts that he was
prejudiced by the loss of memories and witnesses,
including “Tone,” a witness who allegedly was outside at
the time of the gunshots. However, general allegations that
the memories of witnesses have suffered does not
sufficiently demonstrate prejudice. People v. Musser, 259
Mich.App 215, 220; 673 NW2d 800 (2003). Further, there
is no indication that defendant Kennard was unable to
locate “Tone” because of the delay before his charge and
arrest. Pokladek testified that when the police canvased the
area, Tone called him to the door and said he did not want
to be interviewed by the police. Even if Tone was outside
at the time of the gunshots, there is no basis for concluding
that he would have provided testimony that was not
cumulative to that of Pokladek. Defendant Kennard also
observes that DNA testing was completed in November
2012, and the charges were not filed until February 2013,
but there is no information to indicate that this three-month
delay provided the prosecution with a tactical advantage.
Defendant Kennard’s generalized and unsupported
assertions of prejudice and the existence of a tactical
advantage to the prosecution are insufficient to establish a
due process violation. Accordingly, the trial court did not
abuse its discretion by denying defendant Kennard’s
motion to dismiss with respect to this issue.
Kennard, 2015 WL 6438144, at *9.

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The Michigan Court of Appeals’ decision was not contrary to, or an
unreasonable application of, clearly established federal law. The Due Process
Clause provides a limited role in protecting criminal defendants against pre-arrest or
pre-indictment delay. See United States v. Lovasco, 431 U.S. 783, 789 (1977). Proof
of prejudice is generally a necessary but not sufficient element of a due process claim
involving pre-indictment delay, and the due process inquiry must consider the
reasons for the delay as well as prejudice to the accused. See id. at 790. The Sixth
Circuit has “consistently read Lovasco to hold that dismissal for pre-indictment
delay is warranted only when the defendant shows (1) substantial prejudice to his
right to a fair trial and (2) that the delay was an intentional device by the government
to gain a tactical advantage.” United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992)
(emphasis in original; internal quotation marks and citation omitted).
Here, Kennard has not identified any evidence that the prosecution delayed
arresting and/or charging him for illegitimate reasons. Instead, Kennard simply says
that there was an 18-month delay between when the prosecution obtained evidence
implicating him in the murder and when he was charged with that crime. But
identifying the delay alone is not enough. Simply put, it was not unreasonable for
the Michigan Court of Appeals to conclude any delay here was not “an intentional
device by the government to gain a tactical advantage.” Id. Kennard is therefore not
entitled to relief on this claim.
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C
1
In his second claim, Kennard argues that the state trial court violated his
constitutional right to present a defense when it denied his request to appoint defense
experts to review the medical and autopsy records and to conduct additional DNA
and fingerprint testing on the pistol grip and knife evidence. The Michigan Court of
Appeals considered this claim on direct review and rejected it:
First, defendant Kennard has not established that he was
deprived of his right to present a defense. The trial court
did not preclude defendant Kennard from pursuing a
particular line of defense. Further, it did not outright deny
his request for appointment of an independent pathologist
or for DNA and fingerprint testing, but only required him
to demonstrate a need for appointment of an expert and
additional testing. Because the court did not preclude
defendant Kennard from further investigating or pursuing
these matters, there is no merit to his argument that the
court deprived him of his right to present a defense.
The trial court also did not abuse its discretion by denying
defendant Kennard’s request for appointment of an expert
and for additional evidentiary testing. The trial court
denied the requests without prejudice, pending counsel’s
acquisition of additional information regarding the need
for an expert and whether the requested evidentiary
materials were available and suitable for testing. Although
defense counsel had posited that an independent pathology
expert could analyze the medical examiner’s conclusions
regarding the angles of the bullets, the position of the
shooter, and the position of the victim, the medical
examiner testified at trial that she could not identify the
position of the victim’s body and the shooter’s distance at
the time of the shooting. Moreover, the trial court did not
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foreclose the possibility of an appointment of an expert if
defendant Kennard could establish a need for an expert,
but defendant Kennard never refiled his motion with a
renewed showing of need.
Kennard, 2015 WL 6438144, at *10.
The Michigan Court of Appeals’ ruling was not contrary to, or an
unreasonable application of, clearly established federal law. Simply put, it was not
unreasonable for the Michigan Court of Appeals to conclude that Kennard’s right to
present a defense was not violated because the trial court provided him with the
opportunity to establish a need for an appointment of an expert and additional
testing, and he failed to do so. Moreover, Kennard has not presented any explanation
or evidence to this Court as to how a DNA or pathologist expert would have aided
in his defense. For all of these reasons, the Michigan Court of Appeals’ rejection of
this claim was not unreasonable. Kennard is therefore not entitled to relief on this
claim.
2
Kennard also brings a related claim that his trial counsel was ineffective for
failing to renew the request for an independent pathology expert. More specifically,
Kennard argues that if his trial counsel had made an additional inquiry into the
victim’s x-ray and autopsy records, and interviewed the medical examiner, counsel
would have learned that the victim was not shot “execution style” as the prosecution

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suggested. Kennard contends that this information would have warranted the
appointment of a pathology expert to examine the autopsy records.
Kennard presented this claim to the state trial court in his motion for relief
from judgment, but that court denied declined to consider the claim on the merits.
The Court explained that Kennard had previously raised an ineffective assistance of
trial counsel claim on direct appeal in the Michigan Supreme Court, and it said that
under Michigan Court Rule 6.508(D)(2), it was “precluded from review[ing]” any
claim that “‘alleges grounds for relief which were decided against the defendant in
a prior appeal or proceeding.”‘ (St. Ct. Order, ECF No. 30-6, PageID.4008; quoting
Mich. Ct. Rule 6.508(D)(2).) Because the trial court did not review the merits of
this claim, this Court considers it de novo.
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to the effective assistance of counsel. When counsel is
ineffective, that right is abridged. See McMann v. Richardson, 397 U.S. 759, 771
n.14 (1970). An ineffective assistance of counsel claim has two components. A
petitioner must show that counsel’s performance was deficient, and that deficiency
prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). An
attorney’s performance is deficient when “counsel’s representation [falls] below an
objective standard of reasonableness.” Id. at 688. The “prejudice” component of
a Strickland claim “focuses on the question of whether counsel’s deficient
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performance renders the result of the trial unreliable or the proceeding
fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). To show
prejudice under Strickland, a petitioner must demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.

Unless a defendant

demonstrates both deficient performance and prejudice, “it cannot be said that the
conviction resulted from a breakdown in the adversary process that renders the result
unreliable.” Id. at 687.
Here, Kennard has failed to show that he was prejudiced by his counsel’s
actions at trial. For example, Kennard’s claim that additional inquiry by his trial
counsel would have supported the need for a pathology expert is based on pure
speculation. Kennard has neither presented any evidence that the autopsy records
supported an alternative theory of how the victim was shot nor explained how such
evidence would have aided his defense. Moreover, Kennard has failed to identify
what testimony his proposed expert would have offered or shown that the result of
his trial would have been different had his proposed expert so testified.
For all of these reasons, Kennard is not entitled to federal habeas relief on this
claim.

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D
Kennard next argues that his right to a fair trial was violated because the state
trial court denied his motion for a separate trial or separate jury from his codefendant. The Michigan Court of Appeals considered this argument on direct
review and rejected it:

Defendant Kennard argues that severance was necessary
because of the differing defense theories that he and
defendant Benford presented. To warrant severance, the
defenses
must
be
mutually
exclusive
or
irreconcilable. Id. at 349. Incidental spillover prejudice is
generally inevitable and insufficient to warrant severance.
Rather, the tension between the defenses must cause a jury
to believe one defendant at the expense of
another. Id. Although defendants Kennard and Benford
presented different defenses at trial, they were not
mutually exclusive or irreconcilable. Defendant Kennard
presented an alibi defense. Defendant Benford gave a
statement in which he claimed that the victim threatened
him with a gun, which led to a struggle over the gun during
which defendant Benford was shot, but defendant Benford
denied participating in the shooting death of the victim.
The jury was not required to believe one defendant at the
expense of the other. Moreover, both defendants argued
that the real perpetrator was Stitts, whose testimony
implicating each of them in the offense was not credible
because it was motivated by his desire to avoid a life
sentence.
Defendant Kennard also cites the fact that defendant
Benford had a motive to kill the victim in light of the prior
stabbing incident, whereas the evidence against him was
weak and inconsistent. The fact that the jury had a basis
for finding that defendant Benford had a reason to harm
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the victim, but lacked an apparent motive for defendant
Kennard’s participation in the offense, does not satisfy the
criteria for severance of trials and does not demonstrate
the necessary prejudice to warrant reversal on appeal. Id.
at 346–349. Accordingly, the trial court did not abuse its
discretion in denying defendant Kennard’s motion for
separate trials or a separate jury.
Kennard, 2015 WL 6438144, at ** 11-12.
The Michigan Court of Appeals’ rejection of Kennard’s separate trial claim
was not contrary to, or an unreasonable application of, clearly established federal
law. “As a general rule, joint trials are favored.” Stanford v. Parker, 266 F.3d 442,
459 (6th Cir. 2001). Thus, a petitioner “seeking habeas relief on the basis of a trial
court’s failure to sever his trial from his co-defendant’s bears a very heavy burden.”
Id. “A defendant is not entitled to severance merely because he might have had a
better chance of acquittal in a separate trial.” Id. at 458. Instead, “[c]ourts should
grant a severance only if there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.” Id. at 458-59.
Here, it was not unreasonable for the state appellate court to conclude that
Kennard’s defense and his co-defendant’s defense were not incompatible and that
the joint trial did not result in prejudice. Kennard has failed to present any evidence
or argument as to how the joint trial deprived him of an opportunity to call witnesses
or deprived him of a specific constitutional guarantee. Moreover, the state trial
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court’s instructions to the jury helped to mitigate any potential for prejudice affecting
Kennard’s substantial rights. The trial court instructed the jurors to consider each
defendant separately. (See ECF No. 8-22, PageID.3060.) And the trial court said
that the joint trial was not evidence that the two defendants were associated with
each other or that either one was guilty. (See id.) Finally, the trial court said that
each defendant was entitled to have his guilt or innocence decided individually. (See
id., PageID3085.) And Kennard has not provided any evidence the jury failed to
follow those instructions. See Stanford, 266 F.3d at 459 (“Jurors are presumed to
follow the instructions of the court and to give each defendant’s case separate
consideration. [….] The jury was repeatedly admonished to separately consider the
evidence as to each defendant, and the record reveals no indication that the court’s
instructions were ignored. By merely alleging potential juror confusion, [petitioner]
has not satisfied his burden of showing that separate trials were necessary”).
For all of these reasons, Kennard is not entitled to federal habeas relief on this
claim.
E
In his fourth and fifth claims, Kennard argues that the state trial court abused
its discretion when it ruled that the prosecution had shown due diligence in
attempting to subpoena, locate, and produce witness Tanise Page, and that the trial
court violated his right to confrontation by admitting Page’s preliminary
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examination during trial. The Court concludes that Kennard is not entitled to relief
on either of those claims.
1
During the preliminary examination, Page testified that Kennard and Stitts
came to her house around midnight on September 12, 2011, the same night the
victim’s body was discovered. (See ECF No. 8-3, PageID.313-314.) According to
Page, Kennard and Stitts appeared excited when they entered the home. (See id.,
PageID.319.) She testified that Kennard and Stitts went into the bathroom to wash
for approximately 20 minutes. (See id., PageID.324-325.) She then testified that
after Stitts left the house, Kennard told to her that if “[a]nyone that come[s] there,
tell them that he’s [Kennard] not there.” (Id., PageID.329.) Page further testified
that when she saw Kennard again in December 2011, she overheard him state to
someone: “[Y]ou know what happened to Rico . . . it could happen to you.” (Id.,
PageID.339.)
The prosecutor subpoenaed Page to testify against at trial; however, she could
not be located. The prosecutor then moved to admit Page’s preliminary examination
testimony on the basis that she was an unavailable witness under Michigan Court
Rule 804(a)(5). The state trial court then conducted a due diligence hearing, in
which Investigator Don Olsen testified about his efforts to locate Page. (See ECF
No. 8-16, PageID.1691.)

The trial court concluded that admission of Page’s
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preliminary examination testimony was proper because she was unavailable, the
prosecution made reasonable efforts to locate her, and Kennard had a meaningful
opportunity to develop her testimony at the preliminary examination. (See id.,
PageID.1728-1729.)
2
Kennard disagrees with the trial court’s ruling and argues that the prosecutor
failed to diligently locate and produce Page during trial. The Michigan Court of
Appeals considered this claim on direct review and rejected it:
The record discloses that Page did not voluntarily appear
at the preliminary examination. After a bench warrant was
issued, Investigator Don Olsen was able to pick her up and
bring her to the preliminary exam. The exam was held in
March 2013, and the trial began in September 2013.
During that six-month period, Page moved from her
former address, but did not notify the prosecutor, the
secretary of state, or an individual caring for her child. She
was involved with the Department of Human Services
because of a child protection proceeding, but she did not
maintain agency contact. There had been no activity with
her bridge card since August 12, 2013, and there was no
current contact information. Olsen was unable to obtain a
new address for Page from the post office or the new
occupants of Page’s former residence. The address on her
driver’s license was a boarded up, vacant home. Olsen
contacted a caregiver for one of Page’s children and
obtained Page’s phone number, but no one answered that
phone and Olsen was unable to leave a message.
Consequently, Olsen also left word with Page’s family
members that he was trying to reach her to bring her to
court for trial. He also checked police databases and
enlisted the assistance of federal marshals to aid in his
search. The trial court did not abuse its discretion in
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determining that diligent efforts were made to locate Page
for trial, and that she could not be produced despite the
exercise of due diligence.
Kennard, 2015 WL 6438144, at *13.
Kennard’s claim that the prosecutor failed to exercise due diligence is not
cognizable on habeas review. Under Michigan law, a prosecutor is required to list
all witnesses he intends to call at trial. See Mich. Comp. Laws § 767.40a(1)-(2). The
prosecutor must then exercise due diligence to produce those individuals. See Mich.
Comp. Laws § 767.40a(3). Federal courts, however, do not enforce state laws in a
habeas corpus proceeding. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Instead,
“a federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).
And federal law does not require the prosecutor to produce all known witnesses at
trial. See Collier v. Lafler, 419 F. App’x 555, 559 (6th Cir. 2011) (“Michigan’s
requirement that prosecutors produce res gestae witnesses is a matter of state law,
and its enforcement is outside the scope of our review”); Johnson v. Hofbauer, 159
F. Supp. 2d 582, 601 (E.D. Mich. 2001). Accordingly, the prosecutor’s alleged lack
of diligence in producing Page at trial did not implicate Kennard’s federal rights,
and the Court therefore cannot grant Kennard relief on that claim.

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3
Kennard next contends that the state trial court violated his right to
confrontation when it allowed the prosecutor to read Page’s preliminary examination
testimony to the jury. Kennard insists that he was prevented from effectively crossexamining Page at trial. The Michigan Court of Appeals considered this claim on
direct review and rejected it:
Although defendant Kennard asserts that the crossexamination was deficient, he fails to identify any line of
inquiry that would have been pursued if Page had appeared
at trial. Defendant Kennard complains that the admission
of Page’s preliminary examination testimony did not allow
the jury to view Page’s demeanor at the preliminary
examination. However, the Confrontation Clause only
guarantees a defendant an opportunity for effective crossexamination. It does not require “cross-examination that is
effective in whatever way, and to whatever extent, the
defense might wish. United States v. Owens, 484 U.S. 554,
559; 108 S.Ct. 838; 98 L.Ed.2d 951 (1988).
Kennard, 2015 WL 6438144, at *14.
The Michigan Court of Appeals’ decision was not contrary to, or an
unreasonable application of, clearly established federal law. The Confrontation
Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. In Crawford v. Washington, the Supreme Court held that
out-of-court statements that are “testimonial” in nature are barred by the
Confrontation Clause unless the witness is unavailable and the defendant had a prior
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opportunity for cross-examination regardless of whether the trial court finds the
statements to be reliable. 541 U.S. 36, 68 (2004).
When prosecutors seek to admit a non-testifying witness’ preliminary hearing
testimony, the Confrontation Clause requires two things: first, the prosecution must
establish that the declarant is “unavailable” by showing that prosecutorial authorities
have made a good-faith effort to obtain the declarant’s presence at trial, and, second,
the prosecution must demonstrate that the defendant had an adequate opportunity to
cross-examine the declarant at the preliminary examination. See Hamilton v.
Morgan, 474 F.3d 854, 858 (6th Cir. 2007). The Supreme Court has noted that
“when a witness disappears before trial, it is always possible to think of additional
steps that the prosecution might have taken to secure the witness’ presence, but the
Sixth Amendment does not require the prosecution to exhaust every avenue of
inquiry, no matter how unpromising.” Hardy v. Cross, 565 U.S. 65, 71-72 (2011).
Moreover, “the deferential standard of review set out in 28 U.S.C. § 2254(d) does
not permit a federal court to overturn a state court’s decision on the question of
unavailability merely because the federal court identifies additional steps that might
have been taken.” Id. at 72.
Kennard has not shown that he is entitled to relief on this claim. First, the
Michigan Court of Appeals did not unreasonably conclude that Page was unavailable
for purposes of the Confrontation Clause. Simply put, Kennard has not shown that
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the prosecutor failed to make a good-faith effort to obtain Page’s presence during
trial.
Second, the Michigan Court of Appeals did not unreasonably conclude that
Kennard had an adequate opportunity to cross-examine Page at the preliminary
examination. At that hearing, Kennard was represented by counsel, who was given
a reasonable opportunity to cross-examine Page.

Under these circumstances,

Kennard has not shown that the Michigan Court of Appeals unreasonably concluded
that the admission of Page’s preliminary examination testimony did not violate his
rights under the Confrontation Clause. Kennard is therefore not entitled to federal
habeas relief on this claim.
F
Next, Kennard claims that the cumulative effect of the errors in this case
deprived him of his due process rights. The Michigan Court of Appeals rejected that
argument on direct review. See Kennard, 2015 WL 6438144, at *14.
This claim fails because it not cognizable in these proceedings. As the United
States Court of Appeals for the Sixth Circuit has held, a cumulative error claim is
not cognizable on federal habeas review. See Sheppard v. Bagley, 657 F.3d 338, 348
(6th Cir. 2011) (citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). Thus,
Kennard is not entitled to federal habeas relief on this claim.

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G
The Court next turns to Kennard’s various ineffective assistance of trial
counsel claims. Kennard argues that his trial counsel provided ineffective assistance
when counsel failed to (1) use Page’s investigative subpoena testimony as
impeachment evidence and declined to recall Stitts as a witness during trial, (2)
investigate alibi witnesses and failed to object to the prosecutor’s statements during
closing argument, and (3) use Page’s statements to the police to impeach her
preliminary examination testimony admitted during trial.
As discussed above, an ineffective assistance of counsel claim has two
components. A petitioner must show that counsel’s performance was deficient and
that the deficiency prejudiced the defense. See Strickland, 466 U.S. at 687.2 The
Court will address each of Kennard’s ineffective assistance of counsel arguments in
turn.

2

Where, as here, claims of ineffective assistance are decided on the merits by the
state courts, obtaining habeas relief for those claims under AEDPA is even more
difficult because “[t]he standards created by Strickland and § 2254(d) are both highly
deferential and when the two apply in tandem, review is doubly so.” Harrington v.
Richter, 562 U.S. 86, 105 (2011) (citations and quotation marks omitted). “[T]he
question is not whether counsel’s actions were reasonable,” but whether “there is
any reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington, 562 U.S. at 105.
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1
Kennard first argues that his trial counsel provided ineffective assistance
when counsel failed to impeach Page with her inconsistent investigative subpoena
statements and by failing to recall Stitts after Karen White, a probation officer,
offered testimony regarding a prior statement she had taken from Stitts.
The Michigan Court of Appeals considered these arguments on direct review
and rejected them:
Although defendant Kennard complains that defense
counsel failed to utilize Page’s prior investigative
interview statements to impeach her testimony, the record
discloses that defense counsel had the benefit of the
investigative interview at the preliminary examination and
did unravel inconsistencies in Page’s testimony at the
preliminary examination. Further, the prosecutor also
explored inconsistencies in Page’s testimony at the
preliminary examination, and those inconsistencies were
made apparent to the jury when Page’s preliminary
examination testimony was read at trial. Thus, the record
does not support this claim of ineffective assistance of
counsel.
We also reject defendant Kennard’s argument that counsel
was ineffective for failing to recall Stitts after Probation
Officer White testified. White testified that Stitts gave a
statement that omitted witnessing the victim’s death and
providing the gasoline. White’s testimony served the
purpose of revealing inconsistencies in Stitts’s various
accounts of the level of his participation in the events
surrounding the victim’s death. It was not necessary to
recall Stitts merely for the purpose of confronting him with
that apparent inconsistency. Moreover, counsel fully
explored the many credibility problems with Stitt’s
testimony. Counsel established conflicts in the evidence
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regarding the extent of Stitts’s participation in the events
surrounding the victim’s death, inconsistencies in his
different accounts of the events, and elicited that he was
charged with the victim’s murder, but entered into a plea
agreement to a reduced charge of accessory after the fact
that allowed him to avoid a penalty of life imprisonment.
Stitts’s motive to lie was fully disclosed and explored at
trial. The fact that counsel did not recall Stitts following
White’s testimony did not deprive defendant Kennard of a
substantial defense. People v. Chapo, 283 Mich. App 360,
371; 770 NW2d 68 (2009).
Kennard, 2015 WL 6438144, at *15.
Kennard has not shown that the Michigan Court of Appeals’ decision was
contrary to, or an unreasonable application of, clearly established federal law. As
explained by the Michigan Court of Appeals, trial counsel had reviewed Page’s
investigative subpoena interview and utilized it to address the inconsistences in
Page’s testimony at the preliminary examination. Because counsel explored the
inconsistencies in Page’s testimony during her cross-examination at the preliminary
examination, which the jury heard at trial, it was not unreasonable for the Michigan
Court of Appeals to conclude that Kennard did not suffer prejudice from the failure
to introduce a copy of the interview at trial.
Likewise, Kennard has failed to show that his trial counsel provided
ineffective assistance when counsel failed recall Stitts after the Probation Officer
testified that Stitts omitted from his pre-sentence investigation interview that he
witnessed the victim’s death and provided gasoline to Kennard. Even though Stitts’
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statement during the interview was inconsistent with his trial testimony that he
witnessed the victim’s death, Kennard has not shown that that decision caused him
prejudice.

Stitts’ inconsistent statement was explored through the Probation

Officer’s testimony. (See ECF No. 8-2, PageID.2919-2920.) Thus, Kennard has not
shown that it was necessary to recall Stitts simply to highlight this inconsistency in
his testimony. Under these circumstances, it was not unreasonable for the Michigan
Court of Appeals to reject this claim of ineffective assistance.
2
Kennard next argues that his trial counsel provided ineffective assistance
when counsel failed to investigate two alibi witnesses and failed to object to the
prosecutor’s statements during closing argument.3 More specifically, he argues that
counsel failed to investigate and interview two alibi witnesses named Rodney and
Howard Grandberry. He also argues that counsel was ineffective when counsel did

3

To the extent that Kennard frames this claim as falling under United States v.
Cronic, 466 U.S. 648 657 (1984), which provides a narrow exception to Strickland’s
prejudice inquiry and permits the presumption of prejudice where there has been a
complete denial of counsel, the Court rejects his argument. A failure to interview
witnesses and/or to investigate their version of events, as Kennard alleges here, is
generally not a “complete” failure to test the prosecution’s case. And Kennard has
not shown that such an alleged failure gives rise to a presumption of prejudice under
Cronic. See, e.g., Altman v. Winn, 644 F. App’x 637, 641-62 (6th Cir. 2016)
(refusing to apply Cronic presumption of prejudice to claim that defense counsel
“failed to conduct any meaningful investigation” and failed to interview “crucial
witnesses”). Therefore, the Court will proceed with reviewing this claim under
Strickland.
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not object to the prosecutor’s comments on Stitts’ involvement in the murder during
closing argument. Kennard raised these arguments in his motion for relief from
judgment in the state trial court, but that Court did not review the claims on the
merits.

As explained above, the state court concluded that because Kennard

previously had raised an ineffective assistance claim on direct appeal, it could not
consider his new ineffective assistance claims under Michigan Court Rule
6.508(D)(2). Because the state court did not reach the merits of these claims, the
Court will review Kennard’s arguments de novo.
Kennard has failed to show prejudice from his trial counsel’s failure to
investigate the proposed alibi witnesses for several reasons. First, Kennard has not
presented any facts establishing that his trial counsel did not actually investigate the
alibi witnesses. See Wyniemko v. Smith, 2000 WL 760704, at *4 (E.D. Mich. May
10, 2000) (“Conclusory allegations of ineffective assistance of counsel, without
explanation or factual support, are insufficient to establish a constitutional issue”).
Indeed, Kennard has conceded that his counsel identified those individuals as alibi
witnesses in the Notice of Alibi. (See ECF No. 25, PageID.3773-3774.) Second, and
more importantly, Kennard has not provided the Court with any affidavit or witness
statement establishing each witnesses’ proposed testimony. As the Sixth Circuit has
recognized, where a habeas petitioner “has offered no evidence, beyond his
assertions, to prove what the content of [the proposed witnesses’] testimony would
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have been […] he cannot show that he was prejudiced by [the testimony’s]
omission.” Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007). See also Jefferson v.
Ohio, 2020 WL 9719338, at *2 (6th Cir. Oct. 30, 2020) (explaining that where
habeas petitioner “has made no showing regarding the alleged content of [ witness]
testimony,” he “has not shown how he was prejudiced by the failure to call [the
witnesses] at trial”); ; Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (“[T]o
prevail on an ineffective assistance claim based on counsel’s failure to call a
witness, the petitioner must […] set out the content of the witness’s proposed
testimony, and show that the testimony would have been favorable to a particular
defense”).
Kennard has also failed to show that his counsel was ineffective when, during
closing argument, his counsel failed to object to the prosecutor’s commentary on
Stitts’ testimony. Kennard argues that the prosecutor improperly vouched for Stitts
when she stated:
So you don’t want to cut a deal with the shooter so you cut
a deal with the least culpable person so that the jury will
have a full understanding about what happened because
there was a gap -- yeah, I can tell you the blood trail and
follow all that and circumstantially and I can have Mr.
Stitts sitting here and I make the argument the same way,
that they’re all guilty of murder and I think the evidence
would probably support that for you guys to say that I
accept that he was in on it, I accept that that’s what

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happened, but some of you jurors might say, well, what
did they really have on that Mr. Stitts?
He didn’t do anything. He was just there. And might of
said, you know, let’s cut Mr. Stitts loose. So a decision is
made to include Mr. Stitts as a witness so all of you will
have the benefit of his testimony. You will have the benefit
of knowing specifically what happened and the physical
evidence supports Mr. Stitts’ testimony.
(ECF No. 8-22, PageID.2961.)
The Court disagrees that the prosecutor improperly vouched for Stitts’
credibility. Instead, she made reasonable inferences of Stitts’ involvement in the
murder based on the evidence. And she left it for the jury to decide what to believe.
Moreover, the prosecutor’s comments were not improper because she merely
explained the State’s rationale for calling Stitts as a witness and offering him a plea
agreement.

Because the underlying claim about the prosecutor lacks merit,

Kennard’s counsel was not ineffective for failing to object to the prosecutor’s
remarks. See, e.g., Tackett v. Trierweiler, 956 F.3d 358, 375 (6th Cir. 2020)
(explaining that trial counsel cannot be deemed ineffective for failing to make a futile
or meritless objection).
Kennard further argues that his counsel should have objected when the
prosecutor misstated that Kennard, as opposed to Benford, held a gun to the victim’s
head during the altercation leading up to the victim’s death. But Kennard has not
established the required prejudice. Indeed, counsel clarified the misstatement and
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stated during closing argument that the altercation was between the victim and
Benford. (See ECF No. 8-22, PageID.3000.) Moreover, to the extent any prejudice
occurred, it was mitigated by the trial court’s multiple instructions to the jury that
the attorneys’ arguments were not evidence. (See id., PageID.2989, 3056.) For all
of these reasons, habeas relief is not warranted on these claims.
3
In his final ineffective assistance of trial counsel claim, Kennard argues that
his trial counsel failed to introduce a police report and written police statement that
could have impeached Page’s preliminary examination testimony introduced at trial.
Kennard argues that counsel failed to introduce a police report which indicated that
Page stated to an officer that “on September 15, 2011 three days after the alleged
offense that . . . [the victim] . . . was with Defendant Kennard and two other unknown
[males] in her house . . . out of breath and discussing an altercation that had
occurred.” (ECF No. 25, PageID.3778.) Kennard also argues that counsel failed to
introduce an August 22, 2012, statement to police in which Page indicated that “after
the m[en] washed up, everybody left beside Rodney (Defendant Kennard) he
stayed.” (Id.)
Kennard has failed to establish that his counsel’s decision not to introduce the
police report and prior witness statement was objectively unreasonable given
counsel’s cross-examination of Page during the preliminary examination. Kennard
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has also failed to show he was prejudiced given the cummnulative nature of this
evidence and the other evidence that had been introduced to challenge Page’s
credibility. For all of these reasons, the Court declines to grant Kennard habeas
relief on this claim.
H
Kennard next claims that the prosecutor improperly introduced perjured and
coerced testimony in violation of his due process rights. Specifically, Kennard
argues that the inconsistencies in Page’s preliminary examination testimony
regarding prior statements to police and observations of Kennard amounted to
perjured testimony. Kennard further argues that the prosecution coerced Michael
Pokladek into providing untruthful testimony during trial. The Michigan Court of
Appeals considered these claims on direct review and rejected them:
Contrary to defendant Kennard’s assertions, mere
conflicts between Page’s trial testimony and her earlier
statements do not establish that the prosecutor knowingly
presented false or perjured testimony. Moreover, the
conflicts were not concealed by the prosecutor, but rather
were revealed and explored during her testimony.
Accordingly, the record does not support defendant
Kennard’s assertion that the prosecutor knowingly used
false testimony to obtain his conviction.
Defendant Kennard relies on an alleged “affidavit”
submitted by Michael Pokladek to support his argument
that the prosecutor improperly coerced Pokladek’s
testimony. Although Pokladek’s statement is labeled an
affidavit, it is not notarized and, therefore, is invalid.
Detroit Leasing Co v. Detroit, 269 Mich. App 233, 236;
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713 NW2d 269 (2005). Further, the document mostly
contains allegations of conspiracy and forgery involving
matters unrelated to defendant Kennard’s appeal. The
document contains one sentence pertinent to this case,
which states that Pokladek’s testimony was “given under
extreme duress under threats of ‘more jail time’ and
‘contempt of court’ and were obviously not given of my
own free will.” The document does not identify the
sources of any threats, and it does not allege that any of
Pokladek’s trial testimony was not true. It also does not
identify any other material testimony that he could have
offered. Considering that Pokladek’s purported “affidavit”
is not sworn, that his reluctance to testify and displeasure
at not being offered a deal by the prosecutor for his
testimony was disclosed at trial, that he did not allege that
his trial testimony was not true, and he did not identify any
other material testimony that he could have offered, this
claim of prosecutorial misconduct does not entitle
defendant Kennard to appellate relief.
Kennard, 2015 WL 6438144, at *16.
The Michigan Court of Appeals’ decision was not contrary to, or an
unreasonable application of, clearly established federal law.

“Claims of

prosecutorial misconduct are reviewed deferentially on habeas review.” Millender
v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F. 3d
487, 512 (6th Cir. 2003)). A prosecutor’s conduct will be held to violate a criminal
defendant’s constitutional rights only if they “‘so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’” Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)).
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With respect to Kennard’s claim that the prosecution offered perjured
testimony, the Michigan Court of Appeals did not unreasonably reject that claim. To
establish a claim of prosecutorial misconduct or a denial of due process based on the
knowing use of false or perjured testimony, a habeas petitioner must show that a
witness’ statement was “indisputably false.” Byrd v. Collins, 209 F. 3d 486, 517-18
(6th Cir. 2000). But here, Kennard’s primary evidence in support of his perjury
claim are the inconsistencies in Page’s preliminary examination testimony. Mere
inconsistencies in a witness’ testimony do not establish the knowing use of false
testimony by the prosecutor. See Coe v. Bell, 161 F. 3d 320, 343 (6th Cir. 1998).
Moreover, the fact that a witness contradicts herself or changes her story also does
not establish perjury. See Malcum v. Burt, 276 F.Supp.2d 664, 684 (E.D. Mich.
2003). Because Kennard relies exclusively upon the inconsistencies in Page’s
testimony to support his claim, he has not shown that the rejection of this claim was
unreasonable.
Kennard further claims that the prosecutor coerced witness Michael Pokladek
into providing untruthful trial testimony. In support of that claim, Kennard relies on
an unsworn affidavit in which Pokladek indicates that the prosecutor threatened him
with “more jail time” and “contempt of court” if he refused to testify. (ECF No. 827, PageID.3352.) The affidavit, in whole, provides as follows:

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I Michael Lawrence Pokladek, a citizen of the United
States of America, allege conspiratorial behavior amongst
several judges and prosecutors in employ by the de facto
corporation known as the Frank Murphy Hall of Justice in
Detroit, Michigan. For the record, this tribunal is in
violation of United States Codes Title 18 Section 241:
conspiracy against rights & Section 242: deprivation of
rights under color of law. Mr. Pokaldek further alleges
that the Wayne County Prosecutor’s Office is guilty of
coercion and extortion and that all testimony before Judge
Talon in the trial of Lester Benford & Rodney Clarence
Kennard was given under extreme duress under threats of
“more jail time” and “contempt of court” and were
obviously not given of my own free will. Furthermore,
Mr. Pokladek alleges that certain employees are guilty of
forgery and will produce evidence his commitment to [the]
Department of Corrections as well as an order of Probation
that contain said forgeries. Furthermore, Mr. Pokladek
alleges that a certain employee of the Frank Murphy Hall
of Justice is in violation of 27 C.F.R. 71.11 commercial
crimes against the revenue [sic] for diverting excessive
funds into the cocaine and heroin trade and contributing to
the delinquency of a minor. Overn and done. Michael L.
Pokaldek. 11-21-13.
(Id.)
Simply put, Pokaldek’s unsworn statement is not persuasive proof of
coercion. Much of the statement has nothing to do with Kennard’s case, and instead
makes unsubstantiated accusations about employees at the Frank Murphy Hall of
Justice. More importantly, nowhere in the statement does Pokladek say that the
testimony he provided at trial – even if coerced – was untrue. For all of these
reasons, Kennard has not shown that the Michigan Court of Appeals unreasonably
rejected his claim arising out of Pokladek’s unsworn statement.
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I
Kennard next argues that the state trial court violated his right to confrontation
when the court denied his trial counsel’s request to cross-examine Stitts about a
separate, pending murder investigation to establish Stitts’ bias, and by excluding
witness Locaster Croskey’s testimony regarding Stitts’ habit of possessing a gun.
The Michigan Court of Appeals considered these claims on direct appeal and
rejected them:
On cross-examination, Stitts was questioned regarding the
fact that he was initially charged with murder and facing
life imprisonment, but pleaded guilty to accessory after the
fact, a crime with a five-year maximum prison term. Stitts
also testified that he had charges pending in other courts.
When asked about a case in Grosse Pointe, Stitts
responded that there was “nothing yet.” Thereafter,
counsel sought to question Stitts about whether he was
charged or arrested for a Grosse Pointe murder. Outside
the presence of the jury, Stitts testified that he had been
questioned about the case, but denied that he had been
charged or was a suspect. Stitts also denied being told by
anyone that defendant Kennard had given a statement or
information implicating Stitts in that case. The trial court
thereafter prohibited any additional questioning on this
subject. Defendant Kennard argues that the excluded
testimony was relevant to Stitts’s credibility and bias as a
witness, and exclusion of this testimony violated his
constitutional right of confrontation.
Relevant evidence is defined as “evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more
probable or less probable than it would be without the
evidence.” MRE 401. Michigan takes a broad approach
regarding cross-examination regarding witness bias.
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People v. Layher, 464 Mich. 756, 768; 631 NW2d 281
(2001). Bias refers to the relationship between a party and
a witness that might lead the witness to slant testimony. Id.
at 763 (citation omitted). “[E]vidence of bias arising from
past arrest without conviction is admissible if relevant, as
long as its probative value is not substantially outweighed
by the danger of unfair prejudice.” Id. at 768. “A limitation
on cross-examination that prevents a defendant from
placing before the jury facts from which bias, prejudice, or
lack of credibility of a prosecution witness might be
inferred constitutes denial of the constitutional right of
confrontation.” People v. Kelly, 231 Mich. App 627, 644;
588 NW2d 480 (1998). But there is no right to crossexamine on irrelevant issues. People v. Hackett, 421 Mich.
338, 344; 365 NW2d 120 (1984).
Defendants sought to demonstrate that Stitts was biased
against defendant Kennard for implicating Stitts in a
Grosse Pointe homicide. Such evidence would have
supported an argument that Stitts had a reason to be biased
against defendant Kennard, and thus would be relevant to
Stitts’s credibility. The trial court afforded defendant
Kennard an opportunity to question Stitts on a separate
record to establish a foundation for the desired testimony,
but Stitts denied that he was a suspect in the Grosse Pointe
case or being told by anyone that defendant Kennard had
implicated him in that case, and defendant Kennard did not
present any contrary evidence showing otherwise.
Because defendant Kennard failed to establish a
foundation for interjecting this collateral matter for the
purpose of showing Stitts’s bias against defendants, the
trial court did not abuse its discretion in excluding the
testimony.
Additionally, the record does not support defendant
Kennard’s contention that the trial court excluded
evidence regarding Stitts’s possession of a gun.
Kennard, 2015 WL 6438144, at ** 16-17.
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Kennard has not shown that this ruling was contrary to, or an unreasonable
application of, clearly established federal law.

“Generally speaking, the

Confrontation Clause guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in
original). Thus, trial judges have “wide latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on . . . cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant.”
Delaware v. VanArsdall, 475 U.S. 673, 679 (1986).
The Michigan Court of Appeals’ rejection of Kenanrd’s claim arising out of
the limitation of Stitts’ cross-examination was not unreasonable. Indeed, it was not
unreasonable for that court to conclude that Stitts’ testimony about his involvement
in the Grosse Pointe murder was irrelevant because Stitts denied that he was a
suspect and denied being told by anyone that Kennard had implicated him in that
case. Moreover, Kennard failed to elicit any facts suggesting Stitts’ bias or lack of
credibility.
Kennard has also failed to show that the Michigan Court of Appeals’ rejection
of his claim arising out of the exclusion of Croskey’s testimony was unreasonable.
When asked by Kennard’s counsel if he had known Stitts as always carrying a gun,
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Croskey responded, “yes.” (ECF No. 8-14, PageID.1326.) This testimony was
admitted before the jury.
For all of these reasons, Kennard is not entitled to habeas relief on his
confrontation clam.
J
Next, Kennard argues that the jury’s verdict was inconsistent because the jury
convicted him of first-degree premediated murder but acquitted him of the firearms
charges. But that claim is generally not cognizable on federal habeas review, and
Kennard has not provided any basis under which the Court could review the claim.
See, e.g., Freeman v. Lebanon Correctional Inst., Superintendent, 1999 WL 801573
at * 2 (6th Cir. Sept. 28, 1999) (noting that an “inconsistency in a jury’s verdict does
not warrant habeas corpus relief”); Cunningham v. Palmer, 2010 WL 891152, at *5
(E.D. Mich. Mar. 10, 2010) (explaining that “[a]ny alleged inconsistency in a state
court verdict is [] a non-cognizable claim on federal habeas review”). Kennard is
therefore not entitled to relief on this claim.
K
Kennard next claims that his appellate counsel was ineffective when counsel
failed to raise certain issues on direct appeal. The state trial court rejected this claim
in its order denying Kennard’s motion for relief from judgment. (See ECF No. 30-6,

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PageID.4008.) Kennard has not shown that that decision was contrary to, or an
unreasonable application of, clearly established federal law.
A court-appointed appellate counsel does not have a constitutional duty to
raise every non-frivolous issue requested by a defendant. See Jones v. Barnes, 463
U.S. 745, 751 (1983). Here, it was not unreasonable for the state court reject
Kenanrd’s ineffective of appellate counsel claim. Indeed, Kennard has not shown
that any of the claims that he wanted his appellate counsel to raise on direct review
were meritorious. And “appellate counsel cannot be found to be ineffective for
‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones, 615 F. 3d 448, 452
(6th Cir. 2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)).
Therefore, Kennard is not entitled to federal habeas relief on this claim.
L
Finally, Kennard claims that the jury’s verdict went against the great weight
of the evidence. A federal habeas court has no power to grant habeas relief on the
ground that a state conviction is against the great weight of the evidence because
that is a “state-law argument” and a “federal court is only allowed to review issues
of federal law in a habeas proceeding.” Nash v. Eberlin, 258 F. App’x 761, 764 n.4
(6th Cir. 2007). See also Artis v. Collins, 14 F. App’x 387 (6th Cir. 2001) (declining
to grant certificate of appealability to habeas petitioner on claim that jury’s verdict

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was against the manifest weight of the evidence). Kennard is therefore not entitled
to federal habeas relief on this claim.
IV
For all of the reasons explained above, Kennard’s petition for a writ of habeas
corpus is DENIED. In order to appeal the Court’s decision, Kennard must obtain a
certificate of appealability. To obtain a certificate of appealability, a petitioner must
make a substantial showing of the denial of a constitutional right. See 28 U.S.C. §
2253(c)(2). To demonstrate this denial, the applicant is required to show that
reasonable jurists could debate whether the petition should have been resolved in a
different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court DENIES Kennard a certificate of appealability because jurists of
reason could not debate the Court’s conclusion that Kennard failed to demonstrate
an entitlement to habeas relief.
Although the Court declines to issue Kennard a certificate of appealability,
the standard for granting an application for leave to proceed in forma pauperis on
appeal is not as strict as the standard for certificates of appealability. See Foster v.
Ludwick, 208 F.Supp.2d 750, 764 (E.D. Mich. 2002). While a certificate of
appealability requires a substantial showing of the denial of a constitutional right, a
court may grant in forma pauperis status on appeal if it finds that an appeal is being
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taken in good faith. See id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R. App. 24 (a).
Although jurists of reason would not debate this Court’s resolution of Kennard’s
claims, an appeal could be taken in good faith. Therefore, Kennard may proceed in
forma pauperis on appeal.
V
Accordingly, for all the reasons stated above, IT IS HEREBY ORDERED
that the Court (1) DENIES WITH PREJUDICE Kennard’s petition for a writ of
habeas corpus (ECF Nos. 1, 25), (2) DENIES Kennard a certificate of appealability,
and (3) GRANTS Kennard permission to appeal in forma pauperis.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: September 26, 2023
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on September 26, 2023, by electronic means and/or
ordinary mail.
s/Holly A. Ryan
Case Manager
[phone]

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