Kennedy v. Coleman

Filing 28

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - The Magistrate Judge again respectfully recommends the Petition be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 4/5/2017. Signed by Magistrate Judge Michael R. Merz on 3/22/2017. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
KENNETH KENNEDY,
Petitioner,

:

- vs -

Case No. 1:15-cv-684
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

JOHN COLEMAN, Warden,
Toledo Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 26) to
the Magistrate Judge’s Report and Recommendations (“Report,” ECF No. 22). District Judge
Michael R. Barrett, to whom this case was assigned after Judge Beckwith’s retirement, has
recommitted the case to the Magistrate Judge for further analysis in light of the Objections (ECF
No. 27).
In his Petition, Mr. Kennedy pled four grounds for relief which are discussed below.
However, in his Objections he complains of a “conclusion that claims three through six are
procedurally defaulted” and the further “conclusion that the seven claims raised in the petition
are without merit.” (ECF No. 26) The Petition in fact contains only four grounds for relief and
the supposed legal conclusions quoted in the prior sentence do not exist in the Report.

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Ground One: Admission of Dwayne Stuckey’s Statement About Who Shot Him Violated
the Rule Against Hearsay and the Confrontation Clause.

Kennedy was convicted of murders occurring in two separate incidents, referred to in the
opinion of the First District Court of Appeals as the Gambling Apartment Shootings and the
Vine Street Shootings. Stuckey was shot six times in the Vine Street Cricket store and identified
Kennedy by his nickname “Midnight” to Police Officer Schultz.
On appeal, Kennedy raised both a hearsay objection and a Confrontation Clause
objection to Schultz’s testimony as his Second Assignment of Error. The First District rejected
both claims, finding that Stuckey’s identification properly came within the dying declaration
exception to the hearsay rule and that admitting it did not violate Kennedy’s Confrontation
Clause rights. State v. Kennedy, 2013-Ohio-4221, ¶¶ 37-71, 998 N.E. 2d 1189, 2013 Ohio App.
LEXIS 4431 (1st Dist. Sep. 27, 2013), appellate jurisdiction declined, 138 Ohio St. 3d 1414
(2014).
The Report noted that Mr. Kennedy had contested the admission of Stuckey’s testimony
largely as a matter of Ohio evidence law and noted that federal habeas courts are not empowered
to review state court evidence rulings (ECF No. 22, PageID 1613). Kennedy objects that,
“[h]abeas relief is available where a violation of state law amounts to a fundamental miscarriage
of justice or a violation of the right to due process.” (Objections, ECF No. 26, PageID 1639,
citing Cristini v. McKee, 526 F.3d 888 (6th Cir. 2008), and Hoffner v. Bradshaw, 622 F.3d 487
(6th Cir. 2010). All Kennedy has done here is to lift language from the Report which supports
that general proposition (See Report, ECF No. 22, PageID 1604).

Neither of these cases

supports the conclusion that admitting the dying declaration of a murder victim violates due
process or renders a trial unfair. In fact, as the learned opinion of the First District illustrates,

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dying declarations have been accepted as a proper exception to the hearsay rule since at least the
early 18th century. State v. Kennedy, supra, at ¶ 61, citing King v. Reason, 16 Howard State
Trials 1 (King’s Bench 1722). Kennedy has cited no federal case law finding that admission of a
dying declaration as an exception to the hearsay rule renders a trial unfair.
Kennedy’s Confrontation Clause claim was also a part of his Second Assignment of Error
on direct appeal. The First District also rejected that branch of the Assignment of Error, relying
on the principal contemporary Supreme Court Confrontation Clause precedent, Crawford v.
Washington, 541 U.S. 36 (2004)(holding that “[t]estimonial statements of witnesses absent from
trial have been admitted only where the declarant is unavailable, and only where the defendant
has had a prior opportunity to cross-examine.”).

The Supreme Court itself has held that

statements of a mortally-wounded victim to police are admissible because made in the context
where the primary purpose of the police interrogation was to enable police assistance to meet an
ongoing emergency. Michigan v. Bryant, 562 U.S. 344 (2011). In other words, those statements
are not testimonial within the meaning of Crawford.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
There can be no doubt that the First District decided Kennedy’s Confrontation Clause
claim on the merits and rejected it on the basis of Crawford, supra.

Kennedy makes no

argument as to why this ruling was objectively unreasonable, but merely states in conclusory

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fashion that it was “incorrect.” The Magistrate Judge believes the ruling was correct. But even
if were “incorrect,” that would not be enough for reversal:
AEDPA’s standard is intentionally “‘ “difficult to meet.” ’” White
v. Woodall, 572 U. S. ___, ___, 134 S. Ct. 1697, 1702, 188 L. Ed.
2d 698, 704 (2014) (quoting Metrish v. Lancaster, 569 U. S. ___,
___, 133 S. Ct. 1781, 1786, 185 L. Ed. 2d 988, 996 (2013)). We
have explained that “‘clearly established Federal law’ for purposes
of §2254(d)(1) includes only the holdings, as opposed to the dicta,
of this Court’s decisions.” White, 572 U. S., at ___, 134 S. Ct.
1697, 1702, 188 L. Ed. 2d 698, 704 (some internal quotation marks
omitted). “And an ‘unreasonable application of’ those holdings
must be objectively unreasonable, not merely wrong; even clear
error will not suffice.” Id., at ___, 134 S. Ct. 1697, 1702, 188 L.
Ed. 2d 698, 704 (same). To satisfy this high bar, a habeas
petitioner is required to “show that the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing
law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U. S. 86,
103, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).
Woods v. Donald, 575 U.S. ___, 135 S. Ct. 1372, *; 191 L. Ed. 2d 464 (2015).
Upon review, the Magistrate Judge again concludes Kennedy’s First Ground for Relief is
without merit.

Ground Two: Prejudicial Joinder

In his Second Ground for Relief, Mr. Kennedy claims he was denied a fair trial because
the trial court refused to separate the Gambling Apartment and Vine Street incidents for trial.
This was his First Assignment of Error on direct appeal which the First District rejected. State v.
Kennedy, supra, ¶¶ 21-36.
The Report concluded Mr. Kennedy has procedurally defaulted this claim because he had
not fairly presented it to the First District as a federal constitutional claim (ECF No. 22, PageID
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1618, noting there were “no federal constitutional citations or argument” made in Kennedy’s
brief on appeal.)
Kennedy disagrees, asserting he raised this claim “under a violation of his Fifth and
Fourteenth Amendment rights . . .” (Objections, ECF No. 26, PageID 1640). However, he gives
no citation to any place in his Brief on appeal where that claim was made. The Magistrate Judge
has again examined the Brief and finds no mention of the Fifth or Fourteenth Amendment under
the First Assignment of Error.
Therefore the Magistrate Judge again concludes Mr. Kennedy’s Second Ground for
Relief is procedurally defaulted for lack of fair presentation to the Ohio First District Court of
Appeals.

Ground Three: Admission of “Other Acts” Testimony

In his Third Ground for Relief, Mr. Kennedy claimed he was denied a fair trial by
admission of “other acts” evidence. The Report concluded that this, like the Second Ground,
was procedurally defaulted for lack of fair presentation (ECF No. 22, PageID 1622). In his
Objections, Kennedy “concedes this claim as being procedurally defaulted.” (ECF No. 26,
PageID 1640).

Ground Four: Insufficient Evidence

In his Fourth Ground for Relief, Mr. Kennedy claimed his conviction was not supported
by sufficient evidence. This claim had been presented as part of his Fourth Assignment of Error

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on direct appeal and rejected. The Report found this decision was an objectively reasonable
application of the relevant Supreme Court precedent, Jackson v. Virginia, 443 U.S. 307 (1979).
Mr. Kennedy objects, but his objection is purely conclusory:
In viewing the facts of the case and the evidence produced to
support Petitioner [sic] conviction it is clear that the state courts
[sic] decisions were a [sic] unreasonable application of Jackson v.
Virginia, 443 U.S. 307. Given the double deference state court
findings on sufficiency are entitled to, Petitioner has shown there
was insufficient on which to convict him.
(Objections, ECF No. 26, PageID 1641). Kennedy does not explain his conclusion, asserting
only that it is “clear.” But a survivor of the Gambling Apartment murders testified to being
robbed at gunpoint and several witnesses testified to Kennedy’s admission of these crimes. The
jury had the dying statement of Dwayne Stuckey, victim of the Vine Street shooting, identifying
Kennedy as the perpetrator. In state court Kennedy questioned whether the witnesses were
worthy of belief, given that many were convicted felons. But questions of witness credibility are
for the jury to decide, and not for the habeas corpus court to second guess.
The Magistrate Judge again concludes the Fourth Ground for Relief is without merit.

Conclusion

Based on the foregoing analysis, the Magistrate Judge again respectfully recommends the
Petition be DISMISSED WITH PREJUDICE..

Because reasonable jurists would not

disagree with this conclusion, Petitioner should be denied a certificate of appealability and the
Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and
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therefore should not be permitted to proceed in forma pauperis.

March 22, 2017.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
153-55 (1985).

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