Kennedy v. Coleman

Filing 36

ORDER adopting Report and Recommendations re 22 28 Report and Recommendations; and finding as moot 35 Motion to Expedite. Signed by Judge Michael R. Barrett on 2/25/19. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Kenneth Kennedy,
Petitioner,
- vs -

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

Warden,
Toledo Correctional Institution, 1
Respondent.
ORDER
This matter is before the Court on the Magistrate Judge=s Report and
Recommendations (“R&R”) (Doc. 22) and Supplemental R&R (Doc. 28) which relate to
Petitioner’s, a state prisoner proceeding pro se, petition for a writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254 (Doc. 1). The parties received proper notice under
Rule 72(b) of the Federal Rules of Civil Procedure, which included notice that the parties
would waive further appeal if they failed to file objections to the R&R and Supplemental
R&R in a timely manner. (Docs. 22, 28); see United States v. Walters, 638 F.2d 947,
949-950 (6th Cir. 1981). Petitioner filed Objections to the R&R (Doc. 26) and the
Supplemental R&R (Doc. 31, 34). Respondent did not file Objections or a response to
Petitioner’s Objections. Additionally, Petitioner’s Motion to Expedite is also before the
Court. (Doc. 35).

1 It appears that Petitioner may now reside at the Southern Ohio Correctional Facility (“SOCF”) in Lucasville,
Ohio. See (Docs. 34, 35). However, Petitioner has not informed the Court of his change of address despite
this Court’s notice on applicable court procedures, which Petitioner received, that petitioners are ordered
to inform the Court promptly of any change of address. As the Court has not received notice from Petitioner
that he does, in fact, reside as SOCF, the Warden at the Toledo Correctional Institution will remain the
named Respondent. See Rule 2, Rules Governing Section 2254 Cases in the United States District Courts.

I. BACKGROUND
The Magistrate Judge adequately discussed and summarized the procedural
background and pertinent facts of this case in the R&R. (Doc. 22). The Court will not
repeat the same herein unless necessary to address Petitioner’s Objections.
This matter arises out of Petitioner’s habeas action to obtain relief from his
convictions, by a jury, in the Hamilton County Court of Common Pleas, on all charged
accounts—two counts of aggravated murder, four counts of murder, one count of
aggravated robbery, four counts of felonious assault, four counts of having weapons
under disability, each count with a firearm specification except for the four counts of
weapons under disability—which resulted in, among others, sentences of two terms of
life without of the possibility of parole. (Docs. 1, 22); (Doc. 7, Attachment 1 at PageID
107-10). Petitioner asserts four grounds for relief before this Court. (Doc. 1).
The Magistrate Judge recommends denying relief on all four grounds and
dismissing the petition with prejudice. (Doc. 22).

II. ANALYSIS
a. Standard of Review: 28 U.S.C. § 2254
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty
Act of 1996, governs the Court’s authority to issue habeas corpus relief for persons in
state custody. 28 U.S.C. § 2254. The Court may grant habeas relief to a state prisoner
“only on the ground that he is in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). Habeas relief is available if the state court
judgment was “adjudicated on the merits” and “resulted in a decision that was contrary

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to, or involved an unreasonable application of, clearly established federal law” 2 or
“resulted in a decision that 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); see
Williams, 529 U.S. at 412; Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013). Findings
of fact by the state court are presumed to be correct unless rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
The test set forth in Section 2254(d) is “a difficult test to meet, . . . and [a] highly
deferential standard for evaluating state-court rulings, which demands that state-court
decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011) (internal quotations omitted) (citations omitted)). “The petitioner carries the burden
of proof.” Id. at 180.
b. Standard of Review: Objections to an R&R
When the assigned district court judge receives objections to a magistrate judge’s
R&R on a dispositive matter, the district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.”
72(b)(3).

FED. R. CIV. P.

After that review, the district judge “may accept, reject, or modify the

recommended decision; receive further evidence; or return the matter to the magistrate
judge with instructions.” Id.
c. Ground One: Hearsay and Confrontation Clause
Petitioner asserts that the trial court violated his right to a fair trial and right under
the Confrontation Clause when it allowed the introduction of hearsay statements into

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“Clearly established federal law ‘refers to the holdings, as opposed to the dicta, of [the United States
Supreme Court's (“U.S. Supreme Court”)] decisions as of the time of the relevant state-court decision.’”
Woods v. Tibbals, No. 1:16-CV-643, 2018 WL 1531491, at *2 (S.D. Ohio Mar. 29, 2018) (citing Williams v.
Taylor, 529 U.S. 362, 412 (2000)).

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evidence, specifically the identification of him made by one of the murder victims, Dwayne
Stuckey. (Doc. 1 at PageID 5) (citing “Rule 801(C)” and “Evid.R. 804(B)(2)”).
The Magistrate Judge explained that the Court of Appeals of Hamilton County,
Ohio, First Appellate District (“Court of Appeals”) considered these arguments on direct
appeal and found that Mr. Stuckey’s statements were properly admitted under Ohio Evid.
R. 804(B)(2) and did not violate Petitioner’s Sixth Amendment rights under the
Confrontation Clause. (Doc. 22 at PageID 1604-1614). With respect to Petitioner’s right
to a fair trial, the Magistrate Judge found that the admissibility of a statement under belief
of impending death is a question of state law and Petitioner cites no pertinent U.S.
Supreme Court precedent to support his assertion that admitting a murder victim’s dying
declaration violates due process or renders a trial unfair. (Id. at PageID 1613) (citing
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)); (Doc. 28 at PageID 1646). With respect
to Petitioner’s Confrontation Clause argument, the Magistrate Judge found that Petitioner
fails to establish his burden that the Court of Appeals’ decision was contrary to, or involved
an unreasonable application of, Crawford v. Washington, 541 U.S. 36 (2004) or U.S.
Supreme Court case law applying Crawford. (Doc. 22. at PageID 1613-1614); (Doc. 28
at PageID 1646-1647); see 28 U.S.C. § 2254(d).
In his Objections, Petitioner reiterates his belief that “[i]t is clear from the record as
well as the facts supporting the claim that his claim is a confrontation clause violation.”
(Doc. 26 at PageID 1639).

He asserts that “[he] is stating that the [trial] court

unreasonably applied Crawford.” (Doc. 31 at PageID 1655).
Starting with Petitioner’s Objections regarding the admissibility of Mr. Stuckey’s
statements and Petitioner’s right to a fair trial, a federal court may review a state prisoner's

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habeas petition only on the ground that the challenged confinement violates the
Constitution, laws, or treaties of the United States, and not “on the basis of a perceived
error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); 28 U.S.C. § 2254(a); see
Estelle, 502 U.S. at 67-68 (“[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.”). As Petitioner's arguments regarding
the admissibility of Mr. Stuckey’s statements raise an issue of state law only, it is not
cognizable in this federal habeas proceeding. See Tibbs v. Florida, 457 U.S. 31, 41-47
(1982).
Turning to Petitioner’s Objections regarding the Confrontation Clause, the Court
agrees that Petitioner’s arguments amount to a mere disagreement with the Court of
Appeals’ decision which falls short of Petitioner’s burden under 28 U.S.C. § 2254(d).
More importantly, the U.S. “Supreme Court has not expressly recognized that dying
declarations are an exception to the Sixth Amendment's confrontation right” and has
stated that
in Crawford . . . we first suggested that dying declarations, even if
testimonial, might be admissible as a historical exception to the
Confrontation Clause. Id., at 56, n. 6, [] see also Giles v. California,
554 U.S. 353, 358-359 [ ] (2008). We noted in Crawford that we “need not
decide in this case whether the Sixth Amendment incorporates an exception
for testimonial dying declarations.” 541 U.S. at 56, n. 6, [ ]. Because of the
State's failure to preserve its argument with regard to dying declarations,
we similarly need not decide that question here.
Woods, 2018 WL 1531491, at *2 (citing Michigan v. Bryant, 562 U.S. 344, 351, n.1 (2011)
and Walker v. Harry, 462 Fed.Appx. 543, 545-46 (6th Cir. Feb. 13, 2012) (explaining that,
“[i]n Crawford and again in Giles v. California, 554 U.S. 353 [ ] (2008), the Supreme Court
hinted that dying declarations may fall within an exception to the constitutional bar against
testimonial hearsay.”)). As the U.S. Supreme Court has not yet ruled on the status of
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dying declarations under the Confrontation Clause, the Court finds that Petitioner’s
argument is not cognizable on federal habeas review.
Accordingly, after a de novo review, the Court rejects Petitioner's Objections on
this ground and finds no error in the recommendation that Petitioner is not entitled to
habeas corpus relief based on this ground. See FED. R. CIV. P. 72(b)(3).
d. Ground Two: Prejudicial Joinder
Petitioner argues that the trial court violated his right to a fair trial when it overruled
his motion to separate the two incidents, the apartment shootings and the Vine-Street
shootings, for trial. (Doc. 1 at PageID 6) (citing Ohio Crim. R. 8(A)).
The Magistrate Judge explained that the Court of Appeals considered a prejudicial
joinder argument on direct appeal and found that joinder of the two incidents was
permissible under Rule 8(A) of the Ohio Rules of Criminal Procedure and Petitioner failed
to establish prejudice under Rule 14 of the Ohio Rules of Criminal Procedure. (Doc. 22
at PageID 1614-1617). The Magistrate Judge found that Petitioner procedurally defaulted
on this argument, as he did not fairly present it to the Court of Appeals as a claim under
the U.S. Constitution; rather, his arguments were based entirely in terms of state law.
(Doc. 22 at PageID 1618) (citing Petitioner’s brief before the Court of Appeals (Doc. 7,
Attachment 1, PageID 115, 125-126)); (Doc. 28 at PageID 1648).
In his Objections, Petitioner appears to concede that federal “case-law was not
cited,” but argues that he raised his claims adequately under the Fifth and Fourteenth
Amendments of the U.S. Constitution and that he is permitted to bring the claims under
the Fifth and Fourteenth Amendments to the U.S. Constitution. (Doc. 26 at PageID 1640);
(Doc. 31 at PageID 1657).

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The Sixth Circuit has identified four actions a petitioner can take which are
significant to the determination of whether a petitioner has “fairly presented” a claim to
the state court:
(1) reliance upon federal cases employing constitutional analysis; (2)
reliance upon state cases employing federal constitutional analysis; (3)
phrasing the claim in terms of constitutional law or in terms sufficiently
particular to allege a denial of a specific constitutional right; or (4) alleging
facts well within the mainstream of constitutional law.
Whiting v. Burt, 395 F.3d 602, 613 (6th Cir. 2005) (citing McMeans v. Brigano, 228 F.3d
674, 681 (6th Cir. 2000)). A review of Petitioner’s brief before the Court of Appeals
reveals that he based his argument entirely on the Ohio Rules of Criminal Procedure, the
Ohio Rules of Evidence, and Ohio state case law. (Doc. 7, Attachment 1, PageID 115,
125-26). That brief does not reference or cite the U.S. Constitution or any federal cases
and Petitioner does not argue that the Ohio state cases cited therein utilized federal
constitutional analyses. (Id.). The Court agrees that Petitioner did not fairly present these
grounds to the Court of Appeals and the claim is procedurally defaulted. See Whiting,
395 F.3d at 613. The Court finds no error with the Magistrate Judge’s recommendation
that this ground should be dismissed with prejudice. See FED. R. CIV. P. 72(b)(3).
e. Ground Three: Other Acts Testimony
Petitioner contends that the state court denied him the right to a fair trial when it
permitted other acts testimony into evidence. (Doc. 1 at PageID 8) (citing Ohio Evidence
Rule 404(B)).
The Magistrate Judge explained that the Court of Appeals considered this
argument on direct appeal and found the trial court did not abuse its discretion by allowing
the other acts testimony in under Rule 404(B) of the Ohio Rules of Evidence and Ohio

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Rev. Code § 2945.59. (Doc. 22 at PageID 1619-1621). The Magistrate Judge found that
Petitioner procedurally defaulted on this argument, as he did not fairly present it to the
Court of Appeals as a claim under the U.S. Constitution; rather, his arguments were based
entirely in terms of state law. (Id. at PageID 1621) (citing Petitioner’s brief before the
Court of Appeals (Doc. 7, Attachment 1, PageID 116, 128-29)); (Doc. 28 at PageID 1648).
In his Objections, “Petitioner concedes this claim as being procedurally defaulted.” (Doc.
26 at PageID 1640); (Doc. 31 at PageID 1657).
After a de novo review, and in light of Petitioner’s concession, the Court agrees
with the Magistrate Judge’s recommendation that this ground should be dismissed with
prejudice. See FED. R. CIV. P. 72(b)(3).
f. Ground Four: Insufficient Evidence
Petitioner argues that he was convicted on evidence that was insufficient as a
matter of law. (Doc. 1 at PageID 9).
The Magistrate Judge explained that the Court of Appeals considered this claim,
along with a claim that his convictions were against the manifest weight of the evidence,3
on direct appeal and rejected it. (Doc. 22 at PageID 1622-1626). The Magistrate Judge
explained that state decisions are entitled to two levels of deference when a petitioner
challenges the constitutional sufficiency of the evidence. (Doc. 22 at PageID 1627-1628);
see Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979) and 28 U.S.C. § 2254(d)(2)). The Magistrate Judge identified
record evidence which would support Petitioner’s conviction and concluded that the Court
of Appeal’s holding that Petitioner’s conviction was supported by sufficient evidence was

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A manifest weight claim is not cognizable in habeas corpus. Johnson v. Havener, 534 F.2d 1232 (6th Cir.
1986).

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not an unreasonable application of Jackson. (Doc. 22 at PageID 1629); (Doc. 28 at
PageID 1649).
In his Objections, Petitioner lists evidence that he believes does not support his
conviction and asserts that, in light of the alleged evidentiary issues he lists, “it is clear
that the state courts decisions were a unreasonable application of Jackson” and he “has
shown there was insufficient evidence on which to convict him.” (Doc. 26 at PageID
1641); (Doc. 31 at PageID 1657-1658).
After a de novo review, the Court finds no error in the Court of Appeal’s holding
and, thus, agrees with the Magistrate Judge’s recommendation that this ground should
be dismissed with prejudice. See FED. R. CIV. P. 72(b)(3).

III. CONCLUSION
In light of the above, it is ORDERED that (1) the R&R and Supplemental R&R are
ADOPTED in full (Docs. 22, 28); (2) the petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 is DENIED and DISMISSED with prejudice (Doc. 1); (3) Petitioner’s
Motion to Expedite is DENIED AS MOOT (Doc. 35); (4) Petitioner is denied a certificate
of appealability, because reasonable jurists would not disagree with the Court's
conclusion; (5) Petitioner shall not be granted leave to appeal in forma pauperis, as any
appeal would be objectively frivolous; and (6) this matter is CLOSED and TERMINATED
from the Court’s docket.
IT IS SO ORDERED.
_s/ Michael R. Barrett_____________
HON. MICHAEL R BARRETT
UNITED STATES DISTRICT JUDGE

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