Kennedy v. Warden Lebanon Correctional Institution

Filing 3

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein 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. Objections to R&R due by 5/5/2014. Signed by Magistrate Judge Michael R Merz on 4/16/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
PATRICK L. KENNEDY,
Petitioner,

:

- vs -

Case No. 3:14-cv-115
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

ERNIE MOORE, WARDEN,
Lebanon Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Patrick L. Kennedy under 28
U.S.C. § 2254. Kennedy seeks release from his life sentences on two counts of rape of a child
under ten and concurrent sentences for gross sexual imposition of a child under thirteen. The
case is before the Court for initial review pursuant to Rule 4 of the Rules Governing § 2254
Cases which provides in pertinent part: “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.”
Kennedy was convicted on his plea of no contest. (Petition, Doc. No. 1, § 6, PageID 1.)
He appealed and the conviction was affirmed. State v. Kennedy, 2013-Ohio-4243, 2013 Ohio
App. LEXIS 4465 (2nd Dist. Sept. 27, 2013). The Ohio Supreme Court declined jurisdiction over
a subsequent appeal. State v. Kennedy, 137 Ohio St. 3d 1477 (2014). This timely habeas corpus
Petition followed.
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Kennedy pleads the following Grounds for Relief:
Ground One: The Petitioner was given to understand that he
might reasonably expect benefits in the nature of more lenient
treatment at the hands of the police, prosecution or court in
consideration of making a statement, even a truthful one, such
motivation is deemed to render the statement involuntary and
inadmissible.
Ground Two: It appears from the record that before sentencing
defense counsel asked for a continuance and ask [sic] to withdraw
as counsel. On March 25, 2012, new counsel was appointed to
Kennedy. A motion to withdraw plea was then filed by new
counsel on April 17, 2012. A presentence motion to withdraw a
plea should be freely and liberally granted.
(Petition, Doc. No. 1.)

Analysis

Ground One: Failure to Suppress Confession

In his First Ground for Relief, Kennedy raises the same claim he made in his First
Assignment of Error on direct appeal. The Second District decided that claim against him,
writing as follows:
A. Miranda
[*P23] The trial court concluded that Kennedy voluntarily,
knowingly, and intelligently waived his Miranda rights after the
detectives explained the rights and Kennedy acknowledged that he
understood his rights. We agree.
[*P24] The tone of the conversations between the detectives and
Kennedy was cordial until shortly before Kennedy terminated the
interview. Kennedy told the detectives he was a college student.
He also had prior experience with the criminal justice system and
was familiar with Miranda rights. Kennedy was not under the
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influence of drugs or alcohol. In addition, Kennedy was informed
by Detective Dix that he had been accused of rape prior to waiving
his rights, and this accusation was written on the form.
Furthermore, after Dix read Kennedy each of the rights, Kennedy
verbally indicated that he understood, and he then initialed the
form after each right as another indication of his understanding.
Kennedy read the waiver portion aloud, indicated he understood
his rights, and expressed his willingness to waive his rights and
speak with the detectives.
[*P25] There is no indication of coercion, or that Kennedy's will
was overborne, or that his capacity for self-determination was
critically impaired because of coercive police conduct.
B. Voluntariness
[*P26] Kennedy claims that his confessions were involuntary due
to coercion in the form of promises of "leniency or benefit." State
v. Arrington, 14 Ohio App.3d 111, 14 Ohio B. 125, 470 N.E.2d
211 (6th Dist.1984), paragraph two of the syllabus. Kennedy notes
that this court has recognized that "[p]romises or suggestions of
leniency in exchange for waiving the Fifth Amendment privilege
create a flattery of hope, which is made even more powerful by the
torture of fear that accompany threats of punishment induced in
the mind of the accused." (Emphasis sic.) State v. Petitjean, 140
Ohio App. 3d 517, 528, 748 N.E.2d 133 (2d Dist.2000).
[*P27] Although there are cases where false promises of leniency
can be coercive when leveraged against the possible punishment,
such facts are not present here. The detectives told Kennedy twice
that his case was going to end up in court, and they made no
misrepresentations of law or offers constituting a reduction in
sentence or charges. After Kennedy confessed verbally, he asked
Detective Dix if he could get counseling. Detective Dix answered
that there were "plenty of systems to get help". Kennedy's written
confession which followed, added no substantial incrimination
beyond the prior confession.
[*P28] Although the detectives misrepresented to Kennedy that
they had spoken with the other girls, the use of deception does not
make an interview coercive and does not necessarily violate due
process. State v. Steele, Slip Op. No. 2013-Ohio-2470, N.E.2d , ¶
22, citing State v. Wiles, 59 Ohio St.3d 71, 81, 571 N.E. 2d 97
(1991).
[*P29] In considering motions to suppress we defer to the trial
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court's findings of fact. When a trial court rules on motions to
suppress, it "assumes the role of the trier of fact, and, as such, is in
the best position to resolve questions of fact and evaluate the
credibility of the witnesses." State v. Retherford, 93 Ohio App.3d
586, 592, 639 N.E.2d 498 (2d Dist.1994), citing State v. Clay, 34
Ohio St.2d 250, 298 N.E.2d 137 (1973). As a result, when we
review suppression decisions, "we are bound to accept the trial
court's findings of fact if they are supported by competent, credible
evidence. Accepting those facts as true, we must independently
determine as a matter of law, without deference to the trial court's
conclusion, whether they meet the applicable legal standard." Id. at
592-593.
[*P30] The facts of this case, as determined by the trial court, do
not include threats, improper promises, or inducements as alleged
by Kennedy. Furthermore, we have viewed Kennedy's interview
and conclude that the factual findings of the trial court are
supported by the record. We agree with the trial court that
Kennedy's Miranda waiver was valid, and the totality of the
circumstances support the voluntariness of Kennedy's statements to
the police.
[*P31] For the foregoing reasons, we overrule the First
Assignment of Error.
State v. Kennedy, 2013-Ohio-4243, 2013 Ohio App. LEXIS 4465 (2nd Dist. Sept. 27, 2013).
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. ___, 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).
In this case the interview in which Kennedy made his admissions was recorded and the
recording was reviewed by the court of appeals. Kennedy, 2013-Ohio-4243 at ¶ 30. In reviewing
the evidence, the Second District applied the relevant Supreme Court precedent, Miranda v.
Arizona, 384 U.S. 436 (1966).
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In Garner v. Mitchell, the Sixth Circuit summarized the federal law governing federal
habeas corpus claims arising out of the United States Supreme Court’s decision in Miranda v.
Arizona, 384 U.S. 436 (1966), as follows:
[A habeas petitioner] has the burden of establishing that, under the
totality of the circumstances, he did not knowingly and
intelligently waive his rights before speaking to the police. Clark
v. Mitchell, 425 F.3d 270, 283 (6th Cir. 2005). “We are also
mindful that in a habeas proceeding the petitioner ‘has the burden
of establishing his right to federal habeas relief . . . .’” Caver v.
Straub, 349 F.3d 340, 351 (6th Cir. 2003) (quoting Romine v. Head,
253 F.3d 1349, 1357 (11th Cir. 2001)). Under this inquiry, we
examine “the particular facts and circumstances surrounding [the]
case, including the background, experience, and conduct of the
accused.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938); see also
Edwards v. Arizona, 451 U.S. 477, 482 (1981). The relevant
question is not whether the “criminal suspect [knew] and
[understood] every possible consequence of a waiver of the Fifth
Amendment privilege,” but rather whether the “suspect [knew] that
he [could] choose not to talk to law enforcement officers, to talk
only with counsel present, or to discontinue talking at any time.”
Colorado v. Spring, 479 U.S. 564, 574 (1987).
...
It is well-established [sic], in this circuit and others, that mental
capacity is one of many factors to be considered in the totality of
the circumstances analysis regarding whether a Miranda waiver
was knowing and intelligent. Thus, diminished mental capacity
alone does not prevent a defendant from validly waiving his or her
Miranda rights. [Citations omitted.] Rather, that factor must be
viewed alongside other factors, including evidence of the
defendant’s conduct during, and leading up to the interrogation.
Garner v. Mitchell, 557 F.3d 257, 260-61, 264 (6th Cir. 2009) (parallel citations omitted.) The
court explained that the original purpose of the Miranda decision was to “‘reduce the likelihood
that the suspects would fall victim to constitutionally impermissible practices of police
interrogation.’” Id. at 262, quoting New York v. Quarles, 467 U.S. 649, 656 (1984). As the
Seventh Circuit Court of Appeals has explained:
The relevant constitutional principles are aimed not at protecting
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people from themselves but at curbing the abusive practices by
public officers . . . . [T]he knowledge of the police is vital. If they
have no reason . . . to think that the suspect doesn’t understand
them, there is nothing that smacks of abusive behavior. It would
seem to follow that the question is not whether if [a defendant]
were more intelligent, informed, balanced, and so forth he would
not have waived his Miranda rights, but whether the police
believed he understood their explanation of those rights; more
precisely, whether a reasonable state court judge could have found
that the police believed this.
Rice v. Cooper, 148 F.3d 747, 750-51 (7th Cir. 1998), citing Colorado v. Connelly, 479 U.S. 157,
161-62 (1984).
Given this law, the Magistrate Judge finds that the Second District’s conclusion that
Kennedy’s confession was voluntary is not a decision based on an unreasonable determination of
the facts in light of the evidence and is neither contrary to nor an objectively unreasonable
application of relevant United States Supreme Court precedent. The First Ground for Relief
should therefore be dismissed.

Ground Two: Failure to Allow Withdrawal of Plea

In his Second Ground for Relief, Kennedy argues it was an abuse of discretion for the
trial judge not to permit him to withdraw his no contest plea after a change of counsel but before
sentencing.
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. ___, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010);
Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v.
Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine
state court determinations on state law questions. In conducting habeas review, a federal court is
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limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United
States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Under Ohio law, the appellate courts review denial of a request to withdraw a guilty or no
contest plea for abuse of discretion. In exercising that discretion, trial courts are to weigh nine
factors. State v. Kennedy, 2013-Ohio-4243, at ¶ 36, citing State v. Cuthbertson, 139 Ohio App.
3d 895 (7th Dist. 2000). Based on the trial court’s consideration of the nine factors, the Second
District found the trial judge had not abused his or her discretion and overruled Kennedy’s
relevant Second Assignment of Error. However, abuse of discretion is not a violation of the
United States Constitution, so this Court cannot review the merits of that decision. Sinistaj v.
Burt, 66 F.3d 804 (6th Cir. 1995). In other words, Kennedy’s Second Ground for Relief is not
cognizable in habeas corpus and should be dismissed on that basis.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein
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.

April 16, 2014.
s/ Michael R. Merz
United States Magistrate Judge

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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 one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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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