Kennedy v. Jackson

• Decision Date: 14 July 2020
• Docket Number: CASE NO. 2:17-CV-11578
• Parties: RONALD LEWIS KENNEDY, #602611, Petitioner, v. SHANE JACKSON, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

RONALD LEWIS KENNEDY, #602611, Petitioner, v. SHANE JACKSON, Respondent.

CASE NO. 2:17-CV-11578

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

July 14, 2020

HONORABLE NANCY G. EDMUNDS

OPINION AND ORDER DENYING IN PART AND GRANTING IN PART THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Ronald Lewis Kennedy ("Petitioner") was convicted of second-degree murder, MICH. COMP. LAWS § 750.317, assault with intent to murder, MICH. COMP. LAWS § 750.83, and domestic violence, third offense, MICH. COMP. LAWS § 750.81(4), following a jury trial in the Oakland County Circuit Court. He was sentenced, as a fourth habitual offender, MICH. COMP. LAWS § 769.12, to concurrent terms of 70 to 150 years imprisonment, 40 to 80 years imprisonment, and 3 to 15 years imprisonment on those convictions in 2013.

In his pro se pleadings, Petitioner raises claims concerning the effectiveness of trial counsel, the conduct of the prosecutor, the effectiveness of appellate counsel, and the validity of his sentences. For the reasons set forth, the Court grants habeas relief on the sentencing claim, in part, but denies habeas relief as to all of the other claims. The Court also denies a certificate of appealability and denies Petitioner leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner's convictions arise from his fatal stabbing of his wife Jessica Kennedy's friend, Charles Shiffman, and the non-fatal stabbing of Jessica Kennedy as she was attempting to leave the marital home in Oakland County, Michigan on December 1, 2012. At trial, Shiffman's adult nephew, Jordan Jaime, testified that he drove Shiffman to the house to help Jessica Kennedy, witnessed the confrontation that occurred outside as he sat in his vehicle, and called 911. Jessica Kennedy testified about the incident, as well as Petitioner's prior domestic abuse. Petitioner's ex-wife, Rena Kennedy, testified about Petitioner's domestic abuse during their relationship. The prosecution also presented recordings of Petitioner's jail calls to Jessica Kennedy and to his mother, expert testimony on domestic violence, testimony from the medical examiner and medical personnel who responded to the scene, and testimony from the investigating police officers and experts. Petitioner testified in his own defense at trial asserting that he acted in self-defense when he stabbed Shiffman and that he stabbed Jessica Kennedy during the struggle and did not intent to kill her. The Court adopts the detailed statement of facts set forth in the prosecutor's brief on direct appeal to the extent that those facts are consistent with the record. Pros. App. Brf., pp. 1-33 (ECF No. 11-14, Page ID.1063-1096).

Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising claims concerning the effectiveness of trial counsel, the conduct of the prosecutor, the trial court's exclusion of evidence about the victim, and the trial court's contradiction of the sequestration order. The court denied relief on thoseclaims and affirmed his convictions and sentences. People v. Kennedy, No. 316985, 2014 WL 6853000 (Mich. Ct. App. Dec. 4, 2014). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the same claims, as well as additional claims concerning the effectiveness of trial counsel. The court denied leave to appeal in a standard order. People v. Kennedy, 497 Mich. 1030, 863 N.W.2d 76 (2015).

Petitioner subsequently filed a motion for relief from judgment with the state trial court raising claims concerning the conduct of the prosecutor, the effectiveness of trial and appellate counsel, and the necessity of a remand for re-sentencing under People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015). The court denied relief on those claims pursuant to Michigan Court Rule 6.508(D)(2) and (3) and on the merits. People v. Kennedy, No. 2013-244509-FC (Oakland Co. Cir. Ct. March 25, 2016). Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied because Petitioner "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." The court also noted that Lockridge is not retroactive to sentences on collateral review. People v. Kennedy, No. 333655 (Mich. Ct. App. Aug. 10, 2016). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Kennedy, 400 Mich. 981, 893 N.W.2d 609 (2017).

Petitioner thereafter filed his pro se federal habeas petition. He raises the following claims as grounds for relief:

I. He was denied due process rights and the right to a fair trial where trial counsel's performance fell below an objective standard of reasonableness depriving him of the effective assistance of counsel.

a. Trial counsel was ineffective for failing to challenge the effect of the inflammatory evidence of multiple domestic violenceassaults had on the non-domestic violence second degree murder charge as being more prejudicial than probative.

b. Trial counsel was ineffective for failing to advise him of the proper sentencing guidelines if he were to lose at trial, as opposed to taking the plea deal offered, when counsel was advising him on the pursuit of jury trial.

c. Trial counsel was ineffective for failing to present evidence of his mental health and mental impairment, by never having him evaluated psychologically.

d. Trial counsel was ineffective for failing to investigate potential witnesses, specifically a medical expert, to refute the testimony pertaining to injuries of Jessica Kennedy, which resulted in counsel's failure to object to false testimony by Jessica Kennedy.

II. His due process right to a fair trial was violated where the prosecutor engaged in misconduct during rebuttal arguments by arguing facts not in evidence and not correcting the false witness testimony regarding Jessica Kennedy's injuries.

III. He was deprived the effective assistance of appellate counsel where appellate attorney Neal Szabo failed to investigate and acquire University of Michigan medical reports and file them in the court of appeals, thus rendering his main argument in his appeal moot due to incomplete information.

IV. He is entitled to resentencing where the sentencing court failed to resolve challenges based upon materially inaccurate information in the presentence report depriving him of state and federal Sixth and Fourteenth Amendment requirements and he is entitled to remand for resentencing under People v. Lockridge and Montgomery v. Louisiana where the court engaged in judicial fact-finding that increased his sentencing range in violation of his Sixth Amendment rights.

Respondent filed an answer to the petition contending that it should be denied because certain claims are procedurally defaulted and all of the claims lack merit. Petitioner filed a reply to that answer.

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that 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) 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) (1996).

"A state court's decision is 'contrary to' . . . clearly established law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

"[T]he 'unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to 'grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, "[i]n order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decisionmust have been more than incorrect or erroneous. The state court's application must have been 'objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,' and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The United States Supreme Court has held that "a state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664...