Kennedy v. Warden, Marysville Reformatory for Women

• Decision Date: 12 May 2021
• Docket Number: Case No. 2:20-cv-2979
• Parties: ROSALIE N. KENNEDY, Petitioner, v. WARDEN, Marysville Reformatory for Women, Respondent.
• Court: U.S. District Court — Southern District of Ohio

ROSALIE N. KENNEDY, Petitioner, v. WARDEN, Marysville Reformatory for Women, Respondent.

Case No. 2:20-cv-2979

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

May 12, 2021

District Judge Sarah D. Morrison

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus action brought pro se by Petitioner Rosalie Kennedy to obtain relief from her conviction in the Logan County Court of Common Pleas for murdering her husband and consequent sentence of life imprisonment. Relevant filings include the Amended Petition (ECF No. 6), the State Court Record (ECF No. 20), the Return of Writ (ECF No. 21) and Petitioner's Reply (ECF Nos. 34, 34-1, 34-2, 34-3, 34-4, and 34-5).

Upon examination of the Reply, the Magistrate Judge noted it was 320 pages long and that there was no evident organization to it. In order to enable the Court to deal with the Reply, the Magistrate Judge ordered Petitioner to file an index to it (ECF No. 35). In response, Petitioner has filed a forty-three page document which includes the ordered index plus "Clarifications of the Reply," a drawing purporting to show connections between all parties involved in this case, a motion to amend the petition, sixteen pages of amendments to be made to Petitioner's July 24, 2020, filing (ECF No. 10), and eighteen pages of amendments to be made to Petitioner's September 14, 2020, filing (ECF No. 13).

Petitioner's Motions to Amend and the Statute of Limitations

Kennedy's conviction became final on direct appeal on May 21, 2019, when her time to file a petition for writ of certiorari with the United States Supreme Court expired. The one-year statute of limitations under 28 U.S.C. § 2244(d) began to run on that date and would have expired one year later on May 22, 2020, if nothing intervened to toll the statute. The statute was tolled by Kennedy's filing of a petition for post-conviction relief under Ohio Revised Code § 2953.21 on March 22, 2019 (State Court Record, ECF No. 20, Ex. 51) and continued to be tolled until thirty days after the dismissal of that petition or until July 11, 2019, the date on which Kennedy was last able to appeal from dismissal of the post-conviction petition. This extends the statute of limitations to July 12, 2020.

Respondent does not raise a statute of limitations defense to the initial filing, treating the Amended Petition as properly filed when deposited in the prison mailing system on June 5, 2020 (Return, ECF No. 21, PageID 2631). However, the pendency of a habeas corpus petition does not itself toll the statute as to later amendments. Duncan v. Walker, 533 U.S. 167 (2001).

On July 24, 2020, Kennedy filed¹ what she captioned as a Motion for Reduced Number of Copies (ECF No. 9) along with what the Clerk docketed as a letter (ECF No. 10), but which asks that her Amended Petition be amended again by adding "the enclosed Addendums andAmendments," presumably the attachments to the Motion for Reduced Number of Copies (i.e., PageID 138-473).

Then on September 14, 2020, Petitioner filed what the Clerk has also docketed as a letter from petitioner, but what she apparently intended to be further amendments and addenda to the Petition (ECF No. 13). She says in the body of the document that she assumes it is timely because she had received word from the Court that the Attorney General requested and was granted additional time to file a return. Id. at PageID 479.

Petitioner's instant Motion to Amend does not constitute a proposed amended petition, but instead lists various pages from prior filings to be somehow added to her Petition (ECF No. 36, PageID 3045).

Because Petitioner did not caption the first two documents as motions to amend, Respondent was not on notice to treat them in that manner. However, a District Court may raise the limitations issue sua sponte. Day v. McDonough, 547 U.S. 198 (2006)(upholding sua sponte raising of defense even after answer which did not raise it); Scott v. Collins, 286 F.3d 923 (6^th Cir. 2002).

The statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 646 (2010). In the exercise of its discretion, the Court will treat the statute of limitations as equitably tolled from July 12, 2020, until July 24, 2020, when Kennedy filed her first set of "addendums and amendments" (ECF No. 9). However, the Court declines to extend equitable tolling to the two later filings on September 14, 2020, and May 3, 2021. Therefore the Amended Petition will be treated as amended to include the new claims made on July 24, 2020, but not those offered later.

Litigation History

On March 10, 2017, Gary Kennedy was shot to death in the kitchen of his home. Four days later the Logan County grand jury indicted Petitioner Rosalie Kennedy, Gary's wife, on one count of murder and one count of felonious assault, both with firearm specifications (Indictment, State Court Record, ECF No. 20, Ex. 1). The case was tried to a jury which found Kennedy guilty on all counts. Id. at Ex. 31. After denial of Kennedy's motion for acquittal or new trial, the trial judge merged the murder and felonious assault counts and the two firearm specifications under Ohio Revised Code § 2941.25 and sentenced Kennedy to eighteen years to life imprisonment. Id. at Ex. 40.

Represented by new counsel, Kennedy appealed to the Ohio Third District Court of Appeals which affirmed the conviction and sentence. State v. Kennedy, 2018-Ohio-4172 (Ohio App. 3^rd Dist. Oct. 15, 2018), appellate review declined, 154 Ohio St. 3d 1510 (2019). Kennedy then filed her petition for post-conviction relief which was denied by the trial court on June 11, 2019. Kennedy failed to file a timely appeal from that denial and her effort to reopen the time for appeal was rebuffed at both the trial and appellate levels because Ohio does not allow delayed appeal in civil cases.

Kennedy's Amended Petition pleads the following Grounds for Relief:

Ground One: Trial counsel was ineffective under the 6th and 14th Amendments of the Constitution in failing to file a motion to suppress statements made to Detective Watson, which were obtained in violation of the 5th Amendment (Miranda) because I was not told the consequences of providing a custodial statement. (Exhibits A1 and A2 and C).

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Ground Two: It was plain error under Crim.R. 52 to admit my videotaped statement, as it was in violation of the 5th Amendment.

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Ground Three: Defense counsel's failure to challenge the admission of the videotaped statements I made in the sheriff's car which were secretly recorded violated my 6th Amendment and 14thAmendment rights. (Effective assistance of counsel and due process). (Exhibit C)

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Ground Four: The trial court erred in failing to instruct the jury on negligent homicide.

Supporting Facts: The trial court failed to instruct the jury on negligent homicide, and denied me a complete defense under the 6th and 14th Amendments of the Constitution. This violated my right to a complete defense.

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Ground Five: The trial court should have allowed into evidence petitioner's offer to take a polygraph, so that petitioner could present a complete defense under the 6th and 14th Amendments of the Constitution.

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Ground Six: The State presented insufficient evidence that the petitioner purposely killed her husband.

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Ground Seven: The conviction for murder was against the manifest weight of the evidence.

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Ground Eight: The prosecution, nor the police did not disclose the fact that the tape from the police cruiser was recorded on a deputy's personal recorder; and was not recoded [sic] with department issued equipment, until he was testifying at petitioner's trial; in violation of her 5th and 14th Amendment rights. This evidence was impeachable and shows that the deputies were willing to ignore protocol to obtain a criminal case.

Further, when deputy's (Dixon) actions in recording petitioner substantially deviated the from the policies and procedures of the Logan County Sherriff's Department, he was violating the 4th Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution, which protects a person's right to an expectation of privacy against unreasonable governmental intrusion. Deputy Dixon's actions were so far afield of the Logan County Sherriff's Department policies and procedures that he was no longer acting within the scope of his employment because he was acting in violation of state and federal wiretapping laws See Exhibit B: Logan County Sherriff's Office Policy & Procedures manual.

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Ground Nine: Trial counsel refused to allow the petitioner to testify in her own defense, when petitioner requested to do so.

Petitioner knew that she would be testifying because early in the preparations for trial, counsel had stated that she would question petitioner hard to make sure she was ready to testify. Counsel never asked what happened on the night in question. About a week before trial petitioner asked counsel why didn't she want to hear what really happened and that they needed to start talking about it. Counsel said okay, let's hear it. A little more than halfway through petitioner's accounting of that night's events, she was abruptly stopped by counsel and told that the prosecutor would rip her apart and under no circumstances was petitioner going to take the stand. She then stated that she had this case taken care of. She wasn't going to put petitioner through hell, she repeatedly told petitioner it would be like walking through fire. She reasoned that the prosecutor would twist everything that was said to make petitioner guilty in the eyes of the jury. Counsel had gone to petitioner's home every night, working out how she thought those events would have played out. Counsel concocted her own version of what happened and that was the version she wanted to present. Petitioner was told repeatedly not to talk to anyone about her case or write anything down, that someone could read it and "snitch" and it would be

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