Kelly v. McKee

847 F.3d 316, 2017 WL 395975, 2017 U.S. App. LEXIS 2051
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 24, 2017
DocketNo. 16-1572
StatusPublished
Cited by1 cases

This text of 847 F.3d 316 (Kelly v. McKee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. McKee, 847 F.3d 316, 2017 WL 395975, 2017 U.S. App. LEXIS 2051 (6th Cir. 2017).

Opinion

[318]*318ORDER

Bernard Kelly, a Michigan prisoner proceeding pro se, applies for a certificate of appealability (COA) to appeal the district court’s judgment denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus.

In 2005, Kelly was convicted of murdering his three-year old daughter, Stefanie Belue, and shooting her two daycare providers, Sherita Griggs and Annette Rice. A jury convicted Kelly of first-degree murder, assault with the intent to murder, and possession of a firearm during the commission of a felony. The trial court sentenced Kelly to life imprisonment without parole for murder and lesser terms of imprisonment for the other crimes. The Michigan Court of Appeals affirmed his convictions and sentence, and the Michigan Supreme Court denied leave to appeal. Kelly filed a § 2254 habeas corpus petition, which the [319]*319district court held in abeyance until Kelly could exhaust further issues in the Michigan courts. Kelly filed a motion for state post-conviction relief, which was denied. The Michigan Court of Appeals and Michigan Supreme Court denied leave to appeal. Kelly returned to federal court and filed an amended § 2254 habeas corpus petition, raising thirty-eight claims for relief. In a well-reasoned opinion, the district court denied Kelly’s petition on the merits. It also declined to grant a COA. Kelly filed a timely notice of appeal and now seeks a COA in this court.

Of the thirty-eight claims presented in his initial and amended habeas corpus petitions, Kelly seeks a COA for seventeen. He claims that he was denied due process and a fair trial when: (1) the trial court admitted prior bad acts evidence [claim 4R]; (2) the trial court denied him his choice of counsel [claim 1]; (3) the trial court forced him to proceed with trial counsel who had a conflict of interest [claim 2]; (4) the trial court declined to hold a competency hearing [claim 3]; and (5) the prosecutor stated that his motive for the murder was to avoid child support payments [claim 1R],

Kelly also claims that trial counsel rendered ineffective assistance by failing: (6) to timely request and cooperate with an investigator [claim 6R]; (7) to adequately litigate his motion to suppress the victims’ identifications [claim 4A]; (8) to object to non-witness statements confirming his identification [claim 4B]; (9) to request an appointed pharmacologist, memory specialist, or doctor to testify to the competency of the victims [claim 4C]; (10) to call the appointed investigator to testify [claim 4E]; (11) to investigate and call a video image recovery expert [claim 4F]; (12) to request bank records of a prosecution witness [claim 4G]; (13) to investigate phone record evidence [claim 4H]; (14) to suppress phone record evidence [claim 4I]; (15) to object to the prosecution’s improper use of character evidence [claim 4L(4) ]; (16) to object to the prosecution’s use of photographs of the deceased victim [claim 4L(5) ]; and (17) to prevent the prosecution from admitting evidence of his prior bad acts and to offer rebuttal evidence.

Last, Kelly asks that the following claims be remanded for the district court to provide a reasoned decision: that Kelly was denied due process and a fair trial when the trial court refused to conduct a competency hearing for the victims [claim 3]; and that trial counsel was ineffective for failing: to present evidence of medical disability of critical witnesses [claim 3R]; to adequately litigate his motion to suppress the identification of the victims [claim 4A]; to suppress phone record evidence [claim 4I]; to object to the prosecution’s statements during closing [claim 4L(1) ]; to object to the prosecution’s misstatements during opening and closing [claim 4L(2) ]; and to object to the prosecution’s mischaracterization of the facts throughout the trial [claim 4L(3) ].

A COA may issue when an “applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Under the Antiterrorism and Effective Death Penalty Act, the district court may not grant habeas relief on a claim that was adjudicated on the merits in state court “unless the state court’s decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal [320]*320law,’ meaning Supreme Court precedent, or “was based on an unreasonable determination of facts in light of the evidence presented’ during the state court proceedings.” Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008) (quoting 28 U.S.C. § 2254(d)(1)—(2)). “[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

I. Due PROCESS

1. Prior Bad Acts — Claim 4R

Kelly claims that the trial court erred by admitting evidence that Kelly reacted angrily when Charity Smith became pregnant with his child, that he threatened to kill Smith and her child if Smith gave birth to the child, that Kelly reacted hostilely to Smith’s request for child support, and that Smith suspected ■ that Kelly fired a gun into her apartment, hitting her several times. Kelly argues that this evidence was so prejudicial that its admission rendered his entire trial fundamentally unfair, denying him due process under the Fifth and Fourteenth Amendments. See Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007). As a matter of state law, the Michigan courts held that “[p]roof of motive ... is generally relevant, and is probative of the intent necessary for murder as well as the perpetrator’s identity.” People v. Kelly, No. 261936, 2006 WL 3613638, at *2 (Mich. Ct. App. Dec. 12, 2006). “Further, the probative value of the evidence of defendant’s strong contempt toward paying child support and from assuming responsibilities as a father was high.... The evidence was prejudicial only because it was damaging, not because of its tendency to unfairly inject considerations extraneous to the merits of the case.” Id. Because there is no Supreme Court precedent precluding “other acts” evidence on constitutional grounds, and because admission of the evidence does not fall within the narrow category of infractions that violate fundamental fairness, see Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), reasonable jurists would not debate the district court’s rejection of this claim. See Bey, 500 F.3d at 521.

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Cite This Page — Counsel Stack

Bluebook (online)
847 F.3d 316, 2017 WL 395975, 2017 U.S. App. LEXIS 2051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-mckee-ca6-2017.