Kennedy v. Mackie

639 F. App'x 285
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 19, 2016
DocketNo. 14-2342
StatusPublished
Cited by5 cases

This text of 639 F. App'x 285 (Kennedy v. Mackie) 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
Kennedy v. Mackie, 639 F. App'x 285 (6th Cir. 2016).

Opinion

SILER, Circuit Judge.

In 2006, a Wayne County Circuit Court jury found Dana Kennedy guilty of first-degree murder, assault with intent to murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony. Kennedy appeals the district court’s denial of his petition for writ of habeas corpus filed under 28 U.S.C. § 2254. Certificates of Appealability (COA) have been granted on the following issues: (1) the use at trial of an erroneous ballistics report from the Detroit Crime Laboratory; (2) an informant’s post-trial recantation of his testimony; (3) denial of Kennedy’s Sixth Amendment right to self-representation; and (4) ineffective assistance of appellate counsel. For the reasons explained below, we affirm the district court’s denial of Kennedy’s petition for writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

In 2005, Roderick Heath was fatally shot at a market in Detroit, Michigan. On the evening of the shooting, D’Andre Hum[287]*287phrey drove by the market and noticed Towana Moton, Byron Royster, and Heath standing nearby. Soon after, Humphrey heard gunshots coming from the right side of his vehicle and saw “Dana Kennedy hanging out the window [of a red Jeep Liberty] with an AK” firing the weapon.

Royster also saw gunshots coming from the Jeep, but he could not see the individual firing the weapon. As Royster ducked and ran away from the gunshots, he heard more than twenty continuous rounds fired.

Moton, who was standing next to Heath at the side of the market, also saw the Jeep coming toward the store and heard gunshots from the passenger side of the vehicle. Heath pushed Moton to the ground. Like Royster, Moton did not see who was firing the weapon from the Jeep.

When the gunshots ended, Moton crawled to Heath, who was dead near the door of the store. Royster asked Humphrey who had killed Heath, and Humphrey responded that “Butch” had killed Heath. Kennedy is also known as Butch.

A month prior, Kennedy’s house burned down. Humphrey testified that he heard Kennedy accuse Heath of “burning] up [his] spot.” By “spot,” Kennedy meant his crack house. The prosecution theorized that Kennedy killed Heath for retribution related to the burning of the house.

After trial, the jury found Kennedy guilty of first-degree murder, assault with intent to murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony (“felony firearm”). Kennedy was sentenced to life for first-degree murder, twenty-five to eighty years for assault with intent to murder, three to five years for being a felon in possession of a firearm, and a two-year consecutive sentence for felony firearm.

Kennedy appealed his conviction to the Michigan Court of Appeals. It affirmed Kennedy’s conviction, People v. Kennedy, No. 269102, 2007 WL 2118853, at *4 (Mich. Ct.App. July. 24, 2007) (per curiam), and the Michigan Supreme Court denied his application for leave to appeal, People v. Kennedy, 480 Mich. 958, 741 N.W.2d 376 (2007) (order).

After the Michigan Supreme Court denied Kennedy’s appeal, he sought post-conviction relief from the Wayne County Circuit Court. Kennedy previously raised most of the issues on his direct appeal; however, he argued, for the first time, that the trial court erred by denying his Sixth Amendment right to self-representation. The trial court denied Kennedy’s motion, finding that Kennedy failed to provide good cause for identifying newly-raised issues like the self-representation claim and had suffered no prejudice, and that Kennedy’s remaining issues had already been addressed by the Michigan Court of Appeals. Opinion and Order Denying Defendant’s Motion for Relief from Judgment , at 2-3, People v. Kennedy, No. 05-012004-01 (Wayne Cty.Cir.Ct. July 28, 2008). Thereafter, the Michigan Court of Appeals and the Michigan Supreme Court denied Kennedy’s applications for leave to appeal. Order at 1, People v. Kennedy, No. 293347 (Mich.Ct.App. Nov. 23, 2009) (order); People v. Kennedy, 488 Mich. 869, 788 N.W.2d 418 (2010) (order).

Kennedy filed a habeas petition with the district court, claiming in part that: (1) the prosecutor presented false evidence, (2) Kennedy was denied his Sixth Amendment right to self-representation, (3) Kennedy was denied effective assistance of counsel during his trial, and (4) Kennedy was denied effective assistance of counsel on his direct appeal. Prior to the district court’s ruling on the habeas petition, Kennedy successfully moved to stay proceedings in order to exhaust state court remedies related to the Michigan State Police’s retest[288]*288ing of the ballistics evidence used in his trial.

Based on the newly discovered ballistics evidence, Kennedy moved to file a post-conviction relief motion with the Wayne County Circuit Court. Successive Motion for Relief from Judgment at 5-6, People v. Kennedy, No.2005-012004-01 (Wayne Cty. Cir.Ct. Sept. 27, 2012). In denying Kennedy’s motion, the Wayne County Circuit Court found that “even if one or more of [Kennedy’s] aforementioned claims of error have merit, they do not change the fact that the new firearms evidence fails to establish a reasonable probability that the outcome of his trial would have been different.” Opinion at 2, People v. Kennedy, No. 05-012004-01-FC (Wayne Cty.Cir.Ct. Jan. 7, 2013).

In moving to lift the stay in the district court, Kennedy amended his habeas petition, asserting new claims that: (1) his due process rights were violated by the presentation of false ballistics evidence, (2) his due process rights were violated by the state’s use of false testimony, (3) his rights to confrontation and to present a complete defense were violated by the state’s suppression of evidence and use of false evidence, (4) there was insufficient evidence to convict him of first-degree murder, (5) the prosecutor engaged in misconduct, and (6) he was denied effective trial and appellate counsel. The district court denied Kennedy’s habeas petition.

STANDARD OF REVIEW

“In a habeas corpus appeal, we review the district court’s legal conclusions de novo, but will not set aside its factual findings unless they are clearly erroneous.” Ivory v. Jackson, 509 F.3d 284, 291 (6th Cir.2007) (citing Dyer v. Bowlen, 465 F.3d 280, 283-84 (6th Cir.2006)). However, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, governs our review' of Michigan state decisions in this case. See, e.g., Daoud v. Davis, 618 F.3d 525, 528 (6th Cir.2010). Under the AEDPA, a habeas petition must be denied unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “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).

ANALYSIS

A. New Ballistics Evidence

During Kennedy’s trial, the state called as a witness a Detroit Crime Laboratory technician who testified that all nineteen cartridge casings found at the corner market came from one weapon.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Deering v. Oakland County
E.D. Michigan, 2025
Hearn v. Hart
W.D. Kentucky, 2022
Howse v. Perry, Warden
M.D. Tennessee, 2022
Lee v. Haas
197 F. Supp. 3d 960 (E.D. Michigan, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
639 F. App'x 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-mackie-ca6-2016.