United States District Court, E.D. Wisconsin
UNQUAIL T. KENNEDY, Petitioner,
BRIAN FOSTER, Respondent.
William C. Griesbach, Chief Judge, United States District
September 3, 2019, Petitioner Unquail T. Kennedy, who is
currently incarcerated at Waupun Correctional Institution,
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner was convicted in Milwaukee
County Circuit Court of one court of first-degree reckless
homicide and one count of possessing a firearm as a person
previously adjudicated delinquent for a felonious act and was
sentenced to twenty-three years of initial confinement and
twenty years of extended supervision.
give the case prompt initial consideration pursuant to Rule 4
of the Rules Governing § 2254 Cases, which reads:
If it plainly appears from the face of 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. If
the petition is not dismissed, the judge must order the
respondent to file an answer, motion, or other response
within a fixed time . . . .
Rules Governing § 2254 Cases. During my initial review
of habeas petitions, I look to see whether the petitioner has
set forth cognizable constitutional or federal law claims and
exhausted available state remedies.
March 4, 2013, Marcell Alexander was fatally shot in the
abdomen while at his girlfriend’s apartment. Petitioner
and Isiah Smith were charged with the underlying homicide and
were tried separately. At his trial, Petitioner did not
dispute that he was at the scene when Alexander was shot. He
testified that he thought Smith and Alexander were merely
play fighting, even though he heard a gunshot and saw
Alexander on the floor. On direct examination, Petitioner
testified that he did not realize Alexander had been shot
because he believed a shooting would be like “a movie.
Like when somebody gets shot, blood is everywhere. Like on
the walls, on people’s clothes. I didn’t see none
of that.” Dkt. No. 1-1 at 10 (alterations omitted). On
cross-examination, the prosecutor asked Petitioner whether he
witnessed the homicide of his sister’s boyfriend when
he was a child. Petitioner testified that he had not
previously witnessed a homicide. When the prosecutor asked
Petitioner to confirm that he told the detectives something
different, Petitioner first testified that he had not said
anything inconsistent to the detectives but later stated he
did not recall telling the detectives that he witnessed a
homicide as a child.
petition, here, is governed by the Antiterrorism and
Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254.
Under AEDPA, a federal court may grant habeas relief only
when a state court’s decision on the merits was
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by”
decisions from the Supreme Court, or was “based on an
unreasonable determination of the facts.” 28 U.S.C.
§ 2254(d); see also Woods v. Donald, 135 S.Ct.
1372, 1376 (2015). A state court decision is “contrary
to . . . clearly established Federal law” if the court
did not apply the proper legal rule, or, in applying the
proper legal rule, reached the opposite result as the Supreme
Court on “materially indistinguishable” facts.
Brown v. Payton, 544 U.S. 133, 141 (2005). A state
court decision is an “unreasonable application of . . .
clearly established federal law” when the court applied
Supreme Court precedent in “an objectively unreasonable
manner.” Id. This is, and was meant to be, an
intentionally difficult standard to meet. Harrington v.
Richter, 562 U.S. 86, 102 (2011). “To satisfy this
high bar, a habeas petitioner is required to ‘show that
the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Woods, 135 S.Ct. at 1376 (quoting
Harrington, 562 U.S. at 103).
asserts that his trial counsel provided ineffective
assistance. A claim of ineffective assistance of trial
counsel is governed by well-established law set forth by the
United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). Under
Strickland, the petitioner must show (1) that
counsel’s representation was deficient in that it fell
below an objective standard of reasonableness and (2) that
counsel’s deficient performance deprived the defendant
of a fair trial. Id. at 687–88. A petitioner
satisfies the first prong if he demonstrates that
“counsel’s representation fell below an objective
standard of reasonableness.” Id. To satisfy
the second prong, a petitioner must demonstrate that
“there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id.
is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particularized act or omission of counsel was
unreasonable.” Id. at 689. For this reason,
the Supreme Court has made clear that “judicial
scrutiny of counsel’s performance must be highly
deferential.” Id. That is, “a court must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance,” and that “the defendant must
overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial
strategy.’” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).
asserts that his trial counsel was ineffective by failing to
object to what he claims was improper cross-examination
regarding his prior experience witnessing a homicide. He
contends that his trial counsel’s failure to object
allowed the prosecutor to introduce evidence from a 2006
homicide to discredit Petitioner. Although Petitioner
concedes that this evidence was admissible, he claims that it
was extremely prejudicial.
corpus petitions must meet heightened pleading requirements .
. . .” McFarland v. Scott, 512 U.S.
849, 856 (1994) (citing 28 U.S.C. § 2254 Rule 2(c)). The
petition must “specify all the grounds for relief
available to the moving party,” and “state the
facts supporting each ground.” Rule 2(c) of the Rules
Governing § 2254 Cases; see also Borden v.
Allen, 646 F.3d 785, 810 (11th Cir. 2011) (“The
§ 2254 Rules and the § 2255 Rules mandate
“fact pleading” as opposed to “notice
pleading,” as authorized under Federal Rule of Civil
Procedure 8(a).”). The reason for the heightened
pleading requirement in habeas cases, as the Eleventh Circuit
noted in Borden, is obvious:
Unlike a plaintiff pleading a case under Rule 8(a), the
habeas petitioner ordinarily possesses, or has access to, the
evidence necessary to establish the facts supporting his
collateral claim; he necessarily became aware of them during
the course of the criminal prosecution or sometime
afterwards. The evidence supporting a claim brought under the
doctrine set forth in Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for example, may
not be available until the prosecution has run its course.
The evidence supporting an ineffective assistance of counsel
claim is available following the conviction, if not before.
Whatever the claim, though, the petitioner is, or should be,
aware of the evidence to support the claim before bringing
Id. at 810. Were the rule otherwise, federal habeas
would be transformed into “a vehicle for a so-called
fishing expedition via discovery, an effort to find evidence
to support a claim.” Id. at 810 n.31.
the fact that a person seeking relief under § 2254 has
already raised the same claim or claims for which he now
seeks federal review in state court, and exhausted each level
of review available in the state system, it should not be
overly burdensome for the petitioner to describe those same
claims with sufficient specificity to allow the federal court
tasked with the job of screening his petition to determine
whether a claim cognizable under § 2254 has been stated.
This is not too much to expect of a petitioner before the
State is ordered to undertake the task of filing an answer to
the petition containing copies of all or almost all of the
pleadings, hearing transcripts, and briefs filed in what is
often a lengthy state court proceeding. Generally, this task
is made significantly less difficult by attaching a copy of
the state court decision or decisions that rejected the
petitioner’s claims, as the prescribed form petition
that can be found at the Eastern District of ...