United States District Court, S.D. Georgia, Brunswick Division
LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT
before the Court is Westley Kayeon Kennedy's
("Kennedy") Motion for Reconsideration of the
Denial of a Certificate of Appealability, dkt. no. 834,
which the Government has not filed a response. Kennedy moves
the Court for a Certificate of Appealability
("COA") regarding the denial of his Motion to
Vacate, Set Aside, or Correct his Sentence pursuant to 28
U.S.C. § 2255. Dkt. Nos. 818, 826. For the reasons and
in the matter set forth below, the Court
GRANTS Kennedy's Motion for
Reconsideration and ISSUES him a COA in
accordance with the grounds noted herein.
Section 2255 Motion, Kennedy argued that his counsel, Mr.
Reid Zeh, provided ineffective assistance and operated under
a conflict of interest and that the Government committed
prosecutorial misconduct. Dkt. No. 809-1. Magistrate Judge R.
Stan Baker recommended the Court deny Kennedy's 2255
Motion without a hearing because Kennedy could not show Mr.
Zeh was ineffective under either the conflict-of-interest
standard or the Strickland standard and because
Kennedy's prosecutorial misconduct allegations were
conclusory and subject to his comprehensive collateral attack
waiver. Dkt. No. 818. In addition, Judge Baker recommended
the Court deny Kennedy a COA. Id. at pp. 29-30.
Kennedy did not file objections, and the Court adopted Judge
Baker's Report and Recommendation as the opinion of the
Court. Dkt. Nos. 825, 826, 827. Following the entry of
judgment against him, Kennedy filed a notice of appeal with
the Eleventh Circuit, dkt. no. 830, and now seeks
reconsideration of the Court's COA denial, dkt. no.
federal prisoner proceeding under Section 2255 must obtain a
COA before appealing the denial of his motion to vacate. The
Court "must issue or deny a [COA] when it enters a final
order adverse to the applicant." Rule 11(a) of the Rules
Governing Section 2255 Proceedings. A COA should issue when a
movant makes "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2).
1. To establish the denial of a constitutional right, a
movant must show "that reasonable jurists could debate
whether (or, for that matter, agree that) the [motion] should
have been resolved in a different manner or that the issues
presented were 'adequate to deserve encouragement to
proceed further.'" Slack v. McDaniel, 529
U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 & n.4 (1983)). A Section 2255 movant
need not show that his motion would necessarily be
meritorious, only that it is debatable, "even though
every jurist of reason might agree, after the COA has been
granted and the case has received full consideration, that
[movant] will not prevail." Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003). The Court's
threshold COA "inquiry does not require full
consideration of the factual or legal bases adduced in
support of the claims." Id. at 336.
prior record before the Court, it appeared that any appeal in
this matter would be frivolous. Therefore, finding no
debatable issues worthy of appeal, the Court initially denied
Kennedy a COA. Dkt. No. 818, p. 30. However, in light of
Kennedy's recent pleadings, including the arguments
raised in his Motion for Reconsideration, it appears that
Kennedy's appeal will present debatable constitutional
issues of which reasonable jurists could disagree regarding
conflicts of interest, ineffective assistance of counsel, due
process, and the adversarial structure of our justice
system. Accordingly, the Court ISSUES Kennedy a
COA. Kennedy's COA shall be limited to the following
whether Kennedy's right to due process was abridged by
the Magistrate Judge's failure to conduct an evidentiary
hearing on this record;
whether Kennedy's Sixth Amendment right to conflict-free
counsel was violated given that Mr. Zeh simultaneously, not
successively, represented a person trying to incriminate
whether the Government and Mr. Zeh failed to observe
adversarial norms in this prosecution in violation of
Kennedy's right to due process of law.
reasons and in the matter set forth above, the Court
GRANTS Kennedy's Motion for
Reconsideration of the Denial of a COA. Dkt. No. 834.
Accordingly, the Court ISSUES Kennedy a ...