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Kennedy v. United States

United States District Court, S.D. Georgia, Brunswick Division

May 11, 2018

WESTLEY KAYEON KENNEDY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          HON. LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT

         Presently before the Court is Westley Kayeon Kennedy's ("Kennedy") Motion for Reconsideration of the Denial of a Certificate of Appealability, dkt. no. 834, [1] to 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[2] and ISSUES him a COA in accordance with the grounds noted herein.

         BACKGROUND

         In his 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. 834.[3]

         DISCUSSION

         A 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.

         On the 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.[4] Accordingly, the Court ISSUES Kennedy a COA. Kennedy's COA shall be limited to the following three issues:

         (1) whether Kennedy's right to due process was abridged by the Magistrate Judge's failure to conduct an evidentiary hearing on this record;

         (2) 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 Kennedy; and

         (3) 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.

         CONCLUSION

         For the 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 ...


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