United States District Court, S.D. Georgia, Statesboro 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).
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
(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.
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 ...