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Kennedy v. Davis

United States District Court, W.D. Texas, San Antonio Division

June 15, 2018

MICHAEL PATRICK KENNEDY, TDCJ No. 01358289,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE.

         Michael Kennedy, an inmate in the custody of the Texas Department of Criminal Justice-Correctional Institutions Division, has filed a counseled application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for attempted capital murder. (ECF No. 1). Petitioner has paid the filing fee in this matter. As required by Rule 4 of the Rules Governing Section 2254 Cases, the Court conducted a preliminary review of the petition. Having considered the Petition, the attached appendices, and the Memorandum in Support of Petition Under 28 U.S.C. § 2254 (ECF Nos. 1, 2, 4), Respondent's Answer (ECF No. 8), Petitioner's Reply (ECF No. 10), the record (ECF No. 7), and applicable law, the Court finds the petition should be DENIED. Petitioner is also denied a certificate of appealability.

         Factual Background

         The Thirteenth Court of Appeals summarized the testimony presented at Petitioner's trial as follows:

On the night of March 3, 2005, police officer Richard Kunz was patrolling Interstate 35 in Schertz, Texas, when he observed Kennedy's vehicle speeding. Kunz activated his emergency lights and pursued Kennedy. Kennedy eventually pulled over to the left shoulder in between the concrete median barrier and the left travel lane. Kunz exited his patrol unit and approached Kennedy. Kunz testified:
[W]hen I asked him for his driver's license and proof of insurance, I remember seeing his body kind of tilt a little bit to the left and his hand-or a motion that gave me an indication that his hand was going back there to the right, and typical of somebody who would be reaching for their driver's license and insurance and the wallet in the right backhand pocket. While waiting for that documentation is when I saw coming directly from the blackness the barrel of the gun pointed right at me.
Kunz clarified that the gun was pointed at his "upper body." He stated that he thought he was going to die at that point. He "ran for [his] life" back to the patrol unit"and called for backup. Kennedy opened his driver's side door and fired at the officer "numerous times" with what Kunz thought was a handgun. Kunz took cover behind his patrol unit. There was then a pause in the shooting, during which Kunz saw what appeared to be the barrel of a rifle "coming out of Kennedy's driver's side door. He then heard gunshots and glass shattering around him as he crouched behind the patrol unit. He stated that the shots were "definitely [from a] machine gun because they were very rapid and they sounded a lot louder than just a handgun." Kunz, having already twice ordered Kennedy to drop his weapon, returned fire. He shot at Kennedy a total of sixteen times, firing until his service weapon was empty. Kunz testified:
At that point I stayed behind my vehicle, not firing and waiting for cover. I did not know where [Kennedy] was. I did not know if he was still in the vehicle. I did not know if I hit him. I did not know if he was coming around on the side concrete barrier wall and was going to pop up on the side and shoot me. I didn't even really know ... if he was on the right side of my vehicle and was approaching. And I remained there until the first responding officer arrived.
Police closed off the portion of highway where the incident was occurring and approached Kennedy's vehicle from the opposite side of the concrete median barrier. The officers removed Kennedy, who had multiple gunshot wounds, from his vehicle and placed him under arrest.
Subsequent investigation showed that there were forty-five bullet holes in Kunz's patrol unit; Kennedy had fired at least ten rounds from a nine-millimeter handgun and at least thirty rounds from an AK-47 assault rifle. The handgun and rifle, along with other weapons and ammunition, were recovered from Kennedy's vehicle.
A video recording taken from a camera in Kunz's patrol unit was entered into evidence and played for the jury. On cross-examination, Kunz conceded that he did not tell dispatch or the backup officers that Kennedy had fired at him first. He did not recall Kennedy saying on the video "I have been hit" prior to the time he took cover behind his patrol unit. Kunz agreed that, according to the video recording, he had actually fired on Kennedy from the front of his patrol unit, prior to taking cover and calling for backup, but he did not mention this fact in a six-page written statement he prepared the day after the incident. Kunz agreed that a portion of his written statement was therefore "inaccurate." When asked by defense counsel what he did to correct this "inaccuracy, " Kunz replied: "I did not alter my statement or change my report. I let them stand and let the evidence stand for those who wish to look at both and interpret what they believe to be accurate and true."
An acoustics expert and a forensic audio expert each testified on Kennedy's behalf that, according to their analyses of the video recording, Kunz fired the first shot. Dennis McKnight, who testified for the defense as an expert witness in the field of law enforcement, testified that, even if Kennedy displayed a gun when Kunz approached him, Kennedy presented no immediate threat to Kunz at the time Kunz took cover behind his patrol unit. McKnight opined that Kennedy's shooting at Kunz was justified as self-defense.

Kennedy v. State, No. 13-13-00416-CR, 2015 WL 3637917, at *l-2 (Tex. App.-Corpus Christi- Edinburg 2015, pet. refd).

         Procedural Background

         Petitioner sustained gunshot wounds as a result of the incident of March 3, 2005, and was taken into custody upon his release from the hospital; Petitioner remained in custody prior to trial. (ECF No. 7-25 at 54). On March 8, 2005, law enforcement officers executed a search warrant on Petitioner's residence and seized various items, including several automatic weapons and ammunition. (ECF No. 7-28 at 58). An information filed January 9, 2006, charged Petitioner with aggravated assault of a peace officer; Petitioner waived indictment. (ECF No. 7-25 at 11, 13). Petitioner filed a motion to suppress the evidence seized under the warrant, a hearing was conducted, and the motion was denied. Kennedy v. State, 338 S.W.3d 84, 87-88 (Tex. App.-Austin 2011, no pet.).

In 2006, Kennedy pleaded guilty to aggravated assault of a peace officer with a deadly weapon, a first-degree felony . . . The trial court accepted the plea, adjudicated Kennedy guilty, and sentenced him to seventy-five years' imprisonment. Kennedy appealed, contending that the trial court erred in denying a pre-trial motion to suppress evidence obtained from a police search of his residence. The Austin Court of Appeals held that Kennedy waived error by pleading guilty, but the court of criminal appeals reversed. Kennedy v. State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009) ... On remand, the Austin court held that the police search was unconstitutional and ordered a new trial.

Kennedy, 2015 WL 3637917, at *2 n.2.

         Petitioner was subsequently re-indicted on one count of attempted capital murder and one count of aggravated assault against a public servant. (ECF No. 7-39 at 64). Petitioner did not testify at his second trial, which began June 10, 2013. (ECF No. 7-20 at 76). Petitioner was represented at trial by Mr. Broden, Mr. Cantrell, and Mr. Moran. The defense asserted there was insufficient evidence to find that Petitioner fired first, and argued Petitioner acted in self-defense. (ECF No. 7-20 at 61-65). The jury received instructions on attempted capital murder, the lesser-included offense of aggravated assault against a public servant, and self-defense. (ECF No. 7-20 at 29; ECF No. 7-46 at 7-14). The jury also received the following instruction:

If a person attempting to claim self-defense provoked the other's use of unlawful force or attempted use of unlawful force, then such person is not entitled to rely upon self-defense unless the person, A, abandons the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter and, B, the other nevertheless continues or attempts to use unlawful force against the person.

(ECF No. 7-20 at 31-32).

         The jury deliberated for approximately two hours and found Petitioner guilty of attempted capital murder. (ECF No. 7-39 at 66, 71). After a sentencing hearing, the jury was instructed to assess a sentence of at least five years and up to 99 years or life imprisonment, and assessed punishment at a term of 65 years' imprisonment. (ECF No. 7-21 at 34-35, ECF No. 7-46 at 16, 19).

         Petitioner timely appealed his conviction and sentence, asserting trial court error and ineffective assistance of counsel. Kennedy, 2015 WL 3637917, at *1. The appellate court affirmed Petitioner's conviction and sentence, and the Court of Criminal Appeals denied a petition for discretionary review. Id Petitioner sought a state writ of habeas corpus, alleging discrete claims of ineffective assistance of counsel and an allegation of cumulative error. (ECF No. 7-37 at 6-26, 32). Petitioner also asserted two claims of prosecutorial misconduct and a claim of ineffective assistance of appellate counsel. (ECF No. 7-37 at 28-31, 34). Petitioner's trial counsel and the prosecutor filed affidavits in the state habeas matter. (ECF No. 7-46 at 111-17, 118-19). The state trial court, which was also the convicting court, made findings of fact and conclusions of law and recommended the writ be denied. (ECF No. 7-46 at 119-22). The Court of Criminal Appeals denied the writ without written order on May 3, 2017. (ECF No. 7-42).

         In his federal habeas action, Petitioner asserts he was denied due process because the trial court "refused to define the term 'provocation' for the jury, " and it improperly allowed the admission of his medical records. He also asserts he was denied the effective assistance of trial counsel, and that the State violated his right to due process because it did not allow Petitioner to "defend himself in various ways . . ." (ECF No. 1 at 10). Petitioner asks the Court to vacate his conviction and order a new trial. (ECF No. 1 at 15).

         Respondent allows the petition is timely and not successive, and that Petitioner exhausted his claims in ...


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