United States District Court, W.D. Texas, San Antonio Division
MICHAEL PATRICK KENNEDY, TDCJ No. 01358289,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE.
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.
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,
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.
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
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).
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).
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).
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).
allows the petition is timely and not successive, and that
Petitioner exhausted his claims in ...