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Kennedy v. Colorado Department of Corrections

United States District Court, D. Colorado

February 29, 2016



Honorable William J. Martínez United States District Judge

This matter is before the Court on the second amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 9) (the “Second Amended Application”) filed pro se by Applicant Jeremiah J. Kennedy. Respondents have filed an Answer (ECF No. 31) (“the Answer”) to the Second Amended Application. Mr. Kennedy has not filed a traverse despite being given an opportunity to do so. After reviewing the record, including the Second Amended Application, the Answer, and the state court record, the Court FINDS and CONCLUDES that the Second Amended Application should be denied and the case dismissed with prejudice.


Mr. Kennedy is challenging the validity of his conviction and sentence in Arapahoe County District Court case number 07CR2692. He was tried jointly with a co-defendant and he was convicted of vehicular eluding, accessory to aggravated robbery, and four habitual criminal counts. The Colorado Court of Appeals on direct appeal described the relevant factual background as follows:

The victim parked his car and started walking to his motel room. A man approached him in the parking lot and asked if he had a lighter. When the victim pulled a lighter put of his pocket, the man said, “[a]nd your wallet” and pulled out a gun. The victim gave the robber $300. The robber walked away quickly and got into the passenger side of a blue truck. The truck sped off. The victim called 911.
After the police arrived, the victim and an officer drove to look at an abandoned vehicle nearby, which the victim identified as the truck the robber fled in. The officer drove the victim to another location, where the victim identified a suspect in custody, codefendant, as the robber.
In the meantime, a security guard who was working at a nearby shopping center heard sirens from the police cars in the area. As he scanned the perimeter of the shopping center, he saw a truck drive through a red traffic light at a high rate of speed. The truck passed him within a distance of approximately 15-20 feet. The guard observed the driver, but could not see the passenger clearly because of the lighting in the area. The guard contacted the police officers, who were also in pursuit of the truck, and helped them search the area. A police officer drove the guard to the parking lot of a high school where the police had taken defendant into custody. This area was near the location of the abandoned truck that the victim identified. The guard identified defendant as the driver of the truck he had seen speeding through the shopping center.
Defendant was charged with aggravated robbery, conspiracy to commit aggravated robbery, first degree aggravated motor vehicle theft, vehicular eluding, theft, violent crime with a deadly weapon, and four habitual criminal counts.
Defendant and codefendant were tried in a joint jury trial. Defendant was convicted of vehicular eluding, accessory to aggravated robbery, and four habitual criminal counts. The trial court sentenced him to 12 years in the Department of Corrections.

People v. Kennedy, No. 10CA1383, slip op. at 1-2 (Colo.App. Sept. 5, 2013) (unpublished) (ECF No. 13-2 at 2-3). The judgment of conviction was affirmed on direct appeal. See Id. On May 19, 2014, the Colorado Supreme Court denied Mr. Kennedy’s petition for writ of certiorari on direct appeal. (See ECF No. 13-6.)

The instant action was commenced on May 20, 2015, and the Court has determined that, construing the Second Amended Application liberally, Mr. Kennedy is asserting five claims for relief. He specifically contends the trial court erred in denying his motion to sever his case from that of his co-defendant, which precluded him from introducing exculpatory evidence (claim one); the trial court erred in failing to suppress testimony regarding an out-of-court identification that was unduly prejudicial (claim two); the trial court erred in denying a motion for mistrial based on witness testimony that violated his Fifth Amendment rights (claim three); there was insufficient evidence to convict him of vehicular eluding and accessory to aggravated robbery (claim four); and the trial court erred in failing to give a requested jury instruction regarding eyewitness identifications (claim five). The Court previously entered an Order to Dismiss in Part (ECF No. 24) dismissing claims one and five because those claims are unexhausted and procedurally barred. Therefore, only claims two, three, and four in the Second Amended Application remain to be considered on the merits.


The Court must construe the Second Amended Application liberally because Mr. Kennedy is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Mr. Kennedy bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

The Court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir.2003). The threshold question the Court must answer under § 2254(d)(1) is whether Mr. Kennedy seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Id. at 412. Furthermore,

clearly established law consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice. Although the legal rule at issue need not have had its genesis in the closely-related or similar factual context, the Supreme Court must have expressly extended the legal rule to that context.

House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established federal law, that is the end of the Court’s inquiry under § 2254(d)(1). See id. at 1018.

If a clearly established rule of federal law is implicated, the Court must determine whether the state court’s decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.

A state-court decision is contrary to clearly established federal law if: (a) “the state court applies a rule that contradicts the governing law set forth in Supreme Court cases”; or (b) “the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from [that] precedent.” Maynard [v. Boone], 468 F.3d [665, ] 669 [(10th Cir. 2006)] (internal quotation marks and brackets omitted) (quoting Williams, 529 U.S. at 405). “The word ‘contrary’ is commonly understood to mean ‘diametrically different, ’ ‘opposite in character or nature, ’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application of clearly established federal law when it identifies the correct governing legal rule from Supreme Court cases, but unreasonably applies it to the facts. Id. at 407-08.

House, 527 F.3d at 1018.

The Court’s inquiry pursuant to the “unreasonable application” clause is an objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable.” Id. at 411. “[A]decision is ‘objectively unreasonable’ when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law.” Maynard, 468 F.3d at 671. Furthermore,

[E]valuating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations. [I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply ...

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