                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0282n.06

                                           No. 09-1781                                   FILED
                                                                                     May 03, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


LEO KENNEDY,                                      )
                                                  )
        Petitioner-Appellant,                     )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
MILLICENT WARREN,                                 )   EASTERN DISTRICT OF MICHIGAN
                                                  )
        Defendant-Appellee.                       )


        Before: SUTTON and KETHLEDGE, Circuit Judges, and HOOD, District Judge.*

        SUTTON, Circuit Judge. A Michigan jury convicted Leo Kennedy of first-degree murder

and felony firearm possession. The Michigan courts affirmed his conviction on direct appeal and

denied Kennedy’s requests for state post-conviction relief. A federal district court denied Kennedy’s

habeas petition, a decision we affirm because the state courts reasonably rejected the claims in the

petition.



                                                 I.


        The State charged Kennedy and co-defendant Darnell Parham with the August 1999 murder

of Anthony “Tone” Mercer. At their joint trial, the prosecution put two eyewitnesses on the stand.

The first, Ronald Powell, testified that he saw Parham and Kennedy drive up to a nightclub and

        *
           The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern
District of Kentucky, sitting by designation.
No. 09-1781
Kennedy v. Warren

approach Mercer, after which Parham and Kennedy argued with Mercer, Parham “passed Leo [a]

gun,” and Kennedy shot Mercer four times. R.13-2 at 25. The second witness, Dawon Grier,

testified that he saw Kennedy shoot Mercer and that Parham told Kennedy to shoot Mercer.


          The defense sought to undercut these eyewitness accounts in a few ways. It pointed out that

Powell did not identify Kennedy as the shooter at a preliminary examination hearing or in his initial

statement to the police. And on cross-examination, it drew out that Grier “really didn’t see who

shot” Mercer. R.13-3 at 84. On re-direct examination, however, Grier said that he saw Kennedy

shoot Mercer, adding that his contrary prior statements stemmed from concerns for the safety of his

family.


          The State called four other witnesses: Michael Dixon, Tederrian Jones, Deandre Frazier and

Sennie Yeager. Dixon denied making a statement to the police and then, changing his story, insisted

he could not recall the contents of that statement. The prosecutor impeached him with his signed

police statement, which said Kennedy admitted to shooting Mercer.


          Tederrian Jones, too, denied giving a statement to the police. The prosecutor took the same

tack in response, impeaching Jones by reading his police statement to him. In the statement, Jones

admitted that he, Parham and Kennedy sold drugs and competed for business with Mercer. The

statement added that “everybody in the hood . . . kept saying everybody saw [Kennedy] shoot”

Mercer, R.13-6 at 195, 206–07, and told the police (accurately) where to find the murder weapon—at




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a third party’s home. The prosecutor later introduced the weapon (a 9 mm pistol) into evidence, and

showed the jury matching “Forever Real” tattoos on Jones, Frazier and Kennedy.


       Frazier followed suit and testified that he did not make a statement to the police. The

prosecution likewise impeached him with his police statement, which said Kennedy admitted to

shooting Mercer.


       Yeager also denied making a statement to the police, though she persisted more than the other

witnesses, insisting she did not want to testify and requesting a lawyer before testifying further. She

eventually testified that Parham and Kennedy told her that Kennedy shot Mercer.


       The State also introduced Kennedy’s police statement into evidence. In the statement,

Kennedy admitted to riding in Parham’s car on the night of the murder but denied shooting Mercer.


       A jury convicted Kennedy of murder and felony firearm possession, and the court sentenced

him to life in prison. Kennedy filed an application for leave to appeal in state court, arguing that he

received ineffective assistance of counsel at trial. After the Michigan Court of Appeals and the

Michigan Supreme Court denied his application, Kennedy filed a habeas petition in federal court.

The district court stayed the ineffective-assistance claims and dismissed the other claims without

prejudice so Kennedy could present them to the state courts. The state trial court denied each of

these claims, including a Confrontation Clause claim, and the state appellate courts denied

Kennedy’s application for leave to appeal.



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          The federal district court reopened the case and denied Kennedy’s petition for habeas corpus.

It denied Kennedy a certificate of appealability, though we granted him one on the ineffective-

assistance and Confrontation Clause claims.


                                                    II.


          Because Kennedy filed this petition after the effective date of the Antiterrorism and Effective

Death Penalty Act, we may grant the writ with respect to claims “adjudicated on the merits in State

court proceedings” only if the state court’s 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). We agree with the parties that AEDPA deference applies to each of Kennedy’s

claims.


          Ineffective Assistance.    Kennedy maintains that his trial counsel performed below

constitutional standards by failing to object to the admission of several statements at trial. To

prevail, Kennedy must show that his attorney’s performance was objectively unreasonable and that

his attorney’s failings so infected the proceedings as to make the trial unfair and the verdict

unreliable. See Strickland v. Washington, 466 U.S. 668, 688 (1984). Because the state courts

adjudicated these claims on the merits, “the question is not whether counsel’s actions were




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reasonable. The question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 788 (2011).


        Kennedy’s claim with respect to Yeager’s testimony does not get off the ground. He forfeited

the argument by failing to raise it before the district court.


        The claim based on Grier’s testimony fares no better. Kennedy claims his lawyer failed to

object when “Grier testified that he had ‘heard in the neighborhood’ that Parham gave Kennedy a

‘mission’ to murder Mercer.” Kennedy Br. at 17. But the circumstances surrounding this testimony

are more nuanced than Kennedy lets on. On direct examination, Grier testified only that he told the

police that Parham gave Kennedy a mission to kill Mercer, which is to say he described (and

affirmed) the substance of his prior statements, as opposed to repeating what someone else said,

making it inappropriate to object to the statement on hearsay grounds. Then, on cross-examination,

Parham’s attorney got Grier to admit he did not have first-hand knowledge of this matter by asking

him whether he had formed his opinion about who shot Mercer based on what he “hear[d] in the

neighborhood.” R.13-3 at 85. Grier’s answer in the affirmative does not amount to hearsay.

Parham’s attorney did not elicit that statement to prove the truth of the matter asserted—that his

client gave Kennedy a mission to kill Mercer. He used it to show that Grier had no personal

knowledge of the matter and had formed his opinion based only on others’ statements. Even if the

evidence were hearsay, Kennedy’s attorney reasonably preferred to allow the testimony into evidence

rather than object to it, given that it undermined Kennedy’s purported motive for the murder by

showing that Grier “was [not] privy to any plan or plot to murder [Mercer] between . . . [Kennedy]

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and . . . Parham.” R.13-3 at 85. The Sixth Amendment does not require a lawyer to object to

evidence that helps his client.


        Kennedy next claims his counsel should have objected when the prosecutor read into

evidence Dixon’s police statement, which contained two embedded hearsay statements, one by

Parham and one by Kennedy. As to the statement by Parham, there was no failure to object.

Defense counsel objected when the prosecutor read the statement into evidence: “I have to object

to that. This I think is hearsay . . . [H]e’s going to make a statement about what somebody else

says.” R.13-4 at 105–06. The court overruled the point, and defense counsel persisted, arguing that

a limiting instruction would not prevent the jury from considering the evidence against his client.

See id. at 106–07 (“Q: Did Darnell say anything about Leo? [Defense Counsel]: This is my objection

. . . That’s why I think it’s critical.”).


        Even so, Kennedy argues, counsel should have objected to the reading of Dixon’s police

statement earlier, namely when the prosecutor read Dixon’s statement that Kennedy admitted to

Mercer’s murder. Because “Dixon . . . offered no affirmative testimony” at this point, Kennedy

maintains, his attorney should have objected because Michigan law forbids the government from

offering inculpatory evidence “under the guise of impeachment.” See People v. Stanaway, 521

N.W.2d 557, 581 (Mich. 1994). It is unclear whether this “very narrow” exception appliesor whether

the “general rule”does, namely that the government may impeach its own witnesses and that

evidence of a prior inconsistent statement may be admitted as impeachment even when the statement

tends to inculpate the defendant. People v. Kilbourn, 563 N.W.2d 669, 671–72 (Mich. 1997). The

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prosecutor sought to introduce the context of Dixon’s police statement directly, and Dixon eventually

offered some affirmative testimony in the case, though the evidence related most directly to Parham.

Because counsel eventually objected, the evidence did not come in as substantive evidence of

Kennedy’s guilt, only as evidence to judge Dixon’s credibility. Most importantly, any misstep did

not prejudice Kennedy (or the state courts at least could reasonably think so), considering the other

evidence against him, including his statement that he was at the shooting, the testimony of two

eyewitnesses who saw Kennedy shoot Mercer and his confessions to other acquaintances.


        That leaves one final ineffective-assistance claim—that counsel should have objected when

the prosecutor read Jones’ statement to the police that “everybody in the hood . . . kept saying

everybody saw [Kennedy] shoot [Mercer].” R.13-5 at 195. Even if counsel should have objected

to this statement, any mistake did not prejudice Kennedy. The trial court issued a limiting instruction

immediately after the prosecutor read the statement, saying “nothing in [the] statement can be used

to prove any of the facts that are stated therein. It can only be used for a limited purpose and that is

judging the credibility of this witness.” Id Kennedy offers nothing to rebut the presumption that the

jury followed the instruction and did not consider the evidence in reaching its guilty verdict. See

United States v. Neuhausser, 241 F.3d 460, 469 (6th Cir. 2001). Nor does Jones’ statement—that

unknown persons of unknown credibility said Kennedy shot Mercer—render the jury’s verdict

unreliable in light of Powell’s and Grier’s eyewitness testimony that they saw Kennedy shoot

Mercer.




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       Confrontation Clause. Kennedy separately maintains he was denied the right “to be

confronted with the witnesses against him,” U.S. Const. amend. VI, when the prosecutor, in the

course of reading Dixon’s police statement out loud, read a statement by Parham. In the course of

impeaching Dixon with his police statement, the prosecutor asked him whether his statement

contained the following exchange with police officers:
       Question: . . . Were you at the club the night of the shooting?
       Answer: No, I was at home . . .
       Question: But [Parham] wanted you to lie and say you were, so you could say he
       wasn’t there?
       Answer: Yes . . .
       Question: Did [Parham] say anything about [Kennedy]?
       Answer: He said he had told on [Kennedy] how he came back to his – [Parham]’s
       house after it happened and how [Kennedy] had said he, [Kennedy], had shot Tone.

R.13-4 at 107–08. Parham did not testify, and accordingly Kennedy did not have the opportunity

to cross-examine him.

       In debating the merits of this claim, the parties take sides on whether Ohio v. Roberts, 448

U.S. 56 (1980), or Crawford v. Washington, 541 U.S. 36 (2004), governs it. We need not resolve

the point because the state court held that any error was harmless, App. at 13, and that analysis

remains the same whether Roberts or Crawford governs the underlying claim.


       Viewed through the deferential lens of AEDPA, the state court’s harmlessness ruling must

stand. Harmless-error review turns on an evaluation of the totality of the evidence before the jury

and assessments about the relative weight of all of the evidence. These kinds of open-ended

standards give States wide berth on habeas review. Richter, 131 S. Ct. at 786.

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        Several considerations support the reasonableness of the state courts’ harmlessness

conclusion. The trial court, for one, instructed the jury not to consider Dixon’s statement as “proof

of any of the facts . . . contained in the statement” but only “to judge the credibility of” Dixon. R.13-

4 at 106. No doubt, limiting instructions do not eliminate all risks in this setting, see Bruton v.

United States, 391 U.S. 123, 126 (1968), but they remove many of them. The State’s case against

Kennedy, for another, did not hinge on Parham’s statement incriminating Kennedy. Parham’s

inculpatory reference to Kennedy lacked detail and was muddled to boot. Kennedy’s own

admissions placed him at the scene of the crime, and Powell’s and Grier’s testimony linked Kennedy

to a drug-dealing operation that competed with Mercer’s. Yeager testified that Kennedy admitted

he shot Mercer, and two other eyewitnesses identified Kennedy as the shooter.


        AEDPA is a steep hill to climb, see Richter, 131 S. Ct. at 788, and the state court had reason

to credit the eyewitnesses’ trial testimony. The eyewitnesses explained that any inconsistences in

their testimony arose from concerns about their family’s safety: Grier and his family had to be

relocated before he would testify, and Dixon was attacked the week he gave his statement to the

police. And the objectionable evidence—a statement by Parham passing the blame to Kennedy made

as Parham asked Dixon to lie on his behalf at trial—was hardly the centerpiece of the case. On this

record, a state court could reasonably reject any potential error in the admission of this evidence as

harmless. See id.




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                                       III.


      For these reasons, we affirm.




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