               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0408n.06

                                        Case No. 13-1077
                                                                                      FILED
                                                                                Jun 09, 2014
                          UNITED STATES COURT OF APPEALS
                                                                            DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


BOBBY EMMITT KENNEDY,                               )
                                                    )
       Petitioner-Appellant,                        )
                                                    )      ON APPEAL FROM THE UNITED
v.                                                  )      STATES DISTRICT COURT FOR
                                                    )      THE EASTERN DISTRICT OF
DARRELL STEWART,                                    )      MICHIGAN
                                                    )
       Respondent-Appellee.                         )


       BEFORE: KEITH, COOK, and KETHLEDGE, Circuit Judges.

       COOK, Circuit Judge. Bobby Kennedy, a Michigan prisoner serving a life sentence for

first-degree murder, appeals the district court’s denial of his habeas petition claiming that the

state trial court’s disqualification of his chosen attorney violated his constitutional right to

counsel. Because the Michigan Court of Appeals’s rejection of this claim rested on reasonable

factual and legal determinations, we affirm.


                                               I.


       In 1997, authorities in Grand Rapids found Timmy Thomas fatally shot. Police suspected

that Anthony McLiechey drove Kennedy to the scene of the crime and saw him shoot the victim.

The state thus issued a subpoena ordering McLiechey to appear at an investigative hearing.
Case No. 13-1077, Kennedy v. Stewart


           Deday LaRene—a defense attorney who represented Kennedy in past criminal cases—

asked a colleague to represent McLiechey during the hearing. The colleague declined but

referred the case to his fiancé, Elise Herrick. Upon Herrick’s advice, McLiechey refused to

testify.

           During the investigative hearing, the parties and the judge learned that Kennedy’s wife

paid Herrick’s fee. Recognizing the conflict in a suspected murderer’s wife paying the fee for

the only known eyewitness’s lawyer, the judge disqualified Herrick from representing

McLiechey. Herrick became “really ticked” (apparently because the conflict required her to

“call the state bar”), and LaRene later paid Herrick $1,000 out of his own pocket “because of the

run-around.” (R. 10-1, Herrick’s Grand Jury Test. Tr. at 15, 18.)

           Prior to trial, the prosecution moved under Michigan Rule of Professional Conduct 3.7(a)

to disqualify LaRene—Kennedy’s preferred counsel—as “likely to be a necessary witness”

called by the state to testify about why he recruited and paid witness McLiechey’s lawyer. The

trial judge disqualified LaRene, finding him likely to testify at trial because he had “just a little

too much involvement” in the case. (R. 7-23, Second Hr’g on Motion Tr. at 33, 36−37.)

Kennedy stood trial, McLiechey testified, LaRene did not, and the jury returned a guilty verdict.

           Kennedy appealed to the Michigan Court of Appeals, arguing that the trial court violated

his Sixth Amendment right to counsel of his choice. People v. Kennedy, No. 271020, 2007 WL

3309995, at *1 (Mich. Ct. App. Nov. 8, 2007) (per curiam). The court affirmed, discerning

record support for the trial court’s finding that LaRene likely would testify regarding Herrick,

and noting that Supreme Court precedent grants courts wide latitude in balancing the right to

counsel against the interest served by conflict-of-interest rules. Id. at *1, 3−5. The Michigan

Supreme Court denied leave to appeal. People v. Kennedy, 759 N.W.2d 372 (Mich. 2009).


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Case No. 13-1077, Kennedy v. Stewart


       On habeas review under 28 U.S.C. § 2254, the district court concluded that the Michigan

Court of Appeals’s decision reflected a reasonable (1) reading of the factual record and

(2) application of United States Supreme Court precedent.        The district court thus denied

Kennedy’s petition, and he now appeals.

                                               II.

       We apply the familiar “difficult to meet” standard of review for habeas claims. Johnson

v. Williams, 133 S. Ct. 1088, 1091 (2013). That is, we will overturn the Michigan Court of

Appeals’s decision only if it was (1) “based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding” or (2) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

28 U.S.C. § 2254(d).

       Kennedy first argues that the state court unreasonably deduced from a single fact—that

LaRene recruited Herrick to represent an adverse witness—that the prosecution likely would call

LaRene to testify at trial. This argument overlooks key facts: LaRene recruited Herrick to

represent the only witness to the shooting; Kennedy’s wife paid Herrick’s fee; and LaRene paid

Herrick a $1,000 bonus out of his own pocket. These circumstances, combined with the fact that

only LaRene could testify to his own motivations, lend reasonable support to the state court’s

factual finding. And though Kennedy perceives various “misapprehension[s] or misstatement[s]

of the factual record” in the state court’s decision, he presents no “extreme malfunction[]”

warranting relief. See Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

       Kennedy also contends that the Michigan Court of Appeals unreasonably applied

Supreme Court precedent in using the “chimerical” possibility of a conflict to justify


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Case No. 13-1077, Kennedy v. Stewart


disqualifying LaRene.    But precedent grants trial courts “substantial latitude” to disqualify

counsel when “a potential for conflict exists which may or may not burgeon into an actual

conflict as the trial progresses.” Wheat v. United States, 486 U.S. 153, 158, 163 (1988).

       Moreover, the state court reasonably balanced the fairness in preventing an attorney from

doubling as both an advocate and witness during the same trial against Kennedy’s choice of

counsel. See Kennedy, 2007 WL 3309995, at *4 (emphasizing the importance of “prevent[ing]

any problems that would arise from a lawyer’s having to argue the credibility and effect of his or

her own testimony” and “prevent[ing] prejudice to the client if the lawyer is called as an adverse

witness”). Given Wheat’s broad rule and AEDPA deference, we decline to disturb the state

court’s decision. See Desai v. Booker, 732 F.3d 628, 631 (6th Cir. 2013) (“‘The more general

the rule, the more leeway courts have in reaching outcomes in case-by-case determinations,’—

and, it follows, the less likely a state court’s application of the rule will be unreasonable.”

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

                                                     III.

       We AFFIRM.




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