William Kenney v . USA CV-97-603-B 09/07/00

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William Kenney

v. Civil N o . 97-603-B Opinion N o .

United States of America

MEMORANDUM AND ORDER

William Kenney seeks a new trial pursuant to

. For the reasons that I discuss in this order, I dismiss

one of Kenney’s ineffective assistance of counsel claims, and I

direct the clerk to schedule an evidentiary hearing on Kenney’s

remaining claims.

I. BACKGROUND

Kenney and two co-conspirators, Charles Flynn and Gary Neal,

were convicted of multiple felony counts following a 32-day

trial. The charges against them and the evidence that the

government produced to support the charges are summarized in the

district court’s order denying Kenney’s motion for a new trial, see United States v . Flynn, Cr. n o . 92-018-01, Doc. n o . 294

(February 4 , 1993), and the First Circuit’s opinions rejecting

his appeal, see United States v . Neal,

(1st Cir.

1994), reh’g denied by United States v . Neal,

(1st

Cir. 1996).

Kenney filed his initial § 2255 motion on December 1 , 1997.

See Mot. to Vacate (Doc. n o . 1 ) . He filed an amended motion on

April 1 8 , 1999, asserting 11 claims that the government failed to

disclose exculpatory evidence in violation of his rights under

Brady v . Maryland,

(1963), and two claims that he was

denied his Sixth Amendment right to effective assistance of

counsel. See Mot. to Vacate (Doc. n o . 2 2 ) . I disposed of six of

Kenney’s Brady claims in an April 2 0 , 1999 order because I

determined that he could not satisfy the “cause and prejudice”

test that applies to § 2255 claims that a defendant has not

raised on direct appeal. See Order (Doc. n o . 2 3 ) . I was unable,

however, to resolve Kenney’s remaining claims because I

determined that the government had not satisfactorily addressed

the claims in its initial objection. See id.

-2- Because the government’s supplemental response to Kenney’s

remaining claims also proved unsatisfactory, I directed the

government to file a third memorandum “divided into separate

sections corresponding to Kenney’s remaining claims.” Order

(Doc. n o . 37) at 2 . I further directed the government to

“describe [each] claim under consideration, identify the legal

theory or theories the government relies on to challenge the

claim, cite the precedent the government relies on to support its

theory or theories, and describe the facts that support its

position with supporting citations to the record.” Id. Kenney’s

amended petition and the government’s response are now before me

for review.

II. ANALYSIS

Kenney asserts that the government violated his Brady rights

by withholding exculpatory evidence demonstrating:

(1) that one of the government’s principle witnesses, co-

conspirator Richard Ferguson, falsely testified that he had

refrained from all criminal activity (other than selling

-3- narcotics) from the time he was released from prison in 1986

until he met with co-defendant Flynn in March 1991, Mot. to

Vacate (Doc. n o . 22) at ¶ 12 A ( 7 ) ;

(2) that Ferguson had told the government that another co-

conspirator, Thomas McQueeny, rather than Flynn, had set up the

robberies, id. at ¶ 12 B ( 1 ) ;

(3) that someone other than Kenney and his alleged co-

conspirators was once considered by the police to be a “key

suspect” in one of the robberies for which Kenney was convicted,

id. at ¶ 12 B ( 2 ) ;

(4) that someone other than Kenney and his alleged co-

conspirators had cashed personal checks that had been stolen in

one of the robberies for which Kenney was convicted, id. at ¶ 12

B(3);

(5) that the police had obtained the search warrants using

affidavits containing factual assertions that are inconsistent

with the government’s trial evidence, id. at ¶ 12 B ( 4 ) ; and

(6) that the police had obtained evidence when executing

the above-mentioned search warrants that implicated Richard

-4- Ferguson in one of the robberies rather than Kenney, id.

Kenney also asserts that he was denied his Sixth Amendment

right to the effective assistance of counsel because his

attorney:

(1) failed to properly cross-examine two bank tellers who

were present when one of the robberies occurred, id. at ¶ 12

C ( 2 ) ; and

(2) failed to object at sentencing to the court’s use of a

version of the sentencing guidelines that was not in effect when

Kenney committed the crimes at issue, id. at ¶ 12 C ( 1 ) .

I address each group of claims in turn.

A. Brady Claims

I cannot resolve Kenney’s Brady claims because the

government has again failed to provide me with an acceptable

brief addressing Kenney’s claims. Despite my explicit

instruction to file an additional brief directly addressing

Kenney’s unresolved Brady claims, the government has chosen to

respond only to Kenney’s ineffective assistance of counsel

claims. Accordingly, I direct the clerk to appoint counsel for

-5- Kenney and to schedule an evidentiary hearing with respect to

Kenney’s unresolved Brady claims. I will attempt to determine at

the evidentiary hearing: (1) whether Kenney can demonstrate

“cause and prejudice” for his failure to raise his claims on

direct appeal; (2) whether the allegedly exculpatory evidence

exists; (3) whether the evidence is exculpatory; and (4) whether

it was ever in the government’s possession.

B. Ineffective Assistance of Counsel Claims

1. Inadequate Cross-Examination

Kenney claims that his attorney was ineffective because he

failed to question two bank employees about their testimony that

one of the robbers had referred to the other as “Tommy.” Kenney

suggests that his attorney should have vigorously pursued this

testimony on cross-examination because it casts doubt on other

evidence produced during the trial suggesting that Kenney was the

robber referred to as “Tommy.”

I cannot overturn a conviction because of ineffective

assistance of counsel unless “(1) ‘counsel’s performance was

deficient,’ that is ‘counsel made errors so serious that counsel

-6- was not functioning as the ‘counsel’ guaranteed to the defendant

by the Sixth Amendment;’ and (2) ‘the deficient performance

prejudiced the defense,’ that is ‘counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.’” United States v . Derman,

(1st Cir. 2000) (quoting Strickland v . Washington,

(1984)).

Applying the ineffective assistance of counsel standard, I

conclude that Kenney’s counsel’s failure to cross-examine the

bank employees about the reference to “Tommy” does not represent

the kind of serious error that is necessary to support an

ineffective assistance of counsel claim. Defense counsel

aggressively and effectively cross-examined both bank employees

concerning their inability to place Kenney at the scene of the

robbery. Since the government produced substantial evidence

during the trial that the defendant and his co-conspirators went

to great lengths to keep their identities secret and even used

aliases on multiple occasions, counsel’s failure to examine the

bank employees about the “Tommy” reference is not the kind of

-7- serious error that is required to support an ineffective

assistance of counsel claim.

2. Sentencing Errors

Kenney also asserts that his attorney rendered ineffective

assistance at the sentencing hearing because he failed “to object

to the improper application of the November 1 , 1992 version of

the United States Sentencing Guidelines, which qualified the

defendant as a Career Offender and enhanced his sentence.” Mot.

to Vacate (Doc. n o . 22) at ¶ 12 C ( 1 ) . Specifically, Kenney

asserts that the court erroneously based its career offender

classification on two prior convictions that had been

consolidated for purposes of sentencing, but which were separated

by an intervening arrest. See

Kenney contends that this was

improper because the Sentencing Commission did not amend the

commentary to the sentencing guidelines to provide that such

convictions should be treated as separate convictions until

November 1 , 1991, some three weeks after the last robbery

occurred. See

-8- The government urges me to reject Kenney’s argument because

it claims that the defendant “was not sentenced as a career

criminal, pursuant to the instructions of the sentencing

guidelines manual, as he claims. He was sentenced as an armed

career criminal as a result of his conviction for violation of

(q) and § 924(e)(1), which mandated a fifteen year

sentence of imprisonment.” Gov’t’s Opp’n to Pet’r’s Mot. to

Vacate (Doc. n o . 38) at 1 6 . I reject the government’s argument

because it is inconsistent with Kenney’s presentence report, see

Presentence Investigation Report at 1 5 , para. 76 (March 1 1 ,

1993), the sentencing hearing transcript, see Transcript at 143

(March 1 5 , 1993), and the memorandum Judge Devine prepared and

attached to the judgment, see United States v . Kenney, C r . n o .

92-018-03, J. Attach. Order at 4-5, Doc. no. 332, (March 1 9 ,

1993), all of which clearly state that Kenney was being sentenced

as a career offender. Since the government has failed to offer a

credible argument to undercut Kenney’s claim, I will determine

whether the claim has merit after holding a hearing on the claim.

-9- III. CONCLUSION

For the reasons set forth in this order, I dismiss Kenney’s

claim that his attorney was ineffective because he failed to

properly cross-examine the bank employees. I direct the clerk to

schedule a hearing on his remaining claims and to appoint counsel

to represent Kenney at the hearing.

SO ORDERED.

Paul Barbadoro Chief Judge

September 7 , 2000

cc: William Kenney, pro se Peter Papps, Esq.

-10-