Robert Kelly v. Alan Lazaroff
846 F.3d 819
| 6th Cir. | 2017Background
- In 2010 Ronald Kelly was convicted in Ohio of felony murder, felonious assault, and assault for his role in a fatal street brawl; he received 15 years-to-life. Ten eyewitnesses implicated Kelly in kicking the victim; Kelly testified he did not touch the victim and blamed co-defendant Barker.
- Trial counsel (Gregory Robey) pursued an "all-or-nothing" defense: Kelly testified and counsel sought acquittal rather than mitigation or requests for lesser-included-offense jury instructions. DNA evidence was presented that did not link Kelly to the victim.
- On direct appeal Kelly raised several issues; his appellate counsel were Margaret Robey (Gregory’s wife and law partner) and Gregory Robey, creating an obvious conflict regarding raising ineffective-assistance-of-trial-counsel claims. The Ohio Court of Appeals declined to adjudicate the ineffective-trial-counsel claim on direct appeal and suggested post-conviction relief instead.
- Kelly later filed (1) a state post-conviction petition that did not raise the trial-ineffective claim; (2) an Ohio App. R. 26(B) motion alleging ineffective appellate counsel (including failure to raise the lesser-included instruction issue). The court denied Rule 26(B) relief on Strickland grounds; Ohio Supreme Court denied review.
- Kelly filed a federal habeas petition raising (a) ineffective assistance of trial counsel (for pursuing all-or-nothing strategy and failing to request lesser-included instructions) and (b) ineffective assistance of appellate counsel (conflict/ failure to raise the trial-ineffective claim). The district court denied relief; the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kelly’s ineffective-assistance-of-trial-counsel claim is exhausted or procedurally defaulted | Kelly: appellate counsel’s conflict prevented full presentation in state court; appellate counsel’s ineffectiveness excuses default under Martinez/Trevino | State: Kelly did not present the same claim on direct appeal and cannot meet Ohio’s post-conviction requirements; claim is procedurally defaulted | Held: Claim is procedurally defaulted; appellate counsel’s alleged ineffectiveness cannot excuse default because the trial-ineffective claim is meritless |
| Whether appellate counsel were ineffective for failing to raise the trial-ineffective claim | Kelly: counsel’s conflict and refusal to raise non-frivolous trial-ineffective issues violated Strickland | State: Rule 26(B) decision reasonably applied Strickland; raising a meritless claim is not deficient | Held: Under Strickland and AEDPA’s doubly deferential review, appellate counsel were not shown to be constitutionally ineffective |
| Whether trial counsel’s "all-or-nothing" strategy was objectively unreasonable | Kelly: given strong eyewitness testimony, counsel should have sought mitigation/lesser-included instructions to avoid harsh mandatory exposure | State: strategy was a reasonable, high-risk tactic supported by Kelly’s testimony, DNA evidence, and chance of total acquittal | Held: Strategy was within the range of professionally competent assistance; not objectively unreasonable |
| Whether Kelly suffered Strickland prejudice from counsel’s choices | Kelly: alternative strategy likely would have reduced sentence or conviction | State: record does not show reasonable probability of a different outcome | Held: Kelly cannot show the required prejudice; trial-ineffective claim is meritless |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged test for ineffective assistance of counsel)
- Williams v. Taylor, 529 U.S. 362 (2000) (AEDPA standard for when state-court decisions are contrary to or an unreasonable application of federal law)
- Martinez v. Ryan, 566 U.S. 1 (2012) (narrow equitable rule allowing ineffectiveness of postconviction counsel to excuse certain procedural defaults)
- Trevino v. Thaler, 569 U.S. 413 (2013) (applying Martinez in Texas cases with limited initial review by state habeas procedures)
- Burt v. Titlow, 571 U.S. 12 (2013) ("doubly deferential" review when AEDPA and Strickland interact)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (limitations on federal habeas review of state-court adjudications)