United States v. Jake Kelly
663 F. App'x 222
| 3rd Cir. | 2016Background
- Jake Kelly was convicted by a jury of being a felon in possession of a firearm after a gun fell near him during a police "open inspection" of Café Breezes; the Government’s case rested principally on Officer Stewart’s testimony that the gun fell from Kelly’s lap.
- After trial, Victor Jones (a patron seated next to Kelly) told others he had the gun and threw it when police entered; Jones was not interviewed or called at trial, but later testified at a post-trial evidentiary hearing asserting he, not Kelly, had the gun.
- The District Court initially granted Kelly a new trial based on this newly discovered evidence but the Third Circuit (Kelly I) reversed because Kelly’s counsel lacked due diligence in discovering Jones before trial.
- On remand Kelly was sentenced to 180 months; he subsequently filed a § 2255 petition claiming ineffective assistance of trial counsel for failing to investigate/interview prospective witnesses (including Jones), present Kelly’s post-arrest statement, and request a “mere presence” instruction.
- The District Court denied the § 2255 motion; Kelly appealed arguing (1) the District Court applied an incorrect (more stringent) prejudice standard under Strickland, (2) the District Court’s prior new-trial findings meant the law of the case required finding Strickland prejudice, and (3) the District Court should make credibility findings and decide the performance prong on remand.
- The Third Circuit vacated and remanded, holding the District Court’s prejudice analysis was unclear (it appeared to apply a probability-of-acquittal standard rather than Strickland’s "reasonable probability" standard) and instructing the District Court to reassess prejudice under Strickland; it rejected Kelly’s law-of-the-case argument and declined to require initial credibility findings or resolution of the performance prong unless prejudice is found.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether District Court applied correct Strickland prejudice standard | Kelly: District Court used the stricter probability-of-acquittal / more-likely-than-not standard instead of Strickland’s "reasonable probability" standard | Govt: District Court actually applied Strickland despite some language suggesting otherwise | Vacated and remanded: Court cannot be sure correct Strickland standard was applied; remand for prejudice reanalysis under Strickland |
| Whether prior new-trial finding (probability of acquittal) binds District Court under law-of-the-case | Kelly: District Court’s earlier finding that Jones’s testimony was likely to produce acquittal means Strickland prejudice is satisfied | Govt: Prior ruling was flawed and did not establish law of the case that Strickland prejudice exists | Rejected: Kelly I did not establish a binding probability-of-acquittal finding; law-of-the-case argument fails |
| Whether District Court must make credibility findings and decide performance prong on remand | Kelly: Court should make credibility findings (Jones, counsel, Kelly) and determine deficient performance | Govt: Not necessary unless prejudice shown | Denied as mandatory: Court may limit analysis to prejudice first per Strickland; if prejudice found, court should then address credibility and performance |
| Whether Jones’s testimony, weighed with trial evidence, could meet "reasonable probability" of different outcome | Kelly: Inconsistencies may not preclude a reasonable probability of acquittal if introduced at trial | Govt: Inconsistencies make acquittal unlikely; no reasonable probability of different outcome | Remanded: District Court must evaluate totality of evidence and decide whether a reasonable probability exists that counsel’s failures altered outcome |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance test and the "reasonable probability" prejudice standard)
- United States v. Iannelli, 528 F.2d 1290 (3d Cir. 1976) (standard for new trial based on newly discovered evidence: evidence must probably produce an acquittal)
- Harrington v. Richter, 562 U.S. 86 (2011) (difference between Strickland and more-likely-than-not standard matters only in rare cases)
- United States v. Lilly, 536 F.3d 190 (3d Cir. 2008) (standard of review in federal habeas: plenary on law and clearly erroneous on facts)
- Gonzalez-Soberal v. United States, 244 F.3d 273 (1st Cir. 2001) (remand required where district court’s application of correct standard is unclear)
- United States v. McCullough, 457 F.3d 1150 (10th Cir. 2006) (district court must assess credibility of proffered new-trial testimony and weigh against trial evidence)
- ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008) (law-of-the-case doctrine explained)