United States v. Lawrence Kearney

politan in cold blood. Police Officer Silvia CONCLUSION jury guilty verdict of to Following a reasons, the order of foregoing For degree lesser included offense of second dismissing Brown’s com- court district carrying dangerous weap- murder and be affirmed. plaint will on, 13,1968 September on he was sentenced' life years sentences of 15

to concurrent years 3 to on the murder and weapons count. in United was affirmed conviction (D.C.Cir. Kearney, 420

States v. Judge 1969) by consisting panel of Chief Bazelon, Judge Fahy and Cir Circuit Senior STATES, UNITED Judge Leventhal Judge cuit Leventhal. August opinion wrote filed on against appel upheld which the conviction KEARNEY, Appellant. Lawrence on the identification lant’s attack 81-1043. No. of one Warren. alibi. The Kearneys’ defense claimed an Appeals, States Court jury it. The circuit court held disbelieved Circuit. District Columbia to allow the failure of trial court July wit- counsel to cross-examine defendant’s not he was on ness Warren as to whether or MacKINNON, MIKVA and ED- Before gave time he a statement narcotics at the WARDS, Judges. Circuit grounds reversal or was not for a possibility remand where the of mistaken ORDER neg- identity strongly of the defendant CURIAM. PER by atived other evidence. It also ruled ap- of the motion for On consideration as to the another witness Dis- of counsel referred pointment shooting which had circumstances Court, it is trict him the slain officer on shot, day day he was the afore- the Court ORDERED died, both before he admissible granted. said motion dying declara- spontaneous utterance and a tion. Judge dissenting Circuit opinion is attached. MacKINNON sentenced years after he was Over five ap- after the affirmance four MacKINNON, Judge (dissenting). Circuit Kearney filed peal, September personifies great case abuse This (1) claiming new- corpus proceeding habeas proceed- post repetitive conviction evidence, (2) “ineffectiveness ly discovered unjusti- clog and raise ings that the courts counsel”, (3) trial under denial of fair petitioners that a new trial hopes in fied protection process equal of laws due their conviction down the road from 5th, requirements 6th and 14th government with insufficient leave the will (4) Rights, the Bill of Amendments and again obtain and evidence witnesses testimo- prefabricated and manufactured for a heinous offense. conviction most drug-addict, and ny of an alcoholic chal- issues had not been relevant I. PRIOR PROCEEDINGS lenged. petition was bottomed on essentially to was claimed charged Lawrence Kear- what An indictment evidence, principally in the form degree murder committing first Stanley Warren who by one weapon No- of an affidavit carrying dangerous eyewit- Kearney’s and an 23,1967. was a friend of Metro- He shot and killed vember 1204 evidence, particularly palm shooting.1 Warren 17 at entific the

ness to was the trial affidavit five the time of and his prints, credibility and the of Warren’s the falsely he had at later stated testified by account buttressed the present and saw his friend trial that given by Officer Silvia to Detective cor Id. The habeas shoot Silvia. strength Govern- Crooke. Such pus petition ground on the that was denied highly ment’s case is material deter- proceeding under 28 U.S.C. 2255 § mining the whether interest of government that required and the moved by be served affirmance rather “petition be in the alternative the treated proce- remanded for of trial refinement as a motion to vacate under Section 2255.” Kearney, dure.” United v. States 136 15, Thereafter on November 1973 Kear- 328, 332, 170, U.S.App.D.C. 420 F.2d 174 ney alleging 2255 inef- § filed (1969). counsel, (2) fective assistance of that File, judge Court 40. District The trial “prefabricated conviction based on and motions, ruled without a that “the “perjured and tes- manufactured evidence” pleadings, conclusively files and records timony Stanley Court of Warren.” District show that is entitled to no relief.” File, 39, p. principal allegation 2. The re- 2. Id. at Since the of affidavit Warren was upon was the of lied claim judge the trial before and he ruled on the by evidence in the the form of affidavit ” basis the Stanley perjury that “motion files Warren he committed records, petition defect, at the trial. Id. any procedural § 2255 and not on 12, February was considered and denied on complete jurisdiction he had under 2255 to by judge tried crimi- who had grant Kearney’s motion based on Warren’s accompanied by nal case. denial was affidavit, denying and his order such mo judge written order the trial that relied upon Mayes tion is decree merits. v. Appeals the decision the Court of Pickett, 1080, (9th Cir. recognized possible the claim of 1976), 924, cert. U.S. S.Ct. alleged underpinning narcotics was the 2198, (1977); United States perjury for the claim which in substance Romano, 768, Cir.), (2d essentially an attack identifica- testimony: tion Beauregard, L.Ed.2d Case v. subject exploration possi- “The [limited 688, 692, (1879); Hughes 25 L.Ed. 1004 Stanley ble narcotic influence of Warren 232, 237, v. United 4 Wall. 18 L.Ed. at of his written statement] (1866); Rogers Rogers, 37 W.Va. identity, relates to the issue S.E. possibility identity strong- of mistaken ly negatived No was taken from this § it is not indeed eliminat- —if beyond ed ruling. reasonable the sci- doubt — mental, physical pres- extreme emotional and AFFIDAVIT sure which on was exerted me for number I, Stanley Warren, hereby state follow- Sunday evening by hours numerous ing my my according under free will Earlier, afternoon, Sunday officers. I had any I desire. have not been threatened taken shot of and at I heroin the time was way promised anything I nor have intensely questioned by police so I statement. make this statement be- evening, withdrawing drug I was from the cause I want to do so. feeling very I, Stanley Warren, ill. state- declare that the Warren, I, Stanley gave police Sunday, further ment I state which gave concerning November which I under oath at the the death partially concerning witnessing Officer Gilbert I Silvia is untrue. of the shoot- shooting ing was not at scene of Officer Silvia also I testified untrue. Larry Kearney Larry Kearney and I did not see shoot Officer I saw shoot Silvia be- Officer original story Silvia. which I change story I cause was afraid to the untrue part which is contained in the first finally given I which had officers my story changed my of during I statement is true. Sunday evening. police questioning because of steering later, sitting behind the wheel immedi October Over seven died, ately Kear- he shot Officer Silvia. This judge had before the trial significance is his case which because the instant fact is of conclusive filed (Calla under section proceeding belonged a third second car with re- same claim essentially the raises ghan) had been observed mo testimony, was made spect to Warren’s effecting Silvia ments before Officer (1) contending that in in 1973 and by breaking illegal entry into locked ear the process right was Amendment due his Fifth (1) car glass the the was the in door.2 Since “Stanley W. allegedly because: denied his, (2) prior he never had access the not coerced and was confession [sic] car, (3) he the was observed at inside of it was erro- and that obtained under duress effecting illegal entry, time an the critical testamony perjured neous and [sic].” prints palm of his at physical the evidence shifting (2) was a that there also contends steering wheel and at two the locations in instruc- proof the court’s in the burden practical the one location inside car other process due clause of violated the tions that Kearney ly that was conclusive evidence the court Amendment when the Fifth place question. in at determining whether a charged: “In disputing no the fact And there is evidence malice, you may wrongful act is done was that the man who inside car person ordinarily intends the a infer that Silvia. emerged to shoot Officer of acts probable consequences natural Blood B. The Stains 974-975, 967). Tr. (Tr. see also performed” was that fair The contention other gaining entry into the car when Kear- Amendment required by the Fifth trial as glass may cut ney have him- broke jury was not “The was denied that: slightly as blood stains were self some qualifications its properly examined on glove compartment. Labora- found in being jurors objected that several A, tory type blood indicated tests this tryer a ease of nature of facts on [sic] Kearney’s type. This is not which matched Also, in jurors anyway.” used but were proves that conclusive evidence but Kear- aside, of these Kearney that none states left ney might have the one who been brought out at trial and claims was issues blood stains. newly discover- “[unspecified] from support Slugs the Bullet C. The Revolver and ed evidence.” that indicated Kear- Additional denied this The district court ney have .38 caliber revolver did File, 43. fiat. District Court No. murder, day which was the caliber of of the friend gun killed Officer Silvia.. THE II. TRIAL TESTIMONY day of Kearney’s that on the testified proved beyond a The at Kearney saw with a .38 revolver murder he that Officer Silvia reasonable doubt 177-78, 830), and that p. or 11:00 m. shot at about 10:30 gun on November him he had obtained the Thanksgiving Day, November friend, he, unsuccess- 20th had identity of the killer. only issue The fully gun Kearney. buy tried evidence, the form of physical Positive gun to tying the Kear- Additional evidence palm prints, with other Kearney’s combined presented in murder that Kear- persuasive testimony, indicated slugs caliber re- three from a .38 form of ney was the murderer. was obtained from door slug volver. One A. Palm Prints Kearney lived. Another in the house where loga had steering was obtained from palm print wheel His of his presence .38 had fired the into Plymouth in which he car prior Kearney had a felo- record reflects ny use of motor unauthorized conviction for vehicle.

friend.3 slug other was fired into the motion is timely not is made 12 police officer’s stomach and caused his after sentencing to set aside a criminal con death. An additional .38 caliber grant unfired viction and a new trial a claim bullet was obtained from a dresser in- Kear discovered evidence. See Oddo v. ney’s slugs room. The were too mutilated (2d Cir.), United positively they determine fired 337 U.S. 69 S.Ct. gun, from the same but ballistics tests indi generally L.Ed. 1747 see slugs rifling Robinson, cated bore sufficient im States 80 S.Ct. pressions they to indicate were all fired Clark v. United type weapon, from the same .38 caliber F.Supp. (W.D.Pa.), aff’d Also, they mem., revolver. were all manufactured (3d 1974), Cir. is to the by company same had unique same effect:

copper coating, as did the whole bullet re Because more than two have trieved from room. elapsed since ap- exhausted the pellate process and his conviction became seriously defendant could not attack final, agree we with him that a motion positive palm print testimony and he newly based on discovered evidence under ignored completely persuasive testimo- 33, Fed.R.Crim.P., Rule untimely. ny reciting of dying Detective Crooke However, disagree we petitioner with declaration of Officer Silvia as the shoot- petition nobis, that his for coram which as ing and the leading up circumstances 2255, stated above we treat under § shooting. 901-940). On adequate timely substitute for a Rule 33 testimony must strongly be considered most case, motion. We have found no nor do support jury’s of the verdict and no dif- exists, we believe one which would entitle applies ferent rule to a 2255 proceeding. § hearing to a and determination III. THE CLAIM FOR RELIEF petition merits of his in a collateral proceeding under either 2255 or a writ § The Federal Rules of Criminal Procedure of error coram nobis. I would hold that provide: granted relief could be in the interests of The court on motion of may a defendant justice, but there is no showing such here. grant required a new trial ... if justice. interest of ... A motion for A. The Testimony Identification new ground trial based on newly of Part Kearney’s discovered attack on evidence be only made testimony is based on a years before or within claim that he used two after final narcotics; judgment but even .... at the time of the trial the defense claimed to have such knowl- Fed.R.Crim.P. 33. edge, i. e.: “Defense . counsel: . . We have brought years Kearney’s convic- information that he is a narcotics user.” tion, to the extent that it seeks a new trial 420 F.2d at 172. The trial court did not evidence, based on thus preclude examination of the issue. All it clearly two-year exceeds the pre- time limit did, ruled, as this court was to “defer cross- scribed the rule. While the trial court pending examination establishment of a rely did not year on the two limitation questions.” foundation for the 420 F.2d at when it denied motion on Febru- 174. 12, 1974, ary years five after his sentence final, became the time has come when the The claim of narcotics use perjury limitation set the Rule should not are interwoven to attack Warren’s identifi- ignored. be It say is not too much to testimony; that a cation but allegation there is no See comment at n.4. was observed to log slug fire the shot into from which that extracted, exceptionally strong slugs that all three evidence were fired identifying Kearney type gun, from the same as the when assailant. combined with knowingly per no relief.” was thus used Such decision government appealed by and could have been a merits testimony. the absence of such jured In he did so. The petitioner, but not do deci granted showing relief can be no sion thus became final and under Rule Beto, 856, ground. Elliott now, successfully challenged be sev denied, 985, cert. (5th Cir.), 411 U.S. 93 S.Ct. later, en unless shown to be “in the v. Unit Griffin L.Ed.2d 963 justice.” Subsequent analysis interests States, (D.C.Cir.), 258 ed Laugh finding. support does not such 78 S.Ct. 357 U.S. v. United (D.C.Cir.1972), lin L.Ed.2d 1366 941, 93 rt. 412 U.S. S.Ct. ce repetition of the perjury is a The claim of (1973), we held L.Ed.2d that for proceeding. in the 1973 § claim made ground presented in a any prior of relief essentially relies on the old affidavit action, and determined on merits strength claim support. The of this no new thereon, ground re-determination seven improved passage with the has not dependent upon judge’s exercise of should be denied a successive sound discretion to find ends of Sanders United claim. thereby. would be served Accord 1068, 1073, L.Ed.2d ingly, a reversal such decision on such (1963).5 governing pro Rule The Federal only grounds finding must rest ceedings provides: under U.S.C. § respect abuse that discretion. With or successive motion second requiring we stated: hear “[N]o judge finds fails dismissed if the it required ing is where the District Court allege grounds for new or different finds that the files and records of the case prior determination was on relief and conclusively raised, determine the issues or the merits. grounds previ for relief have been ously determined on the merits and the The 1974 denial of section justice of not require ends do redetermina proceeding which based on 474 F.2d at 452. tion.” stating falsely, he testified held affidavit motions, pleadings, “the files and records In this the trial in case court the first proceeding conclusively show that is entitled found that files and § habeas, Sanders, judicata applica- we “each 5. Justice Brennan in remarked: said: disposed is tion to be of in exercise of a prisoner is whose under judicial guided sound discretion and con- another, denied will often file many sometimes trolled a consideration of has a whatever aware successive motions. We are bearing propriety rational on the of dis- consequence question in whether to charge sought. Among the matters which grant hearing a a motion can on successive considered, be even control- particularly when the mo- troublesome — ling weight, prior ... a refusal are to dis- prepared of tion is without the assistance charge application.” on a like 265 U.S. [224] counsel and contains matter extraneous to at 231 S.Ct. 519 [44 at L.Ed. 989]. prisoner’s problem not the new, case. But the is quoted approvingly The Court Jus-Mr. corpus under our decisions habeas Cuddy, opinion parte supra, tice in Ex Field’s identified with- have situations where denial “ F. ‘The at 66: action of the court or [40 62] hearing though proper out even second application second will on the natural- application or successive states a claim ly degree be affected to some the charac- in relief. One such situation is that involved ter the court or officer to whom the first Loisel, There, Salinger supra. appli- first v. made, application and the fullness of the corpus cation for habeas had been ” U.S., given to Court, consideration it.’ at 231- hearing, by District one 522], petitioner’s S.Ct. at suc- Appeals. [44 denial affirmed Court of applications properly cessive be- prisoner subsequent applica- denied then filed first, sought retry previously tions, cause fully a claim all identical to the in a different against him. considered decided subse- District Court. We indicated that the quent Similarly, nothing requires might properly applications §in that a have sentencing grant hearing simply on a court succes- denied on the basis that the first deni- alleging ground for sive motion ready fully relief al- al had followed a full on the merits. prior governing principle: considered on a motion and We there announced prisoner. reaffirming inapplicability against of res decided while conclusively Finally, Warren, of the case determined the record records opinion Our repeating the issues raised. Thornton and that of Officer Crooke (D.C.Cir. States, Silvia, dying United detailed declaration Officer Leventhal, 1966), by Judge states: “the many identical so intricate factual customary correcting normal and method of offense, involving timing, details of the errors, ques as to constitutional movement, location, even subjective and even tions, by appeal, action, 2255] causation for [§ claim in War judicial regular as a for the affidavit, serve substitute ren’s that he was not process appeal of trial and in the absence of when the murder was committed and did indicating circumstances collateral attack is not see shoot Silvia as he told the provide means needed effective court, and testified in is completely rights.” preserving constitutional Id. at destroyed. gave Warren and Crooke iden 825-26. tical following details: significant

It is also there is no claim that the murder was between p. Warren was under influence of narcot 10:30 and 10:45 m. November (Tr. 35); ics at trial when he testified and identified Kearney was in a red and Kearney. Chevrolet, showing mostly In the absence of a white white when he specific incompe facts to indicate passing by serious waved to Warren as he was counsel, (Tr. requested 36); tence the relief to the Kearney was seated on driv (Tr. 37) extent er’s involve claim side and Warren talked to ground, justified. through is not United States v. him a broken vent window on (Decoster III), passenger (Tr. Decoster 624 F.2d 38); side of the car (D.C.Cir.1979) (en banc) (a Plymouth (Tr. 38), direct car was a white case); States, Scott v. F.2d 609 located 16th at and Corcoran on the east (D.C.Cir.1970); (Tr. 39); Bruce United side of the street Officer [as (D.C.Cir.1967); F.2d 113 suspected], Mitchell v. United Silvia Warren did alert Kear (D.C.Cir.); police presence (Silvia) 79 S.Ct. car at 16th and Corcoran cf. (1958). 327)7 police the car left 16th & Corcoran description flashlight Crooke testified the of the car and took his with him and he by badge.” (Tr. 327) events as recited him Silvia [Emphasis Officer on his has his added]. bed, testimony death was held to be suspicion by Warren corroborated Silvia’s validly spontaneous admitted as utterance following testimony: the dying and a declaration. you Jury Would tell Q His Honor and the you Kearney what said to Lawrence when similarity testimony, involving 7. The this the you approached him and talked to from him thought process Silvia, of Officer and Warren’s n the vent broken window. by suspected confirmation of what was Silvia a police A I told him that a car was the away extremely persuasive block if not con- comer. presence clusive of Warren’s at the scene of the you you What word Q did when said crime. “police car”? Officer Crooke testified that Officer Silvia on A Roller. his death bed told him: you by What do mean Q “roller”? “He said he continued 16th and Cor- [from A car. Police watching coran] [the man had who broken you Kearney When that a roller Q Chevrolet], the window and entered the there, any by Kearney was answer made suddenly coming easterly from an direction you after had told him that? this car on Corcoran Street was a second A No. subject. subject car, approached the you again, you repeat Did tell him Q did it opened and Silvia said the man the door and again? something said the man who A Yes. car. you police car, you When saw point Q were Silvia said at this he felt that he was identify made, spotted able to it as a car? that the second man had him. A pulled Yes. heSo decided to move in. He said he you identify How By able to Q car in behind the on an it? Chevrolet angle got top radio into Street out of aerial on the car. Corcoran of the Kearney’s and Crooke’s Warren first ob- few minutes surrounding shooting. finest details (Tr. 41); Warren identified served Having once denied on the merits 42); tags (Tr. by its Connecticut Chevrolet there was no judge who tried the case in the window vent he saw the broken grant a fur- necessity seven later to (Tr. 43); Officer Silvia passenger side deny or to do other ther officer) his car pulled (the murdered it was based on to the extent in which near the ear around raised and denied. previously matters seated, Kearney, got out and asked the Chevro- the wheel of was behind who on Malice B. The Instruction 44); (Tr. let, Officer for his identification erroneously that the trial court The claim pointed his got of his car out Silvia proof the burden of shifted which he was flashlight at his wallet proc- Amendment due of his Fifth violation con- hand. The wallet carrying in his following malice rights is based on ess (Tr. 45-46); Offi- his identification tained jury: instruction to the behind the then walked around cer Silvia wrongful act is determining whether a (Tr. 47) Kearney slid over Chevrolet that a you with malice infer done got passenger side and out to the person ordinarily intends the natural and stood near that side and car from performed. consequences of acts probable (Tr. 48); shortly thereafter sidewalk 974-975). (JA pulled the pants, Kearney went into the court’s recent contention involves This 49); (Tr. gun shot Officer Silvia Frady, decision in United States up ran Corcoran Street then Warren - (D.C.Cir.1980), granted, (Tr. [they fled East on Corcoran Street] -, 69 L.Ed.2d wearing a 50, 328); Officer Silvia However, Frady an instruction involved which was identified white trench coat presumption that was claimed to create (Tr. 51). Compare with Officer exhibit impermissibly shifted malice and therefore 324-328). Crooke’s proof defendant and burden of testi- Transcript are to Warren’s references The malice instruc plain error. constituted the same mony Cf. Tr. 953-955 to at trial. particular. is not defective tion here effect. that a “you infer The statement probable ordinarily intends the natural Kearney shot statement merely performed” consequences of acts away feet” is also “three to four Silvia to be drawn permits the inference FBI testimony of the corroborated presumption. compel a jury and does not analysis expert based on the on firearms gun discharge of the effect of the note the when we This is even clearer being then worn all-type single weather coat sen- that surrounded admonitions 49, 453). The files and appellant Silvia. the instructions tence of adequate five improper: were thus more record claims was judge shooting for the trial years after the express or im- may be either Malice belated claim to credit Warren’s to refuse expressed malice exists where plied. An persuasive perjury pur- the face of the killing in is in of another the unlawful Kearney as the assail- testimony identifying wrongful act or an unlawful of a suance palm Implied ant, legal as to the excuse. purpose i. e.: without tests, from be inferred gun slugs, the blood malice is such prints, as, killing, which Silvia the circumstances distance from the corroborated killing is caused example, where the shot, mosaic corroboration it, on which side of 16th Street was type OnQ car? What of car was this Q recall, you in Plymouth. west side? Do the east or the A A white in, car, car that relation to the Whereabouts was this Q Chevrolet, was it on 16th Plymouth, you on which side white at the time Street? about it? guess I the east side. A 16th Street. the comer of On 1210 weapon proceeding questions involving or a 2255 use of a fatal raise

the intentional serving to jury without circumstances dire of force the voir that could act, justify the or when an mitigate or have been raised earlier on should danger is imports to another appeal, finding act which direct or the court excuse wantonly man- recklessly therefore, or as to done so in his collateral seven first attack disregard of depravity States, of mind and ifest years ago. v. United 550 Polizzi human life. 1133, (9th 1976); F.2d Cir. Stirone States, 253, (3d Cir.), determining wrongful act v. United 341 F.2d 256 whether denied, 1446, malice, you may infer that a cert. 381 85 14 is done U.S. S.Ct. (1965); person ordinarily Vandergrift intends the natural 284 United L.Ed.2d v. States, consequences performed. (9th of acts probable 1963); Cir. Jeffers F.2d 93 F.Supp. v. United person deadly weapon If a uses (N.D.Ind.1978). duty Jury is not a matter another, killing may be inferred malice choice, personal compulsory but is weapon, use of such in the ab- justifiable absent for dis explanatory citizens reasons any explanation, sence [of] mitigation, qualification. proceedings are mitigating facts or Criminal not circum- game required may play You are infer a card where one a third stances. not win, weapon, from the of such but do not then malice card if first two fourth, you you appropriate, litigation highly do so if deem it etc. Piecemeal (Tr. 974-975). (Empha- proper. objectional. disrupts orderly deem admin added). sis istration criminal and interferes trial, speedy with a which is not outside context, charge When the is read process rights government. due entirety, in their instructions must be read 141, 146-47, Cupp Naughten, see v. 414 U.S. Also, open while the rule is ex to some 396, 400, (1973); S.Ct. ceptions, in Mitchell United Haldeman, 31, 114 United 559 F.2d States v. (D.C.Cir.), F.2d (D.C.Cir.1976), cert. (1958), S.Ct. we 3 L.Ed.2d held L.Ed.2d United upon open that “matters be cannot Martin, (D.C.Cir. States v. collaterally”: raised 1973), it becomes clear the trial court Normally, must review come while the language. use presumptive did not It was fresh, witnesses, judges matter while clearly jury “may stated that infer” available, lawyers are while memo- only malice from circumstances if there are are ... permit ries accurate. To a con- mitigating negate no circumstances that months, victed to wait or even full such inference. The instruction on case, frequently as is trial, malice as at the thus not does gone actors have recollections materially differ from the current standard refreshed, and then to review secure instruction.8 This instruction conforms to alleged open consideration of errors Wharton, our decisions in States v. United processes appeal, the normal to dam- (D.C.Cir.1970); and Green age, destroy, if not an essential element (Green (D.C. I), States law, in the rule of the element of accu- Cir.1968) which Fra was not overruled impartiality. rate dy- 259 F.2d at 791. Jury C. The Examination D. Miscellaneous allegations jury that examination vague conclusory only was unfair is attacks could be At that delayed evidentiary greatly government’s in this mustered on the determining wrongful ingly Jury 8. “In act is omitted.” whether Criminal Instructions malice, (Third Edition, 1978), you may done with infer that a the District of Columbia ordinarily probable intends the natural Instruction 4.21. knowingly consequences know- of acts done or claims, (1) that after were the two case

Kearney’s did not find a cut BEEF, arrest doctor BLACKIE’S HOUSE INC. OF Kearney’s might hand that have caused glove compartment, the blood CASTILLO, Leonel J. Commissioner (Ramsey) age young man that Immigration and Naturalization the time of the who was across street at Service, al., Appellants. et taller shooting testified that the “killer was (Tr. 904). Kearney” The weakness of Nos. et al. pin prick, or a small glass fragment, produced the could have Appeals, United States Court of easily dis- spots of blood and left no few District of Columbia Circuit. skin; Kearney’s cernible mark Argued March which, wearing a hat at the murderer Ramsey standing, could have distance Decided July Ramsey caused overestimate could, height year even if the old distance, accurately heights estimate

within two and one-half inches.

IV. CONCLUSION my judgment sum it is from the fore- analysis phys-

going that there is conclusive persuasive testimony, without

ical and oral testimony Warren, beyond proving Kearney committed

reasonable doubt that None testi-

the murder. of this conclusive Also, Kearney

mony presently attacked. appealed the of his 2255

never 1974 denial

petition which based on all the files and fully supported case

records in the II, Now,

thereby. A, supra. See Part sev- denial, attempts after that

en essentially

raise same claims that points

previously denied and two other conclusively legal lacking

are merit. conviction, year

This attack on a 13 old trial, also practical

as a matter seeks a new 33’s year

exceeds Rule two limitation

motions for new trial on the basis of delay evidence is suffi- great

ciently petition that the can be denied

on that score. For reasons it would these justice, in the interest would

not be court, imposition require it

be an deny proceed further. thus I would motion, ground files

motion on the that the beyond a rea- conclusively

and record show guilty

sonable doubt to no relief. I

convicted and entitled

therefore dissent.

Case Details

Case Name: United States v. Lawrence Kearney

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 20, 1981

Citation: 659 F.2d 1203

Docket Number: 19-5104

Court Abbreviation: D.C. Cir.