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1

Also pending in this case is a motion by instant Defendant Kennedy for appointment of

counsel regarding the retroactive amendments to the Guidelines. Doc. 406. That motion was

properly action required to the district judge and is not before the undersigned for consideration.

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 1:02-cr-00043-MP-AK

DEMETRIUS GERMAINE KENNEDY,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 368, Amended Motion to Vacate, Set Aside, or

Correct Sentence, Doc. 371, supporting memorandum, by Demetrius Germaine Kennedy. The

Government has filed its response, Doc. 377, and Defendant has filed a reply. Doc. 382. This

cause is therefore in a posture for decision.1 Having carefully considered the matter, the Court

recommends that the motion be denied.

BACKGROUND

Defendant Kennedy was indicted with two co-defendants for conspiracy to distribute and

to possess with intent to distribute more than 50 grams of crack cocaine and with distribution of

more than 50 grams of crack cocaine. Doc. 41. After a jury trial, Defendant was convicted on

both counts, Doc. 209, and later sentenced to 360 months imprisonment on Count One and 240

months imprisonment on Count Two, to run concurrently. Doc. 268.

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Defendant appealed, arguing that the Court erred in setting his base offense level as

“there was not evidence presented at trial that he distributed 20 kilograms of cocaine, in giving

him a two-level enhancement for obstruction of justice not related to the offenses of conviction,

and by denying him a two-level reduction for acceptance of responsibility though he admitted to

being a part of the conspiracy. Doc. 336. The Eleventh Circuit affirmed, finding no error. Id.

The instant motion to vacate followed. On this occasion, Defendant raises eighteen

grounds for relief, each of which will be considered in turn.

DISCUSSION

1. Violation of Jones.

The Government concedes that technically the Court violated United States v. Jones, 899

F.2d 1097 (11th Cir. 1990), when it sentenced Defendant. It claims, however, that Defendant waived

the error or, alternatively, that he suffered no harm from the error.

Pursuant to Jones, the district court must allow the parties a final opportunity after sentence

is imposed to articulate fully their objections (1) to the sentence, (2) to the Court’s ultimate findings

of fact and conclusions of law, and (3) to the manner in which the Court imposed sentence. Jones,

899 F.2d at 1102. The purpose of this requirement is to ensure that all objections to the sentence

have been raised in the trial court and that the ground for each objection has been clearly stated. Id.

Asking counsel merely if there is “anything else” is insufficient to meet the requirements of Jones.

United States v. Holloway, 971 F.2d 675, 681 (11th Cir. 1992). When the court fails to comply with

the requirements of Jones, the court of appeals generally “will vacate the sentence [on direct appeal]

and remand for further sentencing in order to give the parties an opportunity to raise and explain

their objections.” Jones, 899 F.2d at 1103.

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This case is not, however, in the posture of a direct appeal, and because Jones error must be

raised on direct appeal, the failure to “advance an available challenge to a criminal conviction or

sentence on direct appeal” bars Defendant from presenting the claim in this post-conviction

proceeding. Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). Defendant can avoid this

procedural bar “only by establishing one of the two exceptions to the procedural default rule.” Lynn,

365 F.3d at 1234. Under the first exception, he must show cause for not raising the error on direct

appeal and actual prejudice from the alleged error. Id. To establish cause requires a showing that

“some objective factor external to the defense prevented [Defendant] or his counsel from raising his

claims on direct appeal and that this factor cannot be fairly attributable to [Defendant]’s own

conduct.” Id. at 1235. Ineffective assistance of counsel can constitute cause for a procedural

default. Murray v. Carrier, 477 U.S. 478, 488 (1986). Even if he fails to establish cause and

prejudice, under the second exception, the procedural default will be excused if a constitutional

violation has probably resulted in the conviction of someone who is actually innocent. Lynn, 365

F.3d at 1234. “[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley

v. United States, 523 U.S. 614, 624 (1998).

Jones error is not constitutional in nature, and thus, actual innocence is not a consideration.

Therefore, the only question is whether Defendant can establish cause and prejudice for failing to

raise the issue at sentencing and on direct appeal. According to Defendant, both trial and appellate

counsel were ineffective in failing to raise the Jones error, as Jones was decided many years before

sentencing in this case, the error was obvious, and reversal for resentencing would have been

mandated. Though the Court agrees that Jones had long been the law in this circuit at the time of

Defendant’s sentencing, the Court does not agree that the Eleventh Circuit would necessarily have

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vacated the sentence and remanded for resentencing if the issue had been preserved and presented

on direct appeal. At the sentencing hearing in this case, the Court, before sentencing, asked counsel

if he wanted to add anything regarding the Presentence Report, to which counsel responded that he

had nothing “to add to what has already been said as part of the record.” Doc. 304. After

sentencing, the Court asked, “[A]nything else?” to which counsel responded, “If he wants an appeal,

I’ll make sure that it is timely filed.” Id. While the Court’s summary question after sentencing

clearly was insufficient and resulted in a technical violation of Jones, and although the Jones court

had said that resentencing must occur when the Court fails to allow the parties fully to articulate

their objections post-sentencing, if the record is sufficient to review the substantive grounds raised

on appeal related to the sentencing, the Eleventh Circuit has noted the technical violation in passing

only. United States v. Cruz, 946 F.2d 122, 124 n.1 (11th Cir. 1991).

Thus, even if counsel had raised the issue, there is not a reasonable probability that the

outcome of the appeal would have been different. Like the Cruz record and quite unlike the

Jones record, the record in this case shows that the issues ultimately raised in Defendant’s appeal

regarding the Court’s sentence calculation were in fact fully explored at the sentencing hearing. 

See Jones, 899 F.2d at 1102 (“this appeal could have been avoided if the court, after

pronouncing sentence, had asked counsel whether there were any objections...other than those

previously stated for the record” as the defendant “would have waived the points he presents in

this appeal” if he had not voiced them at sentencing). By the conclusion of sentencing in this

case, counsel had already told the Court that he was satisfied that he had preserved his record for

appeal, which, in fact, he had, and thus, there is not a reasonable probability that the court of

appeals would have vacated and remanded for resentencing. Even if had, there is not a

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reasonable probability that the outcome of the resentencing would have been different since

counsel had already covered everything he wanted to cover regarding objections to the PSR, and

Defendant has not pointed to anything which would have altered the result of resentencing if it

had occurred.

Therefore, having failed to show cause for not raising the Jones issue on appeal, it is

barred from further consideration in this proceeding.

2. Failure of counsel to object to drug quantities.

In this claim, Defendant charges that counsel was ineffective for failing to object to drug

quantities which were erroneously attributed to him. Counsel did in fact challenge the drug

quantities at sentencing and on appeal. The Eleventh Circuit rejected the claim that there “was

insufficient evidence to conclude he was responsible for 20 kilograms of cocaine....” Doc. 336. 

Because the issue was fully explored on appeal, it will not be reconsidered here. See United

States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000), cert. denied, 531 U.S. 1131 (2001). 

3. Failure of Court to resolve all objections to PSR.

According to Defendant, the Court failed to resolve his objection regarding acceptance of

responsibility. Although the Court did not make a specific finding regarding acceptance, the

issue was preserved for appellate review and was considered and rejected in that venue. See

Doc. 336. Apparently, counsel and the court of appeals considered the issue to have been

resolved adversely to Defendant, and he was not prejudiced by the Court’s oversight.

4. Failure of counsel to call defense witnesses.

In this claim, Defendant argues that he gave counsel a list of witnesses who were with

him at the relevant times and would have refuted the testimony of the Government’s witnesses. 

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He does not now advise the Court of the witnesses’ identities or the substance of their proposed

testimony. The Court is therefore left to speculate that their testimony would have changed the

outcome of the trial. This is plainly insufficient to meet Defendant’s burden of proving his

attorney was ineffective in failing to call witnesses at trial, as a “silent record is not sufficient to

disprove the strong and continuing presumption...that [counsel] did what he should have done

and that he exercised reasonable professional judgment.” Chandler v. United States, 218 F.3d

1305, 1314 n.15 (11th Cir. 2000) (en banc), cert. denied, 531 U.S. 1204 (2001). 

5. Violation of right to jury selected from cross-section of community and failure of

counsel to investigate and object to this issue.

According to Defendant, the “[u]nderrepresentation of African Americans, Hispanics,

and other minority races residing in the Gainesville District on master jury list was unfair and

violated [his] Sixth Amendment [rights].” The substantive Sixth Amendment issue related to the

composition of the venire was not raised in this Court before trial or on appeal, and thus, it is

procedurally barred from consideration unless Defendant can establish cause and prejudice or

actual innocence. See supra at § 1. As noted previously, ineffective assistance of counsel can

establish cause for the default.

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“The Sixth Amendment guarantees a criminal defendant the right to be indicted and tried

by juries drawn from a fair cross-section of the community.” Duren v. Missouri, 439 U.S. 357,

359 (1979). Though not explicit in the text of the Sixth Amendment, the fair cross-section

requirement “is derived from the traditional understanding of how an ‘impartial jury’ is

assembled. That traditional understanding includes a representative venire, so that the jury will

be ... ‘drawn from a fair cross section of the community.’” Holland v. Illinois,493 U.S. 474, 480

(1990) (citation omitted) (emphasis in original). To establish a prima facie case that a jury

selection process does not produce a fair cross-section of the community, a defendant must show

(1) that the group alleged to be excluded is a distinctive group in the community, (2) that

representation of the group in venires is not fair and reasonable in relation to the number of such

persons in the community, and (3) that the underrepresentation is due to systemic exclusion of

the group in the jury-selection process. Duren, 439 U.S. at 364.

Defendant’s bald assertion that certain distinctive groups in the Gainesville Division are

underrepresented does nothing to prove that counsel was ineffective in failing to challenge either

the grand jury or petit venire, as he has offered no proof, as opposed to speculation, regarding

either the second or third factor. This is plainly insufficient, and the Court will not presume a

deficiency in counsel’s performance from a silent record. Defendant has therefore failed to show

cause for his failure to raise the issue on appeal so as to overcome the procedural default or to

show that counsel acted ineffectively in failing to challenge the panels on Sixth Amendment

grounds.

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6. Violation of Brady and failure of counsel to object to and investigate this issue.

In this claim, Defendant maintains that the Government violated Brady when it failed to

disclose the latent fingerprints “from the bag that contained the alleged drugs that movant

supposedly sold to the paid informant Williams on August 16, 2002, based on whose testimony

movant received the draconian sentence of 240 months.” According to him, if the Government

had disclosed this information, he would have been able to prove his actual innocence on Count

Two. He also claims that he was entitled to an independent analysis of the drugs underlying

Count Two.

Any substantive claim of a Brady violation is procedurally barred unless Defendant can

establish cause and prejudice for the default or actual innocence, as this type of issue is plainly

one intended for resolution on direct appeal. The related ineffective assistance of counsel claim

is, of course, not procedurally barred, and to resolve both the cause issue and the ineffective

assistance of counsel issue, the Court must necessarily examine the Brady claim.

To establish a Brady violation, Defendant must first show that the Government possessed

evidence favorable to Defendant. Brady v. Maryland, 373 U.S. 83 (1963). Even if the Court

assumes there were fingerprints on the bag containing the drugs sold to Victoria Williams which

did not belong to Defendant, he cannot establish that the Government “possessed” such

information in the first place, as there is no evidence that the Government ever obtained any

fingerprints at all from the bag.

Furthermore, there is not a reasonable probability that even if the Government had

possessed such allegedly exculpatory evidence (which, of course, requires the Court further to

assume that the Government knew about this evidence), the outcome of the proceedings would

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have been different, the fourth Brady element. An undercover officer drove Williams to a

residence to make a controlled buy of crack cocaine. The officer personally observed Defendant

at that residence, and Williams testified that it was Defendant, known to her as “Hulk,” who

personally sold her the crack. Doc. 302 at 63 & 66; 87-93. The drugs were analyzed by an

expert and found to consist of 4.7 grams of cocaine base. Id. at 107. 

While Defendant maintains he was entitled to an independent analysis of this evidence,

he does not offer anything to suggest that the drugs sold to Williams were anything other than

what the Government’s expert found. Counsel was not required to get an independent analysis

of the evidence when there is nothing to place the findings of the Government’s expert in

question or otherwise to show that the outcome of an independent analysis would have benefitted

Defendant. Again, speculation is insufficient to raise error on counsel’s part, and this claim

should be denied.

7. Failure of counsel to object to judgment and sentence without proof that drugs

were “crack cocaine.”

According to Defendant, the Government failed to prove that the drugs at issue were

“‘smokable,’” or that they were crack cocaine. There was sufficient proof at trial that the drugs

involved in the conspiracy and the substantive count were crack cocaine, and thus, counsel did

not act deficiently in failing to lodge frivolous objections. Doc. 302 at 16, 107-08, 125, 135,

151, 160, 168, & 177.

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8. Failure of counsel to explore plea agreement with Government and failure to

inform Defendant of Government’s interest in offering plea.

In this claim, Defendant alleges that counsel was ineffective for failing to explore a plea

agreement “on account that counsel erroneously believed that movant faced a life sentence

without a possibility of sentence reduction,” and for failing to inform Defendant “of the

government’s interest in offering movant a plea agreement in lieu of going to trial and give

movant an opportunity to cooperate...for a sentence reduction.” Though he maintains that he

advised counsel that he wanted to plead guilty and that counsel failed to communicate that

information to the Government, he has not offered any supporting proof. Plainly, Defendant

bears the burden of showing counsel’s ineffectiveness, and again, a bald assertion without

specifics or supporting proof is insufficient to carry the day. Furthermore, there is no evidence

that the Government was interested in offering movant a plea agreement or that it in fact offered

counsel an agreement which he failed to present to Defendant. Again, Defendant bears the

burden of proof on this issue, and he has offered no proof whatsoever to support his claim.

9. Failure of counsel to raise Apprendi violation regarding drug quantities.

This claim is without merit. The indictment charged Defendant with more than 50 grams

of crack cocaine, and the jury found Defendant guilty of those amounts, as reflected in its

verdict. The verdict form used was the one approved for use by the Eleventh Circuit, and there is

nothing in Apprendi or its progeny which prevents the Court from determining drug quantity and

other extra-verdict enhancements by a preponderance of the evidence. United States v.

Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005). The law is clear that in a conspiracy case, the

relevant conduct of the co-conspirators is properly considered in assessing a defendant’s overall

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offense level, including the “quantity of drugs that passed through” the co-conspirators. United

States v. Gallashaw, 213 Fed. Appx. 792, 795 (11th Cir. 2007). Relevant conduct is considered

under a preponderance of the evidence standard, not the beyond a reasonable doubt standard. Id.

10. Failure of counsel to object to Court’s error in informing jury of co-defendant’s

guilty plea.

This claim is also without merit. When a co-defendant who has pled guilty testifies

against his alleged co-conspirator, he is plainly subject to impeachment regarding his

cooperation with the Government, including whether he has pled guilty to the charges in the

instant indictment. In this case, the jury was specifically and properly instructed regarding its

consideration of the co-defendant’s testimony and the weight to be given that testimony in light

of his possible ulterior motives for testifying. Doc. 208. It was also properly instructed that the

fact that the co-defendant had pled guilty in this case, was not “evidence, in and of itself, of the

guilt of any other person.” Id. There were no grounds for objecting to the co-conspirator’s

testimony, and thus, counsel was not ineffective for failing to lodge a frivolous objection.

11. Failure of counsel to request instructions regarding conspiracy with government

agent or informant.

Indisputably, “it takes at least two to conspire neither of which may be government

agents or informers.” United States v. Wright, 63 F.3d 1067, 1072 (11th Cir. 1995). In this case,

neither of Defendant’s co-defendants was assisting the Government during the time of the

conspiracy as alleged in the indictment but instead began cooperating after their arrests and

testified regarding acts committed in furtherance of the conspiracy before their arrests. Thus,

counsel was not ineffective for failing to request the instruction suggested by Defendant.

12. Failure of counsel to investigate and object to testimony of paid informant. 

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In this claim, Defendant argues that counsel was ineffective in failing to investigate and

object to the testimony of Victoria Williams based on the Government’s failure to follow

Department of Justice guidelines regarding the use of a paid informant. At the time of the

controlled buy involving Williams, this was a state investigation involving state officers. Doc.

302 at 75. Thus, they were not required to follow DOJ guidelines. Furthermore, the DOJ

guidelines to which Defendant refers are not constitutional in nature, and therefore, a violation of

them is not cognizable on a motion to vacate. Counsel was therefore not ineffective for failing to

object to Williams’ testimony on this ground.

13. Failure of counsel to object to hearsay testimony of non-testifying witnesses.

In this ground, Defendant maintains that counsel acted ineffectively when he failed to

object to the Government’s reference to statements by witnesses that would have corroborated

testimony from a co-defendant that Defendant threatened and assaulted her. More specifically,

the Government advised the Court at sentencing that it had independent corroborating evidence

from witnesses that they heard Banks scream and her car hurriedly leaving the area. Doc. 371 at

31. 

“A sentencing court may consider any information, (including hearsay), regardless of its

admissibility at trial, in determining whether factors exist that would enhance a defendant's

sentence, provided that the evidence has sufficient indicia of reliability, the court makes explicit

findings of fact as to credibility, and the defendant has an opportunity to rebut the evidence.” 

United States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005). It is clear that in finding that

Defendant obstructed justice by threatening Banks, the Court did not rely on the Government’s

generalized statement that it could produce corroborating witnesses to the event, but instead, that

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it credited the testimony of Banks herself. While Defendant continues to press that Banks lied,

the Court was certainly within its discretion in finding her to be credible. Even if the Court had

found the Government’s generalized representation of other witnesses to be appropriate for

consideration, counsel would have had no grounds for objecting to the specific hearsay

testimony. Thus, counsel did not act ineffectively in failing to object to the Government’s

statements.

14. Failure of counsel to object to perjured testimony of Government witness.

In this claim, Defendant faults counsel for failing to object to Banks’ allegedly perjured

testimony at sentencing. In particular, he claims that Banks lied when she said that “she would

not receive any type of benefit from the government, or its agencies, for testifying against

movant,” when, in fact, she did receive a benefit from the Government following her testimony. 

While it would certainly be improper for the Government to induce a witness to commit perjury

on the stand, there is nothing untoward in the Government’s promising a cooperating witness a

benefit for telling the truth. Furthermore, the receipt of a benefit from the Government does not

necessarily lead to the conclusion that the witness has lied on the stand. Counsel cross-examined

Banks extensively and attempted to impeach her credibility. Doc. 304. The fact that he was

unsuccessful in that endeavor does not mean he was ineffective. 

 15. Failure of counsel to object to prior convictions.

In this claim, Defendant charges that counsel was ineffective in failing to object to the

prior convictions which were used to place him in a criminal history category of V. According

to Defendant, some of these convictions were juvenile convictions, some were uncounseled, and

some were double counted.

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As to the juvenile convictions, the Sentencing Guidelines allow the counting of a

“juvenile sentence imposed for an offense prior to the defendant’s eighteenth birthday” where

confinement from that juvenile sentence “extended into the five-year period preceding the

defendant’s commencement of the instant offense.” U.S. Sentencing Guidelines Manual §

4A1.1(b), cmt. n.2; see also § 4A1.2(d). Here, Defendant was confined on the two juvenile

convictions during 1997-1998, a period of time within the five years preceding the

commencement of the conspiracy in this case. They were also separate convictions for separate

offenses, and Defendant has supplied no evidence that the convictions were uncounseled, a

burden which he, not the Government, bears.

Defendant was not a juvenile when he committed and was incarcerated on the 1998

conviction, for which he was incarcerated in 1999. Even if he had been a juvenile, he was

properly assessed for the conviction, and again, he has no evidence that he was not represented

by counsel or that it was improperly double counted.

Finally, though Defendant was sentenced in 2001 to concurrent sentences, the crimes

underlying the sentence were not related because they were committed months apart with

intervening arrests.

Counsel was therefore not ineffective in failing to object to Defendant criminal history

category.

16. Failure of appellate counsel to seek writ of certiorari.

“A criminal defendant does not have a constitutional right to counsel to

pursue...applications for review in [the United States Supreme] Court.” Wainwright v. Torna,

455 U.S. 586, 587 (1982). Consequently, he cannot be deprived of the effective assistance of

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2

Following the affirmance on appeal and denial of rehearing, counsel wrote Defendant a

letter, advising him that although petitions for writs of certiorari “are rarely granted,” he believed

“it is one of those cases w[h]ere we should take our best shot. We have ninety days from the

date of the denial of rehearing.” Doc. 368, Ex. A. The Court can understand how Defendant

would have thought that counsel was going to pursue the petition. See id., Ex. B. 

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counsel when his attorney fails to seek certiorari. Id. at 587-88. While the Court does not agree

with the Government that “counsel never stated he would file a petition,”2 it cannot grant

Defendant relief on this claim in light of Torna.

17. Violation of Booker

Booker is not retroactively applicable to cases on collateral review, Varela v. United

States, 400 F.3d 864 (11th Cir. 2005), and thus, this claim is without merit.

18. Failure to raise grounds on appeal.

Because none of Defendant’s claims have merit, appellate counsel was not ineffective in

failing to raise these claims on appeal.

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CONCLUSION

In light of the foregoing, it is respectfully RECOMMENDED that Defendant’s amended

motion to vacate, Doc. 368, be DENIED. 

IN CHAMBERS at Gainesville, Florida, this 8th day of April, 2008.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings and recommendations.

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