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Kennedy v. Fisher

February 7, 2007

LADELE KENNEDY, PETITIONER,
v.
BRIAN FISHER, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, AND ELLIOT SPITZER, ATTORNEY GENERAL OF NEW YORK STATE RESPONDENTS.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

OPINION & ORDER

Petitioner Ladele Kennedy ("Kennedy"), through counsel, brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his state court conviction of one count of murder in the second degree (N.Y. Penal Law § 125.25[1]), on the sole ground that he received ineffective assistance of counsel. For the reasons set forth below, the petition is denied.

BACKGROUND

On September 14, 1998, Kennedy, a 17-year old member of the Bloods street gang, shot and killed Kedwar Ademuyina outside Mr. Ademuyina's home at 1818 Anthony Avenue, in the Bronx. On October 13, 1998, Kennedy was charged by Indictment Number 6828/98 with the crimes of Murder in the Second Degree, Manslaughter in the First Degree, Criminal Use of a Firearm in the First Degree, and Criminal Possession of a Weapon in the Second Degree. After a jury trial in New York State Supreme Court, Bronx County (Moore, J.), Kennedy was convicted of Murder in the Second Degree and sentenced to a term of imprisonment of 25 years to life.

The following facts, relevant to the instant petition, were adduced at trial.

Kennedy, Clint Brundage ("Brundage"), and Emmett Middleton ("Middleton") were members of the Bloods, a well-known gang. On the afternoon of September 14, 1998, Brundage left his school and went to the home of his friend LaLa, who was also a member of the Bloods. Brundage told LaLa that he had a dispute with the Latin Kings, a rival gang. LaLa gave Brundage a revolver loaded with a single bullet. Brundage placed the gun in his knapsack and went home. Later that afternoon, Brundage met Kennedy at the home of Dimples, Kennedy's girlfriend. Brundage showed Kennedy the gun. Kennedy examined the gun, repositioned the gun's cylinder so that the next time the trigger was pulled the single bullet would be fired, and placed the gun back in Brundage's bag. Kennedy and Brundage then left Dimples' home and walked to a nearby schoolyard. There, Kennedy told Brundage that he wanted to "catch a vic" and that he "might as well get that cat" who lived on the same block as Middleton. (Tr. 206.)*fn1

According to Brundage and Middleton, Kennedy was referring to Mr. Ademuyina, an African man who lived at 1818 Anthony Avenue, on the same street where Middleton lived. After first telling Brundage that Kennedy was going to rob Mr. Ademuyina, Kennedy then said, "Nah. . . I might as well kill him." (Tr. 209.) Brundage also testified that, prior to September 14, 1998, he and Kennedy had had several conversations during which Kennedy had professed a desire to kill Mr. Ademuyina in order to obtain a higher rank within the Bloods.

The testimony of Brundage and Eddie Graham, an officer with the Department of Corrections and an expert in the operations of the Bloods, established that a member of the Bloods could achieve greater status within the gang by killing a non-gang member. Such a killing would result in promotion only if the victim first had shown disrespect to the Bloods. In addition, if a gang member used a gun to kill a non-gang member, the gun could contain only one bullet, or the killing would not count towards promotion.

After speaking in the schoolyard, Kennedy and Brundage rode a bicycle to Middleton's residence at 1848 Anthony Avenue. Upon arriving at that address, they sat on a parked car outside Middleton's building. At one point, they saw Mr. Ademuyina walking toward them on the sidewalk. As Mr. Ademuyina was passing, Brundage hit him with a broken windshield wiper. Brundage testified that he did so in order to provoke Mr. Ademuyina into disrespecting the Bloods and thereby provide cause for Kennedy to kill a non-gang member. After being hit by the windshield wiper, Mr. Ademuyina stopped and demanded to know who had thrown the object. Kennedy denied having done it and then asked Brundage to hand him the gun that was in Brundage's knapsack. Mr. Ademuyina then said, "Forget this" and continued walking toward his residence at 1818 Anthony Avenue, which was located approximately one block from the parked car where Kennedy and Brundage had been sitting. (Tr. 222.) Kennedy then pulled out the revolver from Brundage's knapsack, placed the revolver in his waistband, and told Brundage to follow him. Brundage grabbed a broken table leg from the street, and Brundage and Kennedy proceeded to follow Mr. Ademuyina. As Kennedy and Brundage followed Mr. Ademuyina, Middleton came riding his bicycle down the street towards them. Kennedy and Brundage called out to Middleton to follow them, and Middleton, on his bicycle, followed Kennedy and Brundage. As Mr. Ademuyina opened the front door of his building and began to enter the lobby, Kennedy aimed the gun at Mr. Ademuyina and, from a distance of approximately four feet, fired a single shot. The bullet struck Mr. Ademuyina on the right side of his back. Mr. Ademuyina turned and faced Kennedy, Middleton, and Brundage. Brundage then hit Mr. Ademuyina with the broken table leg, causing him to fall. Kennedy, Middleton and Brundage then fled. Police arrived and took Mr. Ademuyina to the hospital, where he died as a result of the single gunshot wound.

The testimony of Albert Whitfield, a resident of Mr. Ademuyina's building, partially corroborated the accounts of the shooting provided by Brundage and Middelton. Whitfield testified that he was looking out the window of his seventh-floor apartment when the shooting occurred. Whitfield saw two young black males on foot, the shorter of them carrying a stick, and one young black male on a bicycle follow Mr. Ademuyina to the building entrance.*fn2 Whitfield lost sight of the three males and Mr. Ademiyuna as they approached the building entrance but heard the gunshot.

On September 16, 1998, police arrested Middleton in connection with the shooting. Middleton told police about Kennedy's and Brundage's roles in the killing. Police then arrested Kennedy and Brundage. Following his arrest, Kennedy submitted a written statement, in which he confessed to the shooting but did not mention his affiliation with the Bloods, any prior conversations with Brundage regarding promotion within the Bloods, or the existence of any plan to kill Mr. Ademuyina. Rather, in his statement, Kennedy characterized the shooting as an accident, following a verbal confrontation with Mr. Ademuyina.

Specifically, Kennedy stated that, when he and Brundage were sitting on a parked car in front of 1848 Anthony Avenue . . . an African man passed by me and then turned around and asked me who threw that. I said, I don't know. You're talking to the wrong person. Then he walked away and came back and had his hands in his right pocket, and said, what. I guess he thought I said something. That's when Clint [Brundage] went behind the car and got a black bag. The African told him pull out what you got. Clint handed me the gun, and said there ain't anything in there. We followed the African to his building. He was putting the key into the door so he could get in when he turned around and said something which I don't understand and then the gun went off. I didn't even know I shot him. I just turned around and walked away. (Tr. 106-07.)

Later, Kennedy made a videotaped statement, in which he described the killing in substantially the same manner. Specifically, Kennedy stated in the videotaped interview that Brundage gave Kennedy the revolver; that Brundage told Kennedy that it was not loaded; and that the revolver "went off." (Tr. 80-81.) Both the written statement and the videotaped interview were admitted into evidence.

After his arrest, and while incarcerated, Kennedy wrote a letter to Brundage, who was also incarcerated. In the letter, which was introduced into evidence, Kennedy told Brundage that his status within the Bloods had, in fact, increased after the ...


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