Appeals

STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF GENESEE

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff,

Hon. Geoffrey Neithercut No. 95-052345-FC

PATRICK NEIL KINNEY, Defendant.

Genesee County Prosecutor 100 County Courthouse Flint, MI 48502 (810)
Patrick Kinney #253729 In Propria Persona Oaks Correctional Fac. 1500 Caberfae Highway Manistee, MI 49660-9200

MOTION FOR RELIEF FROM JUDGMENT

Patrick Neil Kinney, pursuant to MCR 6.500, prays this Court will grant this Motion for Relief from Judgment and states:

1. On June 19, 1995, Kinney pled guilty to a negotiated charge of Second Degree Murder, MCL 750.317; MSA 28.549, in exchange for truthful testimony against his co-defendant, David Melfi, who was subsequently convicted by a jury of First Degree Murder.

2. On March 8, 1995, the date of the offense, Patrick Kinney was 16 years old.

3. On January 7, 1997, this Court sentenced Kinney to life in prison.

4. Kinney is currently confined at Oaks Correctional Facility, 1500 Caberfae'Hwy, Manistee, MI 49660-9200.

5. Kinney has filed the following proceedings seeking
relief from sentence, all of which are completed and were denied:
    a. Application for Leave to Appeal from sentence in Mich. COA, #208731, denied 7-2-98.
    b. Motion for Relief from Judgment in this Court, denied 3-30-99.
    c. App. for Lv. in Mich. COA, #226208, denied 9-1-00.
    d. App. for Lv. in Mich. Sup.Ct., #117703A, denied 2-26-01.
    e. Federal Habeas Corpus in US Dist. Ct., Eastern Div., #01-71124, denied 4-23-02.
    f. Motion for Certificate of Appealability in the US COA, #02-2304, denied 6-3-03.
    g. Petition for Cert, in US Sup. Ct., #03-6540, denied 12-1-03.

6. Kinney was represented by the following attorneys:
    a. Plea & Sentencing:
    Thomas R. McCombs (P17324),
    436 S. Saginaw St., Suite 500, Flint, MI 48502 (810) 235-4643
    (Retained).
    b. Direct Appeal: Brian R. Sullivan (P35154), 2
    Woodward Ave. #601, Detroit, MI 48221 (313) 224-5260
    (Appointed).
    c. First 6.500 Motion: Samuel A. Ragnone (P23157),
    1019 Church St., Flint, MI 48502 (810) 767-1670 (Retained).

7. Kinney requests relief in the form of resentencing.

8. The ground for relief is that the sentencing court considered inaccurate information at sentencing, contrary to US
Const/ AM V & XIV. People v. Whalen/ 412 Mich 166; 312 NW2d 638 (1981)(sentence based on inaccurate-info is invalid); US v. Tucker/ 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972).

9. The facts supporting this claim are that at sentencing the Court partially based the life sentence on the following/ "[I]n some other states you could be facing the death penalty." (Transcript of 1-7-97).

10. This consideration is inaccurate because on March I/ 2005/ the US Supreme Court retroactively banned the death penalty for offenders who were under 18 at the time of the offense. Roper v. Simmons, 543 US __; 125 S Ct 1183; 161 L Ed 2d 1 (2005). Penry v. Lynaugh, 492 US 302, 329; 109 S Ct 2934, 106 L Ed 2d 256 (1989)(new rules of constitutional law are fully retroactive on collateral review if they "prohibit a certain category of punishment for a certain class of defendants").

11. This second motion for relief from judgment is permissible under MCR 6.502(G)(2) because it is "based on a retroactive change in law that occurred after the first motion". Id.

12. Kinney requests appointment of counsel/ as allowed by MCR 6.505 "at any time during the proceedings/" to supplement this motion and to ensure that his claims are effectively presented to this Court. See the attached motion/ affidavit/ and account statement.

RELIEF REQUESTED

WHEREFORE, Defendant Patrick Neil Kinney prays this Honorable Court will grant resentencing.

I declare that the statements above are true to the best of my information, knowledge, and belief.
Patrick Kinney #253729 In Propria Persona Oaks Correctional Fac. 1500 Caberfae Highway Manistee, MI 49660-9200

STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF GENESEE

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff,

Hon. Geoffrey Neithercut No. 95-052345-FC

PATRICK NEIL KINNEY, Defendant.

Genesee County Prosecutor 100 County Courthouse Flint, MI 48502 (810) -259-3232
Patrick Kinney #253729 In Propria Persona Oaks Correctional Fac. 1500 Caberfae Highway Manistee,...MI 49660-9200

MEMORANDUM OF LAW
FACTS
BACKGROUND
    Defendant Patrick Neil Kinney was born on 12-11-78. (Transcript of 6-19-95, p5). When he was 3 years old, his parents divorced. (11-22-96, p45). From ages 3 to 12, Patrick lived with his mother in Vassar, Michigan, where he "was obedient, as good as gold." (11-22-96, p74). When Patrick was 12, his mother remarried. (11-22-96, p46). "Patrick was the man of the house up until that point. Phil came in and took over and laid down the law." (11-22-96, p77). Patrick's stepfather was "totally negative" toward him. (11-22-96, p40). Patrick felt displaced, thrown out, no longer a part of the family. (11-22-96, p41-42). He sought belonging elsewhere, with older, rougher kids. (9-27-96, p9). To be accepted by these kids,
Patrick began smoking cigarettes, using drugs, drinking alcohol, skipping school, and shoplifting. (11-22-96, p48). His stepfather reacted violently: He pushed Patrick, kicked him in the groin, and punched him in the face, giving him a bloody eye, whereupon Patrick ran away from home. (11-22-96, p40). He was subsequently sent to live with his biological father in Flint. (11-22-96, p76-77).
    Over the next three years, Patrick moved back and forth between his parents (his mother had moved to Saginaw). (11-22-96, p62). He resented both that he had been the one punished even though his stepfather was the one who attacked him and that he'd thereby lost his friends in Vassar, whom he'd grown to think of as a replacement family. Shy and introverted, Patrick had trouble making new friends. (9-27-96, p23). In an attempt to fit in, he began to starve himself (he dropped from 175 lbs. at 5'11" to around 125 1bs. from September to March 1993 and continued losing weight until March 1995).

OFFENSE
    By early March 1995, Patrick, 16-years-old, emaciated, drug-addicted, depressed, suicidal, and lonely, was approached by David Melfi, an acquaintance from school. David asked Patrick to run away with him to Texas so that David could avoid going to juvenile detention. He said he needed Patrick because he didn't know how to drive. Grateful for the offer of friendship, Patrick agreed. (12-10-96, p5-16). Thereupon, David revealed his plan; he wanted to steal his parents' vehicle by killing his parents and his twin brother Michael in order to obtain the vehicle's keys and to prevent anyone from calling the police. (12-10-96, p6,18). Patrick, feeling pressured, committed, and suicidal, went along with David's plan without much thought. (12-10-96, p8).
On March 8, 1995, a half hour before the offense, Patrick drank a half pint of rum on an empty stomach. (6-19-95, p20). David's plan was for Patrick to slit Michael's throat while David searched upstairs for his father's gun, which he would then use on his parents. But when Patrick attacked, he was so weak from starving himself that Michael almost overpowered him. Patrick screamed for David to help. When David arrived, he pinned Michael to the bed while Patrick, in a panic, stabbed Michael until Michael stopped moving (23 times, less defensive wounds, according to the autopsy report). (6-19-95, p8). David had been unable to find the gun, so both boys now panicking, they fled. David was later apprehended shoplifting, and Patrick subseguently turned himself in to police. (1-7-97, p9).

PLEA & DISPOSITIONAL HEARING
    Patrick was automatically waived to adult court pursuant to the automatic waiver statute. MCL 764.If; MSA 28.860(6). He was represented by retained counsel Thomas R. McCombs (P17324), and on June 19, 1995, he entered a negotiated plea of guilty to second degree murder, MCL 750.317; MSA 28.549, in exchange for his truthful testimony against David Melfi. David was subsequently found guilty of first degree murder at a jury trial. This Court conducted a hearing, pursuant to MCR 6.931, in order to determine whether Patrick should be sentenced as a juvenile or as an adult. Dr. David Vore, Ph.D., a licensed psychologist who evaluated Patrick, explained Patrick's behavior by saying that although Patrick was in the upper average range of intelligence, he was low in social adjustment, which indicated that he had difficulty with impulsive/erratic behavior, with understanding cause/effect relationships, and with functioning in interpersonal relationships; Patrick was experiencing severe stress, anxiety, and depression; he had "a response style that involves attempting to reduce complexity or ambiguity in a situation...by just simply taking one small aspect of it and responding [to] just that one piece of information." (9-27-96, p1-12,15,19-20). Dr. Vore said that these characteristics could be changed through counseling, that the instant offense was not an enduring type of behavior pattern for Patrick Kinney, and that Patrick had remorse and a desire for punishment. (9-27-96, p26,30,34).
    Deborah Watson, a parole officer, and Ronald Winkler, a delinquency worker, both of whom met and evaluated Patrick for this hearing, testified that Patrick had demonstrated positive adjustment, cooperation, self-motivation, and amenability to treatment during his 18 months in jail; nevertheless they recommended adult sentencing due to the nature of the offense. (10-31-96, p42,60).
Two chaplains testified that Patrick had experienced a sincere religious conversion and that he was the most cooperation inmate they'd ever seen. (11-22-96, pll,25). Patrick himself testified that he had learned from this experience, completed his GED, and had attended every educational, vocational, and rehabilitative program available at the jail. (12-10-96, p6-8). His uncle, Kevin Lentner, testified that a few years earlier Patrick had saved his son's life by rescuing him from drowning. (11-22-96, p36).
On December 10, 1996, this Court ordered that Patrick would be sentenced as an adult.

SENTENCING
    On January 7, 1997, this Court sentenced Patrick Kinney to life in prison. (1-7-97, p23). The Court considered both the positive factors (Patrick turned himself in, cooperated with police, was a "model detainee," and had become self-reformed) and the negative factors (the offense was "nonsensical" and "violent," Patrick could have stopped it, and Dr. Vore said that "frequently remorse expressed by such individuals does not inhibit future acting out episodes"). (1-7-97, p9-22). The Court went on to say, "if you found Grace, and if I impose the worst possible punishment on you, you'll accept it", (1-7-97, p22), and that "in some other states you could be facing the death penalty." (1-7-97, p9).

APPEALS
Through appointed counsel Brian R. Sullivan (P35154), Patrick applied for leave to appeal in the Court of Appeals, arguing that the life sentence was disproportionate because Patrick was not the worst offense-offender combination. On July 2, 1998, the Court of Appeals denied leave. (COA #208731). Patrick did not seek leave in the Supreme Court. Through retained counsel, Samuel A. Ragnone (P23157), Patrick then filed a motion for relief from judgment with this Court, arguing that this Court improperly considered his religious beliefs at sentencing. On March 30, 1999, this Court denied the motion on procedural grounds, ie, that Kinney had defaulted this claim by failing to raise it on direct appeal. MCR 6.508(D). Thereafter, Kinney proceeded pro se. On September 1, 2000, and February 26, 2001, the Court of Appeals and Supreme Court denied leave to appeal. (COA #226208; Sup.Ct.#117703A, People v. Kinney, 463 Mich 976; 623 NW2d 599 (2001)). On April 23, 2002, the US District Court, Eastern Division, denied a petition for a writ of habeas corpus on the same procedural grounds as did this Court. (#01-71124). On June 3, 2003, the US Court of Appeals denied a motion for a certificate of appealability. (#02-2304). And finally, on December 1, 2003, the US Supreme Court denied certiorari. (#03-6540).
On March 1, 2005, the US Supreme Court held that the Eighth Amendment prohibits the execution of defendants who were 16 or 17 years old at the time of their offense. Roper v. Simmons, 543 US ___, 125 S Ct ___, 161 L Ed 2d 1 (2005).
Based on this retroactive rule of law, Patrick Kinney hereby seeks resentencing.

ARGUMENT

THE DEFENDANT'S DUE PROCESS RIGHT TO BE SENTENCED ON THE BASIS OF ACCURATE INFORMATION WAS VIOLATED BY THE SENTENCING JUDGE'S CONSIDERATION THAT "IN SOME OTHER STATES YOU COULD BE FACING THE DEATH PENALTY" WHERE THE DEFENDANT WAS ONLY 16 YEARS OLD AT THE TIME OF THE OFFENSE AND THE EIGHTH AMENDMENT BARS THE EXECUTION OF 16-YEAR-OLDS.

A. STANDARD OF REVIEW AND SUMMARY ARGUMENT
    The Fifth and Fourteenth Amendments prohibit a judge from basing a sentence, even in part, on inaccurate information. US v. Tucker, 404 US 443, 92 S Ct 589, 30 L Ed 2d 592 (1972); People v. Whalen, 412 Mien 166; 312 NW2d 638 (1981); Cook v. Steqall, 56 F.Supp.2d 788, 797 (ED Mich 1999). The standard is whether, absent the inaccurate information, the sentence "might have been different." Tucker, 404 US at 448. Defendant Patrick Kinney was sentenced in part on the basis of the sentencing judge's statement, "in some other states you could be facing the death penalty." (Transcript of 1-7-97, p!9). This is inaccurate because the Eighth Amendment prohibits the execution of defendants who were 16 or 17 years old at the time of the offense. Roper v. Simmons, 543 US __, 125 S Ct __, 161 L Ed 2d 1 (2005). Therefore, Kinney should be resentenced.

B. ROPER V. SIMMONS IS RETROACTIVELY APPLICABLE
    Since Roper was decided after Kinney's conviction became final at the conclusion of direct review, the threshold inquiry is whether its rule applies retroactively to this case on collateral review. Teague v. Lane/ 489 US 288, 109 S Ct 1060, 103 L Ed 2d 334 (1989). See also MCR 6.502(G)(2)(allowing a second motion for relief from judgment "based on a retroactive change in law"). Generally, new rules are not retroactively applicable on collateral review unless they meet one of two exceptions. Teague. The decision in Roper fits one of these exceptions.
The first exception is: a new rule of law will be applied retroactively if the rule "prohibit[s] a certain category of punishment for a certain class of defendants becasue of their status or offense." Penry v. Lynaugh, 492 US 302, 329, 330, 109 S Ct 2934, 106 L Ed 2d 256 (1989). For example, "if we held, as a substantive matter, that the Eighth Amendment prohibits the execution of mentally retarded persons such as Penry regardless of the procedures followed, such a rule would fall under the first exception to the general rule of nonretroactivity and would be applicable to defendants on collateral review." Id.
    That example is materially indistinguishable from the rule announced in Roper. Both prohibit a certain category of punishment (execution) for a certain class of defenants (the mentally retarded and juveniles) because of their status (mentally retarded and juveniles). Indeed, the US Supreme Court did eventually prohibit the execution of the mentally retarded. Atkins v. Virginia, 536 US 304, 122 S Ct 2242, 153 L Ed 2d 335 (2002). And the Sixth Circuit held, based on Penry's reasoning, that Atkins was fully retroactive on collateral review. Hill v. Anderson, 300 F3d 679 (6th Cir. 2002). There
is no reason to hold otherwise with Roper. Thus, Roper's prohibition on the execution of juveniles is fully retroactive on collateral review. It meets Teague's first exception to the nonretroactivity rule.

C. ROPER V. SIMMONS INVALIDATES KINNEY'S SENTENCE
    The retroactive rule of Roper means that the sentencing judge's statement that "in some other states [Kinney] could be facing the death penalty" is inaccurate. This inaccurate consideration requires resentencing because, absent the consideration, the life sentence "might have been different". Tucker, 404 US at 448.
It is true that when this Court told Patrick Kinney, "in some other states you could be facing the death penalty," that statement was completely accurate. See Stanford v. Kentucky, 492 US 362, 109 S Ct 2969, 106 L Ed 2d 306 (1989)(Eighth Amendment does not prohibit the execution of 16- and 17-year-olds). However, Roper overturned Stanford and is retroactive. As a result, every juvenile who was sentenced to death is now exempt from execution. In fact, the defendant in Roper v. Simmons, Mr. Simmons, committed his offense on September 9, 1993, exactly 18 months before Kinney commijtted the instant offense. Simmons v. Bowersox, 235 F.3d 1124, 1127 (8th Cir.2001). Thus even if Kinney committed his offense in a death penalty state, he could never have faced the death penalty.
    It is true that this Court considered many factors other than the death penalty in sentencing Patrick: That Patrick's motive (stealing a van to run away) was "nonsense," that the means of doing so (murder) was "brutal" and "repugnant," that Patrick could have stopped it, that the psychologist's report indicated, "that the remorse you are currently going through may not inhibit some rash, impulsive, dangerous act 20 years from now." (1-7-97/ p20-22). Does this mean that the consideration of the death penalty is irrelevant? The US Supreme Court addressed this question in Tucker.
At Tucker's 1953 sentencing/ his judge took into account two of Tucker's prior convictions, which were later determined to be retroactively invalid as a result of the Court's subsequent decision in Gideon v. Wainwriqht/ 372 US 335, 83 S Ct 792, 9 L Ed 2d 799 (1963) (convictions obtained without counsel are invalid). Tucker, 404 US at 443. Tucker then filed a habeas corpus petition, arguing that the judge's consideration of these now invalid convictions required resentencing. The government argued instead that in light of other detrimental information about Tucker that the judge considered, it was highly unlikely that the consideration of Tucker's two invalid convictions made any difference. The Supreme Court disagreed. Tucker, 404 US at 446, 448 (emphasis added).
For we deal here, not with a sentence imposed in the informed discretion of a trial judge but with a sentence founded at least in part upon mistaken information of constitutional magnitude. ... The real question here is...whether the sentence...might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been
unconstitutionally obtained. ...the answer to this question must be 'yes.1 For if the trial judge had been aware of the constitutional infirmity of the two previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding. Instead of confronting a defendant who had been legally convicted of three previous felonies, the judge would then have been dealing with a man who, beginning at age 17, had been unconstitutionally imprisoned for more than ten years..."
    The same reasoning applies to the instant case. With the juvenile death penalty abolished, this Court would have gone from dealing with a defendant who could have faced the death penalty in another state to one whose most severe sentence possible anywhere was life in prison/ a boy who, according to the Court, "reformed [him]self," who "did bring [him]self to the authorities and volunteer information, and...[the co-defendant] would not have been convicted without [his] testimony." (1-7-97, p8-19). This Court's choice would have gone from being 1) between a relatively lenient sentence (life) and an even more lenient sentence (a term of years) to 2) between a the most severe sentence possible anywhere (life) and one relatively less severe (a term of years). Faced with such a dramatically different choice, it cannot be said with certainty that the sentence would not have been different. Rather, as in Tucker, at the very least, the sentence "might have been different." Thus, Patrick Kinney should be resentenced.
    Understandably, this Court must be reluctant to overturn the sentence of a ten-year-old conviction where the co-defendant received a mandatory life sentence and the public may not fully appreciate the basis of the decision. However, unlike Patrick Kinney, the co-defendant David Melfi was the one who conceived and initiated this offense. Without Melfi, it would have never happened. Even though Patrick did the actual stabbing, David held the victim down, planned the murder, and manipulated Patrick into helping him under false pretenses (that he needed Patrick to drive because he didn't know how and that he had to run away to avoid juvenile detention, both of which were untrue) and by preying upon Patrick's many disfunctions and vulnerabilities. Unlike Patrick, David Melfi never turned himself in, cooperated with authorities, or exhibited any remorse, sustained good behavior, or efforts at self-reform. (1-7-97, p5). So many significant differences exist between Patrick and David that different sentences are appropriate.
    Moreover, the public is increasingly aware of the research showing that juveniles "have an underdeveloped sense of responsibility, are more vulnerable to negative influences, and their character is not as well formed as an adult's. [Roper] at [125 S Ct] 1195-96. Thus, 'it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably deprived character.1 Id." US v. Naylor, 359 F.Supp.2d 521 (WD Va. 2005)(finding that prior juvenile convictions should not be used to enhance a sentence in the manner suggested by the guidelines). See also Roper (citing the national consensus formed since 1989 that juveniles should not be executed); Ortiz, Adam, Adolescent Brain Development and Legal Culpability (www.abanet.org/crimjust/juvjus/juvdp.html) (citing medical research showing that juveniles have comparatively underdeveloped brain structures for planning, reasoning, and sober second thought); Labelle, Deborah,NSecond Chances; Juveniles Serving Life Without Parole in Michigan Prisons (www.aclu.org/pubs/juvenilelifers.pdf).
    Indeed the public would readily understand that if someone cannot be legally executed his sentence should not be informed by the consideration that he could have been.
To conclude: Patrick Kinney should be resentenced. His sentence is based on the now retroactively inaccurate consideration that in another state he could have faced the death penalty.

RELIEF REQUESTED

WHEREFORE, Defendant Patrick Kinney prays this Honorable Court will grant resentencing.
Patrick Kinney #253729 In Propria Persona Oaks Correctional Fac. 1500 Caberfae Highway Manistee, Ml 49660-9200