Keel v. French
| Decision Date | 07 December 1998 |
| Docket Number | Nos. 97-34,98-6,s. 97-34 |
| Parties | Joseph Timothy KEEL, Petitioner--Appellant, v. James B. FRENCH, Warden, Central Prison, Raleigh, North Carolina, Respondent--Appellee. Joseph Timothy KEEL, Petitioner--Appellant, v. James B. FRENCH, Warden, Central Prison, Raleigh, North Carolina, Respondent--Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Jay Hardin Ferguson, Thomas, Ferguson & Charns, L.L.P., Durham, North Carolina, for Appellant. Valerie Blanche Spalding, Special Deputy Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF: Brian Michael Aus, Durham, North Carolina, for Appellant. Michael F. Easley, Attorney General of North Carolina, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.
Before MURNAGHAN, WILLIAMS, and MOTZ, Circuit Judges.
Joseph Timothy Keel ("Keel") appeals from the dismissal of his petition for habeas corpus relief. He has presented several claims, some of which were deemed to be procedurally barred by the district court. Other claims, such as his ineffective assistance of counsel claims relating to trial counsel's failure to raise a Batson challenge and failure to introduce certain evidence during the guilt/innocence phase of the trial, were dismissed without a hearing. Although we find that Keel's arguments are not procedurally barred, we affirm nevertheless.
Keel murdered his father-in-law, John Simmons ("Simmons") on the evening of July 10, 1990. Three days after the shooting, Lieutenant Jerry Wiggs of the Edgecombe County, North Carolina Sheriff's Department interviewed Keel. Keel made a statement which Wiggs wrote down and Keel signed. Keel admitted that he had shot Simmons on the hog farm on July 10, 1990. Keel stated that he had asked Simmons for a ride to the farm, and upon their arrival had picked up the farm truck. He drove ahead of Simmons to the farm building and went inside. When Simmons arrived, Keel fired a shot into the cab of Simmons' truck. Simmons got out of the truck and said he had been hit. Keel told Simmons to sit down inside. Keel stated that he then shot Simmons again because Simmons had a knife and was coming after him. Keel said that Simmons fell, but got up again, and Keel then helped him to the truck. He stated that he did not know why he had shot Simmons in the first place.
At trial, Keel introduced evidence that, at the hog farm, he and Simmons had argued about a prior dispute between them. The two men had a fist fight, during which Simmons sustained some injuries. Simmons allegedly picked up a knife and pushed Keel to the floor. Keel then fired the pistol once, hitting Simmons and knocking him down. He then went to assist Simmons, put him in the truck, and drove it up to the office. He then went inside the farm truck and pulled out the rifle. Keel went inside the office and fired a shot through the window and into Simmons' head as the latter was sitting in his truck. Keel also introduced evidence tending to show that he had been drinking and using cocaine on the evening of the killing.
On August 20, 1990, the Edgecombe County Grand Jury returned a true bill of indictment charging Keel with one count of first degree murder. Keel entered a plea of not guilty and was capitally tried at the August 12, 1991 Criminal Session of the Superior Court, Edgecombe County, for murder in the first degree and sentenced to death. Concluding that the trial court had committed prejudicial error on the basis of an erroneous jury instruction, the North Carolina Supreme Court held that Keel must receive a new trial. State v. Keel 333 N.C. 52, 423 S.E.2d 458 (1992).
Keel was again tried capitally during the March 5, 1993 Criminal Session for murder in the first degree. The jury returned a guilty verdict. At the conclusion of the separate capital sentencing proceeding conducted After his conviction and sentence, Keel again appealed to the North Carolina Supreme Court. The Supreme Court unanimously voted to uphold the verdict. State v. Keel, 337 N.C. 469, 447 S.E.2d 748 (1994). Keel filed a petition for writ of certiorari to the United States Supreme Court. This petition was denied on February 27, 1995. Keel v. North Carolina, 513 U.S. 1198, 115 S.Ct. 1270, 131 L.Ed.2d 147 (1995).
pursuant to North Carolina General Statutes § 15A-2000 (Supp.1994), the jury recommended that Keel be sentenced to death. The jury found that Keel had previously been convicted of a felony involving the use of violence to the person, a statutory aggravating factor. The jury also found eight mitigating circumstances, but nonetheless recommended death. On March 30, 1993, the trial court entered judgment sentencing the defendant to death.
Upon the State's motion, by order of the Edgecombe County Superior Court, Keel was scheduled for execution on July 21, 1995. Upon Keel's motion in the North Carolina Supreme Court, that court ordered a stay of execution on July 13, 1995. In that order, Keel's post-conviction counsel was given 60 days in which to file a Motion for Appropriate Relief (habeas corpus) in the Edgecombe County Superior Court. No such motion was filed. Having no claim for appropriate relief or collateral review before it, the superior court was obligated to set a new date for Keel's execution. On November 2, 1995, the Edgecombe County Superior Court held a hearing pursuant to North Carolina General Statutes section 15-94, and set a new execution date for January 2, 1996. Keel's Motion for Stay of Execution was denied by the court on December 22, 1995.
On the same day, Keel's post-conviction counsel filed a Motion for Appropriate Relief in the superior court. Keel's subsequent Motion for Stay of Execution, Petition for Writ of Certiorari (to review the order of the Superior Court of Edgecombe County denying the stay of execution) and Petition for Writ of Supersedeas (to overturn the order of the Superior Court of Edgecombe County enforcing the sentence of death) were denied by the North Carolina Supreme Court on December 27, 1995. On January 18, 1996, upon the State's motion, the superior court declared Keel's Motion for Appropriate Relief procedurally barred for failure to file in a timely manner.
Having exhausted his claims for collateral review and habeas corpus relief in the courts of North Carolina, Keel moved the district court for a Stay of Execution on December 28, 1995. The district court ordered a stay of 30 days during which Keel was ordered to file a habeas corpus petition. On January 24, 1996, the district court denied Keel's Motion for Modification of its December 28 order.
On January 29, 1996, Keel filed the instant Petition for Writ of Habeas Corpus.
Before we begin our discussion, we should note that the instant case is governed by pre-AEDPA law. 1 We also note that the parties have stipulated that Keel has either exhausted his remedies, or the state has waived the exhaustion requirement. As Keel's appeal raises issues of law that were decided below, we will review them de novo. See Beaver v. Thompson, 93 F.3d 1186, 1190 (4th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 553, 136 L.Ed.2d 424 (1996).
Keel first argues that the Court of Appeals should remand claims II.B. and II.E. to the District Court for a determination on the merits because they shared the same procedural posture as the three claims that Judge Boyle reconsidered In its order of December 10, 1997, the District Court barred, inter alia, claims IIB(1) and IIE because they had not been timely filed as required by N.C. Gen.Stat. § 15A-1419(a)(4). N.C. Gen.Stat. § 15A-1419(a)(4)(1995) provides grounds for denying a Motion for Appropriate Relief ("MAR") where the "defendant failed to file a timely motion for appropriate relief as required by G.S. 15A-1415(a)." 2 Id. The state supreme court gave Keel sixty days to file a MAR, a deadline that he failed to meet.
and determined were not barred procedurally. Although we find that Keel's claims are not procedurally barred, we nevertheless affirm because his claims are foreclosed as a matter of law.
At the hearing on the State's motion, the District Court reconsidered its order and concluded that certain of Keel's claims were not barred under § 1419(a)(4) because the Superior Court had denied Keel's Motion for Appropriate Relief before the statute became effective. 3 Keel filed his motion on December 21, 1995, or two months after the expiration of the sixty-day period that the state supreme court had granted him on July 13, 1995 to file the motion. Because Keel missed the court imposed deadline, the Superior Court denied Keel's Motion on December 22, 1995.
Keel's two claims not mentioned in the district court's amended order cannot be barred by N.C. GEN. STAT. § 15A-1419(a)(4), because the statute was not in effect when Keel murdered his father-in-law. As Claims IIB(1) (due process violation to submit Keel's involuntary manslaughter conviction to the jury as an aggravating factor in sentencing phase) and IIE (failure to inform the jury of Keel's eligibility for parole) were in the same procedural posture as the three claims found not to be procedurally defaulted, they likewise cannot be deemed procedurally defaulted. Therefore, the question is whether Keel's failure to file his MAR within the state supreme court's sixty-day deadline forecloses federal review of his claims.
Where a procedural default on a state law issue in state court occurs, the defendant generally is precluded from raising that issue in a federal habeas corpus motion. See Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). However, the basis for declaring a procedural default must be an independent and adequate state ground. See Wainwright v. Sykes, 433 U.S. 72, 81, 97...
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