Keeley v. Warden

• Decision Date: 24 August 2016
• Docket Number: Civ. No. 2:15-cv-00972
• Parties: DAVID KEELEY, Petitioner, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

DAVID KEELEY, Petitioner, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.

Civ. No. 2:15-cv-00972

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

August 24, 2016

Judge Marbley

Magistrate Judge King

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action was subject to dismissal as unexhausted. See Opinion and Order (ECF No. 11). However, Petitioner has now filed an Amended Petition indicating that he wishes to delete the following, unexhausted, claims from his habeas corpus petition: 1) prosecutorial misconduct during closing argument; 2) the denial of the effective assistance of counsel based on his attorney's failure to object to the prosecutor's statements during closing arguments; and 3) lay witness opinion testimony. Response and Amended Petition (ECF No. 13, PageID# 13). Petitioner wishes to proceed on his remaining claims, which are exhausted. See id.; Amended Petition (ECF No. 14).

This matter therefore is before the Court on the Amended Petition, Respondent's Return of Writ (ECF No. 7) and Supplemental Answer (ECF No. 16), Petitioner's Petitioner's Traverse to the Respondents [sic] Answer/Return of Writ, (ECF No. 10) and Reply (ECF No. 17), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Facts and Procedural History

The Ohio Fourth District Court of Appeals summarized the facts and procedural history of the case as follows:

Appellant and his family moved from England to the United States when his employer transferred him to a position.FN2 He, his wife and daughters eventually settled in Marietta in 1996. They became close friends with the Davis family, whose backyard adjoins their own. R.D., the youngest child of the Davis family, was approximately ten or eleven years old when appellant moved to the area. Although an adult at the time of the events that resulted in the offenses, R.D. suffers from mental retardation and functions at the cognitive level of a minor.FN3

Around mid-April 2010, R.D. visited appellant's home to help paint. Afterward, appellant and R.D. engaged in some degree of sexual contact. Several weeks later, appellant contacted R.D. to see if she would help him work on his motorcycles.FN4 R.D. went to appellant's home and, once again when the work was completed, the two engaged in sexual contact.FN5

After R.D. returned home that particular evening, she was unusually quiet. When R.D.'s mother asked if anything was wrong, she admitted that she and appellant had engaged in sexual activity. Jane Davis, R.D.'s mother, and her husband took her to the hospital and medical personnel used a "rape kit" to collect genetic material on, and inside, her body.

The following morning, authorities prompted Davis to engage in a "controlled" cell-phone call with appellant. Appellant initially denied any sexual contact with R.D., but after further questioning, admitted to Davis that he had "tried to have sex with [R.D.] but couldn't actually do the job" because of certain medical problems he was experiencing. Appellant also intimated to Davis that her daughter had a "crush" on him and that she initiated the sexual contact. Appellant also stated to Davis that he "touched her [daughter] once before" when R.D. came over to help him paint. Appellant promised Davis that he would contact her again to discuss the matter after he returned home.FN6

After appellant returned home, and before he could contact Davis, several Washington County Sheriff's Deputies interviewed him.

Again, appellant admitted that he engaged in sexual activity with R.D., although he suggested that R.D. initiated the sexual conduct. At the conclusion of the interview the authorities arrested appellant.

Subsequently, the Washington County Grand Jury returned an indictment that charged appellant with two counts of rape and three counts of GSI. Appellant pled not guilty and the matter proceeded to a jury trial.

At trial, no question existed that sexual contact had, in fact, occurred. Appellant acknowledged that some degree of contact had occurred. R.D. also described some of the acts, and she admitted that she did not tell appellant to stop. The trial focused primarily on two issues. The first was whether vaginal penetration occurred. R.D. answered "yes" when asked if appellant had "put his fingers in [her] front bottom[.]" Likewise, she responded affirmatively when asked if appellant put "his penis inside [her] front bottom[.]" Washington County Sheriff's Department Detective Mark Johnson also produced a tape recording of his interview with appellant. In that recording, appellant did not admit that he digitally penetrated R.D., but he conceded that it may have occurred. Appellant, however, emphatically denied penile penetration and testified that because he suffered from erectile dysfunction, he was incapable of doing so. To confirm his claim, the defense offered corroborating testimony from appellant's physician.

Lauren Dutton, a Marietta Memorial Hospital nurse, testified that she examined R.D. the night of the second incident and found a "white milky fluid" in the area of her cervix. Sarah Glass, a forensic scientist at the Ohio Bureau of Criminal Investigation (BCI), testified that the swabs from the rape kit tested positive for semen. Emily Draper, also a BCI scientist, testified that after she tested the genetic material from R.D.'s swabs and compared it to the genetic material on "buccal swabs" taken from appellant's mouth, appellant could not be "excluded as the source of the semen on the vaginal swabs." FN7

The second major issue at trial was R.D.'s mental and emotional age, and whether a "substantial impairment" existed to consenting to sexual activity. Although various prosecution witnesses offered different opinions, all agreed that R.D. behaved at a level below that of a 10 year old child. Appellant countered, however, that R.D. behaved that way only when she was near her mother. Away from her mother, appellant maintained, R.D. acted like a 16 to 18 year old. Harriet Metcalfe, a friend of the Keeley family, testified thatshe had previously met R.D. and thought that she acted like a 16 year-old.

After hearing the evidence, the jury returned guilty verdicts on all charges. The trial court sentenced appellant to serve six years imprisonment on each of the rape counts and twelve months on two of the GSI counts. The court found that the other GSI count merged into the rape charges, ordered that the sentences for rape and one GSI count be served concurrently, and ordered that the second GSI sentence be served consecutively to the three prior sentences for an aggregate seven year prison term. This appeal followed.

FN2: Appellant testified that his wife and children have become U.S. citizens. It appears from the sentencing hearing transcript, however, and the discussion of possible deportation once appellant is released from prison, that he has not been naturalized.

FN3: The precise age level at which R.D. functions was an issue at trial. Prosecution witnesses testified that her age level is less than ten years old, whereas defense witnesses testified that she behaved like someone sixteen to eighteen years of age.

FN4: Appellant races motorcycles in addition to his regular job. The uncontroverted evidence is that appellant often offered R.D. spending money to come to his house to help with chores.

FN5: No allegation was made, nor evidence introduced, to indicate that the encounters involved the use of force.

FN6: This cell phone call occurred the morning after Davis had spent all night at the hospital with her daughter. Appellant was apparently en route to a motorcycle race.

FN7: The witness explained that it is not the policy of BCI to make "identity statements." That is to say, the witness would not opine that the genetic material taken from the vaginal swab matched the genetic material taken from appellant. She did assure the jury, however, that she "would have to test approximately 3.6 quadrillion other people, to find somebody else who might be the source of the semen."

State v. Keeley, No. 11CA5, 2012 WL 3194355, at *1-2 (Ohio App. 4^th Dist. Aug. 2, 2012).

Petitioner presented the following issues on direct appeal:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT VIOLATED DAVID P. KEELEY'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION FOR THEFT [sic ] AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."¹

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ADMITTING LAY WITNESS OPINION TESTIMONY THAT WAS UNRELATED TO THAT WITNESS'S PERCEPTIONS AND CALLED FOR SPECIALIZED KNOWLEDGE."

THIRD ASSIGNMENT OF ERROR:

"THE STATE'S MISCONDUCT, DURING ITS CLOSING ARGUMENT, DENIED MR. KEELEY THE RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION."

FOURTH ASSIGNMENT OF ERROR:

"TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO THE STATE'S IMPROPER STATEMENTS DURING ITS CLOSING ARGUMENT."

Id. at *1.² On August 2, 2012, the state appellate court affirmed the judgment of the trial court. Id. Petitioner did not file an appeal from that decision to the Ohio Supreme Court. On November 28, 2012, the appellate court denied Petitioner's application for reconsideration as untimely and without merit. Entry on Application for Reconsideration (ECF No. 7-1, PageID# 325).

On September 13, 2012, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Id. at PageID# 328. Petitioner asserted that he had been denied the effective assistance of appellate counsel because his attorney failed to argue on appeal that the trial court denied him a fair trial when it failed to clarify jury confusion during deliberations, and improperly admitted expert testimony; that the...