Keels v. Davis

• Decision Date: 20 February 2019
• Docket Number: No. 3:18-cv-60-M-BN,3:18-cv-60-M-BN
• Parties: JAMES KENNETH KEELS, JR. (TDCJ No. 1920712), Petitioner, v. LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

JAMES KENNETH KEELS, JR. (TDCJ No. 1920712), Petitioner, v. LORIE DAVIS, Director Texas Departmentof Criminal Justice, Correctional Institutions Division, Respondent.

No. 3:18-cv-60-M-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

February 20, 2019

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Petitioner James Kenneth Keels, Jr., a Texas inmate, filed a pro se application for writ of habeas corpus under 28 U.S.C. § 2254. See Dkt. No. 3. This resulting action has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from Chief United States District Judge Barbara M. G. Lynn. The State filed a response opposing relief, see Dkt. No. 18, to which Keels filed a reply. See Dkt. No. 19. For the reasons explained below, the Court should deny Keels's federal habeas petition.

Applicable Background

"A jury found [petitioner] James Kenneth Keels, Jr. guilty of the offenses of possession of a penalty-group 1 controlled substance in an amount of over four grams but under 200 grams and tampering with physical evidence and assessed his punishment, enhanced by prior felony convictions, at ninety-nine years' imprisonment for each offense, to be served concurrently. " Keels v. State, No. 10-14-00140-CR, No. 10-14-00141, 2015 WL 4599621, at *1 (Tex. App. - Waco July 30, 2015, pet. ref'd.); see State v. Keels, No. C-34828-CR, No. C-34855-CR (Cty. Ct. at Law, Navarro Cty., Tex.). The Texas Court of Criminal Appeals ("CCA") denied Keels's petition for discretionary review on November 18, 2015. See In re Keels, No. PD-1107-15 (Tex. Crim. App. 2015). The Supreme Court denied Keels's petition for a writ of certiorari on March 21, 2016. See Keels v. Texas, 136 S. Ct. 1459 (2016).

Keels filed two state applications for writ of habeas corpus claiming his attorney was constitutionally ineffective on numerous grounds, prosecutorial misconduct by using known perjured testimony and by withholding evidence favorable to the defense, juror misconduct/bias, and that he was convicted in violation of double jeopardy. See Dkt. No. 17-6 at 57-65; Dkt. No. 17-14 at 54-62. On March 29, 2017, the CCA denied Keels's applications without written order on the findings of the trial court a without hearing. See Ex parte Keels, WR-66,781-02, WR-66,781-03 (Tex. Crim. App. Mar. 29, 2017); Dkt. No. 17-5, Dkt. No. 17-13.

In his timely-filed federal habeas application, Keels raises the following grounds for relief:

1. the prosecution engaged in misconduct by eliciting false testimony to justify an unlawful traffic stop;

2. the prosecution committed misconduct by withholding the name of a confidential informant;

3. juror bias;4. the evidence was legally insufficient to support the tampering with the evidence conviction;

5. Ineffective assistance of counsel by:

a. failing to investigate or interview Sergeant Clint Andrews regarding the identity of a confidential informant,

b. failing to assert an entrapment defense,

c. failing to object to the prosecution's failure to provide ten-days' notice that it had granted immunity to witness Elizabeth Perez,

d. failing to interview and subpoena Captain Bailey, who could have testified that the police video had been tampered with and edited and had malfunctioned,

e. failing to disclose that his brother lived with Keel's wife while Keels was in jail, and

f. failing to convey a plea offer to Keels,

6. jury misconduct during punishment-phase of trial.

See Dkt. No. 3 at 6-8.

Legal Standards and Analysis

I. Unexhausted Claims

It is well-settled that federal review of a claim is procedurally barred if the last state to consider the claim expressly and unambiguously based its denial of relief on a state procedural default. Coleman v. Thompson, 501 U.S. 722, 729 (1991). Additionally, if the state court explicitly invokes a procedural bar and alternatively reaches the merits of a defendant's claims, a federal court is still bound by the state procedural default. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989). Where a state court has explicitly relied on a procedural bar, a petitioner may not obtain federal habeascorpus relief absent a showing of cause for the default and actual prejudice that is attributable to the default, or that the federal court's failure to consider the claim will result in a miscarriage of justice. Coleman, 501 U.S. at 750. A miscarriage of justice in this context means that the petitioner is actually innocent of the crime for which he was convicted. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992).

Keels claims the prosecution engaged in misconduct by eliciting false testimony justifying the unlawful traffic stop, see Dkt. No. 3 at 6; Dkt. No. 4 at 21-28, and that the prosecution committed a Brady violation by withholding the name and extent of involvement of a confidential informant. See Dkt. No. 3 at 7; Dkt. No. 4 at 31-41. Keels also claims one of the jurors was biased. See Dkt. No 3 at 7; Dkt. No. 4 at 29-30. The CCA denied Keels's state habeas corpus writs without written order on findings of trial court without a hearing. See Dkt. No.17-5; Dkt. No. 17-13. Regarding these three claims, the trial court made the following findings and determinations:

10. On April 4, 2016 Applicant now filed Applications for Writ of Habeas Corpus in each cause, alleging five identical grounds for relief in each application, namely:

....

11. Prosecution used known perjured testimony to obtain conviction, denying Keels of his right to a fair trial under the Sixth Amendment and due process under the Fifth and Fourteenth Amendments. (Application at 8, verbatim)

III. Three biased jury members were seated over an unpreserved objection by counsel. This deprived Keels of a fair trial and due processin violation of the Fifth, Sixth and Fourteenth Amendments. (Application at 10, verbatim)

IV. Prosecution withheld exculpatory and impeachment evidence that was material to guilt or innocence. This denied Keels his right to due process under the Fifth and Fourteenth Amendments. (Application a:t 12, verbatim)

V. Keels multiple convictions and punishments for the offenses of Tampering with Physical Evidence and Possession of a Controlled Substance was in violation of double jeopardy. (Application at 14, verbatim)

....

19. Applicant offers no explanation why his grounds 2, 3, 4, or 5 were not addressed on direct appeal. Article 11.07 "should not be used to litigate matters which should have been raised on appeal." Ex parte Banks, 769 S.W. 2d 539, 540 (Tex. Crim. App. 1989).

See Dkt. No. 17-6 at 252-53, 255; Dkt. No. 17-14 at 249-250, 252.

By adopting the findings and conclusions of the trial court, with its citation to Ex parte Banks, the CCA expressly and unambiguously relied on a state procedural bar determination. See Ex parte Banks, 769 S.W. at 540 (stating "[t]he Great Writ should not be used to litigate matters which should have been raised on appeal."). The Fifth Circuit has recognized that this state rule is independent and adequate to bar federal habeas corpus review. See Brewer v. Quarterman, 466 F.3d 344, 347 (5th Cir. 2006). Thus, Keels's claim Nos. 1, 2, and 3 are procedurally defaulted. See Harris, 489 U.S. at 264-65; Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995). In his reply brief, Keelsappears to argue that he failed to raise these issues on direct appeal due to ineffective assistance of his appellant attorney. See Dkt. No. 19 at 3. But a claim of ineffective assistance of appellate counsel alleged as a cause for a procedural default must itself either be exhausted or supported by a showing of cause and prejudice for the failure to exhaust. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Keels has not made this showing, and these three grounds for relief are therefore procedurally barred. See Coleman, 501 U.S. at 750.

Additionally, claims 4 and 5(a), 5(b), 5(c), 5(d), and 5(e) are unexhausted and also procedurally-barred. A habeas petitioner must fully exhaust state remedies before seeking federal habeas relief. See 28 U.S.C. § 2254(b)(1)(A). This entails submitting the factual and legal basis of any claim to the highest available state court for review in a procedurally correct manner. See Satterwhite v. Lynaugh, 886 F.2d 90, 92-93 (5th Cir.1989). In Texas, a prisoner must present each claim to the CCA in a petition for discretionary review or an application for state post-conviction relief. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir.1986). As the Fifth Circuit recently explained,

[t]he exhaustion doctrine demands more than allusions in state court to facts or legal issues that might be comprehended within a later federal habeas petition. The exhaustion doctrine is based on comity between state and federal courts, respect for the integrity of state court procedures, and "a desire to protect the state courts' role in the enforcement of federal law." Castille v. Peoples, 489 U.S. 346, 349 (1989) (internal quotation marks omitted) (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)). To satisfy these important purposes, a petitioner must "fairly present[ ]" his legal claim to the highest state court in a procedurally proper manner. Morris v. Dretke, 379 F.3d 199, 204 (5th Cir.2004). The state courts must be apprised of the constitutional foundation of the claim. Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam).

Finally, " '[i]t is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.' " Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam)). Consequently, " 'where petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement.' " Id. (quoting Vela v. Estelle, 708 F.2d 954, 958 n.5 (5th Cir.1983)).

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