Keil v. McCain

• Decision Date: 21 May 2019
• Docket Number: CIVIL ACTION NO. 18-9410 SECTION "I"(4)
• Parties: CURTIS ANTOINE KEIL v. SANDY MCCAIN, WARDEN
• Court: U.S. District Court — Eastern District of Louisiana

CURTIS ANTOINE KEIL
v.
SANDY MCCAIN, WARDEN

CIVIL ACTION NO. 18-9410 SECTION "I"(4)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

May 21, 2019

REPORT AND RECOMMENDATION

This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).¹

I. Factual Background

The petitioner, Curtis Keil ("Keil"), is a convicted inmate currently incarcerated in the Raymond Laborde Correctional Center in Cottonport, Louisiana.² On December 15, 2008, Keil was indicted by a Washington Parish Grand Jury for the second degree murder of Terrance Donnel Harris.³ He entered an initial plea of not guilty to the charge on January 5, 2009.⁴

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The record reflects that,⁵ on the afternoon of October 6, 2008, Harris was standing on Ann Street in Bogalusa, Louisiana, talking to several family members. A man, later identified as Keil, drove up to a group of people in a white Lincoln with a Texas license plate and exited the car. Keil and Harris began to argue. Keil then pulled out a handgun and shot at Harris, striking him four times in the head and neck. Keil got back in the car and drove away. Harris died as a result of his wounds.

Immediately after the incident, several eyewitnesses, who were familiar with Keil, including Katrina Hall, Emory Moses, Kenneth Hall, Sr., and Gregory Brown, told the police that Keil was the shooter. After receiving this information, Bogalusa police officers located Keil at his mother's home on City Limits Road. The officers also found the white Lincoln described by the eyewitnesses. The police officers were unable to recover the firearm used in the shooting.

Keil's competency was questioned in September 2009, and after multiple evaluations, Keil was found competent to proceed on April 4, 2011.⁶ On May 2, 2011, the prosecutor advised that Keil had made no statements to law enforcement and that there was no line up ever conducted and the defense's motions related to those matters were denied as moot.⁷

Keil was tried before a jury on October 24 through 27, 2011.⁸ On October 24, 2011, the State filed a notice of intent to introduce evidence of other offenses under La. Code Evid. art.

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404(B), specifically, evidence that Keil had brought a complaint against Harris and two others and had been informed within days of the shooting that they would not be arrested.⁹ The Trial Court held a hearing on the matter and found the evidence admissible to show motive and that the probative value of the evidence was not outweighed by the prejudicial effect.¹⁰ At that time, the Trial Court also held a hearing regarding the defense's request to suppress the proposed testimony of Lieutenant Phelps that Keil had made a statement that he threw the gun out the window of his vehicle, and, after hearing testimony, ruled the evidence was admissible.¹¹ Keil was ultimately found guilty of the lesser included offense of manslaughter.¹²

At a hearing held on November 14, 2011, the Trial Court denied Keil's motions for a new trial and post-verdict judgment of acquittal.¹³ After waiver of legal delays, the Trial Court sentenced Keil that day to serve thirty (30) years in prison at hard labor.¹⁴

On direct appeal to the Louisiana First Circuit Court of Appeal, Keil's appointed counsel asserted the following errors: (1) the evidence was insufficient to support the verdict; and (2) the State was allowed to present inadmissible evidence at trial. Keil pro se asserted the following errors: (1) the evidence was insufficient to support the verdict; (2) the Trial Court erred in allowing

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the State to use inadmissible evidence at trial; (3) the State's witnesses gave false and perjured testimony; and (4) the responsive verdict of manslaughter was an illegal verdict.¹⁵ Keil filed a pro se motion to produce the audio recordings and claimed that a portion of the trial transcript was missing relative to a prosecutor's ex parte conversation with one of the jurors during which the Trial Court denied defense counsel's motion for a mistrial.¹⁶ On August 27, 2013, the First Circuit denied the motion.¹⁷

Keil filed a pro se supplemental brief in which he also raised ineffective assistance of counsel.¹⁸ On October 15, 2013, the Louisiana First Circuit issued an interim order instructing the court reporter to file a transcript of the proceeding referenced by Keil or certify that a transcript could not be prepared because she was not present when the discussion occurred or that portion of the proceeding was not recorded.¹⁹ On December 19, 2013, the court reporter submitted a certificate in which she stated that she had no knowledge of any ex parte discussions held between the prosecutor and the jury and that it was not reflected in the audio recording and if there was such a discussion, it did not occur in her presence.²⁰

In the interim, the State filed a multiple offender bill to which Keil entered a plea of not guilty.²¹ The Trial Court later denied Keil's motion to reconsider the sentence on August 5, 2013.²²

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Following re-evaluation of Keil's competency, on September 13, 2013, the Trial Court adjudicated him to be a third felony offender and resentenced Keil to serve thirty (30) years in prison as a multiple offender without benefit of parole, probation, or suspension of sentence.²³

On December 27, 2013, the Louisiana First Circuit affirmed Keil's conviction and sentence finding no merit in the first three claims and finding that Keil's failure to object to the responsive verdict meant that issue was not preserved for appeal and alternatively was without merit.²⁴ The Circuit Court, on January 16, 2014, also denied the rehearing application filed by Keil's appointed counsel.²⁵

Keil's appointed counsel sought review in the Louisiana Supreme Court on or about February 15, 2014.²⁶ The Supreme Court denied the application on November 26, 2014, without stated reasons.²⁷

In the meantime, on March 11, 2014, Keil submitted a pro se writ application to the Louisiana Supreme Court seeking review of the appeal court's ruling and raising two additional arguments that the Trial Court erred in denying the motions for new trial, post-verdict judgment of acquittal, to quash and to suppress, and that counsel was ineffective at trial.²⁸ By its order issued

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November 26, 2014, the Supreme Court declined to consider the application finding that it was not timely filed.²⁹

Thus, Keil's conviction and sentence became final ninety (90) days after the denial of the counsel-filed writ application, on February 24, 2015, when he did not file a writ application with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filing for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)); U.S. S. Ct. Rule 13(1).

On December 22, 2014, the Clerk of the United States District Court for the Western District of Louisiana filed Keil's first petition for federal habeas corpus relief in which he asserted the following grounds for relief:³⁰ (1) insufficient evidence to support the verdict; (2) the Trial Court erred in allowing false and perjured testimony from the assistant district attorney and the State's witness at the motion hearings and at trial; (3) the State used inadmissible evidence of a prior altercation at trial; (4) the Trial Court erred in denying the motion for new trial, the motion for post-verdict judgment of acquittal, and the motions to quash and suppress; (5) the trial was unfair because of jury tampering; (6) the state courts had an incomplete record on appeal; (7) counsel provided ineffective assistance at trial; (8) manslaughter was an unlawful and illegal responsive verdict; (9) the Trial Court allowed a suggestive and illegal in-court identification; and (10) he was denied a preliminary hearing. The case was transferred to this federal court after which Keil filed a supplemental memorandum in which he argued that the Trial Court erred in giving erroneous jury instructions.³¹ On June 25, 2015, the undersigned issued a Report and

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Recommendation recommending that his petition be dismissed for failure to exhaust state court remedies and his petition was ultimately dismissed without prejudice.³²

On June 24, 2015, Keil submitted pro se to the Trial Court an application for post-conviction relief and brief in which he raised the following grounds for relief:³³ (1) insufficient evidence; (2) the State knowingly presented false testimony; (3) the Trial Court erred in admitting evidence regarding Keil's prior altercation with Harris; (4) the Trial Court erred in denying his motions to quash, to suppress, for new trial, and post judgment verdict of acquittal; (5) he was not given a proper appeal as the complete record was not filed; (6) the verdict of manslaughter was illegal; (7) ineffective assistance of trial counsel; (8) erroneous jury instructions; (9) he was wrongfully denied a preliminary exam; (10) the Trial Court erred in allowing illegal in-court identification; (11) jury tampering; (12) and newly discovered evidence.

The Trial Court denied the post-conviction application as repetitive on August 10, 2015.³⁴ On November 18, 2015, the Louisiana First Circuit granted in part Keil's writ application and vacated the Trial Court's ruling with respect to Keil's claims relating to the alleged ex parte communication/incomplete record and ineffective assistance of counsel but denied relief as to the remaining claims.³⁵

On March 22, 2016, the Trial Court found that there was no factual basis for Keil's claim that the prosecutor spoke to a juror and...