Keller v. Larkins, Superintendent, SCI Dallas

• Citation: 251 F.3d 408
• Decision Date: 15 May 2001
• Docket Number: No. 00-1130,00-1130
• Parties: (3rd Cir. 2001) KERBY KEANE KELLER, Appellant v. DAVID LARKINS, SUPERINTENDENT, SCI DALLAS; THE DISTRICT ATTORNEY OF THE COUNTY OF LANCASTER; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 408

251 F.3d 408 (3rd Cir. 2001)

KERBY KEANE KELLER, Appellant v. DAVID LARKINS, SUPERINTENDENT, SCI DALLAS; THE DISTRICT ATTORNEY OF THE COUNTY OF LANCASTER; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA [MIKE FISHER]

No. 00-1130

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued August 2, 2000

Filed May 15, 2001

[Copyrighted Material Omitted]

Carmen C. Nasuti (Argued), Susan J. Bruno, Nasuti & Miller, Philadelphia, PA, Attorneys for Appellant.

Donald R. Totaro, District Attorney, K. Kenneth Brown, II, Assistant District Attorney (Argued), Office of the District Attorney, Lancaster, PA, Attorneys for Appellees.

Before: ALITO, ROTH, and AMBRO, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:

Kerby Keller, a Pennsylvania prisoner serving a life sentence for the first-degree murder of his wife, appeals the denial of his federal habeas corpus petition. He argues that his federal constitutional right to due process was violated by the introduction at trial of highly prejudicial evidence having little probative value and that he was denied the effective assistance of counsel because his trial attorney did not adequately prepare for or respond to testimony by the prosecution's psychiatric expert, who stated that Keller might have suffered from a condition called "sadistic personality disorder." We hold that Keller did not fairly present his federal due process claim to the Pennsylvania courts and that this claim is now barred by procedural default. We reject Keller's ineffective assistance of counsel claim because he has not shown that the Pennsylvania courts' application of the prejudice prong of the Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), standard for judging ineffective assistance of counsel claims was "unreasonable." See 28 U.S.C. 2254(d)(1). We therefore affirm.

I.

Keller was once a member of a motorcycle gang called the Pagans, and his wife, Barbara, was a nude dancer. When they married in 1981, Keller purportedly renounced his association with the Pagans, Barbara abandoned her career as a dancer, and the couple moved to a farm in Lancaster County, Pennsylvania. In 1989, Barbara announced that she was leaving Keller and their son and moving in with her parents in Pittsburgh. Keller subsequently learned that Barbara did not go to Pittsburgh, and he enlisted a private investigator to locate her.

On June 20, 1989, Barbara telephoned Keller and revealed that she was living with Gary Reiter, a friend who resided down the lane from the Keller farm. Later that day, when Barbara returned to the farm, Keller shot and killed her. He then telephoned Reiter and asked that he come to the farm. When Reiter arrived, Keller ran out of the house firing a rifle at Reiter's truck. Bullets hit the truck, but Reiter was able to drive away unharmed. Keller returned to the house and telephoned friends and family members to tell them what he had done. He wrote what appeared to be a suicide note, but he did not attempt to kill himself and instead surrendered to the police.

The prosecution argued that Keller had premeditated his wife's murder, and the prosecution attempted to prove that Keller's motive might have been his discovery that Barbara had been providing information about the Pagans to the Federal Bureau of Investigation. The prosecution theorized that Keller lured Barbara to the house and tied her up on the second floor but that she broke free and was running away from the house when Keller shot and killed her. The prosecution introduced evidence of her work for the FBI, as well as evidence that during Keller's telephone conversations following the shooting, he had connected the killing with pressure resulting from the FBI investigation. In addition, Keller' suicide note stated: "Lots of stress. All the harassment. Unfounded investigation by the FBI, Crime Commission, etc." The prosecution's theory that Keller killed his wife because she was informing on the Pagans provided a basis for introducing evidence regarding Keller's association with the gang and its activities.¹

The defense presented the following, different version of the events. When Barbara arrived at the farm, Keller urged her to return to him. Barbara said that she intended to resume exotic dancing and threw at Keller a stack of photos depicting her dancing. The argument became physical, and Barbara locked herself in a bedroom upstairs. Keller broke down the bedroom door and found that Barbara had climbed out the window and was fleeing. Keller grabbed his gun and shot and killed his wife.

At trial, Keller's defense was based on insanity or the inability to form the intent needed for murder. The defense psychiatric expert, Dr. Abram M. Hostetter, diagnosed Keller as suffering from a major depressive disorder. Dr. Hostetter testified that in his opinion Keller satisfied all of the nine criteria for such a diagnosis listed in the third revised edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (3d ed. rev. 1987) (DSM-III-R), a standard reference work that lists and describes mental disorders. Dr. Hostetter opined that Keller's major depression had reached psychotic proportions at the time of the killing, that Keller "did not fully understand the nature and quality of his acts at that moment," and that he had not planned to kill his wife. App. 405, 407. Other witnesses testified to Keller's increasingly distraught behavior over his wife's infidelity.

To rebut Dr. Hostetter, the Commonwealth called its own psychiatric expert, Dr. Kurtis Jens. Dr. Jens had not examined Keller, but based on information provided to him about Keller and his behavior during the time leading up to the killing, Dr. Jens expressed the opinion that Keller did not suffer from a major depressive order. 3/14/1990 Trial Tr. at 933-41. Dr. Jens stated that the symptoms noted by Dr. Hostetter were often exhibited for a limited period of time by people suffering from "any severe distress," and he stated that Dr. Hostetter had not noted any psychotic symptoms. App. 433, 438. He expressed the opinion that Keller was capable of knowing right from wrong and forming a specific intent to kill. Id. at 443-44. In addition, in response to a lengthy hypothetical question posed by the Assistant District Attorney, Dr. Jens opined that Keller might suffer from either of two personality disorders, "antisocial personality disorder" or "sadistic personality disorder." Id. at 441. Consistent with this latter possible diagnosis, the Commonwealth put on evidence of prior sadistic acts by Keller, including testimony that he had tied up and brutally beaten a woman with whom he was having an extramarital affair and testimony that he had severely beaten a man who had asked Barbara to dance in a bar.

In March 1990, Keller was convicted by a jury in the Lancaster County Court of Common Pleas of murder in the first degree and attempted murder in the first degree. He was sentenced to a term of imprisonment for life and a consecutive term of five to ten years in prison. The Superior Court of Pennsylvania affirmed the judgment, and the Supreme Court of Pennsylvania denied Keller's petition for allowance of appeal. Keller then filed a petition under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. 9541 et seq. (West 1998). After an evidentiary hearing, the trial judge denied Keller's petition. The Superior Court affirmed, and the Pennsylvania Supreme Court declined review.

Keller next filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 with the United States District Court for the Eastern District of Pennsylvania. Keller argued, among other things, that the admission of highly prejudicial evidence regarding the Pagans and his wife's work as an informant had deprived him of due process as guaranteed by the federal Constitution and that his counsel was ineffective in dealing with Dr. Jens's testimony.

The Magistrate Judge to whom Keller's petition was referred recommended that it be denied. She concluded that in the state court proceedings Keller had challenged the admission of the evidence concerning the Pagans on state-law grounds only and that his federal constitutional claim regarding that evidence was barred by procedural default. She also held that the state courts' conclusion that Keller's trial counsel was not ineffective under the Strickland standard was not vulnerable to attack pursuant to 28 U.S.C. 2254(d)(1).

The District Court followed the Magistrate Judge's recommendation, although it did not agree with some of her reasoning. Keller v. Larkins, 89 F. Supp. 2d 593 (E.D. Pa. 2000). The District Court concluded that Keller had fairly presented his due process claim in the state court proceeding because he had contended that the admission of the evidence in question had deprived him of a "fair trial." Id. at 597-98. The District Court held, however, that the admission of this evidence did not rise to the level of constitutional error. Id. at 599-606. With respect to Keller's ineffective assistance claim, the District Court held that trial counsel had not provided adequate representation in connection with Dr. Jens's testimony but that Keller had failed to demonstrate prejudice arising from trial counsel's performance. Id. at 606-11. Accordingly, the District Court denied the habeas petition but granted a certificate of appealability. Id. at 612.

II.

The first claim on appeal is that the admission of evidence of Keller's association with the Pagans and Barbara's role as an FBI informant deprived Keller of due process under the federal Constitution. Keller contends that the Commonwealth lacked proof of Keller's knowledge that his wife was an informant and that, accordingly, evidence regarding his association with the Pagans was not probative but was highly prejudicial. As is required in order to show that an evidentiary error of...