Keyes v. Huffman
| Docket Number | Civil Action 1:22CV228-HSO-LGI |
| Decision Date | 28 July 2023 |
| Parties | DELBERT KEYES PETITIONER v. SUPERINTENDENT BRAND HUFFMAN RESPONDENT |
| Court | U.S. District Court — Southern District of Mississippi |
1
DELBERT KEYES PETITIONER
v.
SUPERINTENDENT BRAND HUFFMAN RESPONDENT
Civil Action No. 1:22CV228-HSO-LGI
United States District Court, S.D. Mississippi, Southern Division
July 28, 2023
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
LaKeysha Greer Isaac, United States Magistrate Judge
Delbert Keyes seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss his petition as time-barred under 28 U.S.C. § 2244(d) of the Antiterrorism and Effective Death Penalty Act of 1996. After a review of the record and the applicable law, the undersigned recommends that the petition be dismissed with prejudice.
Following his convictions for robbery, kidnapping, and forcible sexual intercourse of a 77-year-old victim in 2017, Keyes was sentenced as a habitual offender to serve three life sentences without parole in the custody of the Mississippi Department of Corrections. The procedural history outlined in detail in the parties' pleadings will not be repeated in depth here, but the relevant facts are accurately described in the state court's opinion and are incorporated as follows.
During the late evening of October 18, 2015, seventy-seven year old Liza[1] was at home in Gulfport, Mississippi, when her dog began barking at something outside; so, she went to investigate. A man came up behind her and “clamped” her arm, twisting it
behind her back. He forced her inside to her bedroom where he tied her arms behind her back with handkerchiefs and forced her to lie face down with a pillow over her head. The man demanded money. Upset after discovering only $60 in Liza's purse, the assailant took off Liza's nightgown and attempted to penetrate her with his penis, using a handkerchief to cover it. While he was attempting to have intercourse with Liza, he took off his leather jacket. When he finished with his assault, he began looking for jewelry. Liza told him there was an additional $100 hidden in her purse, which he took. The attacker exited the home, leaving behind his jacket, which Liza had kicked under the bed. Liza ran to her neighbors' home to contact the police. She described the man as short and heavyset. Liza was taken to the hospital for an examination, and the perpetrator's jacket, Liza's nightgown, and her handkerchiefs were sent for DNA analysis.
A few days later, Leonard Bankston, a local handyman who had worked for Liza, heard of the assault and reported to the police that he suspected that his neighbor, Keyes, was the perpetrator. Following up on Bankston's tip, Detective Christopher Werner located Keyes at his sister's apartment. The detective noted that Keyes was a “[s]horter, heavier set individual,” matching Liza's description of her assailant. Detective Werner confiscated a cell phone lying next to Keyes on the couch. Although Keyes denied it was his phone, it was later confirmed that Keyes bought the phone the day after Liza's assault. Examination also revealed that the phone was used to search for news regarding the attack and for information on bus tickets. Police also talked with Keyes's sister, Debbie Faulkner, who said that on the evening of the attack, her brother had left her home at 10:30 p.m. and returned at 1:30 a.m. without his jacket. Faulkner's home was only a
couple of blocks from Liza's house. Faulkner identified the recovered jacket as Keyes's. Yet when interviewed by police, Keyes claimed that he never left his sister's apartment that evening and had gone to bed by 9:00 p.m. Police took Keyes into custody and collected DNA through a buccal swab.
On May 23, 2016, Keyes was indicted for Count I, robbery; Count II, kidnapping; and Count III, forcible sexual intercourse, as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). The State moved to amend the indictment to charge Keyes under section 99-19-83 on November 30, 2016. The trial court granted the motion.
A jury trial was held in Harrison County Circuit Court on February 21-23, 2017. Liza testified about the events that occurred during the attack as stated above. Gulfport Police Officer Jason Vincent testified about his investigation of the crime scene. He observed jewelry on top of the bed and a “black leather coat underneath the bed with two handkerchiefs near it.” He also observed another handkerchief tied in a knot with hair in it and noted that the condition of the room suggested that “somebody was rummaging, attempting to locate items.”
Tobie Nix, the emergency-room nurse who treated Liza on the night of the attack, stated that Liza had “multiple bruising to her upper body, her wrist, her neck, face, some abrasions that were current.” The witness did acknowledge that some of the bruising reportedly occurred before the attack. Dr. Kathy Keimig, the treating emergency-room physician, was admitted as an expert in emergency-room medicine. She noted that Liza was “very upset, tearful, [and] was very anxious.” During her examination, Dr. Keimig
noted fresh bruising and abrasions around Liza's face, arms, and wrists. She also testified that Liza had bruising and abrasions around and inside her genital area and rectum, which were consistent with a sexual assault.
Bankston said that he knew Keyes and had sometimes driven him to the store or to the scrap yard. On cross-examination, counsel asked him why he thought Keyes had perpetrated the attack on Liza. Bankston said he did his own investigating when he heard of the assault and “did enough searching to know that [Keyes] had done this same particular thing [twenty] years ago.” Defense counsel objected and moved to strike the response. The trial judge said that the witness was merely responding to the defense's question; so, the testimony was allowed.
Kathryn Rogers, a DNA analyst with Scales Biological Laboratory, testified as an expert in DNA analysis. She took samples from the leather jacket to create a mixture profile. The DNA analysis revealed that 99.99% of the world's population could be excluded from the mixture profile, but Keyes could not. Rogers also conducted Y-chromosome testing of the handkerchief. While 99.93% of the male population could be excluded, Keyes could not.
The State rested, and the defense moved for a directed verdict, which the trial judge denied. Keyes testified, claiming that on the day of the assault, he had been watching football all day. He admitted that he left home about 10:15 p.m. but claimed he went to a trailer park a few blocks away and drank with some acquaintances around a “pit.” Keyes said he took off his jacket and accidentally left it on a chair. When he got to
his sister's apartment, he realized he left the jacket and went back, but no one was there. He denied telling police he had been home all evening.
The jury found Keyes guilty on all three counts, and the trial judge sentenced him as a habitual offender under section 99-19-83 to life without eligibility for parole in the custody of the MDOC for each count, with the sentences to run consecutively. Keyes filed a motion for a new trial, which the trial court denied. Aggrieved, Keyes appealed asserting the trial court erred and the verdict was against the overwhelming weight of the evidence.
Relevant here, the Mississippi Court of Appeals affirmed Keyes's convictions and sentences on appeal, and after withdrawing its initial mandate, denied his subsequent motion for rehearing on April 23, 2019, and re-issued its mandate on May 14, 2019. Keyes v. State, No. 2017-KA-01214-COA, 2018 WL 6323115, at *1-2 (Miss. Ct. App. Dec. 4, 2018). Several attempts by Keyes to seek certiorari review of the decision by the Mississippi Court of Appeals were denied as untimely by the Mississippi Supreme Court because Keyes failed to seek certiorari review within the requisite 14-day period, by May 7, 2019.
On November 20, 2019,[2] Keyes filed a “motion to dismiss his indictment” in the Mississippi Supreme Court. The motion was construed as Keyes's first motion for post-
conviction relief and denied by that court on April 7, 2020. Over a year later, Keyes filed an application in the trial court to proceed with a second motion for post-conviction relief. The motion was denied as successive and without merit by the Mississippi Supreme Court on November 9, 2021. Several attempts by Keyes to seek rehearing in the Mississippi Supreme Court and a request for certiorari review in the United States Supreme Court from June 2021 through May 2022 were all denied. On August 30, 2022, Keyes filed the instant petition for federal habeas corpus relief contending that his petition was timely.
Discussion
The Antiterrorism and Effective Death Penalty Act (AEDPA) “introduced both ‘simple logic' to the federal habeas landscape and uniform rules for federal courts to apply.” Wallace v. Mississippi, 43 F.4th 482 (5th Cir. 2022) (quoting Smith v. Titus, 209 L.Ed.2d 488, 141 S.Ct. 982, 987 (2021)). “Namely, it implemented a host of greatly needed procedural requirements for petitioners seeking habeas relief.” Id. Among them is the one-year statute of limitations on state prisoners filing a federal habeas petition. Under 28 U.S.C. § 2244(d)(1), AEDPA provides that the statute of limitations will run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or...
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