Keye v. Perry et al
Filing
15
ORDER denying 4 Motion for contempt for respondent's procedural error; denying 5 Motion for Judgment on the Pleadings. Signed by Magistrate Judge G. R. Smith on 6/24/2015. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
WILLIE LEE KEYE, III,
Petitioner,
V.
Case No.
CV414-242
GRADY PERRY, Warden, HOMER
BRYSON, Commissioner of the
Georgia Department of Corrections,
Respondents.
REPORT AND RECOMMENDATION
Over five years after pleading guilty in state court, doc. 11-8 at 74,
Willie Lee Keye petitions pro se for 28 U.S.C. § 2254 relief. Doc. 1-1.
Respondents argue that his claims fail on their merits. Doc. 10. They
are correct.
I. BACKGROUND
On April 17, 2009, Keye and a co-defendant, Omar Benaire, went to
Charles Wynn's house uninvited. Doc. 11-8 at 65.' Benaire beat Wynn
with a pipe while Keye rummaged around the house and through Wynn's
1
The Court culled these facts from the transcript of his guilty plea proceeding -- no
trial or other fact-finding proceeding was held in this case.
wallet.
Id.
They then left Wynn's house and went to a gas station,
where they used Wynn's debit card to purchase gas and other items. Id.
A grand jury indicted Keye on three counts -- armed robbery,
financial transaction card theft, and fraud. Doc. 11-8 at 21-22. On
August 30, 2010, he entered a "non-negotiated" guilty plea on all three
charges.
Id. at 68. Keye received a sentence of twelve years'
imprisonment for armed robbery, and two years for each of the other
charges, to be served concurrently with the armed robbery sentence. Id.
at 74.
Little more than a month later, he moved pro se to withdraw his
guilty plea. Doc. 11-8 at 77. The trial court appointed new counsel and
held an evidentiary hearing, but it denied the motion on January 11,
2011. Id. at 81 (finding that Keye was advised of his rights, which he
waived by pleading guilty, and rejecting his "testimony that he lied when
advised of his rights"). Keye did not appeal.
Before the trial court ruled on his motion to withdraw his plea,
Keye filed a state habeas corpus petition on November 19, 2010. Doc. 111. In it, he asserted both grounds raised in this § 2254 petition
(ineffective assistance of counsel and the invalidity of his guilty plea),
2
among others. Doe. 11-6 at 2-3. The state habeas court conducted two
evidentiary hearings but ultimately denied relief on February 27, 2014.
Id. at 17. The Georgia Supreme Court then denied Keye's application for
a certificate of probable cause to appeal on June 16, 2014. Doe. 11-7.
Keye filed this § 2254 petition on November 5, 2014,2 doe. 1, and
respondents timely answered on February 23, 2015.' Doe. 10.
Keye raises two grounds for relief before this Court: (1) that his
guilty-plea counsel provided ineffective assistance by failing "to research,
investigate, or properly or adequately prepare for trial;" and (2) that he
did not voluntarily plead guilty. Doe. 1-1 at 12. Both claims lack merit.
2 The Court's CM/ECF filing system recorded Keye's petition as filed on November
10, 2014. See Doc. 1. But under the "mailbox rule," a "prisoner's motion is deemed
filed on the date of delivery to prison officials for mailing." Fuller v. Terry, 381 F.
App'x 907, 908 (11th Cir. 2010); see also Rules Governing Section 2254 Cases Rule
3(d). Absent contrary evidence, the Court assumes a prisoner's filing "was delivered
to prison authorities the day he signed it." Fuller, 382 F. App'x at 908 (quoting
Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). Keye signed his
petition November 5, 2010 and neither party suggests he delivered it to prison
authorities on another day.
Keye filed two motions relating to the state's alleged untimely answer. See does. 4
(motion for contempt); 5 (motion for judgment on the pleadings, which Keye believes
includes only his petition). The Court, however, ordered respondents to answer
within thirty days after service of the Order directing them to respond. See doe. 3.
The U.S. Marshal served Grady Perry on February 13, 2015, doe. 6, and the
Commissioner of the Georgia Department of Corrections on February 20, 2015. Doe.
7. Their answer on March 3, 2015, therefore, was within the thirty days provided by
the Court's Order. Accordingly, both Keye's motion for contempt, doe. 4, and motion
for judgment on the pleadings, doe. 5, are DENIED.
3
II. STANDARD OF REVIEW
"On federal habeas review, AEDPA imposes a highly deferential
standard for evaluating state-court rulings and demands that state-court
decisions be given the benefit of the doubt." Felkner v. Jackson, 562 U.S.
594, 131 S. Ct. 1305, 1307 (2011) (quotes and cites omitted). This Court
cannot disturb them unless they
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d) (emphasis added). "Clearly established" means a
Supreme Court holding, not dicta, which existed at the time of the state
court decision that applied the legal principle at issue; lower court
opinions, even if directly on point, will not suffice. Cullen v. Pinhoister,
563 U.S. -, 131 S. Ct. 1388 2 1399 (2011); Bowles v. Sec'y for Dept of
Corrs., 608 F.3d 1313, 1315-16 (11th Cir. 2010). The "more general" the
relevant Supreme Court holding, "the more leeway courts have in
reaching outcomes in case-by-case determinations."
Richter, 562 U.S. 86, 101 (2011).
4
Harrington v.
Keye thus faces a highly deferential, "difficult to meet" standard on
federal habeas review. Id. at 102; Cullen 131 S. Ct. at 1398. He must
show that the state court's ruling on the claim being presented in federal
court was "so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement." Hill v. Humphrey, 662 F.3d 1335, 1345 (11th
Cir. 2011) (en banc) (quoting Harrington, 562 U.S. at 103).
His ineffective assistance of counsel ("IAC") claim faces an
additional hurdle. "Even under de novo review, the standard for judging
counsel's representation is a most deferential one."
Harrington, 562
U.S. 105. That standard requires Keye to "show both that his counsel
provided deficient assistance and there was prejudice as a result.
Id. at
104. Representation is deficient when it falls "below an objective
standard of reasonableness." Id. (citing Strickland v. Washington, 466
U.S. 668, 688 (1984)). And a petitioner establishes prejudice in the
context of the plea process when he shows "a reasonable probability that,
but for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
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Courts apply a "strong presumption" that counsel's representation
was within the "wide range" of reasonable professional assistance.
Strickland, 466 U.S. at 689. Attorney error must be so serious "that
counsel was not functioning as the 'counsel' guaranteed the defendant by
the Sixth Amendment."
Id. at 687. Unsurprisingly, "[s]urmounting
Strickland's high bar is never an easy task," and no hindsight or secondguessing is permitted. Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
And where a state court has already ruled on JAC claims, the
petitioner's burden of
[e]stablishing that [its] application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by
Strickland and § 2254(d) are both 'highly deferential,' id., at 689
[104 S. Ct. 20521; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.
Ct. 2059 ) 138 L. Ed. 2d 481 (1997), and when the two apply in
tandem, review is 'doubly' so, Knowles, 556 U.S., at -, 129 S. Ct.,
at 1420. The Strickland standard is a general one, so the range of
reasonable applications is substantial. 556 U.S., at - [129 S. Ct.,
at 14201. Federal habeas courts must guard against the danger of
equating unreasonableness under
Strickland
with
unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel's actions were reasonable. The
question is whether there is any reasonable argument that counsel
satisfied Strickland's deferential standard.
Id. at 788. Because this "[d]ouble deference is doubly difficult for a
petitioner to overcome . . . it will be a rare case in which an ineffective
assistance of counsel claim that was denied on the merits in state court is
found to merit relief in a federal habeas proceeding."
Johnson v. Sec'y,
DOG, 643 F.3d 907, 911 (11th Cir. 2011); Hamner v. Deputy Sec'y of the
Fla. Dep't of Corrs., 438 F. App'x 875, 880 (11th Cir. 2011) ("Our
standard of review is 'doubly deferential' when 'a Strickland claim [is]
evaluated under the § 2254(d)(1) standard.") (quoting Knowles, 129 S.
Ct. at 1420).
III. ANALYSIS
A. Ineffective Assistance of Counsel
Keye alleges that his guilty plea counsel, Leslie Lowry, ignored and
refused to present testimony from the armed robbery victim that (1)
Keye never had a weapon; (2) "was merely there when the incident
occurred and had nothing to do with the robbery;" (3) did not take any of
the victim's property; and (4) that his co-defendant, not Keye, beat and
robbed the victim. Id. at 13-15. He also contends that Lowry "did not
want to exert any time or energy in the case," so she "called Keye's aging
grandmother to cry and plea[d] with him to persuade Keye to plead
guilty."
Id. at 14. He believes that Lowry's alleged "reluctance to
pursue Keye's innocence claim and put the State's case through the
adversary process effectively denied Keye counsel to [advocate] his
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cause." Id. at 15. Respondents contend that the state habeas court's
decision was a reasonable application of Strickland and Hill and is due
deference. See doc. 10-1 at 6-7.
It is worth pausing to note that "[a] knowing and voluntary guilty
plea waives all non-jurisdictional, pre-plea defects, including ineffective
assistance of counsel with respect to issues not implicating the
voluntariness of the plea. See Wilson v. United States, 962 F.2d 996, 997
(11th Cir. 1992); Baird v. United States, 445 F. Appx 252, 254 (11th Cir.
2011)."
United States v. Simons, 2015 WL 1512964 at * 2 (N.D. Ala.
Mar. 31, 2015). Respondents and the state habeas court appear to treat
Keye's IAC claim as alleging that Lowry's pre-guilty plea, deficient
performance rendered his plea involuntary or unknowing. See, e.g., doc.
11-6 at 9 (finding Lowry's performance adequate under Strickland and
Hill); 10-1 at 6 (citing Hill as providing the proper standard for
evaluating Keye's IAC claim). Erring on the side of caution, this Court
will deferentially do the same, even though the state habeas court's
analysis considers alleged pre-plea ineffectiveness that is otherwise
precluded as a matter of law. Simons, 2015 WL 1512964 at * 2; see also
Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("When a criminal
NZ
defendant has solemnly admitted in open court that he is in fact guilty of
the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea.").
The state habeas court fully credited Lowry's deposition testimony
-- which directly contradicted Keye's version of events in almost every
respect -- and concluded that he "failed to show that counsel's
performance was deficient under Strickland and Hill with respect to any
of the allegations." Doc. 11-6 at 9. In doing so, the state court
reasonably applied the Strickland/Hill standard, see 28 U.S.C. §
2254(d)(1), and reasonably determined facts based on testimony before
the court. See § 2254(d) (2).
Bearing in mind that IAC claims are evaluated on an objective
basis, Keye must show that the course of action taken by Lowry would
not have been taken by any competent counsel. See Blankenship v. Hall,
542 F.3d 1253, 1273 (11th Cir. 2008). Here, Lowry quite competently
researched and investigated the case, prepared for trial, and provided
9
appropriate information regarding the consequences of pleading guilty.'
As ably put by the state habeas court:
Counsel reviewed discovery, met with Petitioner, spoke with
witnesses including the lead detective and the victim's neighbor,
and traveled to the crime scene and took photographs. [Doc. 11-9
at 23-251. Counsel made an unsuccessful attempt to speak with
Petitioner's sister and later determined her potential testimony
would be unhelpful. [Id. at 2511. Counsel was unable to speak
directly with Petitioner's co-defendant, as the co-defendant's
attorney prohibited such contact. [Id. at 34-351.
Counsel reviewed the victim's statement to the police. [Id. at
371. Counsel also interviewed the victim in the presence of her
investigator but did not obtain a formal statement, and thus did
not provide the victim's statement to the prosecution. [Id.] The
victim's statement to counsel was consistent with his prior
statement, and counsel believed the statement would not have
helped Petitioner's defense. [Id.]
Counsel also investigated potential similar transaction evidence
based on a prior robbery committed by Petitioner. [Id. at 23-241.
This Court normally applies § 2254(d)'s deference standard and upholds state court
decisions that reasonably apply clearly established federal law. But it can also invoke
the "de novo shortcut":
[i]nsofar as it aids the court in deciding these complex cases, it is not unusual
for this Court to affirm the denial of § 2254 relief after conducting de novo
review without resolving whether [2254(d)] deference applies. See, e.g.,
Wellons v. Warden, 695 F.3d 1202, 1213 (11th Cir. 2012); Owen v. Fla. Dep't of
Corr., 686 F.3d 1181, 1201 (11th Cir. 2012); Trepal v. Sec'y, Fla. Dept of Corr.,
684 F.3d 1088, 1109-10 (11th Cir. 2012); Payne v. Allen, 539 F.3d 1297, 1318
n. 18 (11th Cir. 2008).
Smithers v. Sec'y, Fla Dept. of Corr., 2012 WL 6570831 at * 1 n. 1 (11th Cir. Dec. 17,
2012); see also Barriner v. Sec'y, Fla Dept. of Corr., 2015 WL 896347 at *4 (11th Cir.
Mar. 4, 2015); Allen v. Sec'y, Fla. Dept of Corr., 611 F.3d 740, 753 (11th Cir. 2010)
("[E]ven if no deference were due the state collateral trial court's decision on
[Strickland's] performance element, we would conclude on de novo review that [the
petitioner] had failed to establish it.").
10
Counsel filed two motions in limine to keep the similar transaction
evidence from being admitted at trial. [Id. at 26-271.
. S I
In preparation for trial, counsel formulated a defense theory
that Petitioner was not a party to the crime because, based on the
victim's statement, Petitioner's co-defendant was the one who
wielded the gun and beat up the victim. [Id. at 25-261. Because the
victim was a drug addict at the time of the robbery, counsel
intended to argue that the victim might have been incorrect about
Petitioner's involvement in the crime, and that Petitioner was
merely present. [Id.] Counsel was able to cross-examine witnesses
such as the lead detective in a probation revocation hearing. [Id. at
27, 361. Counsel also prepared her opening and closing statements
and her questions for the witnesses. [Id. at 281.
Doe. 11-6 at 4-5. And, when Keye decided at the last minute to
reconsider going to trial, Lowry explained the charges, potential
defenses, maximum sentences he faced, and the consequences of a nonnegotiated guilty plea. See doe. 11-9 at 30-33. She never advised Keye he
should plead guilty, much less "coerced" him.
Faced with that testimony and Keye's contradictory allegation that
Lowry "did not want to exert any time or energy in the case," doe. 1-1 at
14, the state court understandably found that Lowry provided competent
representation. Because that conclusion is not "so lacking in
justification that there was an error well understood . . . beyond any
possibility for fairminded disagreement," it cannot be second-guessed by
11
this Court. Viers v. Warden, 2015 WL 2373206 at * 11 (11th Cir. May 19,
2015) (quoting Harrington, 562 U.S. at 103).
Even if the Court assumes Lowry deficiently performed, Keye
cannot show prejudice from that performance. To do so, he must
demonstrate "a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to trial."
Hill v. Lockhart, 474 U.S. 52, 59 (1985). Keye, however, faced a
mandatory life sentence because of his prior convictions if convicted at
trial. See doc. 11-9 at 35; O.C.G.A. § 17-10-7(a) (Georgia's three strikes
law). By pleading guilty, he avoided sentencing as a recidivist. Docs. 119 at 35; 11-8 at 74. He has shown no reasonable probability that he
would have gone to trial had Lowry given different advice in the face of
those two alternatives.
Indeed, the day he pled guilty, Lowry was prepared for trial and
about to commence jury selection. Doc. 11-9 at 27, 32 (on the day of the
plea, "we had a jury pool. . . actually waiting in the hail by that point,
particularly emphasizing" that Lowry explained to Keye his right to a
trial by jury). "[Keye] was in complete trial mode and, you know,
actually quite excited about the trial and, even with the codefendant
12
testifying, had a real game plan and was looking forward to trying the
case. It was his decision." Id. at 30-31 (emphasis added). The possibility
of a plea appears to have been slight up until the moment it occurred
and, in any case, was motivated by Keye's reluctance to face trial and a
life sentence, not Lowry's indolence. Under those circumstances, Keye
simply cannot show a reasonable probability that but for Lowry's
representation, he would have gone to trial. Showing neither deficient
performance nor prejudice, his JAC claim fails.
B. Involuntary Plea
Keye also contends that his guilty plea "was not voluntarily given,"
thus denying him the "due process and equal protection guaranteed by
the Fourteenth Amendment." Doc. 1-1 at 12. "Counsel's threats of a life
sentence . . . if Keye proceeded to trial," he says forced him to plead
guilty even though "he did not want to . . . because he was not guilty."
Id. at 17. "Keye does not dispute" that his prior convictions "would
have" resulted in a life sentence had he been convicted after a trial. Id.
But, he argues, his "reluctance to plead guilty" derived from his factual
innocence and so gave Lowry an "affirmative duty to proceed to trial and
present a viable defense."
13
Respondents, pointing to the trial court's plea colloquy, argue that
the state habeas court properly found that Keye voluntarily pled guilty.
Doe. 10-1 at 8. Beyond that, respondents simply conclude that the state
habeas court decision is entitled to deference. Id. at 9.
Deference is indeed due. Guilty pleas unquestionably must be
voluntarily entered.
See doe. 11-6 at 12; Boykin v. Alabama, 395 U.S.
238, 242 (1969). To show that a plea was knowingly and voluntarily
entered, the record must demonstrate that the defendant's plea was
informed, voluntary, and made with an understanding of the rights
waived by the plea -- specifically the privilege against self-incrimination,
the right to trial by jury, and the right to confront one's accusers.
Boykin, 395 U.S. at 243.
Applying Boykin, the state habeas court relied upon the plea
hearing transcript to find that Keye knowingly and voluntarily pled
guilty. Doe. 11-6 at 13-14. Keye acknowledged his guilt, and that he
understood the sentences he faced and the panoply of rights he waived
(including the right to trial by jury, confrontation rights, presumption of
innocence, etc.). Doe. 11-8 at 66-67. He denied that anyone had
threatened him into pleading guilty and admitted that he was satisfied
14
with the services Lowry rendered. Id. at 67. He presents no substantial
evidence contradicting the transcript. 5
And, just as the validity of his plea deep-sixes any JAC claim based
on alleged pre-plea rights violations, so too does the competency of
Lowry's representation torpedo Keye's involuntary guilty plea claim. See
Stafford v. Duffey, 2009 WL 3872041 at * 5 (S.D. Ga. Nov. 16, 2009) (
2254 petitioner failed to attack voluntariness of his plea via IAC claim)
(citing Tollett v. Henderson, 411 U.S. 258, 267 (1973)). As discussed
above, Lowry ably represented Keye by advising him of the risks and
benefits of going to trial versus pleading guilty, she intensively
investigated the case, and was prepared to defend Keye at trial. Doc. 119 at 25-28, 32-37. Indeed, the crux of his involuntary plea claim -- that
Lowry threatened him with a higher sentence if he went to trial -- simply
cannot render a guilty plea involuntary.
See Jones v. Estelle, 584 F.2d
In this Court, Keye contends that when the judge asked him if he voluntarily pled
guilty, he "clearly stated on the record that he did not want to enter a plea of guilty
because he was innocent of all charges." Doc. 1-1 at 18. The judge then allegedly
"stood by while defense counsel carried Keye into another room to persuade, through
manipulation, using Keye's grandmother and coercion," him to plead guilty. Id. The
transcript, however, in no way supports Keye's version of events. Faced with Keye's
assertions and the transcript, the state habeas court reasonably gave decisive weight
to the transcript.
15
687, 689-90 (5th Cir. 1978)6 (trial counsel's "impatience and stern
demand for a quick answer, when added to the threat of a life sentence if
the case went to trial," was "not sufficient . . . to find that the plea was
[involuntary]") (citing North Carolina v. Alford, 400 U.S. 25 (1970));
Johnson v. Dretke, 2005 WL 1155083 at * 5 (S.D. Tex. 2005) ("To the
extent petitioner contends that counsel induced his plea by threats of a
harsher sentence if he proceeded to trial, such an argument does not
render a guilty plea involuntary."); see also Stano v. Dugger, 921 F.2d
1125, 1142 (11th Cir. 1991) ("Unavoidable influence or pressure from
sources such as codefendants, friends or family does not make a plea
involuntary. . . ."). Lowry's conduct was neither deficient nor prejudicial
and so cannot undermine the voluntariness of Keye's guilty plea.
Having reasonably applied Boykin, as well as Strickland and Hill,
to Lowry's pre-plea advice, the state habeas court's decision on both
claims is due deference under 28 U.S.C. § 2254(d). Both claims thus fail.
6
"In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981), [the Eleventh
Circuit] adopted as binding precedent all of the decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981." United States v.
Myrie, 776 F.3d 1280, 1284 (11th Cir. 2015).
Wc
IV. CONCLUSION
Willie Lee Keye's 28 U.S.C. § 2254 petition should be DENIED.
Applying the Certificate of Appealability (COA) standards set forth in
Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009),
the court discerns no COA-worthy issues at this stage of the litigation,
so no COA should issue. 28 U.S.C. § 2253(c)(1). And, as there are no
non-frivolous issues to raise on appeal, an appeal would not be taken in
good faith. Thus, in forma pauperis status on appeal should likewise be
DENIED. 28 U.S.C. § 1915(a)(3). Finally, Keye's motion for contempt,
doe. 4, and motion for judgment on the pleadings, doe. 5, also are
DENIED.
SO REPORTED AND RECOMMENDED thisplay of June,
2015.
UNITED §TATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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