Keiser v. Foxwell et al.
Filing
5
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 12/18/2018. (bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JAMES EUGENE KEISER,
*
Petitioner,
*
v.
*
WARDEN RICKY FOXWELL, et al.,
*
Respondents.
Civil Action No. GLR-17-1240
*
*****
MEMORANDUM OPINION
THIS MATTER is before the Court is Petitioner James Eugene Keiser’s Petition
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). The Petition is ripe
for disposition, and no hearing is necessary. See Rule 8(a), Rules Governing Section
2254 Cases in the United States District Courts and Local Rule 105.6 (D.Md. 2018); see
also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing
under 28 U.S.C. § 2254(e)(2)). For the reasons stated below, the Court will deny the
Petition and decline to issue a certificate of appealability.
I.
A.
BACKGROUND
Trial
In October 2010, Keiser was tried in the Circuit Court for Washington County,
Maryland. (Resp’ts.’ Ans. Pet. Writ Habeas Corpus [“Resp’ts.’ Ans.”] Ex. 3, ECF No. 33). Keiser was charged with two counts: solicitation to commit first-degree murder; and
solicitation to commit first-degree assault. (Petr.’s Mem. L. & Facts Supp. Pet. at 2
[“Pet.”], ECF No. 1-1). A jury convicted Keiser of both counts. (Resp’ts.’ Ans. Ex. 6 at
1, ECF No. 3-6). The evidence and testimony presented at trial are outlined below.
Trial commenced on October 4, 2010. (Resp’ts.’ Ans. Ex. 3 at 1). Keiser was
wearing a shirt that said “DOC1 - on the back of it.” (Id. at 8). During voir dire, the judge
called defense counsel, Carl Creeden, and Keiser to the bench to address Keiser’s shirt.
(Id.). The judge inquired whether Creeden objected to Keiser wearing the shirt. (Id.).
Creeden responded that the fact that Keiser was detained would “probably come out
anyway” and that when Keiser testified Creeden would “cover that.” (Id.). Creeden also
indicated that he did not object to Keiser wearing the shirt and that, while he understood
the judge’s concern, the issue was “not as prejudicial as it would be in some cases.” (Id.
at 8–9).
During his opening statement, Creeden explained that Keiser was arrested on
December 16, 2009, for a violation of a protective order and for second-degree assault.
(Id. at 42). When the prosecutor objected to the statement, Creeden stated that he was
explaining to the jury why Keiser was in DOC clothing. (Id. at 42–43).
The State’s first witness was Deputy First Class Rick Whittington of the
Washington County Sheriff’s Department. (Id. at 47). He testified that on December 16,
2009, he was assigned to the domestic violence unit and served Keiser with an arrest
warrant and protective order. (Id. at 47–48). While Whittington was transporting Keiser
to the Sheriff’s Department, Keiser asked who got the protective order. (Id. at 49). When
Whittington responded that Keiser’s wife had gotten the order and that he would go over
1
“DOC” is the acronym for “Department of Correction.”
2
it once they arrived at the Sheriff’s Department, Keiser said, “it don’t matter; um, you
don’t have to go over anything, no piece of paper is going to stop me from getting that
bitch.” (Id.). Whittington further testified that while processing Keiser, he asked Keiser if
he had any firearms. (Id. at 50). Keiser asked whether a nail gun was considered a
firearm. (Id.). When Whittington responded in the negative, Keiser replied, “good, I can
put a nail in the bitch’s head.” (Id.). Whittington testified that he conveyed Keiser’s
statements to the commissioner for use in setting bond, to the warrant officer, and to his
partner. (Id. at 61). During cross-examination, Whittington explained that he did not write
a formal report regarding Keiser’s statements until over a month later when Detective
Gregory Alton (“Detective Alton”) advised him that Keiser was being charged with
solicitation. (Id. at 10, 52–53).
Next, the State called Tyrone Smith to testify. Smith had been detained with
Keiser in the Washington County Detention Center. (Id. at 65–67). Smith admitted to his
lengthy criminal record. (Id. at 61–64, 84–96). He also discussed the amount of time he
was facing for new charges against him as well as violations of probation for other
charges in several jurisdictions. (Id. at 61–64, 84–96). He agreed that he had no charges
pending in Washington County and that the State’s Attorney for Washington County had
not made any promises to in exchange for Smith’s testimony. (Id. at 63). Smith admitted
that the State’s Attorney for Washington County did offer to make a phone call on his
behalf to the State’s Attorney for Carroll County to relay Smith’s cooperation in Keiser’s
case. (Id. at 64).
3
Smith testified that from December 2009 to January 2010, he was detained at the
Washington County Detention Center (the “Detention Center”), where he met Keiser. (Id.
at 65–66). Smith recalled that he started speaking to Keiser when he learned they were
from the same area and had attended the same high school. (Id. at 67). Smith indicated
that he did not know, nor did he recognize Keiser from growing up in the same area.
(Id.). He further testified that he had not met any members of Keiser’s family and that
they did not have any friends in common, but knew some of the same people from the
area. (Id.).
Smith testified that around Christmas 2009, Keiser returned to the Detention
Center “in a huff and a tizzy over the results of” the protective order hearing. (Id. at 70).
At that time, Keiser solicited Smith to murder his wife, Shirley N. Keiser. (Id. at 71).
Keiser told Smith that he wanted Smith to kill his wife because “everything that had gone
wrong in his life was her fault.” (Id.). He told Smith that he “took his wedding vows
seriously” and the only way the marriage would end would be through death. (Id. at 71–
72). Keiser offered Smith $15,000.00 to kill his wife and indicated that he would make
arrangements through a family they both knew from the town they grew up in for
payment of the money. (Id. at 72). Smith testified that at first he thought Keiser was
angry and depressed and did not make much of Keiser saying that he was going to kill his
wife. (Id. at 73–74). He took Keiser more seriously after Keiser returned from the
protective order hearing and expressed to Smith that he learned that an organization that
assisted abused women was helping his wife. (Id. at 74–75). At that point, Keiser offered
Smith money to kill his wife. (Id. at 70). Keiser did not specify how he wanted his wife
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killed but gave examples such as using a cross bow. (Id. at 80). Keiser also did not
specify where his wife was to be killed but left that up to Smith. (Id. at 75). He told Smith
where his wife worked, the type of vehicle she drove, her physical description, the
general location of their house, as well as the override code to their home alarm system.
(Id. at 75–77). Smith reported this information to the shift commander at the Detention
Center, who relayed it to the Sheriff’s Department. (Id. at 77–78). A few days later,
Detective Alton interviewed Smith. (Id. at 78).
Detective Alton was the lead investigator on Keiser’s case. (Id. at 113). He
interviewed Smith and asked him to wear a wire; Smith refused. (Id. at 113–14).
Detective Alton confirmed information Smith gave him regarding the description of
Keiser’s house, its location, and the type of car Keiser’s wife drove. (Id. at 116–17).
Detective Alton confirmed that Keiser’s wife and Smith did not know each other. (Id. at
117). He also contacted Whittington regarding the statements Keiser made to Whittington
to request that he write a report on the statements. (Id. at 118).
It was also adduced at trial that Keiser wrote to his wife on January 26, 2010,
directing her to “sign a blank check from my account to be given to [his childhood friend]
when asked for.” (Id. at 120–21, 131).
Keiser’s wife testified at the trial. She confirmed her place of employment, the
override code for her house alarm, the description of her home, and the type of car that
she drove, as Smith described. (Id. at 128). Keiser’s childhood friend testified and denied
that Keiser contacted him regarding delivering money to anyone. (Id. at 137–38).
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Keiser called Russell Harris who was also incarcerated at the Detention Center
with him. (Id. at 141–42). He was on the same pod as Keiser and Smith and testified that
Keiser never discussed with him having his wife killed. (Id. at 142). He further testified
that Smith did not tell him that Keiser had solicited him to kill his wife. (Id. at 142–43).
Smith told Harris that “he wanted to get [ ] Keiser” that he wanted “to send him to
prison.” (Id. at 144). Harris believed Keiser and Smith had argued about something but
offered no specifics. (Id.).
Keiser testified on direct that he was presently incarcerated at the Jessup
Correctional Institution (“JCI”), with a projected release date in early 2011, and that the
charge against him for violating the protective order remained pending. (Id. at 151–52).
Keiser was incarcerated as a result of his arrest on December 16, 2009, but his conviction
was not final yet because it was under appeal. See Keiser v. State, No. 1495, Sept. Term
2010 (Md.Ct.Spec.App. July 27, 2012). Creeden also impeached Keiser with a conviction
from January 2, 1994, for escape from home detention. (Id. at 153). His attorney stated,
“The escape is actually listed as January 2, 1994, which is over fifteen years ago, but
we’ll talk about it anyway. Does that sound right, Mr. Keiser.” (Id. at 154). Keiser agreed
that this was correct. (Id.). Creeden then elicited that Keiser had been convicted of
misdemeanor theft fifteen years ago. (Id.). Keiser indicated he did not recall that
conviction but he did not dispute it. (Id.).
Keiser denied soliciting Smith to kill his wife. (Id. at 155). He testified that on the
day Whittington arrested him, he had been drinking all day and did not remember making
the statements threatening his wife that Whittington attributed to him. (Id. at 156). He
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explained that he wrote to his wife asking that she sign the blank check over to his
childhood friend because he needed money in his jail account and because he wanted his
friend to take over his checking account. (Id. at 158). Keiser explained that the details
Smith knew about his wife, their house, her employment, her vehicle, and the alarm code,
were all gleaned from innocent conversations they had while incarcerated together. (Id. at
159–63).
The jury returned guilty verdicts on both charges. (Id. at 214). Keiser was
sentenced to life imprisonment with all but thirty years suspended for solicitation to
commit first-degree murder and a concurrent twenty-five year term of imprisonment for
solicitation to commit first-degree assault. (Resp’ts.’ Ans. Ex. 4 at 5–6, ECF No. 3-4).
B.
Direct Appeal2
On appeal to the Maryland Court of Special Appeals, Keiser presented the
following questions for the appellate court’s review:
I.
Did the suppression court err when it denied appellant’s
motion to suppress the two statements he made to the police
because he was subject to “custodial interrogation” but not
advised of his Miranda rights?
II.
Did the sentencing court err in not merging appellant’s
conviction for solicitation to commit first-degree assault into
his conviction for solicitation to commit first-degree murder?
III.
Did the sentencing court’s imposition of a life sentence for
solicitation to commit first-degree murder constitute cruel and
unusual punishment?
2
The Court of Special Appeal’s decision is discussed in more detail infra.
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IV.
Did the trial court err in overruling appellant’s motion for
judgment of acquittal?
(Resp’ts.’ Ans. Ex. 6 at 2, ECF No. 3-6).
The Court of Special Appeals vacated Keiser’s sentence for solicitation to commit
first-degree assault and merged that conviction with his conviction for solicitation to
commit first-degree murder. (Id.). The appellate court affirmed the judgment in all other
respects. (Id.). Keiser filed a petition for writ of certiorari with the Maryland Court of
Appeals which was denied without opinion. (Resp’ts.’ Ans. Ex. 7, ECF No. 3-7).
C.
Post-Conviction3
On May 6, 2013, Keiser filed a post-conviction petition in the Circuit Court for
Washington County. (Resp’ts.’
Ans. Ex. 9 at 2, ECF No. 3-9). Keiser raised the
following claims of ineffective assistance of trial counsel: (1) counsel failed to
investigate, obtain, and introduce evidence of Keiser’s poor financial condition to
demonstrate he was unable to pay Smith $15,000.00; (2) counsel failed to introduce a
letter from Keiser to his wife, dated December 28, 2009, regarding the blank check to his
childhood friend, which would have demonstrated that Keiser needed the money for
medication and Keiser was too intoxicated to recall making the statements to
Whittington; (3) counsel disregarded the fact that Keiser’s home was unalarmed in
several locations and may not have been alarmed due to failure to pay; (4) counsel erred
in impeaching Keiser with two prior convictions that were more than fifteen years old
and one prior conviction that was then pending on appeal; (5) counsel erred in not
3
The post-conviction court’s decision is discussed in more detail infra.
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requesting a limiting jury instruction directing the jury that Keiser’s prior convictions
could only be used to assess his credibility and could not be used as evidence of guilt; (6)
counsel erred in failing to move to exclude the fact that Keiser was arrested for assaulting
his wife; (7) counsel failed to request a limiting instruction directing the jury that Keiser’s
prior bad acts could only be considered in determining Keiser’s motive and intent and not
as evidence of his guilt; (8) counsel erred in permitting Keiser to wear prison clothing
with DOC on the back during the trial; (9) counsel failed to require a jury instruction
regarding the voluntariness of Keiser’s statements to Whittington; (10) counsel erred in
failing to object to and request a curative instruction regarding the State’s opening and
closing statements; (11) counsel failed to properly cross-examine Smith and otherwise
introduce evidence of Smith’s bias and motive to testify falsely; (12) counsel erred in
failing to inspect and, if necessary, introduce Smith’s notes that he had at trial that
purported to describe his conversations with Keiser; (13) counsel erred in failing to
investigate whether Smith had falsely accused other inmates; (14) counsel erred in
ignoring Keiser’s request to file a motion for a new trial; and (15) the cumulative errors
of trial counsel constituted ineffective assistance of counsel. (Id. at 3–4). On June 3,
2015, the post-conviction court held a hearing on Keiser’s petition. (Id. at 2). On July 30,
2015, the post-conviction court denied Keiser’s petition. (Id. at 21).
In his application for leave to appeal the order denying post-conviction relief,
Keiser raised two claims of ineffective assistance of counsel: whether trial counsel was
ineffective for (1) introducing evidence of his prior convictions; and (2) failing to object
to Keiser being tried in “prison clothes” with “DOC” written on the back. (Resp’ts.’ Ans.
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Ex. 10 at i, ECF No. 3-10). The Court of Special Appeals summarily denied Keiser’s
application for leave to appeal on December 8, 2016. (Resp’ts.’ Ans. Ex. 12 at 1, ECF
No. 3-12).
D.
Habeas Claims in this Court
On May 5, 2017, Keiser filed a Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254. (ECF No. 1). Respondents Warden Ricky Foxwell and Brian Frosh filed
an Answer on July 10, 2017. (ECF No. 3). On August 2, 2017, Keiser filed a Reply. (ECF
No. 4).
II.
A.
DISCUSSION
Standard of Review
The Court may grant a petition for writ of habeas corpus only for violations of the
U.S. Constitution or laws of the United States. 28 U.S.C. § 2254(a) (2018). The federal
habeas statute, 28 U.S.C. § 2254 et seq., sets forth a “highly deferential standard for
evaluating state-court rulings.” Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also
Bell v. Cone, 543 U.S. 447 (2005). The standard is “difficult to meet,” and requires
courts to give state-court decisions “the benefit of the doubt.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011) (first quoting Harrington v. Richter, 562 U.S. 86, 102 (2011); and
then quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)); see also White v Woodall,
572 U.S. 415, 419–20 (2014) (quoting Harrington, 562 U.S. at 103) (noting that a state
prisoner must show that a state court ruling on a claim 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 fair minded disagreement”).
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A federal court may not grant a writ of habeas corpus unless the state’s
adjudication on the merits: (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.” § 2254(d). A state court decision is contrary to clearly established
federal law under § 2254(d)(1) where the state court: (1) “arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law”; or (2) “confronts facts that
are materially indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite to [the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405 (2000).
Under the “unreasonable application” analysis of § 2254(d)(1), a “state court’s
determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). In other words, “an unreasonable application of federal law is different from an
incorrect application of federal law.” Id. at 785 (quoting Williams, 529 U.S. at 365).
Under § 2254(d)(2), “a state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the
first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “[E]ven if reasonable minds
reviewing the record might disagree about the finding in question,” a federal habeas court
may not conclude that the state court decision was based on an unreasonable
determination of the facts. Id. Put another way, a federal court may not issue a writ
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“simply because [it] concludes in its independent judgment that the relevant state-court
decision applied established federal law erroneously or incorrectly.” Renico v. Lett, 559
U.S 766, 773 (2010).
The habeas statute provides that “a determination of a factual issue made by a
State court shall be presumed to be correct.” § 2254(e)(1). The petitioner bears “the
burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.
“Where the state court conducted an evidentiary hearing and explained its reasoning with
some care, it should be particularly difficult to establish clear and convincing evidence of
error on the state court’s part.” Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010). This is
especially true where state courts have “resolved issues like witness credibility, which are
‘factual determinations’ for purposes of Section 2254(e)(1).” Id. at 379.
B.
Analysis
Keiser raises three grounds for federal habeas relief, all based on purported
ineffective assistance of trial counsel—violations of the Sixth Amendment to the U.S.
Constitution. First, Keiser contends that his trial counsel was ineffective for introducing
evidence of his prior convictions. Second, Keiser argues that his trial counsel was
ineffective for permitting him to be tried in prison clothes. Third, Keiser asserts that he
was denied a fair trial based on the cumulative errors of trial counsel.
1.
Ineffective Assistance of Counsel Claims
When a petitioner alleges a claim of ineffective assistance of counsel, he must
show both that counsel’s performance was deficient and that the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The second
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prong requires the Court to consider whether there was “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. A strong presumption of adequacy attaches to counsel’s conduct.
Id. at 696. This presumption is so strong in fact that a petitioner alleging ineffective
assistance of counsel must show that the proceeding was rendered fundamentally unfair
by counsel’s affirmative omissions or errors. Id..
A showing of prejudice requires that: (1) counsel’s errors were so serious as to
deprive the defendant of a fair trial whose result is reliable; and (2) there was a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different. See Strickland, 466 U.S. at 687, 694. “The
benchmark [of an ineffective assistance claim] must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Id. at 686. It is not enough “to show that the
errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. A court
need not make a determination regarding the attorney’s performance if it is clear that no
prejudice would have resulted had the attorney’s performance been deficient. Id. at 697.
As the U.S. Supreme Court held in Strickland, “a state court conclusion that
counsel rendered effective assistance of counsel is not a finding of fact binding on the
federal court to the extent stated by [§ 2254(e)(1)].”4 466 U.S. at 698. State court findings
of fact made in the course of deciding an ineffectiveness claim, however, “are subject to
4
This subsection was formerly codified at 28 U.S.C. § 2254(d).
13
the deference requirement of § 2254[(e)(1)].” Id. Both the performance and prejudice
components of the ineffectiveness inquiry are “mixed questions of law and fact.” Id.
The “unreasonable application” standard in § 2254(d)(1) applies to a state court’s
conclusion that a petitioner’s trial counsel rendered effective assistance of counsel.
Harrington, 562 U.S. at 105. “The standards created by Strickland and § 2254(d) are both
“highly deferential.” Id. (quoting Strickland, 466 U.S. at 689; and then quoting Lindh v.
Murphy, 521 U.S. 320, 333, n.7 (1997). “[W]hen the two apply in tandem, review is
‘doubly’ so.” Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). Because
the Strickland standard is general, “the range of reasonable applications is substantial.”
Id. (citing Knowles, 556 U.S. at 123). The Supreme Court has cautioned that “[f]ederal
habeas courts must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d).” Id. Under § 2254(d), “the question is
not whether counsel’s actions were reasonable.” Id. Rather, the inquiry is “whether there
is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
The gravamen of Keiser’s claim is that the state post-conviction court
unreasonably applied Strickland in light of the record. Keiser argues that the postconviction court applied Strickland in an objectively unreasonable manner by failing to
conclude that trial counsel’s errors prejudiced Keiser. The Court addresses Keiser’s
allegations of error in turn.
a.
Admission of Keiser’s prior convictions
During the post-conviction hearing, Creeden admitted that his introduction of
three of Keiser’s prior convictions, two older than fifteen years, and one which remained
14
on appeal, was error. (Resp’ts.’ Ans. Ex. 8 at 86–88, ECF No. 3-8). Creeden explained
that he spent a lot of time pretrial examining Keiser’s and Smith’s criminal records. (Id.
at 87). He noted on Keiser’s record that the two older convictions in question were “[t]oo
old” to be used to impeach Keiser. (Id.). He explained that the trial was fast moving and
that his “strategy and tactic” in questioning Keiser about his record was to “bring it out
before the State does.” (Id.). He admitted that it was a mistake to have elicited testimony
on the two convictions that were older than fifteen years. (Id.). Creeden also agreed that it
was error to introduce the conviction that was then on appeal. (Id. at 87–88).
The post-conviction court concluded that Keiser had not established that Creeden
was ineffective with regard to this allegation of error. While the court agreed that
Creeden erred in eliciting testimony on the three inadmissible convictions, it ultimately
concluded that Keiser had failed to satisfy the prejudice prong of Strickland. (Resp’ts.’
Ans. Ex. 9 at 9–10). In so holding, the court stated:
The issue for this Court . . . is whether, under
Strickland and Bowers [v. State, 578 A.2d 734 (1990)], the
trial produced a just result, and whether there is a substantial
or significant probability that the outcome of the trial would
have been different without these errors. This Court is
convinced that the State had a strong case against the
Petitioner as Mr. Smith’s knowledge of Mrs. Keiser and the
Keiser home was so detailed that it could only have come
from the Petitioner when he solicited Mr. Smith to murder
Mrs. Keiser.
As mentioned earlier, the State’s case relied heavily on
Mr. Smith’s testimony concerning details regarding Mrs.
Keiser and the Keiser’s home, and Detective Alton’s
corroboration of these details. Mr. Smith testified at the
criminal trial that the Petitioner had told him several details
regarding Ms. Keiser and their home when he solicited Mr.
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Smith. During the course of the solicitation, the Petitioner
told Mr. Smith that Mrs. Keiser worked at Frederick
Memorial Hospital; drove a Kia Sorento; was approximately
five foot seven; had dirty blonde hair; was full figured and
slightly overweight; the approximate area where their home
was located; that there was a tractor parked in the back of
their home; that their house had vinyl siding; that the home
alarm override code was ‘Romeo’; and that the override code
referred to the name of [ ] their dog. Detective Alton also
testified at the criminal trial that upon learning these details
from Mr. Smith, he subsequently met with Mrs. Keiser and
confirmed all of these details and confirmed that Mrs. Keiser
had never met Mr. Smith. Based on this wealth of evidence, it
cannot be said that the trial produced an unfair result, or that
there is a significant probability that the outcome would have
been different had the inadmissible convictions not been
introduced. Therefore, the Petitioner cannot prove prejudice
here and therefore he has failed to meet his burden of proof
regarding this claim and the relief requested is denied.
(Id.) (footnote omitted).
Here, Keiser fails to demonstrate that the post-conviction court’s application of
Strickland was unreasonable. Nor does Keiser establish by clear and convincing evidence
that the post-conviction court made an erroneous factual finding. While Keiser
characterizes this case as close and centering on his credibility, the Court disagrees. A
review of the record reveals that the case centered on the credibility of Smith, who
Creeden heavily impeached during cross-examination. The post-conviction court
properly found that in addition to Smith’s testimony, Detective Alton was able to
corroborate the information that Smith provided regarding Keiser’s wife that Smith
claimed Keiser told him when he solicited her murder. Those facts coupled with the
threats Keiser made to Whittington about his wife demonstrated ample evidence of
Keiser’s guilt. In returning a verdict against Keiser, the jury rejected Keiser’s explanation
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for how Smith acquired the detailed information regarding his wife. There is nothing in
the post-conviction court’s decision that suggests it misapplied established federal law or
improperly characterized the facts adduced at trial and at the post-conviction hearing in
rejecting this claim. Thus, Keiser fails to present a viable claim for federal habeas relief
on this basis.
b.
Wearing of prison clothes during trial
During his testimony at the post-conviction hearing, Creeden agreed that he did
not raise the issue of Keiser wearing a shirt that said DOC across the back and did not
attempt to get Keiser out of the prison clothes. (Resp’ts.’ Ans. Ex. 8 at 90–91). Creeden
explained that Keiser was charged with asking someone in the Detention Center to harm
his wife, so the jury would know that Keiser was in the Detention Center. (Id. at 91).
Creeden testified that he did not believe that it “made a difference in the outcome”
Keiser’s case. (Id.). Creeden admitted saying to the judge that he did not believe Keiser’s
wearing of the prison clothes was “as prejudicial as it would be in some cases.” (Id.).
In rejecting Keiser’s ineffective assistance of counsel claim on the basis that
Creeden failed to object to Keiser wearing prison clothes, the post-conviction court found
that:
. . . Mr. Creeden testified that he was aware of the issue, but
recognized that the solicitation occurred while Mr. Keiser was
incarcerated, that the crime occurred within a penal
institution, and that the testimony would quickly present these
facts to the jurors’ attention. Furthermore, the mere fact that
the Petitioner stood trial in prison clothing does not establish
prejudice in light of the strength of the State’s case. As stated
above, prejudice exists if it is shown that, without the error,
there was a substantial or significant possibility that the
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outcome would have been different. Based on the strength of
the State’s case, there is not a significant possibility that the
outcome of the case would have been different. The Petitioner
has failed to meet his burden of proof regarding this claim
and the relief requested is denied.
(Resp’ts.’ Ans. Ex. 9 at 14).
Here, the post-conviction court’s findings are supported by the record and do not
constitute an unreasonable application of Strickland. When Keiser was called to testify
and asked to identify himself, he offered that he was “in JCI-Jessup.” (Resp’ts.’ Ans. Ex.
3 at 151–52). The jury was aware of Keiser’s incarceration both from his own testimony
as well as the fact that the solicitation occurred at the Detention Center. When the trial
court brought the issue to Creeden and Keiser’s attention, Creeden explained that he was
not concerned that Keiser’s prison garb would prejudice him because the jury would
learn that Keiser was incarcerated when the crimes occurred. (Resp’ts.’ Ans. Ex. 3 at 8–
9). Creeden reiterated this explanation when he testified at the post-conviction hearing.
(Resp’ts.’ Ans. Ex. 8 at 91).
As noted previously, while Keiser attempts to cast this case as solely turning on
who was the more believable witness, Keiser or Smith, he ignores the other evidence
introduced at trial including that: Keiser made two threatening statements concerning his
desire to kill his wife in the presence of a law enforcement officer; had violated the
domestic violence protective order on numerous occasions; at the time of the alleged
solicitation was detained for an alleged second-degree assault on his wife; and that the
facts known by Smith, who was heavily impeached during his testimony, were
corroborated. The post-conviction court’s determination that Keiser failed to demonstrate
18
prejudice as a result of Creeden’s failure to object to his being tried in prison clothes is
subject to a “highly deferential standard” and is to “be given the benefit of the doubt.”
Renico, 559 U.S. at 773. Nothing in the post-conviction court’s decision indicates that its
determination that Keiser failed to demonstrate prejudice as a result of his counsel
allowing him to be tried in prison clothes was an unreasonable application of wellestablished law. Harrington, 562 U.S. at 101. Accordingly, the post-conviction court’s
conclusion is entitled to deference and the Court will not disturb it.
2.
Cumulative Error Claim
Keiser contends that he is entitled to relief based on the cumulative errors of his
trial counsel. Under the cumulative error doctrine, “[t]he cumulative effect of two or
more individually harmless errors has the potential to prejudice a defendant to the same
extent as a single reversible error.” United States v. Rivera, 900 F.2d 1462, 1469 (10th
Cir. 1990); see also United States v. Basham, 561 F.3d 302, 330 (4th Cir. 2009); United
States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002).
Generally, if a court “determine[s] . . . that none of [a petitioner’s] claims warrant
reversal individually,” it will “decline to employ the unusual remedy of reversing for
cumulative error.” United States v. Fields, 483 F.3d 313, 362 (8th Cir. 2007). To reverse
for cumulative error, the errors must “so fatally infect the trial that they violated the
trial’s fundamental fairness.” Basham, 561 F.3d at 330 (quoting United States v. Bell,
367 F.3d 452, 471 (5th Cir. 2004)). When “none of [the trial court’s] individual rulings
worked any cognizable harm [on the defendant], . . [i]t necessarily follows that the
cumulative error doctrine finds no foothold.” United States v. Sampson, 486 F.3d 13, 51
19
(1st Cir. 2007). In the U.S. Court of Appeals for the Fourth Circuit, the cumulative error
doctrine is generally not recognized because “legitimate cumulative-error analysis
evaluates only the effect of matters actually determined to be constitutional error, not the
cumulative effect of all of counsel’s actions deemed deficient.” Fisher v. Angelone, 163
F.3d 835, 852 n.9 (4th Cir. 1998); see also Arnold v. Evatt, 113 F.3d 1352, 1364 (4th Cir.
1997); Higgs v. United States, 711 F.Supp.2d 479, 552 (D.Md. 2010) (in the context of
collateral review, review based on the cumulative effect of errors is available only where
individual constitutional errors are found).
In rejecting Keiser’s cumulative error claim, the post-conviction court held:
Finally, the Petitioner argues that the cumulative effect
of Mr. Creeden’s errors prejudiced his defense. The Court of
Appeals has held that, in determining whether the cumulative
effect of performance by counsel constituted ineffective
assistance, the touchstone, as always, is whether in view of all
circumstances the confidence in the result has been
undermined by counsel’s failings. Although it is true that this
Court finds that Mr. Creeden did commit an error during the
course of the trial regarding the Petitioner’s prior convictions,
the error was immaterial, in light of the strength of the State’s
case that the Petitioner was not prejudiced. Here, the State’s
case against the Petitioner was strong and not simply a
credibility battle between the Petitioner and Mr. Smith.
Instead, as the State correctly opined, this was a corroboration
case in which Mr. Smith’s testimony was independently
corroborated by Detective Alton and Mrs. Keiser. As such,
the Petitioner has failed to meet his burden of proof regarding
this claim and the relief requested is denied.
(Resp’ts.’ Ans. Ex. 9 at 19–20) (footnote omitted).
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Here, because Keiser fails to establish that each of the errors discussed above
warrant granting his Petition, Keiser’s cumulative error claim provides no grounds for
federal habeas corpus relief. Fields, 483 F.3d at 362.
Even if the Court were to determine that trial counsel’s errors prejudiced Keiser,
he would still not be entitled to relief in this Court. “The pivotal question [in a § 2254
petition] is whether the state court’s application of the Strickland standard was
unreasonable.” Harrington, 562 U.S. at 101. “This is different from asking whether
defense counsel's performance fell below Strickland’s standard.” Id. In this case, there is
simply no indication that the post-conviction court’s determination “was so lacking in
justification that there was an error . . . beyond any possibility for fairminded
disagreement.” Id. at 103. As noted above, the post-conviction court identified the
appropriate federal law as established by the Supreme Court for determining ineffective
assistance of counsel claims and applied it in a manner that was not contrary or
unreasonable to Supreme Court precedent. In light of the record, there is no basis for the
Court to conclude that the post-conviction court’s determinations were unreasonable on
the facts or on the law. The Court, therefore, concludes that there is no cause to disturb
the post-conviction court’s decision under § 2254(d).
In sum, having examined the post-conviction court’s rulings and independently
examined the record, the Court is satisfied that the post-conviction court’s application of
the Strickland standard to trial counsel’s allegedly deficient performance was not
unreasonable. Accordingly, the Court will deny Keiser’s Petition.
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C.
Certificate of Appealability
A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see
Buck v. Davis, 137 S.Ct. 759, 773 (2017). The petitioner must demonstrate that
“reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented are adequate to
deserve encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Because the Court concludes that Keiser has not made a substantial showing of
the denial of a constitutional right, the Court will decline to issue a certificate of
appealability. See 28 U. S.C.§ 2253(c)(2). Keiser may still request that the Fourth Circuit
issue such a certificate. See Lyons v. Lee, 316 F.3d 528, 532 (4th Cir. 2003) (considering
whether to grant a certificate of appealability after the district court declined to issue
one).
III.
CONCLUSION
For the foregoing reasons, the Court will deny Keiser’s Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). The Court will also decline to issue a
certificate of appealability. A separate Order follows.
December 18, 2018
Date
__________/s/___________
George L. Russell, III
United States District Judge
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