Keith v. Wainwright
Filing
67
Order Adopting Report and Recommendation, (R & R). After a careful de novo review of the R & R, the parties' arguments, Keith's Objection to theR & R, and all relevant materials in the record, the court adopts the Magistrate Judge 039;s R & R (ECF No. 56 ), as modified by this Order and hereby dismisses the Petition. The court also overrules the parties' Objections regarding the Magistrate Judge's partial expansion of the record, grants Keith's Second Motion to Expand the Record (ECF No. 59 ) and denies his Motion for Oral Argument (ECF No. 65 ). Finally, the court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could be taken in good faith, and the court hereby issues a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b). Related documents 56 , 59 , 65 . Signed by Judge Solomon Oliver, Jr. on 9/24/2021. (R,Sh)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KEVIN KEITH,
Petitioner
v.
LYNEAL WAINWRIGHT, Warden,
Respondent
)
)
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)
)
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Case No.: 1:18 CV 634
JUDGE SOLOMON OLIVER, JR.
ORDER
Currently pending before the court in the above-captioned case is Petitioner Kevin Keith’s
(“Petitioner” or “Keith”) Petition for Writ of Habeas Corpus (“Petition”) under 28 U.S.C. § 2254
(ECF No. 1). Also before the court are the parties’ respective Objections (ECF Nos. 42, 44) to the
Magistrate Judge’s decision to partially expand the record, Keith’s Second Motion to Expand the
Record (ECF No. 59), and his Motion for Oral Argument on the Habeas Petition (ECF No. 65).
Under Local Rule 72.2, the court referred the Petition to the Magistrate Judge for a Report and
Recommendation (“R & R”). For the following reasons, the court overrules the parties’ Objections
to the ruling on Keith’s First Motion to Expand the Record, the court grants Keith’s Second Motion
to Expand the Record, the court adopts the R & R as modified by this Order and dismisses the
Petition, and the court denies Keith’s Motion for Oral Argument.
I. BACKGROUND
In May 1994, an Ohio jury convicted Keith on three counts of aggravated murder and three
counts of attempted aggravated murder.1 The trial court sentenced Keith to death, per the jury’s
recommendation, and the Ohio Court of Appeals and Ohio Supreme Court affirmed his convictions
and sentence on appeal. Since then, Keith has actively pursued post-conviction relief in state and
federal court as well as Ohio’s clemency proceedings. Although all of Keith’s prior efforts through
the courts were unsuccessful, in September 2010, then-Governor Ted Strickland commuted Keith’s
sentence to life in prison without the possibility of parole.
Keith’s three prior federal habeas petitions were unsuccessful.2 In 1999, Keith filed his first
petition asserting ineffective assistance of counsel. The district court denied the petition, and the
Sixth Circuit affirmed. Keith v. Mitchell, 455 F.3d 662, 665 (6th Cir. 2006). Keith filed a second
petition in 2008, citing newly discovered evidence that the state allegedly suppressed in violation
of Brady v. Maryland, 373 U.S. 83 (1963). But a divided panel of the Sixth Circuit held that Keith
could not pursue his claims because he failed to satisfy the threshold requirements for filing a second
or successive habeas petition under 28 U.S.C. § 2244(b)(2). See Keith v. Bobby, 551 F.3d 555, 556
(6th Cir. 2009); Id. at 561 (Clay, J., dissenting). The Sixth Circuit likewise denied Keith’s 2013
petition, which raised additional ineffective assistance of counsel claims, for the same reason. See
In re Keith, No. 14-3290 (6th Cir. Dec. 8, 2014) (order).
In this fourth-in-time Petition, Keith asserts two new Brady violations: First, Keith argues
that the state withheld impeachment information regarding Michelle Yezzo (“Yezzo”), a former
forensic analyst for the Ohio Bureau of Criminal Investigation, whose testimony linked Keith to the
1
The court adopts the R & R’s detailed and accurate discussion of the factual and
procedural background underlying Keith’s case. In light of that discussion, plus the
extensive record from the trial court, direct appeal, and prior post-conviction
proceedings, only a short summary of the relevant facts is needed here.
2
See Case Nos. 1:99-CV-657; 1:08-CV-1687; 1:13-CV-1718. Early filings related to
the 1999 petition predate electronic filing.
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crime. Second, Keith contends that the state deliberately ignored his trial subpoena requesting police
phone log records that would have contradicted the government’s theory of the case and undermined
the credibility of its star witness. As with Keith’s prior requests for federal habeas relief, the court
transferred this matter to the Sixth Circuit to determine whether Keith could file a successive habeas
petition. (See Order, ECF No. 15.) But unlike those prior unsuccessful attempts, the Sixth Circuit
granted Keith’s request after determining that he had made a prima facie showing to satisfy § 2244’s
gateway requirements and, therefore, that his “Brady claims ‘warrant a fuller exploration in the
district court.’” In re Keith, No. 18-3544, 2018 WL 8807240, at *7 (6th Cir. Oct. 26, 2018) (quoting
In re Wogenstahl, 902 F.3d 621, 629 (6th Cir. 2018)).
The proceedings continued in this court after the Sixth Circuit’s order authorizing Keith to
pursue his successive Petition. The State filed its Return of Writ (ECF No. 26) on March 26, 2019,
and Keith filed a Traverse (ECF No. 28) on May 9, 2019. With his Traverse, Keith also moved the
court to include nine additional exhibits in the record. (First Mot. to Expand, ECF No. 29.) The
Magistrate Judge granted that Motion as to three exhibits but denied it as to the other six. (Order,
ECF No. 41.) Both parties objected to the ruling. (ECF Nos. 42, 44.) On September 3, 2020, the
Magistrate Judge submitted the R & R (ECF No. 56), recommending that the court dismiss Keith’s
Petition. Keith filed an Objection (ECF No. 58) and a Second Motion to Expand the Record (ECF
No. 59) on September 24, 2020.3 While Respondent Warden Lyneal Wainwright (“Respondent”) did
not file an objection, her Response (ECF No. 60) to Keith’s Objection purports to challenge some
aspects of the R & R. (See id. at PageID # 11738 n.2.) On March 3, 2021, Keith filed a Motion for
Oral Argument (ECF No. 65).
3
Ordinarily, Keith should have raised this Motion with the Magistrate Judge.
However, because Respondent does not object to it as untimely, the court considers
it in its analysis.
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II. LAW AND ANALYSIS
A.
Legal Standards
1. Expanding the Record
Habeas Rule 7 allows federal habeas courts to “direct the parties to expand the record by
submitting additional materials relating to the petition.” But the decision whether to expand “is left
to the discretion of the trial judge.” Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988). Expansion
is not mandatory. Id.
2. Second or Successive Habeas Petitions
Second or successive habeas petitions like Keith’s are governed by 28 U.S.C.
§ 2244(b)(2)(B). The relevant provisions state:
(2)
A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—
(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due
diligence; and
(ii)
the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2)(B). The second prong is commonly referred to as the “actual innocence”
standard. Before a second or successive petitioner can proceed on their claims in the district court,
they must obtain authorization from the court of appeals by making a prima facie showing that they
satisfy § 2244(b)(2)(B)’s requirements. 28 U.S.C. § 2244(b)(3)(C); In re Wogenstahl, 902 F.3d at
628. In this context, “prima facie” simply means “sufficient allegations of fact together with some
documentation that would warrant a fuller exploration in the district court.” In re Wogenstahl, 902
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F.3d at 628 (quoting In re Lott, 366 F.3d 431, 433 (6th Cir.2004)). Once back in the district court,
the petitioner “must actually show that the claim satisfies the standard” to avoid dismissal. Tyler v.
Cain, 533 U.S. 656, 661 n.3 (2001) (cleaned up).
B.
Objections to First Motion to Expand the Record
When he filed his Traverse, Keith also sought to expand the record to include the following
nine exhibits:
1.
Sentencing entries for defendants caught in a drug raid that also
implicated Keith. (ECF No. 28-1.) Keith asserts that, although he
was never tried for these drug offenses, “the sentencing outcome
of the others charged demonstrates that” he likely would have
faced a relatively short sentence. (First Mot. to Expand Record at
PageID #10908 n.3, ECF No. 28.)
2.
February 13, 1994, Mansfield police department traffic report that
corroborated statements from one of Keith’s girlfriends, Melanie
Davison (“Davison”). (ECF No. 28-2.) Keith claims that this
report in turn corroborates his alibi.
3.
A copy of a search warrant affidavit that includes “masks” in the
list of items to be searched. (ECF Nos. 28-3; 33-2.) Keith argues
that the affidavit shows “police apparently still believed that the
shooter had been masked.” (First Mot. to Expand Record at
PageID #10911 n.8, ECF No. 28.)
4.
May 9, 2019, corrected affidavit of Keith’s counsel meant to
demonstrate diligence under § 2244(b)(2)(B)(i). (ECF No. 29-1.)
5.
May 6, 2019, affidavit of former Governor Ted Strickland stating
that he commuted Keith’s sentence due to “severe doubts about
his guilt.” (Strickland Aff. ¶ 5, ECF No. 28-5.)
6.
State of Ohio’s January 10, 2013, brief in opposition to Keith’s
petition for a writ of certiorari from the United States Supreme
Court. (ECF No. 28-6.)
7.
April 23, 2019, expert report from Sunita Sah (“Sah”) regarding
the biases in and unreliability of Michele Yezzo’s forensic
analysis. (ECF No. 28-7.)
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8.
May 1, 2019, affidavit of Zachary Swisher, deputy legal counsel
to former Governor Strickland, stating that he has “grave
concerns about the investigation and Keith’s guilt.” (Swisher Aff.
¶ 11, ECF No. 28-8.)
9.
September 24, 2010, statement under oath of Davison explaining
why she changed the tires on the car Keith purportedly used as his
getaway vehicle. (ECF No. 28-9.)
The Magistrate Judge granted this Motion as to the affidavit from Keith’s counsel and Sah’s expert
report, finding the former relevant to Keith’s diligence and the latter relevant to Keith’s claim of
actual innocence. (Order at PageID #11401–03, ECF No. 41.) The Magistrate Judge also granted the
Motion as to the State’s brief in opposition to Keith’s petition for certiorari because Respondent did
not oppose its inclusion in the record. (Id. at PageID #11402.) However, the Magistrate Judge denied
the Motion as to the other exhibits, finding that they were not relevant to the inquiry under 28 U.S.C.
§ 2244(b)(2)(B). Both parties objected to the Magistrate Judge’s ruling.
1. Standard of Review
When reviewing a Magistrate Judge’s ruling on a nondispositive issue, the court must
“modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ.
P. 72(a). The “clearly erroneous” standard applies to the Magistrate Judge’s factual findings, while
the “contrary to law” standard applies to legal conclusions. Reid v. Moore, No. 3:05-CV-326, 2009
WL 3857429, at *1 (S.D. Ohio Nov. 16, 2009). Both standards afford considerable deference to the
Magistrate Judge’s determinations. Id.
2. Respondent’s Objection
Respondent objects to the inclusion of the updated affidavit from Keith’s counsel (ECF
No. 29-1) and Sah’s expert report (ECF No. 28-7). (See Resp.’s Obj. to Mag. J. Order at
PageID #11407–08, ECF No. 42.) First, citing Cullen v. Pinholster, 563 U.S. 170 (2011),
Respondent asserts that, “in a case in which there was a merits determination in state court . . . , the
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Court cannot consider any evidence which was not before the state courts.” (Resp.’s Obj. to Mag.
J. Order at PageID #11408–09, ECF No. 42.) Second, Respondent argues that even if Keith’s
exhibits overcome Pinholster’s bar, the affidavit and expert must be excluded because they are
irrelevant to the merits of Keith’s habeas claims.
These arguments are not well-taken. As to the first, the Magistrate Judge correctly
distinguished Pinholster from this case. While Pinholster requires federal habeas courts to limit their
§ 2254(d)(1) merits analysis to the record before the state court, that limitation “is inapplicable to
the threshold jurisdictional questions before the Court in § 2244(b)(1)(B).” (Order at PageID #11397,
ECF No. 41.) Indeed, Respondent’s Objection acknowledges precisely this distinction. (Resp.’s Obj.
to Mag. J. Order at PageID #11408, ECF No. 42 (suggesting that Pinholster’s bar does not apply to
the affidavit from Keith’s counsel because “that document does address the § 2244 gate-keeping
requirements”).) After reviewing the parties’ arguments and the Magistrate Judge’s Order—as well
as decisions from other courts in this circuit that have expanded the record to include new evidence
for purposes of the § 2244(b)(1)(B) inquiry, (see Order at PageID #11397, ECF No. 41)—the court
finds that the Magistrate Judge’s interpretation and application of Pinholster is not clearly erroneous.
Nor did the Magistrate err in finding the affidavit and expert report relevant to the threshold inquiry.
The Magistrate Judge accurately concluded that these materials inform the analysis under
§ 2244(b)(1)(B), and the Order properly explained that the exhibits were admitted only for that
purpose. (Order at PageID #11402–03, ECF No. 41.) Consequently, the court overrules Respondent’s
Objection.
3. Keith’s Objection
Keith objects to the exclusion of four exhibits: the Mansfield police traffic report (ECF
No. 28-2), the search warrant (ECF Nos. 28-3, 33-2), the Strickland and Swisher affidavits (ECF
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Nos. 28-5, 28-8), and the Davison statement (ECF No. 28-9). (See Keith’s Obj. to Mag. J. Order at
PageID #11421, ECF No. 44.) The crux of Keith’s Objection relative to each exhibit is that the
Magistrate Judge improperly evaluated their relevance to the § 2244(b)(1)(B) inquiry.
The court also finds these arguments not well-taken. Both of the Davison exhibits, the police
report and her sworn statement, potentially provide some support for Keith’s defense theory and
therefore potentially have some relevance to the § 2244(b)(1)(B)(ii) actual innocence prong. But
Keith vastly overstates their significance, and the court cannot find that the Magistrate Judge clearly
erred by excluding them. As for the affidavits, they come from third parties, who merely recount
their personal views about Keith’s case despite lacking direct knowledge of Keith’s diligence or
innocence. The court does not doubt the sincerity of the affiants’ concerns, but the court ultimately
agrees with the Magistrate Judge that the affidavits are not relevant to the § 2244(b)(1)(B) inquiry.
Consequently, the court overrules Keith’s Objection.4
C.
Second Motion to Expand the Record
Before turning to the R & R and the substance of Keith’s Petition, the court first addresses
his Second Motion to Expand the Record. With this Motion, which he filed along with his Objection
to the R & R, Keith seeks to add the following exhibits:
1.
2.
4
Mansfield police department file concerning Melton’s prior
murder (ECF No. 59-1), which, according to Keith, “demonstrates
the State’s decades-long knowledge that Melton ‘is highly
dangerous and possibly mentally disturbed.’” (Second Mot. to
Expand at PageID #11674, ECF No. 59.)
September 24, 2020, affidavit of Lori Rothschild Ansaldi, a
televison and podcast producer who obtained the Melton police
file through a public records request and then forwarded them to
Keith’s former counsel. (Ansaldi Aff. ¶¶ 6–9, ECF No. 59-2.)
In any event, for the reasons discussed below, the court still would dismiss Keith’s
Petition even if all of these exhibits were included in the record.
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Respondent opposes this Motion, again arguing that Pinholster bars the court from considering
materials outside the state court record and that, in any event, the materials are irrelevant. (Resp.’s
Opp’n to Second Mot. to Expand at PageID #11792–95, ECF No. 62.)
The court finds Petitioner’s Motion to be well-taken. As discussed above, the court rejects
Respondent’s reading of Pinholster. Further, the court finds that the police report has at least some
relevance to the § 2244(b)(2)(B)(ii) actual innocence inquiry and that Ansaldi’s affidavit is relevant
to Keith’s diligence under § 2244(b)(2)(B)(i). Accordingly, the court includes these exhibits in its
analysis. However, as the court discusses below, the court finds that Keith’s Petition fails despite this
evidence.
D.
Habeas Petition
1. Grounds for Relief
Keith’s Petition raises two grounds for habeas relief based on alleged Brady violations. In
the First Ground for Relief, Keith asserts that the state failed to disclose critical impeachment
evidence from Yezzo’s personnel file showing that she was biased in favor of law enforcement,
routinely “stretch[ed] the truth to satisfy a [police] department,” frequently used racial slurs against
African Americans, and had a history of verbally and physically abusing co-workers. (Pet. at
PageID #20, ECF No. 1.) Keith maintains that the state knew about these problems with Yezzo’s
work “long before she testified at Keith’s trial.” (Traverse at PageID #10923, ECF No. 28.) Yet the
state failed to disclose them, and Keith only learned of them in 2016, when a newspaper article
highlighted issues regarding Yezzo’s reliability. The Second Ground for Relief stems from the state’s
failure to comply with Keith’s trial subpoena requesting “all records, including radio dispatch logs,
of all call-ins” that the Bucyrus police department received around the time of the murders. (Pet. at
PageID #17, ECF No. 1.) When Keith finally obtained these records in 2016, after Ohio changed its
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public records laws, he learned that the subpoena had been marked “Ignore For Now.” (Id.) Not only
do the logs provide important evidence impeaching the credibility of the state’s star witness, Keith
argues, they also bolster his claim that the police acted in bad faith throughout the investigation.
2. Report and Recommendation
The Magistrate Judge concluded that Keith’s Petition should be dismissed because Keith
failed to satisfy the threshold inquiry under § 2244(b)(1)(B). At the first prong, the R & R found that
Keith satisfied § 2244(b)(1)(B)(i)’s diligence requirement as to the evidence in Yezzo’s personnel
file but not as to the police logs and the “Ignore For Now” subpoena. (R & R at PageID #11537–42,
ECF No. 56.) Having concluded that Keith did not diligently pursue the phone logs, the Magistrate
Judge excluded that evidence from the § 2244(b)(1)(B)(ii) inquiry. As for the Yezzo material, the
R & R determined that it failed to clearly and convincingly establish Keith’s innocence when viewed
against the record as a whole. (Id. at PageID #11542–60.) And because the Magistrate Judge
determined that Keith’s new evidence did not present any credibility issues requiring further
exploration, the Magistrate Judge found no need for an evidentiary hearing.
3. Objections
Keith filed a timely Objection to the R & R raising the following issues:
I.
The Magistrate Judge incorrectly determined that the Yezzo
evidence does not satisfy the 2244(b)(2)(B)(ii) standard.
II.
The Magistrate Judge conducted the 2244(b)(2)(B)(ii) assessment
incorrectly.
III.
The Magistrate Judge incorrectly found that Keith did not meet
the diligence prong with regard to the subpoena with the words
“Ignore for Now” written on it.
IV.
The Magistrate Judge erred in issuing his final ruling in this case
before this Court ruled on Keith’s pending objections to the
Magistrate Judge’s denial of portions of Keith’s Motion to
Expand the Record.
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V.
The Magistrate Judge incorrectly denied Keith an evidentiary
hearing.
(Keith’s Obj. to R & R at PageID#11568, ECF No. 58.) The second objection is well-taken. The
court agrees with Keith that the phrase “evidence as a whole” in § 2244(b)(2)(B)(ii) requires habeas
courts to consider “all the evidence, including that alleged to have been illegally admitted and the
evidence tenably claimed to have been wrongly excluded or to have become available only after the
trial.” (Id. at PageID #11478.) The R & R’s analysis, which considered only “the body of evidence
presented at trial” plus the Yezzo evidence, therefore was too narrow. (R & R at PageID #11542,
ECF No. 56.) However, correcting this error does not change the outcome because, as the court
discusses in detail below, Keith fails to satisfy § 2244(b)(2)(B)(ii) even under the more expansive
view of the “evidence as a whole.” As for the other objections, the court disagrees with Keith and
therefore overrules them.
Although Respondent did not file a separate objection, she makes the following argument
in her Response to Keith’s Objection:
As the prevailing party, the Warden need not separately object to [the
Magistrate Judge’s] adverse finding as to the diligence issue (See
Vanwinkle [v. United States, 645 F.3d 365, 371 (6th Cir. 2011)]), and
implores the Court to find Keith was not diligent in procuring and
presenting the Yezzo documents after reviewing the issue de novo
pursuant to Keith’s objections.
(Resp.’s Opp’n to Keith’s Obj. to R & R at PageID #11738 n.2, ECF No. 60.) This argument is not
well-taken. The Magistrate Judge correctly concluded that Keith met the diligence prong as to the
Yezzo evidence.
4. Analysis
Despite sustaining one of Keith’s objections, the court ultimately agrees with the R & R’s
recommendation to dismiss Keith’s Petition. The court briefly discusses each prong of the
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§ 2244(b)(2)(B) analysis in turn.
i. Diligence
The court agrees with the R & R’s assessment that Keith was diligent with respect to the
Yezzo evidence. As the Magistrate Judge explains:
[P]ortions of the personnel file to which Petitioner now points were in
existence at the time of trial. But the undersigned disagrees that Petitioner
can be faulted for failing to uncover it sooner. Could Petitioner have
requested Yezzo’s police file at the time of trial? Yes. But, when the
prosecution represented to him that it would provide favorable material,
and the personnel file was never mentioned or revealed . . . a reasonable
individual would not have believed it necessary to do so.
(R & R at PageID #11539, ECF No. 56.) Respondent argues that the Magistrate Judge mistakenly
applied a subjective standard to evaluate Keith’s diligence instead of the objective standard used in
the Fifth Circuit. (Resp.’s Opp’n to Keith’s Obj. to R & R at PageID #11739–41, ECF No. 60.) But
this criticism is unfounded. While the Magistrate Judge did consider Keith’s subjective actions, the
R & R explicitly states that “even under the Fifth Circuit’s objective diligence standard, advanced
by Respondent . . . , the undersigned would reach the same conclusion.” (R & R at PageID #11540
n.2, ECF No. 56.) This court agrees. By any metric, a reasonably diligent individual in Keith’s
circumstances would not expect or anticipate that the state’s forensic analyst would have such
damning information in her personnel file, let alone that the state would allow her to testify under
such circumstances. Nor would a reasonably diligent individual, after receiving assurances that the
state would turn over all favorable material, suspect that the state would fail its constitutional
obligation to turn over such obvious impeachment information.
However, Keith was not diligent with respect to the police call logs. The Magistrate Judge
correctly found that Keith “did not do as much as could reasonably be expected from someone in his
circumstances.” (Id. at PageID #11541 (quotation omitted).) Keith issued the subpoena two days into
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trial to obtain information to rebut one of the state’s witnesses. Specifically, Keith demanded that
the Bucyrus police department turn over “all records, including radio dispatch logs, of all call-ins
from February 12, 1994 to the present time.” (Subpoena, ECF No. 1-29.) But while it is undisputed
that Keith never received a response, the record also shows that Keith never
(1) brought the lack of response to the trial court’s attention;
(2) questioned any Bucyrus Police Department witness regarding whether
they brought such records to trial; or (3) made any attempt to follow up
on the lack of response at trial or during his initial appeal.
(R & R at PageID #11541, ECF No. 56.) From this, the Magistrate Judge concluded that Keith failed
to satisfy the requirements under § 2244(b)(2)(B)(i) relative to the call logs because “[a] reasonably
diligent individual would have, at a minimum, followed up on the lack of response at the time of
trial, or at least sometime earlier than Petitioner here did.” (Id.) That conclusion is correct.
Keith’s Objection on this issue is not persuasive. He argues that the Magistrate Judge
unreasonably faults him “for not predicting that the State deliberately, in bad faith, refused to comply
with discovery at the time of his trial,” and that
[e]ven assuming that the Bucyrus Police Department would have
produced the station’s phone recordings in response, Keith had no way
of discovering the police’s deliberate bad faith in ignoring the subpoena.
This bad faith is relevant to the State’s overall conduct in prosecuting
Keith and could have persuaded a jury with respect to other aspects of the
State’s case against Keith.
(Id. at PageID #11614.) Tellingly, this argument does not address Keith’s lack of diligence. To the
contrary, by pivoting away from “the police department’s non-compliance with the subpoena” and
focusing instead on speculation regarding “the intentional and blatant police misconduct,” Keith
seems to concede that he did not act diligently with respect to his subpoena. Regardless of whether
the police would have disclosed the “Ignore For Now” notation or continued to suppress it, the fact
remains that a reasonably diligent individual in Keith’s position would have followed up at trial to
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enforce the subpoena. Consequently, Keith fails to show that this evidence “could not have been
discovered previously through the exercise of due diligence.”5 28 U.S.C. § 2244(b)(2)(B)(i).
ii. Actual Innocence
In this circuit,6 “the ‘evidence as a whole’ is exactly that: all the evidence put before the court
at the time of its § 2244(b)(2)(B)(ii) or § 2255(h)(1) evaluation.” Clark v. Warden, 934 F.3d 483,
496 n.5 (6th Cir. 2019) (quoting United States v. MacDonald, 641 F.3d 596, 610 (4th Cir. 2011)).
This includes “all the evidence, old and new, incriminating and exculpatory, without regard to
whether it would necessarily be admitted under [evidentiary rules],” Long v. Hooks, 972 F.3d 442,
470 (4th Cir. 2020) (quoting MacDonald, 641 F.3d at 612), as well as evidence presented in support
of prior habeas petitions, In re Keith, 2018 WL 8807240, at *3 (considering “evidence presented in
Keith’s 2008 habeas petition” for purposes of the prima facie § 2244(b)(2)(B) analysis).
Keith objects that the Magistrate Judge applied a narrower conception of the “evidence as
a whole” when preparing the R & R. This objection is well-taken. But as the court explains below,
even after correcting the Magistrate Judge’s error and accounting for the additional evidence Keith
cites, the outcome remains the same: dismissal is required because Keith fails to establish his actual
innocence by clear and convincing evidence.
In the R & R, the Magistrate Judge
summarize[d] the trial evidence, detail[ed] the “newly discovered
5
Regardless, Keith’s Petition would fail even if the court found that he acted diligently
with respect to the call logs and the police department’s alleged bad faith. Including
this evidence as part of the “evidence as a whole,” Keith still cannot satisfy
§ 2244(b)(2)(B)(ii).
6
The Fourth and Tenth Circuits split on this issue. Compare United States v.
MacDonald, 641 F.3d 596, 614 (4th Cir. 2011), with Case v. Hatch, 731 F.3d 1015,
1038 n. 12 (10th Cir. 2013). The Sixth Circuit subsequently aligned with the Fourth
Circuit. See Clark v. Warden, 934 F.3d 483, 496 n.5 (6th Cir. 2019).
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evidence” that satisfies § 2244(b)(2)(B)(i) as set forth above, and then
analyze[d] the likely impact this new evidence would have on reasonable
jurors in light of the evidence presented at trial.
(R & R at PageID #11543, ECF No. 56.) In other words, the R & R considered the evidence
introduced at trial—both the prosecution and defense cases—plus the Yezzo material. As the R & R
explained, the Sixth Circuit previously summarized that
[t]he core of the case . . . against Keith included:
•
Eyewitness testimony of the survivor [Richard] Warren
[(“Warren”)] identifying Keith;
•
A partial imprint of the license plate made from the snowbank
where the getaway car crashed matched the license plate of a car
he was known to have access to;
•
Eyewitness identification of him as the man driving the getaway
car when it crashed;
•
A spent bullet cartridge casing matching the ones recovered from
the scene of the murders was found where Keith later picked up
his girlfriend; and
•
Testimony that Keith had been indicted as a result of the drug raid
precipitated by the victims’ relative[, a police informant named
Rudel Chatman (“Chatman”)].
Keith, 551 F.3d at 558. Because Yezzo testified regarding the license plate imprint and other factors
linking Keith to the getaway car, her testimony touched the core of the state’s case. The R & R
therefore correctly acknowledged that
[t]he evidence presented regarding Yezzo’s personnel file certainly
weakens some of the “core” of the State’s case, and use of that
information on cross-examination to impeach Yezzo might have caused
a reasonable jury to discount her testimony to a degree.
(R & R at PageID #11560, ECF No. 56.) But the R & R went on to explain that impeachment
evidence rarely demonstrates actual innocence. (Id. at PageID #11558 (citing In re Byrd, 269 F.3d
561, 577 (6th Cir. 2001)).) And citing evidence from Warren and other eyewitnesses linking Keith
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to the crime scene, the Magistrate Judge concluded that Yezzo’s testimony “was not the so-called
‘smoking gun’ in this case, but one additional piece of evidence.” (Id. at PageID #11557.)
Accordingly, the R & R found that, applying the clear and convincing evidence standard,
“reasonable, properly instructed jurors who heard the evidence presented at trial, and the newly
discovered impeachment evidence from Yezzo’s personnel file, would still have convicted
Petitioner.” (Id. at PageID #11560.)
In his Objection, Keith urges the court to redo the § 2244(b)(2)(B)(ii) analysis with a much
broader lens, including the following factors in particular:
•
Evidence impeaching the credibility of Warren, who was the
state’s star witness. This evidence includes (i) handwritten notes
from Warren’s hospital stay after the shooting, which contradict
testimony at trial suggesting that Warren told his nurse that
“Kevin” shot him; (ii) the police call logs, which contradict the
nurse’s testimony that he promptly called the police to report
“Kevin” as the shooter; and (iii) notes from a hospital security
guard, which suggest that the shooter remained unidentified.
(Keith’s Obj. to R & R at PageID #11580–86, ECF No. 58.)
•
Evidence suggesting that another individual, Rodney Melton
(“Melton”), committed the murders and that police conducted a
shoddy investigation because they doggedly focused on Keith
from the start. This evidence includes (i) statements from Melton
demonstrating that he had a similar motive as Keith;
(ii) eyewitness and physical evidence linking Melton to the crime
scene; (iii) statements from Melton expressing that he intended to
kill Chatman; and (iv) evidence that police knew this information
before Keith’s trial but failed to disclose it. (Id. at
PageID #11593–95, 11605–08.)
•
Post-conviction expert reports that undermine Yezzo’s findings
and raise serious questions regarding her biases and temperament.
(Id. at PageID #11601–04.)
•
Evidence corroborating the alibi Keith presented at trial. (Id. at
PageID #11610–11.)
•
The “Ignore For Now” subpoena, which, in combination with
other evidence, demonstrates “intentional and blatant police
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misconduct” that taints the police investigation and undermines
the credibility of the state’s case. (Id. at PageID #11615.)
With this view of “the evidence as a whole,” Keith asserts, no reasonable juror could have found him
guilty beyond a reasonable doubt.
While the court agrees with Keith that this evidence is relevant to the § 2244(b)(2)(B)(ii)
analysis, the court ultimately concludes that it is not enough to show by clear and convincing
evidence that he is actually innocent. Throughout his trial and post-conviction proceedings, including
this fourth-in-time Petition, Keith has attempted to cast doubt on the police investigation and
“strongly pursued the defense that another man committed the killings, specifically Rodney Melton.”
State v. Keith, No. 3-17-01, 2017 WL 2729625, at *10 n. 9 (Ohio Ct. App. June 26, 2017). But the
jury saw evidence and heard extensive testimony regarding these defenses. Indeed, Melton himself
testified at trial, where the jury learned, among other things, that he had a prior murder
conviction—i.e. the murder discussed in the Mansfield police report that Keith included with his
Second Motion to Expand the Record. Keith’s attorney vigorously cross-examined Melton, exposing
his checkered past, his potential motive, and the physical evidence linking him to the crime scene.
Defense counsel also thoroughly examined Warren, Smathers, and other key witnesses. As a result,
the jury heard about Keith’s alibi and discrepancies in Warren and Smather’s testimony identifying
Keith as the shooter. Yet the jury still voted to convict. As for the new expert reports, Keith’s
forensic expert actually agreed with some of Yezzo’s key findings—most importantly that the first
two digits from the license plate impression read “04” and that the tire tracks at the scene were
consistent with tread from a Firestone Triumph 2000 tire. (See Bodziak Rep. at PageID #188–92,
ECF No. 1-24.) Finally, while the evidence Keith marshals regarding bad faith and police
misconduct certainly is troubling, it does not dictate the conclusion that Keith seeks. As with the
other issues Keith emphasizes in his Petition, defense counsel challenged the police investigation
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and forcefully made the case at trial that the investigators ignored other leads once they set their
sights on Keith. In short, Keith’s Petition effectively reiterates the same arguments that he made at
trial and that he has continued to pursue since. And while the new evidence potentially strengthens
Keith’s case against Melton and potentially impeaches the credibility of the state’s eyewitnesses, it
crucially does not show that Keith is innocent. As the Magistrate Judge correctly concluded, “new
impeachment evidence does not of itself provide proof of actual innocence.” In re Whittaker, No.
17-2135, 2018 U.S. App. LEXIS 4804, at *3 (6th Cir. Feb. 26, 2018) (citing In re Byrd, 269 F.3d
at 577). Likewise, pointing a finger at Melton does not erode the evidence against Keith.
Consequently, in light of the evidence as a whole, including all of the evidence Keith cites in his
Petition and Objection, the court concludes that a reasonable, properly instructed juror could have
convicted Keith.
In reaching this conclusion, the court feels compelled to emphasize that its “function is not
to make an independent factual determination about what likely occurred, but rather to assess the
likely impact of the evidence on reasonable jurors.” House v. Bell, 547 U.S. 518, 538 (2006). Thus,
it does not matter one whit whether the court’s independent analysis of the evidence as a whole
would lead it to conclude that it had reasonable doubts about Keith’s guilt. The bar for overturning
a jury verdict in federal habeas proceedings is set deliberately high. And unlike cases in which new
evidence conclusively establishes the petitioner’s innocence—for example, where the state’s star
witnesses recants their testimony, see, e.g., Crosland v. Pennsylvania, No. 21-CV-476, slip op. at
1–2 (E.D. Pa. June 22, 2021), or where new physical evidence exonerates the petitioner—Keith
presents nothing to suggest that the two key eyewitnesses ever recanted their testimony, that there
is new physical evidence exonerating him, or that there is conclusive evidence implicating Melton.
This case, more than most, demonstrates the tragic result of subjecting Brady claims to
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§ 2244(b)’s gatekeeping requirements. Brady claims usually involve impeachment evidence. Yet
evidence that merely impeaches is almost never sufficient to establish actual innocence. As a result,
subjecting Brady claims to § 2244(b) often forecloses the possibility of meaningful habeas review
on the merits. Other courts have expressed alarm at the predicament this poses for habeas petitioners
and dismay for the perverse incentives it creates for state actors to conceal past Brady violations until
after the petitioner files their initial petition. See Long, 972 F.3d at 487 (4th Cir. 2020) (Wynn, J.,
concurring) (“Brady claims, as a category, represent a good candidate for exclusion from the ‘second
or successive’ requirements.”); Scott v. United States, 890 F.3d 1239, 1243 (11th Cir. 2018) (“[The
rule subjecting Brady claims to § 2244(b)] eliminates the sole fair opportunity for these petitioners
to obtain relief. In our view, Supreme Court precedent, the nature of the right at stake here (the right
to a fundamentally fair trial), and the Suspension Clause of the U.S. Constitution, Art. I, § 9, cl. 2,
do not allow this. Instead, they require the conclusion that a second-in-time collateral claim based
on a newly revealed actionable Brady violation is not second-or-successive for purposes of
AEDPA.”); Gage v. Chappell, 793 F.3d 1159, 1165 (9th Cir. 2015) (“[Petitioner’s] argument for
exempting his Brady claim from the § 2244(b)(2) requirements has some merit. Under our
precedents as they currently stand, prosecutors may have an incentive to refrain from disclosing
Brady violations related to prisoners who have not yet sought collateral review. . . . But as a
three-judge panel, we are bound to follow the teaching of prior circuit precedent].”) Like those
courts, this court also must apply the law as it exists, not as the court wishes it to be. Accordingly,
for the reasons discussed above, the court must dismiss Keith’s Petition because it cannot clear the
hurdle erected by § 2244(b)(2)(B)(ii).
E.
Motion for Oral Argument
Most recently, Keith filed a Motion for Oral Argument on his Petition. (ECF No. 65.)
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Relatedly, he previously sought an evidentiary hearing before the Magistrate Judge and objected
when the Magistrate Judge declined to hold one. (See Keith’s Obj. to R & R at PageID #11619, ECF
No. 58.) But the Magistrate Judge correctly concluded that an evidentiary hearing was not needed
before issuing the R & R, and this court similarly finds that no hearing is needed before dismissing
Keith’s Petition. Taking Keith’s evidence at face value and in the best light, his Petition still fails
to satisfy the requirements of § 2244(b)(2)(B)(ii). Consequently, there are no issues that require
further exploration, and a hearing would not aid the court.
III. CONCLUSION
After a careful de novo review of the R & R, the parties’ arguments, Keith’s Objection to the
R & R, and all relevant materials in the record, the court adopts the Magistrate Judge’s R & R (ECF
No. 56), as modified by this Order and hereby dismisses the Petition. The court also overrules the
parties’ Objections regarding the Magistrate Judge’s partial expansion of the record, grants Keith’s
Second Motion to Expand the Record (ECF No. 59) and denies his Motion for Oral Argument (ECF
No. 65).
Finally, the court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this
decision could be taken in good faith, and the court hereby issues a certificate of appealability
pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b).
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
UNITED STATES DISTRICT JUDGE
September 24, 2021
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