Keeley v. Warden Belmont Correctional Institution

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS; OVERRULING Petitioner's Objection. This action is DISMISSED. Signed by Judge Algenon L. Marbley on 10/5/2016. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID KEELEY,
Petitioner,
Case No. 2:15-cv-00972
JUDGE MARBLEY
Magistrate Judge King

v.
WARDEN, BELMONT
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On August 24, 2016, the Magistrate Judge recommended that the Amended Petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed as procedurally defaulted.
Report and Recommendation (ECF No. 18). Petitioner has objected to that recommendation.
Objection (ECF No. 19). Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo
review. For the reasons that follow, Petitioner’s Objection (ECF No. 19) is OVERRULED.
The Report and Recommendation (ECF No. 18) is ADOPTED and AFFIRMED. This action is
hereby DISMISSED.
Petitioner’s request for an evidentiary hearing is DENIED.
Petitioner challenges his convictions after a jury trial in the Washington County Court of
Common Pleas on two counts of rape and three counts of gross sexual imposition. The trial
court imposed an aggregate sentence of seven years’ incarceration. The Ohio Fourth District
Court of Appeals affirmed the judgment of the trial court, denied Petitioner’s application for
reconsideration, and denied Petitioner’s application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B). The Ohio Supreme Court declined to accept jurisdiction of Petitioner’s
appeal – which he indicated was from both the denial of his motion for reconsideration and the

denial of his Rule 26(B) application -- pursuant to S.Ct.Prac.R. 7.08(B)(4). As outlined in the
Magistrate Judge’s Report and Recommendation, Petitioner also unsuccessfully pursued post
conviction relief.
Petitioner claims in this action that the trial court denied him due process by failing to
clear jury confusion during deliberations (claim one); that he was denied a fair trial due to the
prosecution’s use of expert testimony (claim two); that the evidence is constitutionally
insufficient to sustain his convictions (claim three); that he was denied a fair trial due to
prosecutorial misconduct (claim four); that he was denied the effective assistance of counsel
(claim five); that he was denied due process and discovery in violation of Ohio law (claim six);
that he was convicted in violation of the Fourth Amendment (claim seven); and that he was
improperly prejudiced by statements to the media (claim eight).

The Magistrate Judge

recommended dismissal of all of Petitioner’s claims based on Petitioner’s procedural default in
failing to raise his claims on direct appeal. To the extent that any of Petitioner’s claims may rely
on evidence that is not readily apparent from the face of the record, the Magistrate Judge noted
that Petitioner failed to raise such issues in his post conviction proceedings, and the record did
not reflect that he could meet the strict requirements for the filing of a second post conviction
petition under O.R.C. § 2953.23. Petitioner objects to the Magistrate Judge’s recommendation of
dismissal of his claims as procedurally defaulted.
Claims Five, Six, and Eight
Petitioner objects to the Magistrate Judge’s recommendation of dismissal, as procedurally
defaulted, of his claim of the denial of the effective assistance of trial counsel (claim five), his
claim of the denial of due process and discovery violations (claim six), and his claim of the
denial of a fair trial due to pre-trial publicity (claim eight). The Magistrate Judge found that to

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the extent that any of the claims relied on evidence that is not readily apparent from the fact of
the record, the claims were procedurally defaulted because Petitioner did not raise them in his
post conviction proceedings. Report and Recommendation (PageID# 1806). In his objections,
Petitioner insists that he properly raised these off-the-record claims in his first petition for post
conviction relief and points to a Memorandum of Law in Support of Petition for Writ of Habeas
Corpus and Appendix, with attached documents, that, he represents, he submitted in support of
these claims in post conviction proceedings. (ECF Nos. 19-1, 19-2).
A brief review of the procedural history in regard to Petitioner’s post conviction
proceedings is helpful.

On December 5, 2011, while his direct appeal remained pending,

Petitioner filed a petition for post conviction relief. The trial court dismissed various claims
raised in those proceedings, reasoning that those claims were barred by the doctrine of res
judicata. State v. Keeley, No. 13CA34, 2014 WL 800488, at *1 (Ohio App. 4th Dist. Feb. 21,
2014). The state appellate court reversed that portion of the trial court’s judgment, holding that
res judicata did not apply because the direct appeal from the judgment of conviction was still
pending. (ECF No. 7-1, PageID# 614-621). Pursuant to the remand of the state appellate court,
the trial court entered judgment after finding that appellant had “failed to show that he is entitled
to post conviction relief.” State v. Keeley, No. 13CA34, 2014 WL 800488, at *2 (Ohio App. 4th
Dist. Feb. 21, 2014). The state appellate court thereafter affirmed the trial court’s dismissal of
petitioner’s post conviction petition, holding that Petitioner’s claims were now barred by Ohio’s
doctrine of res judicata.

Id.

The Ohio Supreme Court declined to accept jurisdiction of

Petitioner’s appeal from that decision. State v. Keeley, 141 Ohio St.3d 1455 (Ohio 2015).
The trial court initially dismissed other post conviction claims (i.e., issues Petitioner
indicates that he now presents in habeas corpus claims five, six and eight) for failure to submit

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evidentiary material sufficient to justify relief. (PageID# 525-26). The appellate court affirmed
that portion of the trial court’s decision, stating in relevant part as follows:
We agree that appellant’s failure to file supporting evidence does
not automatically constitute sufficient grounds to deny the
postconviction relief petition. We also agree the wording in the
[trial court’s] February 27, 2012 judgment might cause appellant to
conclude that the trial court dismissed the claims solely for that
reason.FN3. However, our reading of the entry as a whole makes
clear that the court’s reason for the dismissal is that appellant had
not made “sufficient operative allegations” to show entitlement to
relief under R.C. 2953.21. We believe that the trial court is correct
on this point.
FN3: For instance, at one point in the entry the trial court states
“Petitioner has submitted no supporting evidence outside the
record for any of the claims made [therein are] dismissed.”
At this juncture, we observe that appellant’s petition is a very
lengthy, rambling catalogue of grievances concerning the manner
that his criminal case was prosecuted. It is, at best, difficult to read
or to understand. Even if we applied a de novo standard of review,
we would determine that no error is apparent in the trial court’s
decision. Thus, we can find no abuse of discretion.
Decision and Judgment Entry (ECF No. 7-1, PageID#619-21).1

On June 5, 2013, the Ohio

Supreme Court declined to accept jurisdiction of that appeal pursuant to S.Ct.Prac.R. 7.08(B)(4).
(PageID# 663). Thus, it appears that at least some of Petitioner’s claims presented in his post
conviction proceedings may have been resolved on the merits.
Even assuming that Petitioner has preserved some of his off-the-record claims for a
merits review by this Court, however, the record nonetheless fails to establish that any of these
claims warrant federal habeas corpus relief.

1

 Respondent argues that this language constitutes an application of the principle of res judicata to these claims.
Return of Writ (ECF No. 7, PageID# 127, n.5).   

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Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) sets forth standards governing this Court's review of state-court
determinations. The United State Supreme Court recently described AEDPA as “a formidable
barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”
and emphasized that courts must not “lightly conclude that a State's criminal justice system has
experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v.
Titlow, ––– U.S. ––––, ––––, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S.
86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly
deferential standard for evaluating state-court rulings, and demands that state court decisions be
given the benefit of the doubt.” (internal quotation marks, citations, and footnote omitted)).
The factual findings of the state appellate court are presumed to be correct:
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
28 U.S.C. § 2254(e)(1). “Under AEDPA, a writ of habeas corpus should be denied unless the
state court decision was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court, or based on an unreasonable
determination of the facts in light of the evidence presented to the state courts.” Coley v. Bagley,
706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28
U.S.C. § 2254(d)(1) (a petitioner must show that the state court's decision was “contrary to, or
involved an unreasonable application of, clearly established federal law”); 28 U.S.C. §
2254(d)(2) (a petitioner must show that the state court relied on an “unreasonable determination
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of the facts in light of the evidence presented in the State court proceeding”). The United States
Court of Appeals for the Sixth Circuit explained these standards as follows:
A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court's decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389.
Coley, 706 F.3d at 748–49. The burden of satisfying the standards set forth in § 2254 rests with
the petitioner. Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
“In order for a federal court to find a state court's application of [Supreme Court
precedent] unreasonable, . . . [t]he state court's application must have been objectively
unreasonable,” not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–21,
(2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and
Lockyer v. Andrade, 538 U.S. 63, 76 (2003)); see also Harrington v. Richter, 562 U.S. at 101
(“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.” (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of “unreasonable
application” under § 2254(d)(1), courts must focus on the reasonableness of the result, not on the
reasonableness of the state court's analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009)
(“‘[O]ur focus on the ‘unreasonable application’ test under Section 2254(d) should be on the
ultimate legal conclusion that the state court reached and not whether the state court considered
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and discussed every angle of the evidence.'” (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th
Cir. 2002) (en banc))); see also Nicely v. Mills, 521 F. App'x 398, 403 (6th Cir. 2013)
(considering evidence in the state court record that was “not expressly considered by the state
court in its opinion” to evaluate the reasonableness of state court's decision). Relatedly, in
evaluating the reasonableness of a state court's ultimate legal conclusion under § 2254(d)(1), a
court must review the state court's decision based solely on the record that was before it at the
time it rendered its decision. Pinholster, 563 U.S. at 180.

Put simply, “review under §

2254(d)(1) focuses on what a state court knew and did.” Id. at 1399.
Merits
In claim five, Petitioner alleges that he was denied the effective assistance of counsel
because his attorney failed to locate Petitioner’s physician who, Petitioner asserts, would have
verified that Petitioner was impotent and therefore could not have performed any sexual act.
According to Petitioner, he provided notes from his physician to defense counsel, but his
attorney failed to investigate the issue.2

Petitioner complains that his attorney failed to

investigate, interview witnesses, research scientific premises, acquire evidence or records, or
provide discovery to the Petitioner. In support of this claim, Petitioner has attached what appear
to be urology notes from Petitioner’s physical exam of April 15, 2010 (ECF No. 19-2, PageID#
1899); letters from trial counsel dated October 19, 2011, August 11, 2011, and from his appellate
counsel, dated November 18, 2011 (PageID# 1900-1902); an article regarding pregnancy and
“vaginsmus” (PageID# 1903); a document regarding mental retardation and mental age
(PageID# 1904, 1907); case law references (PageID# 1905-06); what appears to be a copy of a

2

 Petitioner also raises various issues regarding the denial of the effective assistance of trial counsel which plainly
are based on matters that are readily apparent from the face of the record. (See ECF No. 19-1, PageID# 1891-92.)
For the reasons addressed in the Magistrate Judge’s Report and Recommendation (ECF No. 18), these claims are
procedurally defaulted.

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medical report pertaining to the alleged victim (PageID# 1910); a list of instances of claimed
pre-trial publicity and prejudice (PageID# 1911); an Affidavit from Gillian Keeley (PageID#
1913-14); and Petitioner’s Affidavit (PageID# 1916-20).
The right to counsel guaranteed by the Sixth Amendment is the right to the effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for
demonstrating a claim of ineffective assistance of counsel is composed of two parts:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that deficient performance prejudiced the
defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Scrutiny of defense counsel's performance
must be “highly deferential.” Id. at 689.
With respect to the first prong of the Strickland test, “[b]ecause of the difficulties
inherent in making the evaluation, a court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance.” Id. To establish the
second prong of the Strickland test, prejudice, a Petitioner must demonstrate that there is a
reasonable probability that, but for counsel's errors, the result of the proceedings would have
been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Because Petitioner must satisfy both prongs of the Strickland
test to demonstrate ineffective assistance of counsel, should the court determine that Petitioner
has failed to satisfy one prong, it need not consider the other. Id. at 697.

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None of the documents Petitioner submits support his claims. To the contrary, on
October 19, 2011,3 defense counsel returned proposed affidavits to Petitioner, indicating that he
could not sign them because they were inaccurate. Counsel also indicated that they could not
have filed a valid motion for a change of venue because, “[f]rankly, there was virtually no
pretrial publicity concerning your case.” (ECF No. 19-2, PageID# 1900).
While it is true, I couldn’t find Dr. Potts because she had moved
off to California according to the people who knew her [. W]e also
discussed the difficulties with her notes, as well as, Dr. Brockett’s
notes concerning your condition. Your condition, as you well
know, was not disabling 100% of the time. Indeed, your wife
when confronted by police officers indicated that you had sex just
shortly before the revelation to her of the allegations concerning
your neighbor.
I’ve told you and I’ve told Mrs. Keeley that I believe the only
victim’s original statement is on a CD and I’ve been awaiting
instructions as to how to get that CD to you. It’s my understanding
that you can’t have CD’s so that makes it somewhat problematic
for you to get the CD.
… I told you from day one that you had a very difficult case and I
told you your case was even more difficult given that you had
provided a confession to the police officers and then attempted to
retract it by saying that they had fooled you into telling them
something that wasn’t true. . . .
Id. The entirety of this letter does not appear to have been made a part of the record before the
Court. In a letter dated August 11, 2011, defense counsel indicates, inter alia, that he was able to
listen to all of the CD’s that had been provided in discovery. (PageID# 1901). Although
Petitioner has submitted an Affidavit from Gillian Keeley indicating that she could not play the
compact disks, that fact, even if true, would not establish the ineffective assistance of trial
counsel. Gillian Keeley also asserts that Petitioner was subject to prejudice before and during
trial based on erroneous television and newspaper articles “that alleged guilt from the onset and

3

 Petitioner’s trial commenced on January 10, 2011. On January 13, 2011, the jury returned its guilty verdicts. (See
ECF No. 7-1, PageID# 201).

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incited people to a level of racism and vindictive actions.” (PageID# 1915). However, the
record offers no support for this conclusory assertion. Petitioner also indicates in his Affidavit,
inter alia, that the prosecutor bragged and laughed about the case over a week after the trial was
over and wore a tie, during trial, “with the emblem and logo for a certain medication that I took
mocking the affliction that I have.” (PageID# 1919). Even assuming the truth of that allegation,
Petitioner has failed to establish prejudice. Moreover, Petitioner does not identify any actions
that his attorney should have taken, or inadequate research or investigation of the case, that could
have assisted the defense. Further, the record does not indicate that any potential witnesses
could have provided exculpatory evidence for the defense. In short, Petitioner has failed to
establish the denial of the effective assistance of counsel under the Strickland test.
Habeas corpus claims six and eight likewise lack record support. Petitioner alleges the
denial of due process based on the prosecution’s delivery of discovery on compact discs. This
claim plainly lacks merit. As discussed above, defense counsel indicated that he was, in fact,
able to review all such discovery material. Moreover, as noted by the state appellate court in
rejecting the issue in Rule 26(B) proceedings, Petitioner cannot establish prejudice. (See ECF
No. 7-1, PageID# 357).
Similarly, as discussed, nothing in the record indicates that Petitioner was denied a fair
trial based on prejudicial media publicity regarding the case.
Claims One through Four, and Seven
Petitioner also objects to the Magistrate Judge’s recommendation of dismissal of claims
one through four and claim seven as procedurally defaulted. Petitioner argues that the state
appellate court incorrectly barred review of claims raised in his petition for post conviction relief
as barred under Ohio’s doctrine of res judicata or as raising the same or similar issues presented

10 

on direct appeal. Objection (ECF No. 19, PageID# 1836). He complains that the state appellate
court did not refer to all of his arguments in reaching that conclusion. (PageID# 1840-41).
Petitioner maintains that he does not need to establish cause for any procedural default, because
he properly pursued his claims in post conviction proceedings. (PageID# 1843). Petitioner also
complains generally that either the state appellate court or the Magistrate Judge, or both,
misconstrued or failed to address all of the issues that he raises.
For the reasons discussed at length in the Magistrate Judge’s Report and
Recommendation, which will not be repeated herein, the Court does not find Petitioner’s
arguments to be persuasive. Put simply, the record reflects that Petitioner has failed to establish
cause and prejudice for his procedural defaults. Moreover, the record does not establish that
Petitioner is the victim of a manifest miscarriage of justice so as to justify a merits review of his
procedurally defaulted claims. See Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005).
Therefore, Petitioner’s Objection (ECF No. 19) is OVERRULED. The Report and
Recommendation (ECF No. 18) is ADOPTED and AFFIRMED.

This action is hereby

DISMISSED.
The Clerk is DIRECTED to enter FINAL JUDGMENT.

s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge
DATED: October 5, 2016

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