United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE
matter was referred to a United States Magistrate Judge to
conduct hearings, including an evidentiary hearing if
necessary, and to submit proposed findings and
recommendations pursuant to 28 U.S.C. Â§ 636(b)(1)(B)
and (C), and as applicable, Rule 8(b) of the
Rules Governing Section 2254 Cases. Upon review of
the entire record, the Court has determined that this matter
can be disposed of without an evidentiary hearing.
See 28 U.S.C. § 2254(e)(2)
petitioner, Curtis Keil (“Keil”), is a convicted
inmate currently incarcerated in the Raymond Laborde
Correctional Center in Cottonport, Louisiana. On December 15,
2008, Keil was indicted by a Washington Parish Grand Jury for
the second degree murder of Terrance Donnel
Harris. He entered an initial plea of not guilty
to the charge on January 5, 2009.
record reflects that,  on the afternoon of October 6, 2008,
Harris was standing on Ann Street in Bogalusa, Louisiana,
talking to several family members. A man, later identified as
Keil, drove up to a group of people in a white Lincoln with a
Texas license plate and exited the car. Keil and Harris began
to argue. Keil then pulled out a handgun and shot at Harris,
striking him four times in the head and neck. Keil got back
in the car and drove away. Harris died as a result of his
after the incident, several eyewitnesses, who were familiar
with Keil, including Katrina Hall, Emory Moses, Kenneth Hall,
Sr., and Gregory Brown, told the police that Keil was the
shooter. After receiving this information, Bogalusa police
officers located Keil at his mother's home on City Limits
Road. The officers also found the white Lincoln described by
the eyewitnesses. The police officers were unable to recover
the firearm used in the shooting.
competency was questioned in September 2009, and after
multiple evaluations, Keil was found competent to proceed on
April 4, 2011. On May 2, 2011, the prosecutor advised
that Keil had made no statements to law enforcement and that
there was no line up ever conducted and the defense's
motions related to those matters were denied as
was tried before a jury on October 24 through 27,
2011. On October 24, 2011, the State filed a
notice of intent to introduce evidence of other offenses
under La. Code Evid. Art. 404(B), specifically, evidence that
Keil had brought a complaint against Harris and two others
and had been informed within days of the shooting that they
would not be arrested. The Trial Court held a hearing on the
matter and found the evidence admissible to show motive and
that the probative value of the evidence was not outweighed
by the prejudicial effect. At that time, the Trial Court
also held a hearing regarding the defense's request to
suppress the proposed testimony of Lieutenant Phelps that
Keil had made a statement that he threw the gun out the
window of his vehicle, and, after hearing testimony, ruled
the evidence was admissible. Keil was ultimately found
guilty of the lesser included offense of
hearing held on November 14, 2011, the Trial Court denied
Keil's motions for a new trial and post-verdict judgment
of acquittal. After waiver of legal delays, the Trial
Court sentenced Keil that day to serve thirty (30) years in
prison at hard labor.
direct appeal to the Louisiana First Circuit Court of Appeal,
Keil's appointed counsel asserted the following errors:
(1) the evidence was insufficient to support the verdict; and
(2) the State was allowed to present inadmissible evidence at
trial. Keil pro se asserted the following errors: (1) the
evidence was insufficient to support the verdict; (2) the
Trial Court erred in allowing the State to use inadmissible
evidence at trial; (3) the State's witnesses gave false
and perjured testimony; and (4) the responsive verdict of
manslaughter was an illegal verdict. Keil filed a pro se
motion to produce the audio recordings and claimed that a
portion of the trial transcript was missing relative to a
prosecutor's ex parte conversation with one of
the jurors during which the Trial Court denied defense
counsel's motion for a mistrial. On August 27, 2013, the
First Circuit denied the motion.
filed a pro se supplemental brief in which he also raised
ineffective assistance of counsel. On October 15, 2013, the
Louisiana First Circuit issued an interim order instructing
the court reporter to file a transcript of the proceeding
referenced by Keil or certify that a transcript could not be
prepared because she was not present when the discussion
occurred or that portion of the proceeding was not
recorded. On December 19, 2013, the court reporter
submitted a certificate in which she stated that she had no
knowledge of any ex parte discussions held between
the prosecutor and the jury and that it was not reflected in
the audio recording and if there was such a discussion, it
did not occur in her presence.
interim, the State filed a multiple offender bill to which
Keil entered a plea of not guilty. The Trial Court later
denied Keil's motion to reconsider the sentence on August
5, 2013. Following re-evaluation of Keil's
competency, on September 13, 2013, the Trial Court
adjudicated him to be a third felony offender and resentenced
Keil to serve thirty (30) years in prison as a multiple
offender without benefit of parole, probation, or suspension
December 27, 2013, the Louisiana First Circuit affirmed
Keil's conviction and sentence finding no merit in the
first three claims and finding that Keil's failure to
object to the responsive verdict meant that issue was not
preserved for appeal and alternatively was without
merit. The Circuit Court, on January 16, 2014,
also denied the rehearing application filed by Keil's
appointed counsel sought review in the Louisiana Supreme
Court on or about February 15, 2014. The Supreme Court denied
the application on November 26, 2014, without stated
meantime, on March 11, 2014, Keil submitted a pro se writ
application to the Louisiana Supreme Court seeking review of
the appeal court's ruling and raising two additional
arguments that the Trial Court erred in denying the motions
for new trial, post-verdict judgment of acquittal, to quash
and to suppress, and that counsel was ineffective at
trial. By its order issued November 26, 2014,
the Supreme Court declined to consider the application
finding that it was not timely filed.
Keil's conviction and sentence became final ninety (90)
days after the denial of the counsel-filed writ application,
on February 24, 2015, when he did not file a writ application
with the United States Supreme Court. Ott v.
Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for
filing for certiorari with the United States Supreme Court is
considered in the finality determination under 28 U.S.C.
§ 2244(d)(1)(A)); U.S. S.Ct. Rule 13(1).
December 22, 2014, the Clerk of the United States District
Court for the Western District of Louisiana filed Keil's
first petition for federal habeas corpus relief in which he
asserted the following grounds for relief: (1)
insufficient evidence to support the verdict; (2) the Trial
Court erred in allowing false and perjured testimony from the
assistant district attorney and the State's witness at
the motion hearings and at trial; (3) the State used
inadmissible evidence of a prior altercation at trial; (4)
the Trial Court erred in denying the motion for new trial,
the motion for post-verdict judgment of acquittal, and the
motions to quash and suppress; (5) the trial was unfair
because of jury tampering; (6) the state courts had an
incomplete record on appeal; (7) counsel provided ineffective
assistance at trial; (8) manslaughter was an unlawful and
illegal responsive verdict; (9) the Trial Court allowed a
suggestive and illegal in-court identification; and (10) he
was denied a preliminary hearing. The case was transferred to
this federal court after which Keil filed a supplemental
memorandum in which he argued that the Trial Court erred in
giving erroneous jury instructions. On June 25, 2015, the
undersigned issued a Report and Recommendation recommending
that his petition be dismissed for failure to exhaust state
court remedies and his petition was ultimately dismissed
24, 2015, Keil submitted pro se to the Trial Court
an application for post-conviction relief and brief in which
he raised the following grounds for relief: (1)
insufficient evidence; (2) the State knowingly presented
false testimony; (3) the Trial Court erred in admitting
evidence regarding Keil's prior altercation with Harris;
(4) the Trial Court erred in denying his motions to quash, to
suppress, for new trial, and post judgment verdict of
acquittal; (5) he was not given a proper appeal as the
complete record was not filed; (6) the verdict of
manslaughter was illegal; (7) ineffective assistance of trial
counsel; (8) erroneous jury instructions; (9) he was
wrongfully denied a preliminary exam; (10) the Trial Court
erred in allowing illegal in-court identification; (11) jury
tampering; (12) and newly discovered evidence.
Trial Court denied the post-conviction application as
repetitive on August 10, 2015.On November 18, 2015, the
Louisiana First Circuit granted in part Keil's writ
application and vacated the Trial Court's ruling with
respect to Keil's claims relating to the alleged ex
parte communication/incomplete record and ineffective
assistance of counsel but denied relief as to the remaining
March 22, 2016, the Trial Court found that there was no
factual basis for Keil's claim that the prosecutor spoke
to a juror and that his ineffective assistance of counsel
claims were without merit. Keil did not receive a copy of
the judgment until August 2, 2016, after which he sought
rehearing. The Trial Court denied rehearing on
September 8, 2016.
filed a writ application with the Louisiana First Circuit
with was denied on December 12, 2016. Keil filed an
application for supervisory writs with the Louisiana Supreme
Court on December 23, 2016. On August 3, 2018, the
Louisiana Supreme Court denied writs finding Scott failed to
show he received ineffective assistance of counsel under the
standard of Strickland v. Washington, 466 U.S. 668
(1984), and, as to his remaining claims, he failed to satisfy
his post-conviction burden of proof or they were repetitive,
although it did not specify which claims were
Federal Habeas Petition
October 9, 2018, the clerk of this Court filed Keil's
petition for federal habeas corpus relief in which he asserts
the following grounds for relief: (1) insufficient
evidence; (2) the State knowingly presented false testimony;
(3) the Trial Court erred in admitting evidence regarding
Keil's prior altercation with Harris; (4) the Trial Court
erred in denying his motions to quash, to suppress, for new
trial and for post-judgment verdict of acquittal; (5) he was
denied a proper appeal as the complete record was not filed;
(6) the verdict of manslaughter was illegal; (7) ineffective
assistance of trial counsel; (8) erroneous jury instructions;
(9) he was wrongfully denied a preliminary exam; (10) the
Trial Court erred in allowing an illegal-in court
identification; (11) jury tampering; and (12) newly
State filed a response in opposition to the petition
asserting that Keil timely filed his federal petition and
that his claims are exhausted. The State asserts that some of
Keil's claims are not cognizable on federal habeas review
and the remaining claims can be dismissed as meritless. Keil
filed a reply.
General Standards of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
applies to this petition, which is deemed filed in this Court
under the federal mailbox rule on September 12,
2018. The threshold questions on habeas review
under the amended statute are whether the petition is timely
and whether the claim raised by the petitioner was
adjudicated on the merits in state court; i.e., the
petitioner must have exhausted state court remedies and the
claims must not be in “procedural default.”
Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir.
1997) (citing 28 U.S.C. § 2254(b), (c)).
State concedes Keil timely filed his federal petition and
that he exhausted his claims. The State asserts that
Keil's claims can be dismissed as meritless or not
cognizable on federal habeas review.
Standards for a Merits Review
AEDPA standard of review is governed by § 2254(d) and
the Supreme Court's decision in Williams v.
Taylor, 529 U.S. 362 (2000). It provides different
standards for questions of fact, questions of law, and mixed
questions of fact and law.
court's determinations of questions of fact are presumed
correct and the Court must give deference to the state court
findings unless they were based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding. 28 U.S.C. § 2254(d)(2)
(2006); see Hill v. Johnson, 210 F.3d 481, 485 (5th
Cir. 2000). The amended statute also codifies the
“presumption of correctness” that attaches to
state court findings of fact and the “clear and
convincing evidence” burden placed on a petitioner who
attempts to overcome that presumption. 28 U.S.C. §
court's determination of questions of law and mixed
questions of law and fact are reviewed under §
2254(d)(1), as amended by the AEDPA. The standard provides
that deference be given to the state court's decision
unless the decision is “contrary to or involves an
unreasonable application of clearly established federal
law” as determined by the United States Supreme Court.
Hill, 210 F.3d at 485. The “critical
point” in determining the Supreme Court rule to be
applied “is that relief is available under §
2254(d)(1)'s unreasonable-application clause if, and only
if, it is so obvious that a clearly established rule applies
to a given set of facts that there could be no
‘fairminded disagreement' on the question.”
White v. Woodall, __ U.S. __, 134 S.Ct. 1697,
1706-07 (2014) (citing Harrington v. Richter, 562
U.S. 86, 103 (2011)). “Thus, ‘if a habeas court
must extend a rationale before it can apply to the facts at
hand,' then by definition the rationale was not
‘clearly established at the time of the state-court
decision.'” White, 134 S.Ct. at 1706
(quoting Yarborough v. Alvarado, 541 U.S. 652, 666
court's decision can be “contrary to” federal
law 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 decides a case differently than the
Supreme Court has on a set of materially indistinguishable
facts. Williams, 529 U.S. at 405-06, 412-13;
Penry v. Johnson, 532 U.S. 782, 792-93 (2001);
Hill, 210 F.3d at 485. A state court's decision
can involve an “unreasonable application” of
federal law if it correctly identifies the governing rule but
then applies it unreasonably to the facts. White,
134 S.Ct. at 1706-07; Williams, 529 U.S. at 406-08,
413; Penry, 532 U.S. at 792.
Supreme Court in Williams did not specifically
define “unreasonable” in the context of decisions
involving unreasonable applications of federal law. See
Williams, 529 U.S. at 410. The Court, however, noted
that an unreasonable application of federal law is different
from an incorrect application of federal law. Id.
“‘[A] federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the state-court decision applied [a Supreme
Court case] incorrectly.'” Price v.
Vincent, 538 U.S. 634, 641 (2003) (quoting
Woodford v. Visciotti, 537 U.S. 19, 24-25
(2002)) (brackets in original); Bell v. Cone, 535
U.S. 685, 699 (2002)).
under the “unreasonable application”
determination, the Court need not determine whether the state
court's reasoning is sound, rather “the only
question for a federal habeas court is whether the state
court's determination is objectively unreasonable.”
Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002).
The burden is on the petitioner to show that the state court
applied the precedent to the facts of his case in an
objectively unreasonable manner. Price, 538 U.S. at
641 (quoting Woodford, 537 U.S. at 24-25);
Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir.
2006). In addition, review under § 2254(d)(1) is limited
to the record before the state court that adjudicated the
claim on the merits. Cullen v. Pinholster, 563 U.S.
170, 181 (2011).
Wrongful Denial of Preliminary Exam (Claim No.
claims he was wrongfully denied a preliminary examination in
violation of his right to due process. He claims his original
counsel requested a preliminary examination on October 23,
2008, before he was indicted on December 15, 2008. A second
preliminary examination was requested on January 7, 2009.
law provides that either the state or the defense can move
for a preliminary examination under La. Code Crim. P. art.
292. The primary purpose of the preliminary examination is to
assure that probable cause existed to hold the defendant in
custody pending trial exists. State v. Holmes, 388
So.2d 722 (La. 1980); State v. Mayberry, 457 So.2d
880, 881 (La.App. 3rd Cir.), writ denied, 462 So.2d
191 (La. 1984). Under state law, while there is no
requirement that a preliminary hearing be held, once one is
requested, the court must provide the hearing. Accord
State v. Gomez, 940 So.2d 663 (La. 2006).
courts have held that where the evidence does not establish
probable cause at a preliminary examination, the defendant
will be released from custody or bail; however, the state may
still proceed with criminal charges against the individual.
State v. Lewis, 28 So.3d 548, 555 (La.App. 4th Cir.
2009); Mayberry, 457 So.2d at 882. When no
preliminary examination occurs, “the issue is moot
after conviction, at least in the absence of
prejudice.” State v. Washington, 363 So.2d
509, 510 (La. 1978).
case, Keil's original defense counsel filed a motion for
preliminary hearing on October 31, 2008. The record
reflects that the motion was
“passed.” Keil was charged by a bill of
indictment December 15, 2008, and arraigned on January 5,
2009. Defense counsel apparently filed another
motion for preliminary examination on January 7, 2009, which
was denied on May 2, 2011. Keil filed a third one
December 30, 2010, which was also denied.
of state law does not give rise to a federal claim under
habeas review. See Swarthout v. Cooke, 562 U.S. 216,
219 (2011); Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). In addition, the Fifth Circuit has recognized that
there is no federal constitutional right to a preliminary
hearing. Harris v. Estelle, 487 F.2d 1293, 1296 (5th
Cir.1973); Siwakowski v. Beto, 455 F.2d 915, 916
(5th Cir.1972) (per curiam) (holding referral of case to
grand jury without an examining trial was constitutionally
permissible); Weary v. Cain, No. 10-1793, 2011 WL
7416509, at *11 (E.D. La. Apr.21, 2011), report &
recommendation adopted, 2012 WL 601862 (E.D. La. Feb.22,
2012). Instead, grand jury indictment constitutes a final
determination of the existence of probable cause in a
criminal case. See Gerstein v. Pugh, 420 U.S. 103,
117 n. 19 (1975) (indictment “conclusively determines
the existence of probable cause and requires issuance of an
arrest warrant without further inquiry”); In re
Grand Jury Subpoena Dated Dec. 17, 1996, 148 F.3d 487,
493 (5th Cir.1998) (“In returning ... an indictment a
grand jury indicates that it has found probable cause to
believe that a criminal offense has occurred.”). Thus,
the Trial Court's failure to honor Keil's request for
a preliminary hearing did not violate federal law.
state courts' rejection of Keil's claim was not
contrary to and does not involve an unreasonable application
of clearly established Supreme Court law. Keil is not
entitled to relief as to this claim.
Sufficiency of the Evidence, Illegal Verdict, Failure to
Grant a New Trial Or Post-Judgment Verdict of Acquittal
(Claim Nos. 1, 4(A) and (B) and 6
contends that the evidence was insufficient to prove his
identity to convict him of second degree murder or
manslaughter. In making this claim, Keil argues that there
was a lack of physical or scientific evidence and the
eyewitness testimony was not credible. He further claims that
the verdict is illegal because it did not conform to the
evidence at trial. He also claims the Trial Court erred in
failing to grant his motion for new trial and post-judgment
verdict of acquittal.
State argues that the evidence presented at trial was
sufficient to establish each element of second degree murder,
that the verdict of manslaughter was a permissible verdict,
and that denial of relief by the state courts' was proper
under federal law.
raised the sufficiency of the evidence on direct appeal to
the Louisiana First Circuit. Relying on the standards set
forth in Jackson v. Virginia, 443 U.S. 307 (1979)
and related state law, the Court resolved that, while there
was no physical evidence tying Keil to the scene, the
eyewitness testimony was unequivocal. The Court noted there
was evidence of possible motive based on Sergeant
McDaniel's testimony that, in the days before the
shooting, Keil was very upset when McDaniel informed Keil
that he would not be arresting Harris or two other men in
connection with a complaint Keil made against them. The Court
also noted Lieutenant Phelps's testimony that Keil stated
that he had thrown the gun from the car window after he drove
away from the scene of the shooting.
Court concluded the credibility of the witnesses was
exclusively a jury decision and that the evidence, when
viewed in the light most favorable to the prosecution, was
sufficient to establish that the defendant was the
perpetrator of the offense. It further concluded that there
was sufficient evidence from which the jury could have
reasonably concluded that Keil was guilty of the indicted
offense of second degree murder, notwithstanding the
jury's legislatively authorized responsive verdict of
manslaughter, which may have been a compromise verdict. This
was the last reasoned opinion on the issue because the
Louisiana Supreme Court denied relief without stated reasons.
See See Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991)
(when the last state court judgment does not indicate whether
it is based on procedural default or the merits of a federal
claim, the federal court will presume that the state court
has relied upon the same grounds as the last reasoned state
of insufficient evidence present a mixed question of law and
fact. Perez v. Cain, 529 F.3d 588, 594 (5th Cir.
2008); Maes v. Thomas, 46 F.3d 979, 988 (10th Cir.
1995). The Court must therefore give deference to the state
court's findings unless the decision was contrary to, or
involved an unreasonable application of, Supreme Court law.
Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.
appropriate standard for determining the sufficiency of
evidence is that set forth in Jackson, relied on by
the state appellate court, which requires a court to
determine whether, after viewing the record and the evidence
in the light most favorable to the prosecution, a rational
trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt. Jackson, 443
U.S. at 319; Perez, 529 F.3d at 594; Williams v.
Cain, 408 Fed.Appx. 817, 821 (5th Cir. 2011). Louisiana
law allows for a crime to be proven by both direct and
Louisiana law, “[t]he rule as to circumstantial
evidence is: assuming every fact to be proved that the
evidence tends to prove, in order to convict, it must exclude
every reasonable hypothesis of innocence.” La. Rev.
Stat. § 15:438. However, on federal habeas corpus
review, the court does not apply this state law,
“reasonable hypothesis” standard, and instead
must apply the Jackson and AEDPA standards of
review. Gilley v. Collins, 968 F.2d 465, 468 (5th
Cir. 1992) (citing Schrader v. Whitley, 904 F.2d
282, 284 (5th Cir. 1990)).
extent Keil relies on Louisiana's circumstantial evidence
rule itself, “[t]his is not a purely separate test from
the Jackson standard to be applied instead of a
sufficiency of the evidence test . . .. Ultimately, all
evidence, both direct and circumstantial, must be sufficient
under Jackson to satisfy a rational juror that the
defendant is guilty beyond a reasonable doubt.”
State v. Porretto, 468 So.2d 1142, 1146 (La. 1985);
accord State v. Williams, 693 So.2d 204, 209
(La.App. 4th Cir. 1997). The reasonable hypothesis standard
under state law is “just an evidentiary guide for the
jury. If a rational trier of fact reasonably rejects the
defendant's hypothesis of innocence, that hypothesis
fails.” State v. Maxie, 614 So.2d 1318, 1321
(La.App. 3d Cir. 1993); accord Williams, 693 So.2d
at 209. The appropriate standard for this Court on habeas
review remains Jackson.
Court's consideration of the sufficiency of the evidence
extends only to what was presented at trial. See McDaniel
v. Brown, 558 U.S. 120, 131, 134 (2010) (recognizing
that a reviewing court is to consider all of the trial
evidence as a whole under Jackson); Johnson v.
Cain, 347 Fed.Appx. 89, 91 (5th Cir. 2009) (quoting
Jackson, 443 U.S. at 324) (Jackson standard
relies “upon the record evidence adduced at the
trial.”). The review of the sufficiency of the
evidence, however, does not include review of the weight of
the evidence or the credibility of the witnesses, because
those determinations are the exclusive province of the jury.
United States v. Young, 107 Fed.Appx. 442, 443 (5th
Cir. 2004) (per curiam) (citing United States v.
Garcia, 995 F.2d 556, 561 (5th Cir. 1993)); see also
Jackson, 443 U.S. at 319 (noting that it is the
jury's responsibility “to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts”). A
reviewing federal habeas court, therefore, is not authorized
to substitute its interpretation of the evidence or its view
of the credibility of witnesses for that of the fact-finder.
Weeks v. Scott, 55 F.3d 1059, 1062 (1995) (citing
Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir.
1985)). All credibility choices and conflicting inferences
must be resolved in favor of the verdict. Ramirez v.
Dretke, 398 F.3d 691, 695 (5th Cir. 2005).
addition, “[t]he Jackson inquiry ‘does
not focus on whether the trier of fact made the correct guilt
or innocence determination, but rather whether it made a
rational decision to convict or acquit.'”
Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.
2001) (quoting Herrera v. Collins, 506 U.S. 390, 402
(1993)). Thus, to determine whether the commission of a crime
is adequately supported by the record, the court must review
the substantive elements of the crime as defined by state
law. Perez, 529 F.3d at 594 (citing
Jackson, 443 U.S. at 324 n.16).
was charged with second degree murder and convicted of the
lesser offense of manslaughter. In Louisiana, manslaughter is
defined as a homicide which otherwise would be first or
second degree murder, with specific intent to kill or commit
great bodily harm, “but the offense is committed in
sudden passion or heat of blood immediately caused by
provocation sufficient to deprive an average person of his
self-control and cool reflection.” La. Rev. Stat.
§ 14:31(A)(1); State v. Logan, 34 So.3d 528
(La.App. 2d Cir. 2010); State v. Quiambao, 833 So.2d
1103 (La.App. 2d Cir. 2002).
La. Code Crim. P. art. 814(A)(3), manslaughter is a
responsive verdict to the charge of second degree murder. The
record reveals that Keil did not object to the inclusion of
manslaughter as a possible verdict. Thus, Keil's
conviction may be upheld, regardless whether the manslaughter
verdict is supported by the evidence, if the State
established the elements of second degree murder. See
State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-52
(La. 1982), cert. denied, 461 U.S. 959, 103 S.Ct.
2432, 77 L.Ed.2d 1318 (1983) (When a defendant does not
object to a trial court's instruction on a legislatively
authorized responsive verdict on the basis that the evidence
does not support that responsive verdict, the conviction will
not be reversed regardless of whether that verdict is
supported by the evidence, if the evidence is sufficient to
sustain a conviction on the charged offense).
defines second degree murder as “the killing of a human
being ... [w]hen the offender has a specific intent to kill
or to inflict great bodily harm.” La. Rev. Stat. §
14:30.1(A)(1). The phrase “specific intent” is
defined as the state of mind in which the perpetrator
“actively desired the prescribed criminal consequences
to follow his act or failure to act.” La. Rev. Stat.
§ 14:10(1). Under Louisiana law, intent need not be
proven directly but may be inferred from the actions of the
defendant and the circumstances surrounding those actions.
State v. Sharlhorne, 554 So.2d 1317, 1321 (La.App.
1st Cir. 1989); State v. Tate, 851 So.2d 921, 930
(La. 2003) (citing State v. Brooks, 505 So.2d 714,
717 (La. 1987)). Specific intent to kill can be implied by
the intentional use of a deadly weapon, such as a knife or a
gun. State v. Collins, 43 So.3d 244, 251 (La.App.
1st Cir. 2010) (citing State v. Brunet, 674 So.2d
344, 349 (La. 1996)).
reaching its decision, the First Circuit found that because
Keil only challenged his identification as the perpetrator it
did not need to determine whether the State met its burden of
proving the elements of manslaughter. It determined
that given the eyewitness testimony, the evidence of motive,
and the evidence that Keil admitted to throwing the gun out
the window of his vehicle after the shooting, there was
sufficient evidence to conclude that Keil was the perpetrator
of the offense and the jury's verdict of manslaughter was
regard to Keil's claim that the verdict was unlawful
because it did not conform to the evidence, it found that
there was sufficient evidence to convict Keil of second
degree murder and the verdict of manslaughter may have been a
compromise verdict. It found that the claim was without
merit because it was a legislatively approved verdict and
there was no contemporaneous objection.
challenges the sufficiency of the evidence to prove his
identification as a perpetrator of the crime. Under Louisiana
law, in addition to proving the statutory elements of the
charged offense at trial, the State is required to prove a
defendant's identity as a perpetrator. State v.
Draughn, 950 So.2d 583, 593 (La.), cert.
denied, 552 U.S. 1012 (2007); State v. Thomas,
192 So.3d 291, 303 (La.App. 5th Cir. 2016); State v.
Ingram, 888 So.2d 923, 926 (La.App. 5th Cir. 2004).
Where the key issue is identification, the State is required
to negate any reasonable probability of misidentification.
Id. However, a positive identification by only one
witness is sufficient to support a conviction. Under both
federal and Louisiana law, the testimony of a single
eyewitness is generally sufficient to support a conviction.
See United States v. King, 703 F.2d 119, 125 (5th
Cir. 1983); State v. Neal, 796 So.2d 649, 658 (La.
2001); State v. Williams, 3 So.3d 526, 529 (La.App.
5th Cir. 2008); see also Phillips v. Cain, Civ.
Action No. 11-2725, 2012 WL 2564926, at *13 (E.D. La. Apr.
11, 2012), report & recommendation adopted, 2012
WL 2565025 (E.D. La. July 2, 2012). Discrepancies in witness
testimony go to credibility, which is a matter left to the
judgment of the trier of fact, and an appellate court cannot
reassess a credibility determination. State v.
Thomas, 13 So.3d 603, 607 (La.App. 5th Cir. 2008).
review of the relevant evidence presented at trial was more
than sufficient to establish, and Keil does not contest, that
Harris died after being shot four times. To prove Keil's
identity as the perpetrator, the State introduced evidence
from four eyewitnesses. Katrina Hall testified that she and
her parents were outside when they heard Harris and Keil
arguing out by the road. As she and her mother walked towards
the street, she heard five shots. She saw Keil jump into a
white vehicle car and before he drove off, she heard him say,
“I want him to run from that.” Katrina Hall
explained that she was familiar with Keil and that she
recognized him on the day of the shooting. Within an
hour of the shooting, she went to the police station and gave
a written statement. Katrina Hall identified Keil in court
and testified that there was no doubt in her mind that he was
the person she saw shoot Harris.
Moses testified he was driving down the street when he saw
Keil start running towards Harris who was standing amongst a
group of five other people. Moses testified that he saw
Keil shoot the victim as he tried to jump a
ditch. Moses recalled that Keil drove off in a
white Lincoln Continental. Moses testified that he knew
Keil but that they were not friends. Moses talked to the
police immediately after the shooting and went to the station
to give a written statement. Moses made an in-court
identification of Keil as the person he saw shoot
Hall, Sr., testified he was at his daughter's house when
he heard a commotion outside. When he went outside, he saw
Keil and Harris arguing. He heard a shot and saw Keil shoot
the victim. Keil then got into his car and said,
“Let him run from that.” He recalled that he gave
a statement to police when they arrived on the scene and
several weeks later he gave a written statement at the police
station. Kenneth Hall, Sr. made an in-court
identification of Keil and testified that he was certain he
was the shooter.
Brown testified that he, Harris, Harris's father and a
few other people were “hanging out” on Ann Street
when Keil drove up. According to Brown, Keil got out of the
car and asked Harris if he was going to give him a fair fight
and Harris replied he did not want to fight. Brown
recalled that Keil then pulled out a gun and everyone
scattered. Brown hid behind a car and heard a
shot.He looked out from behind the car and saw
Harris on the ground and then saw Keil shoot him two more
times. Brown saw Keil drive away and make a
left on Church Street. Brown testified that he did not hear
Keil say anything. Brown testified that he spoke to police
when they arrived at the scene and then went to the police
station and gave a written statement. Brown
identified Keil in court.
McDaniel of the Bogalusa Police Department testified that
Keil had made a complaint against Harris on August 28,
2008. After McDaniel conducted an
investigation, he sent a report to the Bogalusa City Attorney
who declined to prosecute due to a lack of witness
statements. At some point after September 29, 2008,
but before the homicide, McDaniel met with Keil to tell him
that Harris would not be arrested. McDaniel recalled that
that Keil was extremely upset when he left the
Phelps testified that Keil was given his Miranda
rights but did not request an attorney and, in response to
questions asked by Phelps regarding the location of the gun,
Keil told him that he threw it out the window of his
vehicle. Phelps testified that he and Captain
Culpepper and another officer retraced the most logical route
between the scene of the shooting and Keil's mother's
house but were unable to find the weapon.
on the verdict, the jury obviously found the testimony and
statements, including those identifying Keil as the shooter,
to be credible. Keil's argument in this regard is
essentially that the jury should have not have believed the
testimony of the eyewitnesses. In short, the trial record
reflects a classic credibility contest over witness
testimony, including what inferences should be drawn from and
the weight to be assigned to evidence. These are functions
the law assigns to the jury, which resolved the arguments
asserted by Keil against him. Jackson limits this
Court's review to the evidence before the trier of fact
and does not allow the Court to reassess the weight and
credibility of the evidence. See Jackson, 443 U.S.
at 319 (finding that such matters are left to the
factfinder). Specifically, the determination of the
credibility of a witness is within the province of the jury
and is not to be disturbed on habeas review. Passman v.
Blackburn, 652 F.2d 559, 569 (5th Cir. 1981) (that the
jury chose to believe a witness whose credibility was
challenged is not a question of constitutional dimensions);
Holderfield v. Jones, 903 F.Supp. 1011, 1018 (E.D.
La. 1995) (citing United States v. Hatch, 926 F.2d
387, 399 (5th Cir. 1991)) (The habeas court should defer to
the jury's resolution of credibility determinations and
justifiable inferences of fact.). The jury's resolve was
reasonable and supported by the evidence and testimony.
these reasons, Keil has failed to establish that the verdict
was contrary to the law and evidence or that there was
insufficient evidence under the Jackson standard to
support the verdict against him. The state courts' denial
of relief on these issues, as well as the denial of the
post-trial motions, was not contrary to, or an unreasonable
application of, Supreme Court law. Keil is not entitled to
relief on these claims.
False Testimony (Claim No. 2)
next contends that the prosecution knowingly presented the
false testimony of Sergeant Culpepper and Lieutenant Phelps.
Keil relies on the contradictory testimony of Officer Smith
and Culpepper's report regarding the investigation of the
raised this claim on direct appeal. In the last reasoned
decision, the Louisiana First Circuit found that conflicting
testimony of witnesses was a matter for the jury to decide
and did not provide a basis for relief.
denies a defendant due process when it knowingly uses
perjured testimony at trial or allows untrue testimony to go
uncorrected. Giglio v. United States, 405 U.S. 150,
766, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v.
Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d
1217 (1959); Faulder v. Johnson, 81 F.3d 515, 519
(5th Cir. 1996). In order to obtain relief, the defendant
must show that: (1) the testimony was actually false, (2) the
State knew the testimony was false, and (3) the testimony was
material. Duncan v. Cockrell, 70 Fed.Appx. 741,
744-45 (5th Cir. July 3, 2003); Kirkpatrick v.
Whitley, 992 F.2d 491, 497 (5th Cir. 1993). False
testimony is “material” only if there is any
reasonable likelihood that it could have affected the
jury's verdict. Duncan, 70 Fed.Appx. at 744
(citing Nobles, 127 F.3d at 415).
it is clear that Keil has not met his burden of proving that
the testimony was actually false and that the prosecution
knew it to be false and allowed it to go uncorrected.
Lieutenant Phelps testified that he was present when Officer
Smith read Keil his rights and Keil did not ask for an
attorney. In response to questions to Keil about
the location of the gun, Keil told Phelps that he threw the
gun out the window of his vehicle, although he claimed he did
not recall the route he took to get to his parents'
home. Thereafter, Phelps, Culpepper and
another officer searched for the weapon along the most
logical route from the scene of the crime to City Limits Road
but were unable to locate it.Phelps testified that he first
told the prosecutor about Keil's statement a couple of
months before trial.
the claim had been previously denied on the merits on direct
review, this Court simply “looks through” that
subsequent procedural ruling and evaluates the validity of
the prior direct-review ruling. See Ylst, 501 U.S.
at 804 n.3.
Culpepper testified that when he arrived at the scene of
Keil's arrest, Smith had Keil in handcuffs. He testified
that he and Lieutenant Phelps searched for the weapon using a
metal detector but did not find the gun. Culpepper
admitted that he did not include in his written report that
they searched for the gun. He also admitted that his
report did not mention that Keil had made any incriminating
statements. He attributed it to an
omission and his assumption that Phelps would include it in
Smith testified on the behalf of the defense that he located
Keil at his mother's house and read him his
Miranda rights after which Keil asked for an
attorney. He did not recall Phelps ever being at
the scene and testified that, as far as he knew, no other
officer talked to Keil. Smith testified that he did
not write a report but that he reviewed Culpepper's
report and it accurately reflected that Smith read Keil his
right and that he requested an attorney and no further
questioning took place.Smith claimed that Phelps
was lying about being present when Keil was Mirandized and
about questioning Keil about the whereabouts of the
is the offering of “false testimony concerning a
material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or
faulty memory.” United States v.
Dunnigan, 507 U.S. 87, 94 (1993). The fact that the
testimony of Culpepper and Phelps was inconsistent with
Smith's testimony and other evidence does not establish
that it was false or that the prosecution knew or believed
that testimony to be false. See Kutzner v. Cockrell,
303 F.3d 333, 337 (5th Cir. 2002); Koch v. Puckett,
907 F.2d 524, 531 (5th Cir. 1990) (holding that conflicting
testimony does not prove perjury but instead establishes a
credibility question for the jury). The mere existence of a
conflict in testimony and evidence does not make it false or
perjured. See United States v. Wall, 389 F.3d 457,
473 (5th Cir. 2004), cert. denied, 544 U.S. 978
(2005) (“Wall has not established that McDowell's
testimony was actually false. He has merely shown that
Ristau's testimony would establish a conflict in the
testimony, a far cry from showing that it was ‘actually
false.' ”). The evidence in this case presents
nothing more than the kind of credibility conflict and
dispute over the appropriate weight to be afforded to it that
frequently occurs at trial and which is the jury's
function to resolve.
has failed to establish that the State violated his
constitutional rights through the presentation of any false
testimony from Culpepper or Phelps. The state courts'
denial of relief of this claim was not contrary to, or an
unreasonable application of federal law. Thus, Keil is not
entitled to relief on this claim.
Admission of Prior Altercation Evidence (Claim No.
claims that the Trial Court erred in allowing the State to
introduce evidence of his prior altercation with Harris.
before trial, the State filed a notice of intent to introduce
evidence of other offenses under La. Code Evid. art 404(B)(1)
relating to Sergeant McDaniel's proposed testimony that
Keil sought to have the victim arrested for an incident that
occurred at Harris's home and, that in the days prior to
the shooting, McDaniel told Keil that Harris would not be
arrested. The State intended to introduce the
testimony to show motive to shoot Harris. The defense argued
that the notice was untimely under La. Code Evid. art
404(B)(1) because it was not given in a reasonable time in
advance of trial and that the probative value of the evidence
was outweighed by the prejudicial effect. The Trial
Court found that the defense was aware of the prior
altercation well in advance of trial and that the proposed
testimony was not true 404(b) evidence subject to reasonable
notice. The Trial Court concluded that the
evidence was relevant to show the history between Keil and
the victim, the probative value of the proposed testimony
outweighed any prejudicial effect, and allowed Sergeant
McDaniel to testify.
last reasoned opinion, in addressing the issue on direct
appeal, the Louisiana First Circuit found that that the
evidence was not evidence of other crimes, wrongs or acts
committed by Keil as Harris was the alleged wrongful actor in
the prior altercation and Keil was the victim. It found
that the testimony was relevant to prove Keil's motive in
committing the offense. It therefore concluded that
the Trial Court did not abuse its discretion in introducing
McDaniel's testimony. Keil's efforts to
reassert these claims on post-conviction review were barred
as repetitive at each level of the state courts.
Ylst, 501 U.S. at 802.
extent Keil argues that the evidence was admitted in
violation of Louisiana law, that claim is not cognizable on
federal habeas review. See Swarthout, 562 U.S. at
219. Habeas corpus review is limited to questions of
constitutional dimension, and federal courts generally do not
review the admissibility of evidence under state law.
Estelle, 502 U.S. at 67-68; Gonzales v.
Thaler, 643 F.3d 425, 429 (5th Cir. 2011); Jernigan
v. Collins, 980 F.2d 292, 298 (5th Cir. 1992). The
states are free to implement procedures regarding the
admission of evidence, provided those procedures do not
infringe on a constitutional guarantee. Burgett v.
Texas, 389 U.S. 109 (1967).
federal courts do not sit to review the propriety of state
court evidentiary rulings, unless the proceedings violate due
process such that the violation renders the criminal
proceeding fundamentally unfair. Lisenba v. People of the
State of California, 314 U.S. 219, 236-37 (1941);
Peters v. Whitley, 942 F.2d 937, 940 (5th Cir. 1991)
(Habeas review is proper only to determine whether a state
trial judge's error is so extreme as to render the trial
fundamentally unfair or violate an explicit constitutional
right.). Federal habeas review on such matters is proper only
to determine whether a state trial judge's error is so
extreme as to render the trial fundamentally unfair or
violate an explicit constitutional right. Peters,
942 F.2d at 940. The Due Process Clause provides a mechanism
for relief when evidence is wrongly admitted in a state court
criminal proceeding, but only if that evidence is so unduly
prejudicial that it renders the trial fundamentally unfair.
Bigby v. Dretke, 402 F.3d 551, 563 (5th Cir. 2005).
The evidence must have had a substantial, injurious effect or
influence in determining the jury's verdict such that it
rendered the trial fundamentally unfair. Wood v.
Quarterman, 503 F.3d 408, 414 (5th Cir. 2007). Admission
of prejudicial evidence is fundamentally unfair so as to
justify federal habeas corpus relief only if it “played
a crucial, critical, and highly significant role in the
trial.” Gonzales, 643 F.3d at 430 (quotation
these standards, to establish a fundamentally unfair trial, a
petitioner must show a reasonable probability that the
verdict might have been different had the trial been properly
conducted. Kirkpatrick v. Blackburn, 777 F.2d 272,
279 (5th Cir. 1985). A habeas petitioner must show that
“the trial court's error had a ‘substantial
and injurious effect or influence in determining the
jury's verdict.' ” Hernandez v.
Dretke, 125 Fed.Appx. 528, 529 (5th Cir. 2005) (citing
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
issue presents a mixed question of law and fact.
Wilkerson v. Cain, 233 F.3d 886, 890 (5th Cir.
2000); Livingston v. Johnson, 107 F.3d 297, 309 (5th
Cir. 1997) (admissibility of evidence under the Due Process
Clause is a mixed question of law and fact). Thus, the court
must determine whether the denial of relief by the state
courts was contrary to or an unreasonable application of
federal law. Under these rigorous standards, Keil has failed
to meet his burden regarding the trial court's admission
of the evidence of his prior altercation with Harris.
Court's review of the record confirms the relevance of
the evidence of Keil's complaint against Harris and that
the probative value of the evidence outweighed the
prejudicial effect. Keil's defense was that he was not
the person who shot and killed Harris. The evidence relating
to Keil's complaint against Harris and McDaniel's
meeting with Keil to advise that Harris would not be arrested
was offered to establish Keil's bad character but rather
to show proof of motive. The prosecutor was careful in her
questioning such that there was limited testimony regarding
the incident that caused Keil to file complaints against
Harris and two others, and the evidence did not demonstrate
that Keil was the wrongful actor; rather, he claimed to be
is no indication in the record that the testimony and
evidence misled the jury into an improper verdict. Because he
has not demonstrated error in the admission of the evidence,
he “has no basis for any alleged due process
violation” or denial of a fundamentally fair trial.
Robinson v. Whitley, 2 F.3d 562 567 (5th Cir. 1993);
see also Neal v. Cain, 141 F.3d at 214. Even if he
had shown an error, given the eyewitness testimony that
established Keil's guilt, he has failed to demonstrate
that the evidence relating to the prior incident
“played a crucial, critical, and highly significant
role in the trial.” Gonzales, 643 F.3d at 430
(quotation omitted). The denial of relief on this claim was
not contrary to, or an unreasonable application of, Supreme
Court precedent. Keil's claim is without merit.
Illegal In-Court Identification (Claim No.
claims that the Trial Court erred in allowing
“impermissibly suggestive” in-court
identifications of him by State witnesses. He claims none of
the witnesses initially identified him at the time of the
incident, and the witnesses were only able to do so later due
to his exposure in the news.
Trial Court denied relief without explanation when Keil
raised the issue in his application for post-conviction
relief. In the last reasoned opinion, the
Louisiana Supreme Court found Keil failed to meet his
post-conviction burden of proof.
Due Process Clause protects against the use of evidence
obtained from impermissibly suggestive identification
procedures.” United States v. Guidry, 406 F.3d
314, 319 (5th Cir. 2005).
Fifth Circuit instructs that the admissibility of
identification evidence is governed by a two- step test:
“First, we determine whether the identification
procedure was impermissively suggestive, and second, we ask
whether the procedure posed a ‘very substantial
likelihood of irreparable misidentification.' ”
Id. (quoting United States v. Rogers, 126
F.3d 655, 658 (5th Cir. 1997).
case, there was no photographic lineup to ascertain the
identification of the perpetrator. There is however, no
constitutional right to a pretrial lineup, and the in-court
identifications were not rendered unconstitutional simply
because no such pretrial procedures were utilized. United
States v. Brown, 699 F.2d 585, 593-94 (2nd Cir.1983);
United States v. McGhee, 488 F.2d 781, 786 (5th
Cir.1974); Hankins v. Smith, No. 03 Civ. 5404, 2008
WL 4601000, at *3 (S.D.N.Y. Oct.15, 2008).
an in-court identification of the perpetrator of a crime is
obviously suggestive. Rogers, 126 F.3d at 658
(citations omitted). To prevail on a claim that the
witnesses' identification testimony derived from a
suggestive identification procedure, a petitioner must show
that the identification procedure was “so unnecessarily
suggestive and conductive to irreparable mistaken
identification that he was denied due process of law.”
Neil v. Biggers, 409 U.S. 188, 196 (1972) (quoting
Stovall v. Denno, 388 U.S. 293, 301-02 (1967));
Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
Court must consider five factors to determine the likelihood
of misidentification: 1) the witness's opportunity to
view the perpetrator at the time of the crime; 2) the
witness's degree of attention; 3) the accuracy of the
witness's prior description; 4) the level of certainty
demonstrated when making the identification; and 5) the time
between the crime and the identification. Neil, 409
U.S. at 199-200.
analysis involves a mixed question of law and fact.
Livingston, 107 F.3d at 309. This Court must
therefore determine whether the state court's denial of
the claim was contrary to, or an unreasonable application of,
clearly established federal law. 28 U.S.C. § 2254(d)(1);
Coleman v. Quarterman, 456 F.3d 537, 544 (5th Cir.
2006); Walker v. Vannoy, Civ. Action No. 15-6809,
2016 WL 7485675, at *11 (E.D. La. Sept. 9, 2016), report
and recommendation adopted, 2016 WL 7476334 (E.D. La.
Dec. 29, 2016). Keil has not made the required showing.
the four witnesses who identified Keil at trial knew him
prior to the incident and testified that they had no
doubt that Keil was the shooter. Further, each of them
witnessed the shooting and were interviewed immediately
thereafter at which time they all identified Keil as the
perpetrator of the crime. A witness's prior
acquaintance with the accused renders negligible the risk of
misidentification. See United States v. Hefferon,
314 F.3d 211, 219 (5th Cir. 2002); Hetzel v. Cowan,
518 F.2d 851 (6th Cir.1975); United States v.
Beckham, 505 F.2d 1316, 1319 (5th Cir.1975); Weber
v. Cain, Civ. Action No. 06-1055, 2008 WL 3876399, at
*21 (E.D. La. Aug. 20, 2008). Where, as here, an
identification is based on prior acquaintance, the issue is
less one of reliability than of
credibility, and doubts as to credibility, are
properly left to the jury. United States v. Lewis,
248 F.3d 1142, at *3 (5th Cir. 2001) (per curiam) (citing
United States v. Fernandez-Roque, 703 F.2d 808, 814
light of the circumstances and the number of eyewitnesses,
there is no likelihood of misidentification in the case. Keil
has therefore failed to demonstrate that the state
courts' decision rejecting his claim was contrary to, or
involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United
States. Keil is not entitled to relief as to this claim.
Denial of Motions to Quash and to Suppress (Claim Nos.
4(C) and (D))
next contends that the Trial Court erred in denying his
motions to quash and to suppress. The State contends that to
the extent that the motions rely on state law, Keil fails to
state a claim for federal habeas relief. It alternatively
contends that the claims are without merit.
Motion to Quash
filed a motions to quash in May and June 2009 based on state
law and alleged false evidence. Those motions were
denied at a hearing on May 2, 2011. On June 10, 2011, Keil
filed a third pro se motion to quash pursuant to La. Code
Crim. P. arts. 532(5), 537 and 485, alleging a lack of
evidence and false evidence and the denial of a preliminary
exam and speedy trial. The Trial Court denied the motion
at a hearing on July 25, 2011.
extent Keil requests that this Court review the propriety of
denial of the motion to quash under state law, “federal
habeas corpus relief does not lie for errors of state
law.” Swarthout, 536 U.S. at 219 (quoting
Estelle, 502 U.S. at 67) (internal quotations
omitted). This court does not sit as a “super”
state supreme court. See Dickerson v. Guste, 932
F.2d 1142, 1145 (5th Cir. 1991) (citing Martin v.
Wainwright, 428 F.2d 356, 357 (5th Cir.), cert.
denied, 400 U.S. 918 (1970)). This court will only
review Keil's claim if he can establish that the state
courts' denial of his motions to quash constituted a
violation of a constitutional right. Construing his arguments
very broadly, Keil asserts violation of his right to a speedy
trial in this regard.
Sixth Amendment guarantees every person accused of crime the
right to a speedy trial. Amos v. Thornton, 646 F.3d
199, 204 (5th Cir. 2011). Whether a defendant has been
deprived of his right to a speedy trial is a mixed question
of law and fact. Id. at 204; Divers v.
Cain, 698 F.3d 211, 216 (5th Cir. 2012). Therefore, to
obtain federal habeas relief, petitioner must show that the
state courts' decision denying his claim was contrary to
or an unreasonable application of Supreme Court precedent.
The Court must consider that, “due to the somewhat
indeterminate and fact-intensive nature of the speedy trial
right, our ‘always-substantial deference is at an
apex.' ” Divers, 698 F.3d at 217 (quoting
Amos, 646 F.3d at 204-05).
Barker v. Wingo, 407 U.S. 514, 530 (1972), the
Supreme Court recognized that “[i]t is ... impossible
to determine with precision when” a specific trial
delay crosses the line and becomes unconstitutionally long.
Barker, 407 U.S. at 521; Laws v. Stephens,
536 Fed.Appx. 409, 412 (5th Cir. 2013). The Supreme Court
declared that “ ‘[t]he right of a speedy trial is
necessarily relative,' ” and required the courts to
apply “a functional analysis of the right in the
particular context of the case [.]” Id. at 522
(citation omitted). Courts must consider and balance the
following factors: (1) the length of delay; (2) the reason
for the delay; (3) the defendant's assertion of his right
to speedy trial; and (4) prejudice to the defendant.
Barker, 407 U.S. at 530; Amos, 646 F.3d at
205 (citing Goodman v. Quarterman, 547 F.3d 249, 257
(5th Cir. 2008)); Doggett v. United States, 505 U.S.
647, 651 (1992).
La. Code Crim. P. art. 578(A)(2), the State had two years
from commencement of the prosecution to try Keil. Calculating
time under the first Barker factor begins with
“either a formal indictment or information or else the
actual restraints imposed by arrest and holding to answer a
criminal charge that engage the particular protections of the
speedy trial provision of the Sixth Amendment.”
Dillingham v. United States, 423 U.S. 64, 65 (1975)
(per curiam). The record reflects that Keil was indicted by a
grand jury on December 15, 2008, and the State ordinarily
would have had two years from that date to try Keil. He was
not tried until nearly three years later on October 24-27,
2011. Thus, Keil has made a threshold showing of prejudicial
delay sufficient to trigger a full Barker analysis.
See Amos, 646 F.3d at 206.
the reason for such delay is considered. Id. at 207.
A court gives different weight to different reasons, and
“delays explained by valid reasons or attributable to
the conduct of the defendant weigh in favor of the
state.” Id. In this case, Keil's underwent
multiple psychiatric evaluations and was ultimately found to
be competent on April 4, 2011. His August 2011 trial
date was continued at the defense's request when his
Assistant Public Defender resigned from the
office. His trial occurred within six months
of him being found to be competent. United States v.
Neal, 27 F.3d 1035, 1043 (5th Cir.1994) (weighing delay
occasioned by defense motions for competency examinations and
requests for continuances against the defendant); McCoy
v. Cabana, 794 F.2d 177, 180 at fn. 1 (5th Cir.1986)
(refusing to weigh the time the defendant's competency
was being evaluated pursuant to a defense motion against the
state); Accordingly, the delay to try Keil within the time
period specified by statute was delayed by no fault of the
third Barker factor examines whether the defendant
“diligently asserted his speedy trial right.”
United States v. Parker, 505 F.3d 323, 329 (5th Cir.
2007). Keil filed a pro se motion for speedy trial in May
2009. Further, as indicated, he filed
multiple motions to quash the indictment which constitute an
assertion of the right to a speedy trial. Divers,
698 F.3d at 219 (citation omitted). This factor therefore
weighs in favor of Keil.
the fourth Barker factor examines the prejudice to the
petitioner because of the delay. Barker, 407 U.S. at
530. Typically, the petitioner carries the burden to
demonstrate actual prejudice; however, after reviewing the
first three factors, a court must decide whether the
petitioner still bears that burden or whether prejudice is
presumed. See Amos, 646 F.3d at 208. Here, Keil has
not demonstrated that the above three factors warrant
presumed prejudice. While the delay was extended, a valid
reason existed for the delay and while Keil, filed pro se
motions requesting a speedy trial, his counsel required more
time to prepare. Accordingly, in order for Keil to prevail on
his speedy trial claim, he must establish actual prejudice
and demonstrate that the prejudice adequately exceeds the
other factors. United States v. Frye, 489 F.3d 201,
212 (5th Cir. 2007); see also Amos, 646 F.3d at 208
n.42 (finding no presumption of prejudice even when two of
the three Barker factors weighed in favor of
Barker, in assessing prejudice, courts should
consider three interests of the petitioner: (1) to prevent
oppressive pretrial incarceration; (2) to minimize anxiety
and concern accompanying public accusation; and (3) to limit
the possibility that the defense will be impaired.
Barker, 407 U.S. at 532. Of those, the most
significant prejudice is the petitioner's ability to
prepare his case without limitation. Frye, 489 F.3d
at 212 (citing Barker, 407 U.S. at 532).
has not made a showing that his ability to present a defense
was impaired in any way by the delay in bringing him to
trial. He has not identified ant witnesses who were
unavailable (or whose memories were dimmed) as a result of
the delay or any evidence that was rendered unavailable. Keil
failed to make the required particularized showing of
prejudice and the fourth Barker factor therefore
favors the State.
has not shown that the state courts' denial of the
motions to quash his indictment was contrary to or an
unreasonable application of Supreme Court precedent.
Accordingly, under the Barker ...