Kerby Keane Keller v. David Larkins, Superintendent, Sci Dallas the District Attorney of the County of Lancaster the Attorney General of the State of Pennsylvania [Mike Fisher]
Docket: 00-1130
Court: Court of Appeals for the Third Circuit; May 15, 2001; Federal Appellate Court
Kerby Keller, serving a life sentence for the first-degree murder of his wife, appeals the denial of his federal habeas corpus petition. He claims violations of his due process rights due to the admission of prejudicial evidence at trial with minimal probative value and asserts ineffective assistance of counsel for his attorney's inadequate response to testimony from a psychiatric expert regarding Keller's possible 'sadistic personality disorder.' The court finds that Keller did not adequately present his due process claim to Pennsylvania courts, resulting in a procedural default. Additionally, the ineffective assistance claim fails as Keller did not demonstrate that the state courts' interpretation of the Strickland standard was unreasonable. The appeal is thus affirmed.
The factual background details Keller's history with the motorcycle gang, the circumstances of the murder, and the prosecution's arguments regarding premeditation and motive. The prosecution suggested that Keller killed his wife after learning about her alleged cooperation with the FBI, introducing evidence of her work with the agency and Keller's stressed state reflected in a purported suicide note.
Keller's defense presented a narrative where he allegedly urged his wife, Barbara, to return to him upon her arrival at the farm. Barbara indicated her intent to resume exotic dancing, leading to a physical altercation in which she locked herself in a bedroom. Keller broke down the door, found Barbara escaping through a window, and subsequently shot and killed her. His defense at trial centered on an insanity claim, supported by psychiatric expert Dr. Abram M. Hostetter, who diagnosed Keller with major depressive disorder and opined that he did not fully comprehend his actions at the time of the shooting. Other witnesses corroborated Keller's distressed behavior due to Barbara's infidelity.
In contrast, the Commonwealth's psychiatric expert, Dr. Kurtis Jens, who did not examine Keller, asserted that he did not suffer from major depressive disorder and believed Keller was capable of understanding right from wrong and forming intent to kill. Dr. Jens suggested possible personality disorders, including antisocial and sadistic personality disorders, and presented evidence of Keller's previous violent behavior.
Keller was convicted of first-degree murder and attempted murder in March 1990, receiving a life sentence plus an additional five to ten years. His convictions were upheld by the Superior Court of Pennsylvania, and his appeal to the state Supreme Court was denied. Keller subsequently sought post-conviction relief, which was denied after an evidentiary hearing, leading to further affirmation by the Superior Court and refusal of review by the Pennsylvania Supreme Court. Keller then filed for a writ of habeas corpus in federal court, claiming the admission of prejudicial evidence regarding his associations and his wife's informant status violated his due process rights and that his counsel was ineffective regarding Dr. Jens's testimony.
Keller's petition was referred to a Magistrate Judge, who recommended its denial, concluding that Keller's challenge to the evidence concerning the Pagans was based solely on state law and that his federal constitutional claim was barred by procedural default. The Magistrate also found that the state courts' determination regarding Keller's trial counsel's effectiveness under the Strickland standard was not susceptible to attack under 28 U.S.C. § 2254(d)(1). The District Court upheld the Magistrate's recommendation but disagreed with parts of her reasoning. It determined that Keller had adequately presented a due process claim by arguing that the evidence's admission deprived him of a fair trial, yet concluded that this admission did not constitute a constitutional error. Regarding the ineffective assistance claim, the District Court acknowledged trial counsel's inadequate representation related to Dr. Jens's testimony but found Keller failed to demonstrate any resulting prejudice. Consequently, the habeas petition was denied, but a certificate of appealability was granted.
On appeal, Keller claims that evidence of his association with the Pagans and his wife's role as an FBI informant violated his due process rights, arguing the Commonwealth lacked proof of his knowledge of her informant status, making the evidence highly prejudicial rather than probative. He asserts this evidentiary error undermined the trial's fairness. The Commonwealth contends that Keller's due process claim is procedurally barred and that the District Court correctly rejected the claim on its merits. The summary emphasizes that federal courts can grant a habeas corpus petition only if the petitioner has exhausted state remedies, which requires that the federal claim's substance be clearly presented to state courts. It clarifies that merely having the relevant facts before state courts does not suffice for exhaustion, and similarity of claims is inadequate.
Keller contested the admission of evidence related to the Pagans and Barbara's informant status in state court but failed to adequately notify the state courts of a federal constitutional claim, focusing instead on state law violations. His Superior Court brief extensively argued that the evidence breached Pennsylvania evidentiary standards without referencing federal law or constitutional claims. Similarly, his petition for appeal to the Pennsylvania Supreme Court did not present a federal constitutional issue, leading the Superior Court to reasonably interpret his claim as grounded in state law.
Keller's assertion that he referenced a "fair trial" concept in his court documents was insufficient to alert the state courts to a federal due process claim, mirroring a rejected argument in Duncan v. Henry. In Duncan, a habeas petitioner’s state court argument regarding the admission of evidence was deemed inadequate to raise a federal constitutional issue, as it was confined to state law principles. The Supreme Court emphasized that to allow state courts the opportunity to rectify federal rights violations, petitioners must explicitly assert such claims in state court proceedings. Thus, Keller's failure to clearly articulate a federal claim limited the state courts' understanding of his argument to state law issues alone.
Keller did not adequately present a federal due process claim to the state courts, similar to the precedent set in Duncan v. Henry. In state court, Keller's argument centered on the denial of a 'fair trial' due to the admission of evidence, which does not sufficiently invoke federal due process rights, as noted in Henry, where a claim of 'miscarriage of justice' was also deemed insufficient. The court found that the Superior Court interpreted Keller's arguments as state-law issues only. This conclusion is supported by the McCandless case, where a habeas petitioner's state-law challenge to evidence was similarly viewed as not presenting a federal claim. The court emphasized that a mere reference to a 'fair trial' would not change this outcome and reaffirmed that Keller's due process claim was not fairly presented to Pennsylvania courts.
Keller is now barred from presenting his federal claim in state court due to the expiration of the statute of limitations for filing a new PCRA petition, leading to procedural default of his claim. Federal courts typically cannot consider such defaulted claims unless the petitioner shows cause and actual prejudice or demonstrates a fundamental miscarriage of justice. Keller has not alleged any cause or prejudice, nor has he claimed that not reviewing his case would result in a fundamental miscarriage of justice. As a result, his federal due process claim is barred from habeas review.
Keller's second claim on appeal involves the argument that he was denied effective assistance of counsel due to his trial attorney's inadequate preparation regarding the testimony of the prosecution's psychiatric expert, Dr. Kurtis Jens. Dr. Jens suggested that Keller may have had 'sadistic personality disorder' and presented evidence of Keller's prior sadistic acts. The defense counsel failed to investigate Dr. Jens's testimony or seek to exclude it but did conduct a thorough cross-examination, emphasizing that Dr. Jens had diagnosed Keller without interviewing him and highlighting Keller's symptoms of major depression.
In his Post Conviction Relief Act (PCRA) petition, Keller argued that his attorney was ineffective for not challenging the scientific reliability and acceptance of 'sadistic personality disorder' within the psychiatric community. At the PCRA hearing, expert witness Dr. Susan Feister testified that 'sadistic personality disorder' was not a formal diagnosis in the DSM-III-R, where it appeared only in an appendix, and was absent from the DSM-IV. She noted it was unlikely to become an official diagnosis.
The trial judge dismissed Keller's ineffective assistance claim, acknowledging that while 'sadistic personality disorder' was not in the main body of the DSM-III-R, it was recognized in the appendix as a classification under scrutiny. The judge cited Dr. Feister's own work, which acknowledged some internal consistency in the diagnosis. Ultimately, the judge concluded that Keller was not prejudiced by the use of this diagnostic term.
The Superior Court upheld the trial judge's decision, confirming that "sadistic personality disorder" was recognized as a psychiatric diagnosis during the trial. Both courts determined that the appellant did not meet the Strickland standard for ineffective assistance of counsel. Under 28 U.S.C. 2254(d), federal habeas corpus relief is restricted unless the state court's decision was either contrary to or involved an unreasonable application of established federal law, as defined by the Supreme Court. The interpretation from Williams v. Taylor specifies that relief may be granted only if the state court's ruling contradicts Supreme Court law or misapplies it in an unreasonable manner. A federal habeas court cannot grant relief based solely on an incorrect application of law; it must be objectively unreasonable. The court's previous interpretation in Matteo aligns with this, necessitating a determination of whether the state court's decision contradicted or unreasonably applied Supreme Court precedent, with relief granted only if such a showing is made.
The legal standard for ineffective assistance of counsel is defined by the Supreme Court's Strickland v. Washington framework. A defendant must demonstrate two elements to establish a Sixth Amendment violation: first, that counsel's performance was objectively unreasonable based on the circumstances at the time, and second, that this deficient performance resulted in actual prejudice, meaning there is a reasonable probability that the outcome would have been different but for the counsel's errors. The court must evaluate the totality of the evidence when assessing the impact of any errors.
In this case, the focus shifted to the "unreasonable application" prong of 28 U.S.C. § 2254(d)(1), as the court found no need to address the first prong of the Strickland test. Keller claimed his trial attorney should have contested the admission of expert testimony regarding 'sadistic personality disorder,' arguing it was scientifically unreliable under the Daubert standard. However, because this was a state court trial, the admissibility of such testimony is governed by state law unless it violates due process, which Keller did not assert. Both the PCRA judge and the Superior Court deemed the testimony appropriate, leading to the conclusion that Keller was not prejudiced by any failure of his counsel to object to the expert testimony.
Keller argues that his trial counsel was ineffective for failing to adequately cross-examine Dr. Jens regarding 'sadistic personality disorder.' Under 2254(d), the focus is on whether the determination of no prejudice represents an unreasonable application of the Strickland standard. A comprehensive presentation on 'sadistic personality disorder' would have revealed to the jury that while a Work Group recommended its inclusion in the DSM-III-R, there were significant objections regarding the validity of this diagnosis. Critics argued that the evidence supporting the disorder was insufficient and that it had a high potential for misuse. Consequently, the disorder was only included in an appendix for further study, indicating a lack of consensus among mental health professionals.
While exposing this controversy could have weakened Dr. Jens's testimony, it would not have completely discredited it. Moreover, the critical elements of his testimony—asserting that Keller did not have major depressive disorder, was not psychotic at the time of the killing, and could understand right from wrong—were not contingent on the 'sadistic personality disorder' diagnosis. Thus, even if the jury had been made aware of the disagreement among experts, it is unlikely they would have found Keller insane or incapable of forming intent for first-degree murder. Therefore, Keller's claim of ineffective assistance of counsel is rejected due to a lack of demonstrated prejudice.
The court affirms the decision of the District Court regarding Keller's due process rights, indicating that these rights were not violated. The District Court had noted that defense counsel introduced information about the Pagans. Although evidence was presented suggesting that Keller knew the FBI was investigating, there was no direct evidence proving that he was aware his wife was an informant. Testimonies from Keller's wife, Reiter, and an FBI agent indicated that Keller did not possess such knowledge, nor did he express it in conversations after the incident or in a purported suicide note. A federal habeas court cannot determine the admissibility of evidence under state law but can assess whether its admission constituted a due process violation, which the court concluded it did not in this case. Additionally, the DSM-III-R describes a disorder characterized by a pattern of cruel and aggressive behavior starting in early adulthood. The Supreme Court of Pennsylvania has not yet decided whether to adopt the Daubert standard for admissibility of expert evidence or continue using the Frye standard, which was previously endorsed in Pennsylvania case law.
