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February 29, 2000


The opinion of the court was delivered by: Katz, Senior District Judge.


Before the court is Kerby Keane Keller's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Although the issues raised by Mr. Keller present difficult questions that warrant the granting of a certificate of appealability, the trial errors asserted do not rise to a level that would permit this court to grant relief.

I. Background*fn1

At trial, the state and the defense presented very different theories of the events of June 20. The defense focused on Keller's state of mind and argued that he was incapable of forming the intent necessary for a first-degree murder conviction. The defense attempted to show that the killing and the attempted killing were the product of Keller's extreme emotional state caused by his anguish over his separation from Barbara and her refusal to reconcile, the revelation that Reiter was having an affair with Barbara, and Barbara's statement that she was returning to nude dancing. Keller testified that he could not remember killing Barbara or shooting at Reiter. In support, his trial counsel Joshua Lock offered the testimony of Dr. Abram Hotstetter, a practicing psychiatrist, who rendered a diagnosis of major depressive illness and his opinion that Keller was insane at the time of the shooting.

The state advanced, at least implicitly, alternative theories of the crime. The first relied heavily on the fact that Barbara Keller had been an informant for the FBI for many years and suggested that Keller, who had been a member of the Pagans, a motorcycle gang that had been under investigation, killed his wife either in retaliation or to silence her. This theory also implied that Keller attempted to kill Gary Reiter to silence him in the event that Barbara had revealed incriminating information in the course of their relationship. The government's second theory suggested that Keller had planned to kidnap, possibly torture, and kill both his wife and Reiter in retaliation for her decision to leave him and engage in a relationship with Reiter.

On March 16, 1990, Keller was convicted in the Lancaster County Court of Common Pleas of the first-degree murder of Barbara Keller and of the attempted murder of Gary Reiter. Keller appealed his conviction directly to Pennsylvania's Superior Court and Supreme Court without success; he also filed similarly unsuccessful post-conviction collateral appeals. He is presently serving a life sentence for the murder conviction to be followed by a five-to ten-year term of imprisonment for the attempted murder conviction.

II. The Petition for a Writ of Habeas Corpus

Keller's petition for a writ of habeas corpus raises three arguments. The first asserts that his due process right to a fair trial was violated by the admission of evidence regarding his own association with the Pagan motorcycle gang and his wife's role as an, informant for the FBI. He also argues that trial counsel was ineffective for failing to cross-examine the state's expert witness adequately and for failing to object to certain jury instructions.

With respect to the ineffective assistance of counsel claims, the court adopts the magistrate judge's report and recommendation that these claims were properly exhausted. The court also adopts the report and recommendation's conclusion that the ineffective assistance claim pertaining to jury instructions does not articulate a basis for relief. The court writes separately on the due process claim and the first ineffective assistance claim.

A. Exhaustion

Before addressing the merits of either claim, the court must consider whether Keller exhausted his due process claim.*fn2

Absent exceptional circumstances, petitioners must exhaust all available state remedies before seeking federal habeas relief. See 28 U.S.C. § 2254(b)(1)(A). That is, Keller must have "fairly presented" his claims to the Pennsylvania trial court, the intermediate appellate court, and the supreme court. See, e.g., Evans v. Court of Common Pleas, 959 F.2d 1227, 1230 (3d Cir. 1992). "To fairly present a claim, a petitioner must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (citations, internal punctuation omitted). Even if the state law claims did not explicitly rely on a federal right, a claim is exhausted so long as the briefs in question showed reliance on federal or state case law utilizing constitutional analysis or described a claim in "terms so particular as to call to mind a specific right protected by the Constitution[.]" Id. (quoting Evans, 959 F.2d at 1232).

Keller never explicitly cited the federal due process clause as the basis for his objections to the admission of evidence pertaining to the Pagans and his wife's role as an informant, but it is clear that, from trial counsel's initial motion in limine to the state collateral appeals, Keller's objections were consistently premised on the notion that a fair trial was impossible if such evidence were admitted. Keller's pre-trial motion in limine requested the exclusion of evidence making "reference to Mr. Keller's alleged affiliation with the Pagan motorcycle gang" or "reference to an ongoing investigation of the Defendant or of the Pagan motorcycle gang" in order to "assure a fair trial for Mr. Keller." Def.Mot. in Limine at 2 (Feb. 19, 1990). In Keller's post-trial motion, counsel argued that admission of evidence relating to Keller's association with the Pagans and his wife's role as an informant was so prejudicial that it outweighed any "legitimate probative value" that it might have had. Def. Brief on Post-Trial Mot. at 14. Both the appeal to the Pennsylvania Superior Court and the petition for allowance of appeal to the Pennsylvania Supreme Court again focused on the extensive prejudice from the admission of this evidence, and both explicitly argued that Keller was deprived of a fair trial as a result. See Brief for Appellant before Super.Ct. at 24 ("The admission of those matters into evidence in a case such as this had the ineluctable effect of prejudicing the jury against him and depriving him of a fair trial."); id. at 31-40 (describing ways in which admission of evidence deprived Keller of fair trial because of lack of probativeness and extreme prejudice); Pet, for Allowance of Appeal before Pa.Supreme Ct. at 21-29 (same; referring to inflammatory evidence); id. at 39 (concluding brief with statement that introduction of evidence had "totally deprived Mr. Keller of a fair trial").*fn3

In short, Keller consistently referred to his right to a fair trial in terms specific enough to consider this claim exhausted. The court will thus consider Keller's due process argument on its merits.

B. Standard of Review

Following the numerous changes made by 1996 legislation, 28 U.S.C. § 2254 states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254 (d). Factual determinations made by a state court must be presumed correct unless the petitioner provides clear and convincing evidence to the contrary. See 28 U.S.C. § 2254 (e)(1).

Claims asserted under 28 U.S.C. § 2254 (d)(1) require that the court engage in a two-part analysis. First, to see if a state court ruling was "contrary" to Supreme Court precedent, the habeas court should "identify the applicable Supreme Court precedent and determine whether it resolves the petitioner's claim." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999). Phrased differently, "to obtain relief at this stage, a habeas petitioner must show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." Id. (citations, internal punctuation omitted). If the court determines that the outcome was not contrary to the "applicable body of Supreme Court law — either because the state decision complies with the Supreme Court rule governing the claim, or because no such rule has been established" — the court should inquire as to "whether the decision was based on an unreasonable application of Supreme Court precedent." Id. at 889 (citations omitted). Rejecting the stricter approaches of other circuits, the Third Circuit stated that the "appropriate question is whether the state court's application of Supreme Court precedent was objectively unreasonable." Id. at 889-90. On this point, it is appropriate to consider the rulings of lower federal courts. See id. at 890.

Matteo did not address claims brought under 28 U.S.C. § 2254 (d)(2). See Matteo, 171 F.3d at 888. However, in Hartey v. Vaughn, 186 F.3d 367 (3d Cir. 1999), the Third Circuit looked to whether there was evidence in the record that was consistent with the state court's factual findings and whether the state court acted "unreasonably." See id. at 372-73. Thus, in addressing factual issues, this court should look to whether the state court's decision, evaluated objectively, resulted in an outcome that cannot reasonably be justified in light of the evidence presented in the state court proceeding.

III. The Due Process Claim

Keller argues that the admission of evidence pertaining to his association with the Pagans and his wife's role as an informant deprived him of a fair trial. Petitioner argues that there was actually no evidence establishing that he was aware of his wife's actions, much less that he killed her because of them. Keller suggests that the state advanced the informant theory as a pretext by which to introduce otherwise inadmissible evidence regarding the Pagans and Keller's past.

A. Disputed Testimony*fn4

Although defense counsel moved in limine to exclude evidence pertaining to the Pagans, the trial judge considered objections on a case-by-case basis. See Order of February 21, 1990. Accordingly, with no objection from the defense, the state's opening statement articulated its theory that Barbara Keller was killed because she was an informant. See Trans. at 43,*fn5 The defendant's opening, in turn, acknowledged that Keller "may even have been a member of an organized motorcycle club," id. at 47, but hinted that Keller had come to be aware of the FBI's interest in him because agents came to his farm, not because he discovered that his wife was an informant. See id. at 49. Lock also acknowledged that the defendant had written a suicide note stating that he was under stress because of the "unfounded investigations by the FBI, Crime Commission, et cetera[.]" Id. at 68. Lock concluded by telling the jury that they would have to decide whether Barbara Keller had been killed as a result of a domestic disturbance or because she was an informant. See id. at; 68-69.

The state's case did provide some circumstantial evidence connecting Barbara's death with her role as an informant. First, Gary Reiter testified that Barbara had told him that she was providing information to the FBI about an organized motorcycle gang and that she was fearful of the consequences if her husband discovered this fact. See Trans. at 137-40. Although Lock objected to the testimony on hearsay and on relevancy grounds, the court admitted the evidence both as relevant and to show the victim's state of mind. See id. at 138-39. Reiter admitted on cross-examination that he had never told the police or other investigators about Barbara's comments to him prior to that day's testimony. See id. at 171-72. The state also presented testimony that Keller himself stated on the night of the killing that he was under pressure from investigations. See, e.g., id. at 266 (testimony by Officer Guth discussing suicide note previously described in Lock's opening); id. at 396-97 (testimony by Dorothy Seegan, victim's mother, stating that Keller told her on the night of the killing that he was under pressure because of the investigations).

In addition, FBI Agent Harelson testified that Barbara Keller contacted him by telephone in 1984 and began providing information regarding an investigation. See Trans. at 409. He explained, in response to a question about the "motorcycle gang," that Barbara continued to give him information "regarding criminal activity by Mr. Keller and some of his associates[.]" Id. at 410-11. Harelson also explained that Barbara was concerned for her safety and so put many limitations on the information she provided. See id. at 411. Harelson told Barbara that these conditions would make it very difficult for him to prosecute anyone, but she persisted, and Harelson testified that he complied with her demands. See id. at 411-12. He also testified that Barbara expressed fear of her husband should he find out and said that he had threatened to kill her if she ever went to the police. See id. On cross-examination, Harelson stated that he had no reason to believe that Barbara's husband or his colleagues had ever discovered her collaboration. See id. at 418-19.

The next significant event for present purposes is the defense's introduction of the word "Pagan." During the presentation of its case, the defense called Donald Kline and almost immediately asked him if he had been at any time a "member of the Pagan motorcycle club." Trans. at 514. Kline responded that he had been a member approximately fourteen years previously. See id. On cross-examination, the state asked Kline whether he had been in the "motorcycle club" with Keller; Kline again answered that he had but emphasized that Keller was no longer a member. See id. at 521-22. Following this exchange, the prosecutor asked the court at sidebar whether the "restrictions" on the use of the word "Pagan" were lifted. Id. at 522. After Lock stated that he intended to refer to the Pagans again, the court implied that the bar had been lifted. See id.

Subsequently, the word "Pagan" was mentioned many times. Many of these comments were fairly casual, as in the testimony of Randall Groff, Joan Elko, and John Anderson.*fn6 See Trans. at 545 (prosecutor asking Groff if his workplace was a "Pagan hangout" and asking if a former bartender, who had since died, was a leading Pagan)*fn7; id. at 916 (cross-examination by state asking if many motorcyclists came to the bar where Elko worked and if she associated with Pagans); id. at 1096-98 (cross-examination of Anderson asking whether he was a Pagan and whether he knew of Keller's previous involvement with the organization; defense objection precluded further questioning).*fn8

The testimony of three witnesses — the defendant, Sherry Aument, and John Barton — deserves special comment. Probably the most significant discussion of the Pagans occurred during Keller's own testimony. In response to his own counsel's question, Keller stated that he had been a Pagan but that he had withdrawn from the organization several years previously; he explained that he had reaffirmed that separation as part of his marriage vows. See Trans. at 717-18. Keller also testified that he became aware of investigations targeting him because of direct contact with the Pennsylvania Crime Commission, local police, and the FBI. See id. at 718-20. On cross-examination, the government questioned Keller extensively on the Pagans and clearly attempted to draw a connection between the organization's alleged violence and Keller's own actions. See, e.g., id. at 785-86.*fn9 The state accused Keller of having a "propensity for violence," id. at 806, and, soon thereafter, engaged in a lengthy discussion of the significance of the emblems on his Pagan jacket, suggesting repeatedly that he was a member of an "outlaw motorcycle gang." Id. at 808-09.*fn10 ...

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