United States District Court, W.D. Pennsylvania
FLOWERS CONTI CHIEF UNITED STATES DISTRICT COURT JUDGE.
Aimee Keel (the "petitioner") filed with this court
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in which he challenged the judgment of sentence
imposed upon him in June 2008 by the Court of Common Pleas of
Erie County on his convictions of burglary, robbery and
related crimes. He raised four claims in which he contended
that his trial attorney provided him with ineffective
assistance in violation of his Sixth Amendment rights.
case was referred to a United States Magistrate Judge in
accordance with 28 U.S.C. § 636(b) and Local Rule 72. On
June 15, 2016, the magistrate judge issued a report and
recommendation ("R&R") (ECF No. 22) in which
she recommended that each of the petitioner's claims be
denied on the merits and that a certificate of appealability
petitioner was served with the R&R at his address of
record and was advised that he had until July 5, 2016, to
file objections to it. He did not file objections by that
deadline and on July 19, 2016, after de novo review
of the R&R and the other documents filed in this case,
the court issued a memorandum opinion (ECF No. 23) and order
(ECF No. 24) in which it adopted the R&R as the opinion
of the court, entered judgment in favor of the respondents
and against the petitioner, and closed this case.
petitioner subsequently notified the court that he had
intended to file a motion for an extension prior to the date
objections were due, but filed it with the court of appeals
by mistake. He asked that this court vacate its final
judgment and consider his objections (ECF No. 30). His
request is granted.
as here, objections were filed, the court is required to make
a de novo determination about those portions of the
R&R to which objections were made. 28 U.S.C. §
636(b)(1). Accordingly, the court examined de novo
all arguments raised by the petitioner in his objections and
agrees with the magistrate judge that the petition should be
denied and that a certificate of appealability should be
Trial Counsel's Decision Not to Call Edna Keel As an
Claim One and Claim Three, the petitioner contended that his
trial counsel was ineffective for failing to present his
wife, Edna Keel, as an alibi witness. The PCRA court held an
evidentiary hearing on these claims on May 29, 2012. At that
hearing, trial counsel testified that he did not call Edna
Keel as an alibi witness because he learned from his pretrial
interview of her that she could place the petitioner at home
with her during only the day and early evening hours of July
13, 2007, and not at the time the crimes were committed
(which was after 11:30 p.m. on July 13, 2007). (5/29/12 PCRA
Hr'g Tr. at 5-6).
PCRA court found trial counsel's testimony to be
credible. Commonwealth v. Keel, No. 3028 of 2007,
slip op. at 18-19 (C.P. Erie June 5, 2012) (referred to
herein and in the R&R as "Keel II").
The magistrate judge explained that this court must defer to
the PCRA court's finding under 28 U.S.C. §
2254(e)(1). That section of the federal habeas statute
provides that "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).
objections, the petitioner directed the court to an affidavit
signed by Edna Keel in which she swore that she told trial
counsel that the petitioner "was home around about 11:30
p.m." on July 13, 2007, and that she would have
testified to that fact if she had been asked at trial.
(Affidavit of Edna Keel, ECF No. 30-1 at 1). This affidavit
does not amount to "clear and convincing evidence"
that rebuts the PCRA court's determination to credit
trial counsel's explanation as to why he did not call
Edna Keel as an alibi witness. The petitioner submitted that
same affidavit to the PCRA court as an attachment to his PCRA
petition, but Edna Keel did not testify at the subsequent
evidentiary hearing, even though she was present in the
courtroom. (5/29/12 PCRA Hr'g Tr. at 5-6). The PCRA court
noted that Edna Keel did not testify and observed:
"[h]ence, Petitioner did not refute the factual basis
asserted by trial counsel for not calling" her as an
alibi witness. Keel II, No. 3028 of 2007, slip op.
Trial Counsel's Failure to Challenge the Fingerprint
and Photo Lineup Evidence
Claim Two and Claim Four, the petitioner argued that his
trial attorney was ineffective for failing to challenge the
admission of the fingerprint evidence. Corporal William D.
Wagner analyzed that evidence. On or around July 23, 2007,
the Erie police sent him the fingerprint lifts taken from
items the victim stated the petitioner touched during the
robbery. Corporal Wagner issued his report on October 30,
2007, and in it he concluded that the petitioner's
fingerprint was on the victim's vase. The petitioner
argued that Corporal Wagner's alleged delay in issuing
his report was a ground upon which his expert opinion could
be challenged. As the magistrate judge explained, however,
trial counsel made the tactical decision not to exploit the
alleged delay because if he did, the prosecution would be
permitted to explain to the jury that the petitioner had
committed another robbery and burglary in the victim's
neighborhood and that is what prompted the investigators to
contact Corporal Wagner around October 2, 2007, and ask him
to compare the fingerprints collected from the victim's
items with the petitioner's known prints. (5/20/08 Trial
Tr. at 98-99).
the other arguments that the petitioner contended his counsel
should have raised with respect to the fingerprint evidence
have merit. That unidentified fingerprints were found on
other items belonging to the victim does not negate the
presence of the petitioner at the scene of the crime since
his fingerprint was found on the victim's vase. As the
PCRA court observed, the petitioner provided no support for
his allegation that there was "a breakdown in the chain
of custody of ...