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Keel v. Superintendent Coleman

United States District Court, W.D. Pennsylvania

January 13, 2017

SUPERINTENDENT COLEMAN, et al., Respondents.



         Andrew 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.

         This 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 be denied.

         The 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.

         The 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.

         Where, 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 denied.

         I. Discussion

         A. Trial Counsel's Decision Not to Call Edna Keel As an Alibi Witness

         In 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[1] 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).

         The 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).

         In his 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).[2] 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. at 18.

         B. Trial Counsel's Failure to Challenge the Fingerprint and Photo Lineup Evidence

         In 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).

         None of 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 ...

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