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Keiser v. Foxwell

United States District Court, D. Maryland

December 18, 2018

JAMES EUGENE KEISER, Petitioner,
v.
WARDEN RICKY FOXWELL, et al., Respondents.

          MEMORANDUM OPINION

          GEORGE L. RUSSELL, III UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court is Petitioner James Eugene Keiser's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). The Petition is ripe for disposition, and no hearing is necessary. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D.Md. 2018); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. § 2254(e)(2)). For the reasons stated below, the Court will deny the Petition and decline to issue a certificate of appealability.

         I. BACKGROUND

         A. Trial

         In October 2010, Keiser was tried in the Circuit Court for Washington County, Maryland. (Resp'ts.' Ans. Pet. Writ Habeas Corpus [“Resp'ts.' Ans.”] Ex. 3, ECF No. 3-3). Keiser was charged with two counts: solicitation to commit first-degree murder; and solicitation to commit first-degree assault. (Petr.'s Mem. L. & Facts Supp. Pet. at 2 [“Pet.”], ECF No. 1-1). A jury convicted Keiser of both counts. (Resp'ts.' Ans. Ex. 6 at 1, ECF No. 3-6). The evidence and testimony presented at trial are outlined below.

         Trial commenced on October 4, 2010. (Resp'ts.' Ans. Ex. 3 at 1). Keiser was wearing a shirt that said “DOC[1] - on the back of it.” (Id. at 8). During voir dire, the judge called defense counsel, Carl Creeden, and Keiser to the bench to address Keiser's shirt. (Id.). The judge inquired whether Creeden objected to Keiser wearing the shirt. (Id.). Creeden responded that the fact that Keiser was detained would “probably come out anyway” and that when Keiser testified Creeden would “cover that.” (Id.). Creeden also indicated that he did not object to Keiser wearing the shirt and that, while he understood the judge's concern, the issue was “not as prejudicial as it would be in some cases.” (Id. at 8-9).

         During his opening statement, Creeden explained that Keiser was arrested on December 16, 2009, for a violation of a protective order and for second-degree assault. (Id. at 42). When the prosecutor objected to the statement, Creeden stated that he was explaining to the jury why Keiser was in DOC clothing. (Id. at 42-43).

         The State's first witness was Deputy First Class Rick Whittington of the Washington County Sheriff's Department. (Id. at 47). He testified that on December 16, 2009, he was assigned to the domestic violence unit and served Keiser with an arrest warrant and protective order. (Id. at 47-48). While Whittington was transporting Keiser to the Sheriff's Department, Keiser asked who got the protective order. (Id. at 49). When Whittington responded that Keiser's wife had gotten the order and that he would go over it once they arrived at the Sheriff's Department, Keiser said, “it don't matter; um, you don't have to go over anything, no piece of paper is going to stop me from getting that bitch.” (Id.). Whittington further testified that while processing Keiser, he asked Keiser if he had any firearms. (Id. at 50). Keiser asked whether a nail gun was considered a firearm. (Id.). When Whittington responded in the negative, Keiser replied, “good, I can put a nail in the bitch's head.” (Id.). Whittington testified that he conveyed Keiser's statements to the commissioner for use in setting bond, to the warrant officer, and to his partner. (Id. at 61). During cross-examination, Whittington explained that he did not write a formal report regarding Keiser's statements until over a month later when Detective Gregory Alton (“Detective Alton”) advised him that Keiser was being charged with solicitation. (Id. at 10, 52-53).

         Next, the State called Tyrone Smith to testify. Smith had been detained with Keiser in the Washington County Detention Center. (Id. at 65-67). Smith admitted to his lengthy criminal record. (Id. at 61-64, 84-96). He also discussed the amount of time he was facing for new charges against him as well as violations of probation for other charges in several jurisdictions. (Id. at 61-64, 84-96). He agreed that he had no charges pending in Washington County and that the State's Attorney for Washington County had not made any promises to in exchange for Smith's testimony. (Id. at 63). Smith admitted that the State's Attorney for Washington County did offer to make a phone call on his behalf to the State's Attorney for Carroll County to relay Smith's cooperation in Keiser's case. (Id. at 64).

         Smith testified that from December 2009 to January 2010, he was detained at the Washington County Detention Center (the “Detention Center”), where he met Keiser. (Id. at 65-66). Smith recalled that he started speaking to Keiser when he learned they were from the same area and had attended the same high school. (Id. at 67). Smith indicated that he did not know, nor did he recognize Keiser from growing up in the same area. (Id.). He further testified that he had not met any members of Keiser's family and that they did not have any friends in common, but knew some of the same people from the area. (Id.).

         Smith testified that around Christmas 2009, Keiser returned to the Detention Center “in a huff and a tizzy over the results of” the protective order hearing. (Id. at 70). At that time, Keiser solicited Smith to murder his wife, Shirley N. Keiser. (Id. at 71). Keiser told Smith that he wanted Smith to kill his wife because “everything that had gone wrong in his life was her fault.” (Id.). He told Smith that he “took his wedding vows seriously” and the only way the marriage would end would be through death. (Id. at 71- 72). Keiser offered Smith $15, 000.00 to kill his wife and indicated that he would make arrangements through a family they both knew from the town they grew up in for payment of the money. (Id. at 72). Smith testified that at first he thought Keiser was angry and depressed and did not make much of Keiser saying that he was going to kill his wife. (Id. at 73-74). He took Keiser more seriously after Keiser returned from the protective order hearing and expressed to Smith that he learned that an organization that assisted abused women was helping his wife. (Id. at 74-75). At that point, Keiser offered Smith money to kill his wife. (Id. at 70). Keiser did not specify how he wanted his wife killed but gave examples such as using a cross bow. (Id. at 80). Keiser also did not specify where his wife was to be killed but left that up to Smith. (Id. at 75). He told Smith where his wife worked, the type of vehicle she drove, her physical description, the general location of their house, as well as the override code to their home alarm system. (Id. at 75-77). Smith reported this information to the shift commander at the Detention Center, who relayed it to the Sheriff's Department. (Id. at 77-78). A few days later, Detective Alton interviewed Smith. (Id. at 78).

         Detective Alton was the lead investigator on Keiser's case. (Id. at 113). He interviewed Smith and asked him to wear a wire; Smith refused. (Id. at 113-14). Detective Alton confirmed information Smith gave him regarding the description of Keiser's house, its location, and the type of car Keiser's wife drove. (Id. at 116-17). Detective Alton confirmed that Keiser's wife and Smith did not know each other. (Id. at 117). He also contacted Whittington regarding the statements Keiser made to Whittington to request that he write a report on the statements. (Id. at 118).

         It was also adduced at trial that Keiser wrote to his wife on January 26, 2010, directing her to “sign a blank check from my account to be given to [his childhood friend] when asked for.” (Id. at 120-21, 131).

         Keiser's wife testified at the trial. She confirmed her place of employment, the override code for her house alarm, the description of her home, and the type of car that she drove, as Smith described. (Id. at 128). Keiser's childhood friend testified and denied that Keiser contacted him regarding delivering money to anyone. (Id. at 137-38).

         Keiser called Russell Harris who was also incarcerated at the Detention Center with him. (Id. at 141-42). He was on the same pod as Keiser and Smith and testified that Keiser never discussed with him having his wife killed. (Id. at 142). He further testified that Smith did not tell him that Keiser had solicited him to kill his wife. (Id. at 142-43). Smith told Harris that “he wanted to get [ ] Keiser” that he wanted “to send him to prison.” (Id. at 144). Harris believed Keiser and Smith had argued about something but offered no specifics. (Id.).

         Keiser testified on direct that he was presently incarcerated at the Jessup Correctional Institution (“JCI”), with a projected release date in early 2011, and that the charge against him for violating the protective order remained pending. (Id. at 151-52). Keiser was incarcerated as a result of his arrest on December 16, 2009, but his conviction was not final yet because it was under appeal. See Keiser v. State, No. 1495, Sept. Term 2010 (Md.Ct.Spec.App. July 27, 2012). Creeden also impeached Keiser with a conviction from January 2, 1994, for escape from home detention. (Id. at 153). His attorney stated, “The escape is actually listed as January 2, 1994, which is over fifteen years ago, but we'll talk about it anyway. Does that sound right, Mr. Keiser.” (Id. at 154). Keiser agreed that this was correct. (Id.). Creeden then elicited that Keiser had been convicted of misdemeanor theft fifteen years ago. (Id.). Keiser indicated he did not recall that conviction but he did not dispute it. (Id.).

         Keiser denied soliciting Smith to kill his wife. (Id. at 155). He testified that on the day Whittington arrested him, he had been drinking all day and did not remember making the statements threatening his wife that Whittington attributed to him. (Id. at 156). He explained that he wrote to his wife asking that she sign the blank check over to his childhood friend because he needed money in his jail account and because he wanted his friend to take over his checking account. (Id. at 158). Keiser explained that the details Smith knew about his wife, their house, her employment, her vehicle, and the alarm code, were all gleaned from innocent conversations they had while incarcerated together. (Id. at 159-63).

         The jury returned guilty verdicts on both charges. (Id. at 214). Keiser was sentenced to life imprisonment with all but thirty years suspended for solicitation to commit first-degree murder and a concurrent twenty-five year term of imprisonment for solicitation to commit first-degree assault. (Resp'ts.' Ans. Ex. 4 at 5-6, ECF No. 3-4).

         B. Direct Appeal[2]

         On appeal to the Maryland Court of Special Appeals, Keiser presented the following questions for the appellate court's review:

I. Did the suppression court err when it denied appellant's motion to suppress the two statements he made to the police because he was subject to “custodial interrogation” but not advised of his Miranda rights?
II. Did the sentencing court err in not merging appellant's conviction for solicitation to commit first-degree assault into his conviction for solicitation to commit first-degree murder?
III. Did the sentencing court's imposition of a life sentence for solicitation to commit first-degree murder ...

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