United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE
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
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.
commenced on October 4, 2010. (Resp'ts.' Ans. Ex. 3
at 1). Keiser was wearing a shirt that said
“DOC - 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).
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).
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).
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).
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
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).
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).
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).
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
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
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.).
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).
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).
appeal to the Maryland Court of Special Appeals, Keiser
presented the following questions for the appellate
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
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