Sixth Circuit Refuses to Permit Petitioner to Proceed on a Successor Habeas Petition Under 28 U.S.C. 2244

The Sixth Circuit issued an order today denying Kevin Keith's motion to file a second habeas petition. In Keith v. Bobby, 08-3908, a divided panel took very different views of the evidence that had been presented at trial and whether new evidence discovered by Keith met the standard for permitting a successor petition.

Keith, an alleged drug dealer, was convicted in 1994 for killing two women and a child in retaliation against a suspected informant Keith believed was responsible for a raid. Keith based his motion on Brady material that was discovered subsequent to the affirmance of the denial of his first petition. In ruling on his motion, the majority (Boggs, Gibbons) found that the new evidence was insufficient to make it past AEDPA's presumption against repeat federal litigation of state court convictions. Specifically, there were two new pieces of evidence upon which Keith based his motion. First, a pharmacy board investigation had revealed that another individual had threatened to "cripple" the same informant for his participation in the raid. The second piece of information undermines testimony elicited at trial. A police detective testified that a hospital nurse had alerted the police that a fourth surviving shooting victim had identified Keith as his assailant shortly after regaining consciousness at the hospital. However, the detective was mistaken about the nurse's name in his testimony and the defense was never able to find her. When they did discover her name and track her down, she denied ever hearing the victim identify Keith as the shooter. While the victim subsequently identified Keith, the defense had argued that his identification was unduly influenced by the police.

The majority found that this new evidence did not even meet the "lenient" prima facie standard for a successor petition. According to the majority, the new evidence did not contradict any of the evidence used to directly prove Keith's guilt. The court stated that is was a "stretch" to say that the fact that another person had a motive, and that an eyewitness identification occurred after police contact and not independent of it, would constitute clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict in light of all the other evidence against Keith. Besides the identification, that evidence included: a partial imprint of the license number of the getaway car after it crashed in a snow bank; eyewitness identification of Keith as the man driving the getaway car; a spent cartridge casing matching the ones from the scene that was found where Keith picked up his girlfriend.

The dissent (Clay) looked at the evidence quite differently. According to Judge Clay, the eyewitness identifications were not strong, and the Brady material would have significantly weakened the state's case. The evidence from the pharmacy board investigation included several additional statements by Melton that would have implicated him in the murders, as well as Melton's habit of wearing a mask like the one described by the witnesses to the murder. In light of the evidence as a whole, this would have bolstered evidence that a car registered to Melton had a license number with the same three digits that were obtained from the imprint in the snow bank, and his vehicle matched a witness's description of the getaway car, as well as other testimony that implicated Melton. The new evidence regarding the shooting victim's hospital identification would have removed the corroboration of otherwise weak testimony. The defense presented evidence that this witness had told several people, including a police officer, that he did not know who shot him and that the shooter was wearing a mask. The dissent reiterated the fact that the court was not being asked to rule on the merits of the petition, but rather whether Keith had presented sufficient allegations with some documentation to warrant further consideration by the district court. Looking at the new evidence in light of all the evidence presented at trial and the weaknesses in the state's case showed that Keith could convince a reasonable fact finder that he was not guilty of the murders.