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No. 18-3544
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

In re: KEVIN KEITH,
Movant.

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FILED

Oct 26, 2018
DEBORAH S. HUNT, Clerk
ORDER

Before: CLAY, GILMAN, and WHITE, Circuit Judges.
Kevin Keith, an Ohio prisoner proceeding with counsel, has filed a fourth-in-time habeas
corpus petition in the district court. The district court construed the petition as a successive
petition that required authorization from a court of appeals and transferred the action to this
Court. See 28 U.S.C. § 2244(b)(3)(A); In re Wogenstahl, 902 F.3d 621, 624 (6th Cir. 2018).
Currently before this Court are (1) Keith’s motion to retransfer/remand his habeas
petition to the district court (R. 11), and (2) Keith’s application for order authorizing the district
court to consider his second or successive application for relief (R. 12). For the reasons
explained below, the Court DENIES Keith’s motion to retransfer/remand and GRANTS his
application for authorization to file a successive habeas corpus petition.
In 1994, an Ohio jury found Keith guilty of three counts of aggravated murder and three
counts of attempted aggravated murder. Keith received a death sentence. The state court of
appeals and the state supreme court affirmed his convictions and sentence. See State v. Keith,
684 N.E.2d 47 (Ohio 1997). Keith petitioned the trial court for post-conviction relief. That court
denied his petition, and the state court of appeals affirmed. State v. Keith, No. 3-98-05, 1998 WL
487044 (Ohio Ct. App. Aug. 19, 1998), appeal not allowed, 703 N.E.2d 326 (Ohio 1998). The
governor of Ohio commuted Keith’s death sentence to a sentence of life in prison in September
2010.

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-2In 1999, Keith filed his first § 2254 petition. The district court denied that petition, and
we affirmed. Keith v. Mitchell, 455 F.3d 662, 668-79 (6th Cir. 2006). He subsequently filed
§ 2254 petitions in the district court in 2008 and 2014, and in each instance, the district court
transferred his petition to us pursuant to In re Sims, 111 F.3d 45 (6th Cir. 1997). We denied both
applications, and we affirmed the district court’s subsequent denial of his motion for
reconsideration of the decision to transfer his 2008 petition. See In re Keith, No. 14-3290 (6th
Cir. Dec. 8, 2014) (order); Keith v. Bobby, 618 F.3d 594, 601 (6th Cir. 2010); Keith v. Bobby,
551 F.3d 555, 559 (6th Cir. 2009) (Clay, dissenting).
Keith filed the current § 2254 petition in March 2018. Keith claims that he has newly
discovered evidence that the government violated Brady v. Maryland, 373 U.S. 83 (1963).
Specifically, Keith contends that the government withheld impeachment evidence concerning G.
Michele Yezzo, a forensic analysist for the Ohio Bureau of Criminal Investigation (“BCI”)
whose testimony concerning license plate impressions and tire tracks linked Keith to the crime.
Keith also asserts that the government deliberately ignored a subpoena request for police phone
log records prior to his trial and argues that these phone logs would have contradicted the
government’s theory of the case and undermined the credibility of its star witness.
I.

The Court Will Deny Keith’s Motion to Remand Because His Petition is a
Successive Petition Under 28 U.S.C. § 2244(b)(3)(A)
Keith argues that this Court should retransfer/remand his petition to the district court

without evaluating it under § 2254(b) because it does not constitute a second or successive
petition. (See R. 12.) This argument is without merit.
It is true that “not every numerically second petition is ‘second or successive’ for
purposes of AEDPA.” In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006) (citing Slack v. McDaniel,
529 U.S. 473, 487 (2000)). As this Court recently stated, “‘[a] numerically second petition is not

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-3properly termed second or successive to the extent it asserts claims whose predicates arose after
the filing of the original petition.’” In re Wogenstahl, 902 F.3d at 627 (quoting In re Jones, 652
F.3d 603, 605 (6th Cir. 2010)). This Court recently held that Brady claims become ripe when the
alleged violations occurred, even if the petitioner was unaware of the Brady violations at the time
he filed his previous habeas petition. See In re Wogenstahl at F.3d 621 at 627–28 (rejecting
petitioner’s argument that his habeas petition was not successive and explaining that petitioner’s
“claims were not unripe at the time he filed his initial petition because the purported Brady
violations . . . had already occurred when he filed his petition, although [petitioner] was unaware
of these facts”).
Keith’s current petition is properly categorized as successive. See In re Wogenstahl, 902
F.3d at 628; 28 U.S.C. § 2244(b)(3)(A). Keith claims are based on purported conduct that
occurred prior to his 1994 trial and that Keith did not raise in his previous habeas petitions.1
Accordingly, Keith must satisfy § 2254(b) to obtain the merits review he seeks. In re
Wogenstahl, 902 F.3d at 628; In re Tibbetts, 869 F.3d 403, 408 (6th Cir. 2017).
II.

The Court Will Grant Keith’s Application for Order Authorizing the District Court
to Consider His Second or Successive Application for Relief Because Keith Has
Made a Prima Facie Showing Under § 2254(b)(2)
Under 28 U.S.C. § 2244(b)(2), this Court will dismiss a claim raised in a second or

successive habeas petition that does not rely on a new rule of constitutional law unless:
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
1

The Court notes that Keith raised Brady claims in one of his previous habeas petitions. See Keith, 551 F.3d at 556.
But the Brady claims he raises here are different claims; here, Keith alleges that the government withheld different
exculpatory material than alleged in his previous Brady claim. See In re Wogenstahl, 902 F.3d at 628 n.4 (citing
Cullen v. Pinholster, 563 U.S. 170, 186 n.10 (2011)).

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-4convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2). “The applicant must make a prima facie showing that the application
satisfies the statutory requirements.” In re Wogenstahl, 902 F.3d at 628 (quoting 28 U.S.C. §
2244(b)(3)(C)). This Court has repeatedly explained that “‘[p]rima facie in this context means
simply sufficient allegations of fact together with some documentation that would warrant a
fuller exploration in the district court.’” Id. (quoting In re Lott, 366 F.3d 431, 433 (6th Cir.
2004)); In re Siggers, 615 F.3d 477, 479 (6th Cir. 2010) (same); In re McDonald, 514 F.3d 539,
544 (6th Cir. 2008) (same). “This court has described this standard as ‘not a difficult standard to
meet’ and ‘lenient.’” In re Wogenstahl, 902 F.3d at 628 (quoting In re Lott, 366 F.3d 432–33); In
re McDonald, 514 F.3d at 544 (quoting In re Lott, 366 F.3d 432).
The Court must view the facts underlying Keith’s Brady claim “in light of the evidence
as a whole.” 28 U.S.C. § 2244(b)(2)(B)(ii). Accordingly, the Court will summarize the evidence
supporting Keith’s conviction and the evidence presented in Keith’s 2008 habeas petition. As
explained below, the Court holds that Keith has made a prima facie showing that his habeas
petition satisfies § 2244(b)(2). Therefore, the Court will authorize Keith to file a successive
habeas petition.
A.

Evidence Supporting Keith’s Conviction and Evidence Presented in Keith’s
2008 Habeas Petition

In its decision on Keith’s 2008 habeas petition, the Court summarized the evidence
presented at trial as follows:
The prosecution’s theory of the case was that Keith murdered family members of
Rudel Chatman to exact revenge for Chatman’s assistance in an investigation that
led to a drug trafficking raid and indictments against Keith and members of his
family. Two victims survived the shooting.
The prosecution’s star witness at trial was Richard Warren, an adult surviving
victim, who selected Keith from a photo lineup and reiterated the identification at

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-5trial. The prosecution also presented Nancy Smathers, who testified that on the
night of the murders, she heard shots, looked outside her window, observed a
large stocky man jump into a car, and observed the car crash into a snow bank. In
her first two statements to the police Smathers was unable to identify the
assailant, but in her third statement, made after seeing Keith on a television news
story, she identified the assailant as Keith. There was also eyewitness testimony
from Quanita Reeves, a seven-year-old surviving victim, but Reeves told police
that she was shot at by her “daddy’s friend, Bruce” and excluded the picture of
Keith from a photo lineup.
Keith was also connected to the crime by circumstantial physical evidence.
Investigators made a cast of a tire tread and a cast of a partial license plate
indentation from the snow bank identified by Smathers. The partial license plate
number, “043,” matched the last three numbers of a car to which Keith was
known to have access. The prosecution presented evidence that prior to the
shooting, the car’s owner had purchased tires that were “similar in tread design”
to the tread in the snow bank. Investigators testified that they had collected spent
gun casings from the crime scene, and found a matching casing at the entrance to
a General Electric plant where Keith picked up his girlfriend from work on the
night of the murders.
The defense challenged the identification made by Warren, presenting evidence
that Warren had been improperly influenced and that the identification was
inconsistent with other statements he had made. The defense also presented an
alibi for Keith and attempted to cast suspicion on the Melton brothers, who had
been arrested in a string of pharmacy burglaries and who had told Rudel Chatman
that his family had been shot because of Chatman’s snitching. Finally, the defense
challenged the testimony of Smathers, arguing that her description of the assailant
was consistent with Rodney Melton, and submitting evidence that the license
plate “043” matched the first three numbers of a license plate registered to
Melton. At the conclusion of the jury trial, Keith was convicted of the murders
and sentenced to death.
Keith, 551 F.3d at 560–61 (Clay, J., dissenting).
This Court also discussed the new evidence that Keith presented in support of his 2008
habeas petition. This Court explained that “[t]his [Brady] evidence falls into two categories: new
evidence that supports a contention that Rodney Melton committed the murders, and new
evidence that relates to the identification made by eyewitness Richard Warren.” Id. at 560.
The Court summarized the first type of evidence—i.e. evidence that Rodney Melton, not
Keith, committed the murders—as follows:

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-6. . . The new evidence includes: (1) evidence from a file in another investigation
in which an informant told police that, two weeks before the shooting, Rodney
Melton stated that “he had been paid $15,000 to cripple the man who was
responsible for the raids in Crestline, Ohio last week”; (2) evidence that police
conducted an interview in which Melton’s accomplice in the pharmacy burglary
ring told the police that Melton had stated that he would kill anyone who snitched
on him and that he was paid to kill Chatman; (3) evidence that two investigators
in Keith’s case were part of the interview of Melton’s accomplice but that Keith
was never informed of the interview; and (4) evidence that it was Melton’s habit
to wear a mask like the one described by witnesses to the shooting.
… Previously-existing evidence that implicates Melton includes:
• evidence that the partial licen[s]e plate number obtained from the snow
bank identified by Smathers, “043,” also matches the first three numbers
of a license plate registered to Melton;
• evidence that Melton owned and drove a yellow Chevy Impala, which
matched Smathers’ description of a “real light” colored car that was white,
cream, or light yellow;
• evidence that defense counsel had been contacted by a relative of
Rodney Melton, who told him that Rodney “is in on the killings”;
• evidence that Melton appeared at the crime scene, knew the type of
bullets involved in the killings, and “made sure to affirmatively tell” the
police that his car, which matched the description of the car given by
Smathers, was broken down that night; and
• evidence that Quanita Reeves told police that she was shot by her
“daddy’s friend Bruce.”
Notably, “Bruce” is the name of the brother of Rodney Melton, and the defense
argued that seven-year-old Reeves confused the brothers, both of whom were
friends with her father, and that Reeves had actually attempted to identify Rodney
Melton. . . .
Id. at 561–62.
The Court also discussed the new evidence regarding Warren’s alleged identification of
Keith as the shooter:
Keith also submits new evidence that, contrary to the testimony of a police
captain, the state’s primary eyewitness did not identify Keith as the shooter to a
nurse.
An understanding of this evidence requires a bit of context. At Keith’s trial,
Captain John Stanley testified that a nurse named “Amy Gimmets” called him and
stated that Warren, a survivor of the shooting, had gained consciousness after
surgery and identified Keith as the shooter. The alleged statement would have

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-7taken place before Warren was contacted by police investigators, and undermined
allegations by the defense that Warren was improperly influenced. The
prosecution did not call the nurse at trial and the defense was unable to locate her.
Keith now alleges that a report prepared by Captain Stanley states that the nurse
who called him regarding Warren’s identification of Keith was “Amy Wishman”
and not “Amy Gimmets.” Based on this new information, defense counsel located
the nurse, who provided an affidavit stating that: (1) she was the nurse who
treated Warren after his surgery; (2) she does recall calling Captain Stanley after
Warren could speak; (3) that she never told the captain that Warren had given her
a name for the shooter; and (4) that Warren had never told her the shooter’s name.
This new evidence is significant, most notably because the nurse’s alleged
statement was strong corroboration for Warren’s otherwise questionable
identification. At trial, Warren’s identification of Keith had been challenged by
Warren’s previous statements that he did not know who shot him, by his
statements that the shooter was wearing a mask, by another eyewitness’s
exclusion of Keith as the shooter, and by evidence that Warren had been given
Keith’s name by officers. The defense used this evidence to argue that Warren
had been improperly influenced by police officers.
However, the otherwise compelling argument of improper influence was directly
undermined by Captain Stanley’s testimony that Warren had provided Keith’s
name to his nurse before he had spoken to any law enforcement officials. The
nurse’s statement, offered through Stanley, bolstered Warren’s otherwise
questionable identification, and could likely have convinced the jury that the
identification was reliable. . . .
Id. at 561–63.
Ultimately, a divided panel of this Court denied Keith’s motion for authorization to file
his second or successive habeas petition. See Id. at 556–63. The majority reasoned that Keith’s
evidence regarding Melton and Nurse Wishman “did not contradict” the “core” of the case
against Keith. Id. at 558. To the majority, the “core” of the case against Keith consisted of five
pieces of evidence: (1) Warren’s “eyewitness testimony” identifying Keith; (2) “[a] partial
imprint of the license plate made from the snowbank where the getaway car crashed” that
“matched the license plate of a car that [Keith] was known to have access to;” (3) eyewitness
identification of Keith as the driver of the car that crashed into the snowbank; (4) a bullet
cartridge recovered from where Keith picked up his girlfriend that matched those recovered from

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-8the scene; and (5) the fact that Keith was indicted “as a result of the drug raid precipitated by the
victim’s relative.” Id.
B.

New Evidence Presented in the Current Habeas Petition

In the current habeas petition, Keith presents Brady evidence that falls into two
categories. First, evidence that impeaches the credibility of Yezzo, the forensic analysist whose
testimony regarding the license plate linked Keith to the crime scene. Second, evidence that
suggests that the Bucyrus Police Department acted in bad faith by deliberately ignoring Keith’s
pre-trial subpoena for phone log records. The Court will discuss these categories of evidence in
turn.
1.

New Evidence Regarding Yezzo’s
Professional Integrity, and Racial Bias

Psychological

Instability,

Keith has presented evidence that would have greatly impeached Yezzo’s credibility and
called into question the accuracy of her findings, thus weakening the “core” of the state’s case.
Keith has presented several internal BCI memoranda from 1989 to 1994 that reveal significant
concerns about Yezzo’s mental state and professional integrity. For instance, a May 1989 report
from BCI’s assistant superintendent states that “the consensus opinion” is that Yezzo “suffers a
severe mental imbalance and needs immediate assistance.” (R. 1-16 at PageID #144.) The
assistant superintendent also reported that Yezzo’s “perceived problem affects her overall
performance. Her findings and conclusions regarding evidence may be suspect. She will stretch
the truth to satisfy a department.” (Id. at PageID #145.) A report on September 1989 states that
Yezzo threw a book at a co-worker and told her co-worker she was going to “deck her.” (R. 1-20
at PageID #170.) Moreover, in August 1993, Yezzo was placed on administrative leave for
“threatening co-workers and failure of good behavior” after Yezzo experienced several fits of
rage and threatened to kill co-workers. (R. 1-17 at PageID #148.) Notes taken during the

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-9investigation into Yezzo’s conduct in August 1993 report that Yezzo had a “reputation of giving
dept. answer [it] wants if [it] stroke[s] her.” (R. 1-18 at PageID #161.) The same notes indicate
that an analyst assigned to one of Yezzo’s cases would have reached a different result than
Yezzo had reached on a footprint and blood analysis. (Id.) Yezzo also had a documented history
of racist outbursts: she made a comment about a “ni**er in a woodpile” and once referred to a
co-worker as a “ni**r bitch.” (See R. 1-20 at PageID #173.) In fact, Yezzo was still under
investigation when she testified against Keith. (See R. 1-21 at PageID #177.)
The state did not provide any of this evidence to Keith prior to his trial. Accordingly,
Keith was unable to use any of this evidence to impeach Yezzo’s credibility and contest her
forensic analysis that linked Keith to the scene of the crime. Yezzo’s testimony was particularly
important because no physical evidence linked Keith to the murders.
2.

New Evidence Regarding Bad Faith by the Bucyrus Police
Department That Undermines the Government’s Theory of the Case

Keith also has presented evidence that suggests that the Bucyrus Police Department acted
in bad faith by ignoring his pre-trial subpoena. On May 13, 1994, Keith subpoenaed the Bucyrus
Police Department for “all records, including radio dispatch logs, of all call-ins from February
12, 1994 to the present time.” (R. 1-29 at PageID #218.) The government did not answer the
subpoena at trial. (Br. in Sup. for Successive Habeas, p. 11.) Keith has obtained the Bucyrus
Police Department’s copy of the subpoena. (R. 1-29 at PageID #218) The words “ignore for
now” are written towards the top of the document and underlined. (Id.) Keith states that because
of unrelated litigation, he obtained the call log records for the day in question. (Habeas Petition
at PageID #13.) The logs did not show a call from one of Warren’s nurses to the Bucyrus Police
Department. (Id.)

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- 10 This new evidence goes to the “core” of the government’s case. At trial, the government
claimed that it first got Keith’s name from John Foor, a nurse who called the Bucyrus Police
Department and reported that Warren, who had recently emerged from surgery, identified Keith
as the shooter. The Bucyrus Police Department’s ignoring the subpoena—particularly coupled
with the fact that the logs did not show a call from Warren’s nurses—undermines Warren’s
identification of Keith. If Foor did not call the Bucyrus Police Department and provide Keith’s
name, it is less likely that Warren spontaneously remembered that Keith was the shooter and
more likely that Warren had been improperly influenced to identify Keith.
C.

Keith Has Made a Prima Facie Showing Under § 2254(b)

Keith satisfies § 2244(b)(2)(B)(i) because the factual predicates for his Brady claim could
not have been previously discovered through the exercise of due diligence. Keith has diligently
pursued exculpatory and impeachment evidence. Keith requested discovery during pre-trial
proceedings—in fact, he requested the police call logs at issue here (see R. 1-29 at PageID
#218)—and, since his conviction, Keith has filed at least three previous public records requests.
(See Habeas Petition at PageID #9–10, 13.2) Faced with a similar scenario, this Court in In re
Wogenstahl stated,
[t]hat [the petitioner] did not obtain the evidence he now presents until that final
[discovery] request is hardly attributable to a lack of reasonable due diligence on
his part. The prosecution has a constitutional obligation under Brady to provide
material exculpatory and impeachment evidence, see, e.g., Montgomery v. Bobby,
654 F.3d 668, 678 (6th Cir. 2011) (en banc), and the defendant is not required to
request continuously Brady information in order to show due diligence.
In re Wogenstahl, 902 F.3d at 629. Like the petitioner in In re Wogenstahl, Keith has diligently
attempted to obtain exculpatory and impeachment evidence before trial and in post-conviction
2

In 2004, Keith filed a public records request for the nurse’s handwritten notes memorializing Warren’s alleged
statement that Keith was the shooter. (Habeas Petition, PageID #9.) In 2007, Keith filed a public records request to
the Ohio Pharmacy Board that produced documents revealing that Melton had been paid to “cripple” the informant
whose family members were murdered. (Id.) Also in 2007, Keith filed a public records request for the Bucyrus
Police Department call logs. (Id. at PageID #13.)

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- 11 proceedings. And like the petitioner in In re Wogenstahl, Keith cannot be faulted for the fact that
his previous attempts failed to uncover the Brady material that he recently obtained.
Accordingly, the Court finds that Keith satisfies § 2244(b)(2)(B)(i).
Keith also satisfies § 2244(b)(2)(B)(ii). Keith alleges that the government violated his
due process rights by suppressing Brady material. “Three factors must be satisfied to establish a
Brady violation: ‘The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.’” In re Wogenstahl, 902 F.3d
at 629 (quoting Strickler v. Greene, 527 U.S. 263, 281–82 (1999)). Keith has satisfied each of
these three elements.
The new evidence is impeaching. The evidence concerning Yezzo’s psychological
instability, professional integrity, and racial bias reduces the credibility of her testimony. The
impeachment value of this evidence cannot be understated, particularly given that Yezzo’s
forensic analysis of the license plate was one of the “core” elements of the government’s case
against Keith. Keith, 551 F.3d at 558. The evidence regarding the Bucyrus Police Department’s
deliberately ignoring the subpoena is also significant impeachment evidence; it undermines the
government’s theory that the police learned about Keith’s identity as the shooter from a nurse
who called the Bucyrus Police Department after Warren emerged from surgery.
The state suppressed the evidence. The state did not disclose the evidence in Yezzo’s
personnel file at the time of trial. In fact, Keith did not receive this evidence until he successfully
requested it in 2016. The state did not disclose the phone logs at the time of trial, either, even
though Keith explicitly requested the material through a subpoena.
Finally, viewing his current claims “in light of the evidence as a whole,” 28 U.S.C. §
2244(b)(2)(B)(ii), Keith has made a prima facie showing that no reasonable fact finder would

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- 12 have found him guilty. See In re Wogenstahl, 902 F.3d at 629. That is to say, Keith’s Brady
claims “‘warrant a fuller exploration in the district court.’” Id. (quoting In re Lott, 366 F.3d at
433).
CONCLUSION
For the reasons explained above, the Court DENIES Keith’s motion to retransfer/remand
and GRANTS his application for authorization to file a successive habeas corpus petition.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk