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Kelley v. United States

United States District Court, W.D. Missouri, Central Division

April 10, 2017

UNITED STATES OF AMERICA, Defendant. Crim. No., 12-04043-01-CR-C-BP



         Pending is Christopher Kelley's Motion to Vacate, Set Aside or Correct Sentence, (Doc.1), which seeks relief pursuant to 28 U.S.C. § 2255. For the following reasons, the Motion is DENIED, and the Court declines to grant a Certificate of Appealability.

         I. BACKGROUND

         The Court will summarize the facts and the procedural history, but will not set forth all of the evidence introduced at trial. Details will be provided as necessary to discuss Movant's claims.

         Movant was charged with two counts of arson. The first charge arose from a fire in a classroom at the Audrey Webb Child Study Center on the campus of Stephens College. An investigation after this fire revealed that a computer had been taken from the classroom where the fire started. Testimony offered at trial established that the computer was disconnected from the system around the time of the fire.

         The second charge arose from multiple fires on the first floor of the Ellis Library at the University of Missouri - Columbia (“MU”). The fires were set early in the morning on September 10, 2011, after the building had been locked. In the aftermath it was discovered that various pieces of property (e.g., a window, a camera, a sprinkler head, computer screens etc.) had been destroyed. In addition, on the fourth floor - where no fires had been started - feces and urine were found on one of the desks. MU police initially preserved the feces but disposed of it the same morning, (Crim. Doc. 84, p. 15)[1], after concluding its preservation was unnecessary. (Crim. Doc. 72, pp. 108-09 (Trial Transcript, pp. 212-13).)

         The fire department's investigation revealed multiple trigger points for the fire. Security officers at MU reviewed security videos that depicted a figure walking through the library after it had been closed and locked. The figure was seen walking in the areas where the fires had been set, and the videos depicted no other figures. Law enforcement publicized still photos from the videos and received at least two calls identifying Movant as the person in the pictures. Shortly thereafter, Movant went to the MU police department and admitted that he was the person depicted in the pictures, but he did not admit to setting the fires.

         Movant was indicted on the two counts of arson on June 27, 2012. An Arraignment and Detention Hearing was held on July 3, 2012, and at that time Movant was represented by Troy Stabenow of the Federal Public Defender's Office. (Crim. Doc. 8.) The trial took place in April 2013, with Stabenow as Defendant's counsel.

         At trial, Julie Rogers - the Assistant Head of Security at Ellis Library - testified that she reviewed the videotapes from the library's security cameras for the time frame from 8:15 p.m. on September 9 (the time the library was locked for the night) to 4:15 a.m. on September 10 (the time the police arrived) to determine if the cameras recorded a person in the library after it was locked. (Crim. Doc. 72, p. 45 (Trial Transcript, p. 149).) She testified that the cameras picked up a person in the library and Exhibit 99 was a disc containing a copy of all of the surveillance videos from the period 8:15 p.m. on September 9 to 3:25 a.m. the next day. Rogers terminated copying at 3:25 a.m. (instead of extending it to the time police arrived) because that was when the person seen in the video exited the library. (Crim. Doc. 72, p. 49 (Trial Transcript, p. 153).) Thus, Exhibit 99 included the entire time period Rogers viewed except the seven to eight minutes between the last time the trespasser was seen on a video and when officers arrived on the scene. (Crim. Doc. 85, p. 9.)

         The Court admitted Exhibit 99 into evidence, (Crim. Doc. 72, p. 50 (Trial Transcript, p. 154)), and portions of the videos were played for the jury. (Crim. Doc. 72, pp. 51-55, 57-66, 70 (Trial Transcript pp. 155-59, 161-70, 174).) Still pictures taken from the videos were also admitted into evidence and shown to the jury. (Crim. Doc. 72, pp. 53-56, 58-66 (Trial Transcript, pp. 157-60, 162-70).) In many instances it could be clearly discerned that Movant was the person on the videos; moreover, when he went to the MU police department Movant was wearing the same clothes as the figure in the videos. In addition to the videotape of Movant in the Ellis Library and Movant's admissions to the MU police, other evidence against Movant included: (1) the computer stolen from Stephens College was found in Movant's apartment, (2) an ex-girlfriend testified that Movant admitted to her that he stole a computer from Stephens College and in the process might have started a fire, (3) his roommates testified that Movant admitted that he had been in the Ellis Library, (4) the surveillance tapes did not reveal anybody else in the Ellis Library after it was locked, and (5) as the sprinklers in the Ellis Library were triggered, Movant was seen in the area at approximately the same time - thereby suggesting that he was in the vicinity of each fire as it started. The jury convicted Movant on both counts.

         In July 2013, Movant sought to proceed pro se and requested that Stabenow seek leave to withdraw. The Motion to Withdraw was granted on July 31, 2013. (Crim. Doc. 80.) On August 22, 2013, Jennifer Wirsching entered her appearance on Movant's behalf, (Crim. Doc. 82), and she represented him at sentencing. Movant was sentenced to 78 months on both counts, with the sentences to run concurrently; this represented the top of the range recommended by the Sentencing Guidelines. Movant appealed, and he was represented by different counsel on appeal. The only issues raised on appeal related to decisions prior to July 2013 in which the Court declined to replace Stabenow as Movant's trial counsel or failed to permit Movant to represent himself. The Court of Appeals addressed the issues in two separate opinions, the combined effect of which was to affirm the convictions. United States v. Kelley, 787 F.3d 915 (8th Cir. 2015); United States v. Kelley, 774 F.3d 434 (8th Cir. 2014).

         Unbeknownst to the Court until July 2013, (see footnote 6, supra), Stabenow was an adjunct professor at the MU School of Law. He taught a class during the fall semesters in 2012, 2013, and 2014 and was paid $4, 000 per semester. (Doc. 10-1.)

         Movant presents four reasons for setting aside his conviction, but the last two are related and will be combined for purposes of discussion. He argues that (1) his Due Process rights were violated when the feces found in the Ellis Library was destroyed, (2) his Due Process rights were violated because the video introduced at trial was incomplete and of low-quality, and (3) Stabenow operated under a conflict of interest by representing Movant on charges of committing arson at MU while at the same time working as an adjunct professor at MU. The Government contends (1) Movant's Due Process rights were not violated when the feces was destroyed, (2) arguments about the videotape constitute claims of trial error that are not cognizable in a § 2255 proceeding, and (3) Stabenow did not have a conflict of interest and Movant's Sixth Amendment rights were not violated. The Court resolves these arguments below.

         II. ...

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