Keller v. Larkins

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

5-15-2001

Keller v. Larkins
Precedential or Non-Precedential:

Docket 00-1130

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Filed May 15, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1130

KERBY KEANE KELLER,

Appellant

v.

DAVID LARKINS, SUPERINTENDENT, SCI DALLAS;
THE DISTRICT ATTORNEY OF THE COUNTY OF
LANCASTER; THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA
[MIKE FISHER]

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 99-cv-2791)
District Court Judge: Hon. Marvin Katz

Argued August 2, 2000

Before: ALITO, ROTH, and AMBRO, Cir cuit Judges.

(Opinion Filed: May 15, 2001)

Carmen C. Nasuti (Argued)
Susan J. Bruno
Nasuti & Miller
The Bourse Building, Suite 860
111 S. Independence Mall East
Philadelphia, PA 19106

Attorneys for Appellant
 Donald R. Totaro, District Attorney
K. Kenneth Brown, II, Assistant
District Attorney (Argued)
Office of the District Attorney
Lancaster County Courthouse
50 North Duke Street
Lancaster, PA 17602

Attorneys for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Kerby Keller, a Pennsylvania prisoner serving a life
sentence for the first-degree murder of his wife, appeals the
denial of his federal habeas corpus petition. He ar gues that
his federal constitutional right to due process was violated
by the introduction at trial of highly pr ejudicial evidence
having little probative value and that he was denied the
effective assistance of counsel because his trial attorney did
not adequately prepare for or respond to testimony by the
prosecution's psychiatric expert, who stated that Keller
might have suffered from a condition called "sadistic
personality disorder." We hold that Keller did not fairly
present his federal due process claim to the Pennsylvania
courts and that this claim is now barred by pr ocedural
default. We reject Keller's inef fective assistance of counsel
claim because he has not shown that the Pennsylvania
courts' application of the prejudice pr ong of the Strickland
v. Washington, 466 U.S. 668 (1984), standard for judging
ineffective assistance of counsel claims was"unreasonable."
See 28 U.S.C. S 2254 (d)(1). We therefore affirm.

I.

Keller was once a member of a motorcycle gang called the
Pagans, and his wife, Barbara, was a nude dancer . When
they married in 1981, Keller purportedly renounced his
association with the Pagans, Barbara abandoned her career
as a dancer, and the couple moved to a far m in Lancaster
County, Pennsylvania. In 1989, Barbara announced that

2
she was leaving Keller and their son and moving in with her
parents in Pittsburgh. Keller subsequently learned that
Barbara did not go to Pittsburgh, and he enlisted a private
investigator to locate her.

On June 20, 1989, Barbara telephoned Keller and
revealed that she was living with Gary Reiter , a friend who
resided down the lane from the Keller far m. Later that day,
when Barbara returned to the farm, Keller shot and killed
her. He then telephoned Reiter and asked that he come to
the farm. When Reiter arrived, Keller ran out of the house
firing a rifle at Reiter's truck. Bullets hit the truck, but
Reiter was able to drive away unharmed. Keller returned to
the house and telephoned friends and family members to
tell them what he had done. He wrote what appeared to be
a suicide note, but he did not attempt to kill himself and
instead surrendered to the police.

The prosecution argued that Keller had pr emeditated his
wife's murder, and the prosecution attempted to prove that
Keller's motive might have been his discovery that Barbara
had been providing information about the Pagans to the
Federal Bureau of Investigation. The pr osecution theorized
that Keller lured Barbara to the house and tied her up on
the second floor but that she broke fr ee and was running
away from the house when Keller shot and killed her. The
prosecution introduced evidence of her work for the FBI, as
well as evidence that during Keller's telephone
conversations following the shooting, he had connected the
killing with pressure resulting fr om the FBI investigation. In
addition, Keller' suicide note stated: "Lots of stress. All the
harassment. Unfounded investigation by the FBI, Crime
Commission, etc." The prosecution's theory that Keller
killed his wife because she was informing on the Pagans
provided a basis for introducing evidence regarding Keller's
association with the gang and its activities.1

The defense presented the following, dif ferent version of
the events. When Barbara arrived at the farm, Keller urged
her to return to him. Barbara said that she intended to
_________________________________________________________________

1. As the District Court noted, however, defense counsel also brought out
information about the Pagans. See Keller v. Larkins, 89 F. Supp. 2d 593,
600-01 (E.D. PA. 2000).

3
resume exotic dancing and threw at Keller a stack of photos
depicting her dancing. The argument became physical, and
Barbara locked herself in a bedroom upstairs. Keller broke
down the bedroom door and found that Barbara had
climbed out the window and was fleeing. Keller grabbed his
gun and shot and killed his wife.

At trial, Keller's defense was based on insanity or the
inability to form the intent needed for mur der. The defense
psychiatric expert, Dr. Abram M. Hostetter , diagnosed
Keller as suffering from a major depr essive disorder. Dr.
Hostetter testified that in his opinion Keller satisfied all of
the nine criteria for such a diagnosis listed in the third
revised edition of the American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disor ders (3d
ed. rev. 1987) (DSM-III-R), a standar d reference work that
lists and describes mental disorders. Dr . Hostetter opined
that Keller's major depression had reached psychotic
proportions at the time of the killing, that Keller "did not
fully understand the nature and quality of his acts at that
moment," and that he had not planned to kill his wife. App.
405, 407. Other witnesses testified to Keller's increasingly
distraught behavior over his wife's infidelity.

To rebut Dr. Hostetter, the Commonwealth called its own
psychiatric expert, Dr. Kurtis Jens. Dr . Jens had not
examined Keller, but based on information provided to him
about Keller and his behavior during the time leading up to
the killing, Dr. Jens expressed the opinion that Keller did
not suffer from a major depressive order. 3/14/1990 Trial
Tr. at 933-41. Dr. Jens stated that the symptoms noted by
Dr. Hostetter were often exhibited for a limited period of
time by people suffering from "any severe distress," and he
stated that Dr. Hostetter had not noted any psychotic
symptoms. App. 433, 438. He expressed the opinion that
Keller was capable of knowing right from wr ong and
forming a specific intent to kill. Id . at 443-44. In addition,
in response to a lengthy hypothetical question posed by the
Assistant District Attorney, Dr. Jens opined that Keller
might suffer from either of two personality disorders,
"antisocial personality disorder" or"sadistic personality
disorder." Id. at 441. Consistent with this latter possible
diagnosis, the Commonwealth put on evidence of prior

4
sadistic acts by Keller, including testimony that he had tied
up and brutally beaten a woman with whom he was having
an extramarital affair and testimony that he had severely
beaten a man who had asked Barbara to dance in a bar .

In March 1990, Keller was convicted by a jury in the
Lancaster County Court of Common Pleas of mur der in the
first degree and attempted murder in thefirst degree. He
was sentenced to a term of imprisonment for life and a
consecutive term of five to ten years in prison. The Superior
Court of Pennsylvania affirmed the judgment, and the
Supreme Court of Pennsylvania denied Keller's petition for
allowance of appeal. Keller then filed a petition under
Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons.
Stat. Ann. SS 9541 et seq. (W est 1998). After an evidentiary
hearing, the trial judge denied Keller's petition. The
Superior Court affirmed, and the Pennsylvania Supreme
Court declined review.

Keller next filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. S 2254 with the United States
District Court for the Eastern District of Pennsylvania.
Keller argued, among other things, that the admission of
highly prejudicial evidence regarding the Pagans and his
wife's work as an informant had deprived him of due
process as guaranteed by the federal Constitution and that
his counsel was ineffective in dealing with Dr . Jens's
testimony.

The Magistrate Judge to whom Keller's petition was
referred recommended that it be denied. She concluded
that in the state court proceedings Keller had challenged
the admission of the evidence concerning the Pagans on
state-law grounds only and that his federal constitutional
claim regarding that evidence was barr ed by procedural
default. She also held that the state courts' conclusion that
Keller's trial counsel was not ineffective under the
Strickland standard was not vulnerable to attack pursuant
to 28 U.S.C. S 2254(d)(1).

The District Court followed the Magistrate Judge's
recommendation, although it did not agr ee with some of her
reasoning. Keller v. Larkins, 89 F . Supp. 2d 593 (E.D. Pa.
2000). The District Court concluded that Keller had fairly

5
presented his due process claim in the state court
proceeding because he had contended that the admission of
the evidence in question had deprived him of a "fair trial."
Id. at 597-98. The District Court held, however , that the
admission of this evidence did not rise to the level of
constitutional error. Id. at 599-606. With respect to Keller's
ineffective assistance claim, the District Court held that
trial counsel had not provided adequate r epresentation in
connection with Dr. Jens's testimony but that Keller had
failed to demonstrate prejudice arising fr om trial counsel's
performance. Id. at 606-11. Accordingly, the District Court
denied the habeas petition but granted a certificate of
appealability. Id. at 612.

II.

The first claim on appeal is that the admission of
evidence of Keller's association with the Pagans and
Barbara's role as an FBI informant deprived Keller of due
process under the federal Constitution. Keller contends that
the Commonwealth lacked proof of Keller's knowledge that
his wife was an informant and that, accor dingly, evidence
regarding his association with the Pagans was not probative
but was highly prejudicial. As is requir ed in order to show
that an evidentiary error of this type r ose to the level of a
due process violation, Keller contends that it was of such
magnitude as to undermine the fundamental fair ness of the
entire trial. McCandless v. Vaughn , 172 F.3d 255, 262 (3d
Cir. 1999); Lesko v. Owens, 881 F .2d 44, 51-52 (3d Cir.
1989). In response to Keller's argument, the Commonwealth
contends, first, that the Magistrate Judge was correct in
holding that Keller's due process claim is barr ed by
procedural default and, second, that the District Court was
correct in rejecting the claim on the merits.

We agree with the Commonwealth that Keller's federal
due process claim is barred by procedural default. In the
absence of an explicit waiver by the state, a federal court is
permitted under 28 U.S.C. S 2254(b)(1)(A) to grant a state
prisoner's petition for a writ of habeas corpus only if the
petitioner has exhausted available state-court r emedies. A
petitioner has not exhausted such remedies if he has the
right under state law to raise his claim by any available

6
procedure. 28 U.S.C. S 2254(c). T o satisfy the exhaustion
requirement, a federal habeas claim must have been "fairly
presented" to the state courts. Picar d v. Connor, 404 U.S.
270, 275 (1971). This means that a petitioner must
"present a federal claim's factual and legal substance to the
state courts in a manner that puts them on notice that a
federal claim is being asserted." McCandless , 172 F.3d at
261. "It is not sufficient that all the facts necessary to
support the federal claim were before the state courts,"
Anderson v. Harless, 459 U.S. 4, 6 (1982), and"mere
similarity of claims is insufficient to exhaust." Duncan v.
Henry, 513 U.S. 364, 366 (1995).

Here, there is no doubt that Keller challenged the
admission of the evidence relating to the Pagans and
Barbara's work as an informant in the state court
proceedings, but Keller did not give the state courts "fair
notice" that he was asserting a federal constitutional claim
rather than a claim that the trial court violated state rules
of evidence. On direct appeal, Keller's Superior Court brief
devoted more than eight pages to this issue. See Brief for
Appellant at 31-40, Commonwealth v. Keller, No. 3992
Phila. 1992 (Pa. Super. Ct. July 28, 1993). Citing numerous
state cases based on state law, the brief cogently argued
that the admission of the evidence in question violated the
governing Pennsylvania standards r egarding proof of
uncharged bad acts and that the evidence should have
been excluded on the ground that its pr ejudicial impact
outweighed its probative value. Neither the federal
Constitution nor any judicial decision based on the federal
Constitution was mentioned. Keller's petition for allowance
of appeal to the Supreme Court of Pennsylvania was
similar. See Petition for Allowance of Appeal at 21-28,
Commonwealth v. Keller, No. 369 M.D. Allocatur 1993 (Pa.
Nov. 29, 1993). Neither the Superior Court brief nor the
petition fairly presented a federal constitutional claim. The
Superior Court, the highest state court to entertain Keller's
claim on the merits, understood it to be based on state law,
and this reading was entirely reasonable.

In arguing that he fairly presented a federal
constitutional claim to the Pennsylvania courts, Keller relies
entirely on passing references to the concept of a "fair trial"

7
in his state court papers. His brief in the Superior Court
contained one sentence referring to this concept, as did his
petition for allowance of appeal. Keller maintains these
references were enough to give the state courts notice that
he was raising not just ordinary state-law evidentiary
issues, but a federal due process claim.

Keller's argument is reminiscent of one r ejected by the
Supreme Court in Duncan v. Henry, supra. There, the
habeas petitioner, Henry, challenged the admission of
evidence in state court on state-law grounds, arguing that
the evidence was "irrelevant and inflammatory" and
resulted in a "miscarriage of justice." Id. at 365. The Ninth
Circuit held that Henry's claim was essentially the same as
a claim that he had been denied "the fundamental fairness"
guaranteed by the federal due process guarantee. See
Henry v. Estelle, 33 F.3d 1037, 1041 (9th Cir. 1994). The
Supreme Court, however, held that Henry's argument in
state court was insufficient to give the state courts fair
notice that he was asserting a federal constitutional claim.
The Court wrote:

If state courts are to be given the opportunity to correct
alleged violations of prisoners' federal rights, they must
surely be alerted to the fact that the prisoners are
asserting claims under the United States Constitution.
If a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him the
due process of law guaranteed by the Fourteenth
Amendment, he must say so, not only in federal court,
but in state court.

Duncan, 513 U.S. at 366. The Court observed that the state
court "understandably confined its analysis to the
application of state law." Id. Concurring in the judgment,
Justice Souter, joined by two other Justices, wrote that
Henry's " `miscarriage of justice' claim in state court was
reasonably understood to raise a state-law issue of
prejudice, not a federal issue of due pr ocess." Id. at 366-67
(Souter, J., concurring in the judgment). Thus, the Court
held that asserting that an evidentiary error produced a
"miscarriage of justice" was not sufficient to put the state
courts on notice that Henry was arguing that the error
violated federal due process requir ements.

8
In the face of Duncan v. Henry, supra , we cannot hold
that Keller fairly presented a federal due pr ocess claim to
the state courts. Keller, like Henry, did not invoke the
federal due process guarantee in the state courts. Henry
claimed that admission of the evidence produced a
"miscarriage of justice"; Keller argues that the admission of
evidence denied him a "fair trial." Since the Supreme Court
found the former language insufficient to give fair notice of
a federal due process claim, we are hesitant to attach
greater significance to the passing r eference to the concept
of a "fair trial" on which Keller's ar gument rests. Here, as
in Duncan v. Henry, we believe that the Superior Court
"understandably confined its analysis to the application of
state law," Duncan, 513 U.S. at 366, and"reasonably
understood" Keller "to raise a state-law issue" only. Id. at
367 (Souter, J., concurring in the judgment).

Our decision in McCandless supports this conclusion. In
that case, the prosecution was permitted to put on evidence
that its cooperation agreement with its key witness was
conditioned upon corroboration of the witness's assistance.
In state court, the habeas petitioner challenged the
admission of this evidence on state-law grounds,
"contending that the cooperation agreement testimony was
`irrelevant' and `prejudicial' and therefore improperly
admitted." 172 F.3d at 262. We concluded that the
petitioner had not fairly presented his federal constitutional
claim to the state courts, and we view Keller's state court
arguments here as analogous to those that we found
inadequate in McCandless.

To be sure, we did note at one point in the McCandless
opinion that the petitioner's state court papers never
mentioned "the terms `constitution',`due process' or even
`fair trial.' " Id. (emphasis added). We certainly did not hold,
however, that a passing reference to the concept of a "fair
trial" would have been enough to alter our decision, and
such a conclusion, we think, would have been inconsistent
with the plain thrust of Duncan v. Henry, supra, on which
McCandless squarely relied. See id. We thus hold that
Keller's current federal due process claim was not fairly
presented to the Pennsylvania courts.

9
If Keller could still present his federal claim to the state
courts at this late date, we would be compelled to dismiss
his petition, but it is undisputed that the Pennsylvania
courts would not entertain that claim. As the Magistrate
Judge noted, Keller is barred from seeking further relief in
state court because the statute of limitations forfiling
another PCRA petition has expired. See Pa. Cons. Stat.
Ann. S 9545(b)(1) (West 1998). As a r esult, his federal due
process claim is now procedurally defaulted. See
McCandless, 172 F.3d at 260. Federal courts may not
consider procedurally defaulted claims unless"the prisoner
can demonstrate cause for the default and actual pr ejudice
as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claim[ ] will result
in a fundamental miscarriage of justice." Coleman v.
Thompson, 501 U.S. 722, 750 (1991). To show cause, a
petitioner must demonstrate some objective factor external
to the defense that prevented compliance with the state's
procedural requirements. Id. at 753. To show a
fundamental miscarriage of justice, a petitioner must
demonstrate that he is actually innocent of the crime,
McCleskey v. Zant, 499 U.S. 467, 494 (1991), by presenting
new evidence of innocence. Schlup v. Delo, 513 U.S. 298,
316 (1995). Keller does not allege cause or pr ejudice. Nor
does he allege that lack of review by this court will
constitute a fundamental miscarriage of justice.
Consequently, Keller's federal due process claim is
foreclosed from habeas review.2
_________________________________________________________________

2. If we were free to reach the merits of this claim, we would hold, for
essentially the reasons given by the District Court, that Keller's due
process rights were not violated. See Keller, 89 F. Supp. 2d at 604-606.
Under ordinary principles of evidence law, the propriety of admitting this
evidence is questionable because there was no direct evidence and only
weak circumstantial evidence that Keller knew that his wife was an
informant. There was evidence that Keller knew that the FBI was
conducting an investigation, and there was evidence linking the stress
resulting from that knowledge with the events on the day of the killing.
However, neither Keller's wife, nor Reiter , nor the FBI agent who
testified
thought that Keller was aware of her work as an informant, and Keller
apparently never gave any indication that he possessed such knowledge,
even during his telephone conversations just after the shooting when he
mentioned the FBI investigation. Nor did he pr ovide any such indication

10
III.

The second claim on appeal, which Keller properly raised
in the state courts, is that he was denied the ef fective
assistance of counsel because his trial attor ney did not
adequately prepare for and respond to the testimony of the
prosecution's psychiatric expert, Dr. Kurtis Jens. As noted,
Dr. Jens stated, among other things, that Keller may have
had "sadistic personality disorder," and the Commonwealth
put on evidence of Keller's prior sadistic acts.

Defense counsel did not attempt to discover the nature of
Dr. Jens's testimony before trial and did not seek to bar the
admission of Dr. Jens's testimony about "sadistic
personality disorder."3 However, defense counsel did
conduct a lengthy and skillful cross-examination regarding
the other aspects of Dr. Jens's testimony. App. 444-73. In
particular, counsel focused on the fact that Dr. Jens had
made his diagnosis without ever speaking with Keller , and
defense counsel elicited Dr. Jens's agr eement that Keller
appeared to possess all of the symptoms of major
depression as set forth in the DSM-III-R. Id. at 445-47, 449-
52, 457-58. Dr. Jens stated, however, that in order to make
a diagnosis of major depression, a psychiatrist would have
to make a professional assessment as to whether the
subject possessed each of those symptoms to the r equisite
degree. Id. at 451-52. Defense counsel did not dwell on the
subject of "sadistic personality disorder ," but he did elicit
Dr. Jens's agreement that a patient could have both a
major depressive disorder (Dr. Hostetter's diagnosis) and
"sadistic personality disorder." Id. at 467-68.
_________________________________________________________________

in his supposed suicide note. A federal habeas court, however, cannot
decide whether the evidence in question was pr operly allowed under the
state law of evidence. A federal habeas court is limited to deciding
whether the admission of the evidence rose to the level of a due process
violation, and, like the District Court, we do not believe that it did
here.

3. The DSM-III-R states that "[t]he essential feature of this disorder is
a
pervasive pattern of cruel, demeaning, and aggressive behavior directed
toward other people, beginning by early adulthood. The sadistic behavior
is often evident both in social relationships (particularly with family
members) and at work (with subordinates). . . ." DSM-III-R at 369.

11
In his PCRA petition, Keller maintained that his trial
counsel was ineffective because he did not challenge the
validity of the concept of "sadistic personality disorder,"
which, he argued, was not scientifically r eliable and was
not generally accepted in the field of psychiatry. At a
hearing before the judge who had tried the case, Keller
presented the testimony of an expert, Susan Feister, M.D.,
a clinical psychiatrist, who pointed out that "sadistic
personality disorder" was not included in the main body of
the DSM-III-R, the most recent version of the Diagnostic
Statistical Manual at the time of Keller's trial, but instead
appeared in an appendix for proposed diagnostic categories
needing further study. See DSM-III-R at xxv-xxvi, 369-70.
Dr. Feister testified that "[sadistic personality disorder] was
not an accepted official diagnosis" at that time. She added
that "sadistic personality disorder" was not included in the
more recent DSM-IV and that she thought that it was
unlikely ever to be included as an official diagnosis.

The trial judge rejected Keller's ineffective assistance
claim. The judge noted that although "sadistic personality
disorder" was not included in the main body of the DSM-III-
R, it was included in the appendix and had thus"been
accepted as a classification, albeit one under going
scrutiny." Commonwealth v. Keller, No. 1731-1989, slip op.
at 8 (Pa. Ct. Comm. Pl. Oct. 21, 1996), r eprinted in App. at
63. The judge added:

We take judicial notice of the fact that defendant's own
psychiatric expert, Susan Feister, M.D., who criticized
Dr. Jens's use of the [sadistic personality disorder]
diagnosis, concluded as follows in a book chapter
dated the same year as the trial:

Thus, data available to date, while not extensive,
suggest that sadistic personality disorder , as
described in the DSM-III-R describes a personality
pattern with remarkably high inter nal consistency
and descriptive validity.

Id. (quoting M. Gay & S. Feister, Sadistic Personality
Disorder, in Psychiatry (R. Michels ed., 1990)). The judge
also observed that "Dr. Feister would have relied on this
textbook to make a diagnosis" and that Keller had not been

12
"prejudiced by use of an improper diagnostic term." Id. at
8-9, reprinted in App. at 63-64.

On appeal, the Superior Court affirmed the trial judge's
holding. The Superior Court wrote that the PCRA court had
found that "sadistic personality disorder was generally
accepted as a psychiatric diagnosis at the time of trial" and
sustained that finding. Commonwealth v. Keller , No. 4137
Phila. 1996, slip op. at 10 (Pa. Super. Ct. June 19, 1997),
reprinted in App. at 84. Thus, both the trial judge and the
Superior Court have held that the Strickland standard for
ineffective assistance of counsel claims has not been met.

Our review of the state courts' decisions is delineated in
28 U.S.C. S 2254(d). As amended by the Antiterrorism and
Effective Death Penalty Act of 1996, 28 U.S.C.S 2254(d)
precludes federal habeas corpus relief unless the state
courts' adjudication

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court pr oceeding.

In Williams v. Taylor, 529 U.S. 362 (2000), a majority of
the Justices accepted the following interpretation of
subsection (1):

[T]he writ may issue only if one of the following two
conditions is satisfied--the state-court adjudication
resulted in a decision that (1) "was contrary to . . .
clearly established Federal law, as determined by the
Supreme Court of the United States," or (2)"involved
an unreasonable application of . . . clearly established
Federal law, as determined by the Supr eme Court of
the United States." Under the "contrary to" clause, a
federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that r eached
by this Court on a question of law or if the state court
decides a case differently than this Court has on a set
of materially indistinguishable facts. Under the

13
 "unreasonable application" clause, a federal habeas
court may grant the writ if the state court identifies the
correct governing legal principle fr om this Court's
decisions but unreasonably applies that principle to
the facts of the prisoner's case.

Williams, 529 U.S. at 412-13. A federal habeas court may
not grant relief under the "unreasonable application" clause
unless a state court's application of clearly established
federal law was objectively unreasonable; an incorrect
application of federal law alone does not warrant r elief. Id.
at 411.

Our court's prior interpretation of 28 U.S.C.S 2254(d) in
Matteo v. Superintendent, SCI Albion, 171 F .3d 877, 891 (3d
Cir. 1999)(en banc), is consistent with the Supreme Court's
decision in Williams. See Werts v. Vaughn, 228 F.3d 178,
197 (3d Cir. 2000). As we put it in Matteo, the federal
habeas court must identify the applicable Supr eme Court
precedent and then

must determine whether the state court decision was
"contrary to" Supreme Court precedent that governs
the petitioner's claim. Relief is appropriate only if the
petitioner shows that Supreme Court precedent
requires an outcome contrary to that r eached by the
relevant state court. In the absence of such a showing,
the federal habeas court must ask whether the state
court decision represents an "unr easonable application
of " Supreme Court precedent: that is, whether the
state court decision, evaluated objectively and on the
merits, resulted in an outcome that cannot r easonably
be justified. If so, then the petition should be granted.

Matteo, 171 F.3d at 891 (inter nal quotations omitted).

Here, the "clearly established Federal law, as determined
by the Supreme Court of the United States," 28 U.S.C.
S 2254(d)(1), is the standard for inef fective assistance of
counsel enunciated in Strickland. See W illiams, 529 U.S. at
391. Under Strickland, a defendant seeking to establish a
Sixth Amendment violation must show that counsel's
performance fell below an objective standard of
reasonableness, as evaluated in light of the facts of the case
at the time of counsel's conduct. Strickland, 466 U.S. at

14
688-89. A defendant also must show that counsel's
deficient performance actually pr ejudiced his defense. Id. at
687. A defendant is prejudiced if "ther e is a reasonable
probability that, but for counsel's unpr ofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. at 694. The
reviewing court must consider the effect of any errors in
light of the totality of the evidence. Id. at 695-96. A
defendant must demonstrate both deficient per formance
and resulting prejudice in order to state an ineffective
assistance claim. Id. at 697. Because Strickland does not
unequivocally mandate a particular outcome in this case,
we proceed under the "unreasonable application" prong of
28 U.S.C. S 2254(d)(1).

We need not address the first pr ong of the Strickland test
under S 2254(d) because we agree with the District Court
that the state courts' rejection of Keller's claim did not
involve an unreasonable application of the second prong of
that test under S 2254(d)(1).

Keller argues that his trial attorney should have
attempted to prevent the admission of Dr . Jens's testimony
about "sadistic personality disorder" on the ground that it
was scientifically unreliable and not generally accepted in
the field of psychiatry. Keller contends that this testimony
failed to meet the standard set out in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), for the
admission of expert testimony at a federal trial. This case,
however, is not a direct appeal fr om a federal trial in which
counsel objected to the admission of expert testimony
under Fed. R. Evid. 702. Keller was tried in state court, and
the admission of expert testimony in a state trial presents
a question of state law4 -- unless, of course, the evidence
violates due process or some other federal constitutional
right, and Keller makes no such argument. In this case,
_________________________________________________________________

4. The Supreme Court of Pennsylvania has not decided whether to adopt
the Daubert test or retain the "Frye" test, see Frye v. United States,293
F. 1013 (D.C. Cir. 1923), which it endorsed in Commonwealth v. Topa,
369 A.2d 1277 (Pa. 1977). See Blum v. Merr ell Dow Pharmaceuticals, Inc.,
764 A.2d 1 (Pa. 2000).

15
both the PCRA judge, who presided over Keller's trial, and
the Superior Court held that Dr. Jens's testimony was
proper, and we must therefor e proceed on the assumption
that this testimony would have been admitted at trial even
if defense counsel had objected. Consequently, it is
apparent that Keller was not prejudiced by trial counsel's
failure to object.

Keller also contends that trial counsel was inef fective
because he was not prepared to cross-examine Dr. Jens
about "sadistic personality disorder" and did not do so
adequately. As noted, however, under S 2254(d) we must
decide whether a determination of no pr ejudice involves an
unreasonable application of Strickland. A full presentation
relating to the status of "sadistic personality disorder" at
the time of Keller's trial would have brought the following
facts to the jury's attention. The "Work Group" appointed to
revise the DSM-III had recommended that "sadistic
personality disorder" and two other categories be included
in the main body of the DSM-III-R, but these
recommendations met with "strenuous objections." DSM-III-
R at xxv. "The advisory committees that had worked on the
definitions of these disorders and the W ork Group believed
that there was sufficient resear ch and clinical evidence
regarding the validity of each of these categories to justify
its inclusion in the revised manual," but"critics of each of
these categories believed that not only was adequate
evidence of the validity of these categories lacking" but that
they "had a high potential for misuse." Id . at xxv-xxvi. "This
controversy was resolved by the inclusion of these three
categories in [an appendix] to facilitate further systematic
clinical study and research." Id . at xxvi. Thus, a full
presentation would have informed the jury that mental
health researchers and clinicians disagr eed about the
validity of "sadistic personality disorder" as a diagnostic
category. Bringing out this disagreement might have
diminished the force of Dr. Jens's testimony regarding
"sadistic personality disorder" to some degree, but it would
not by any means have entirely discredited it. See Keller, 89
F. Supp. 2d at 611 ("full cross-examination on the subject
would only have revealed that the diagnosis was of a
proposed psychiatric category, not that it was an
inadmissible or improper consideration"). Moreover,

16
weakening the effect of Dr. Jens's testimony on this point
would have had little logical bearing on the mor e critical
parts of his testimony, namely, his conclusion that Keller
did not suffer from a major depressive disorder, did not
experience a psychotic episode at the time of the killing,
and was able to understand right and wrong and to form a
specific intent to kill. Dr. Jens's testimony on these points,
which were central to Keller's defenses of insanity and
diminished capacity, were not at all dependent on Dr.
Jens's conclusion that Keller may have suffer ed from
"sadistic personality disorder." See id. In light of all this, it
is not unreasonable to conclude that Keller was not
prejudiced in the sense relevant her e, i.e., that there is not
a reasonable probability that the jury, if aware of the
disagreement among mental health experts about"sadistic
personality disorder," would have found either that Keller
was insane or incapable of forming the intent required for
first-degree murder. Keller's ineffective assistance of
counsel claim must therefore be rejected.

IV.

For the reasons explained above, we affir m.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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