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Keita v. Smith

United States District Court, D. Minnesota

February 26, 2015

Mamady Kalifa Keita, Petitioner,
Michelle Smith, Respondent.

Mamady Kalifa Keita, #231478, MCF-Stillwater, MN 55003, pro se.

Jean E. Burdorf, Hennepin County Attorney's Office, counsel for respondent.


DAVID S. DOTY, District Judge.

This matter is before the court upon the pro se objection by petitioner Mamady Kalifa Keita to the November 26, 2014, report and recommendation of United States Magistrate Judge Jeffrey J. Keyes. Based on a de novo review of the file, record, and proceedings herein, and for the following reasons, the court overrules the objection and adopts the report and recommendation in its entirety.


The background of this matter is fully set forth in the report and recommendation, and the court recites only those facts necessary to resolve the present objections. In 2009, a jury convicted Keita in Hennepin County District Court of two counts of first-degree criminal sexual conduct and one count of first-degree burglary. Keita v. State, No. A12-1320, 2013 WL 3968602, at *1 (Minn.Ct.App. Aug. 5, 2013). Keita and another male were accused of committing a rape on April 1, 2009. Id.

On January 28, 2010, the state court sentenced Keita to a total term of imprisonment of 281 months. ECF No. 21, at 11-12. The court imposed an 81-month sentence for the burglary conviction and a 281-month sentence for the criminal sexual conduct convictions, and ordered that the sentences run concurrently. Id. Keita appealed, alleging prosecutorial misconduct and miscalculation of his criminal history score. State v. Keita, No. A10-766, 2011 WL 978237, at *2-4 (Minn.Ct.App. Mar. 22, 2011). Keita also argued that he was prejudiced because (1) a juror knew his trial attorney, (2) his Sixth Amendment right to confrontation was violated because the prosecutor chose not to call certain witnesses, (3) inconsistent witness statements warranted reversal, and (4) his trial attorney withheld certain objections. Id. at *4-5. The Minnesota Court of Appeals affirmed Keita's conviction but found that the district court miscalculated his criminal history score as it related to the criminal sexual conduct convictions. See Keita, 2013 WL 3968602, at *1. On remand, the district court maintained the 81-month sentence for the burglary conviction, imposed a 172-month sentence for the criminal sexual conduct convictions, and ordered the sentences to run consecutively. See id.

Keita then filed a pro se petition for post-conviction relief in state court, arguing improper sentencing, improper jury instructions, prosecutorial misconduct, insufficient evidence to convict, partiality of the trial judge, and ineffective assistance of appellate counsel. Id. The petition was denied. Id. at *1-3. The Minnesota Court of Appeals dismissed many of Keita's arguments because they were raised or should have been raised on direct appeal. Id. at *3 (citing State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976)).

On March 10, 2014, Keita filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, asserting similar arguments to those made in state court on direct and collateral review. On November 26, 2014, the magistrate judge recommended that the court deny the petition, deny Keita's request for an evidentiary hearing, and dismiss this matter with prejudice. Keita objects.


The court reviews the report and recommendation of the magistrate judge de novo. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3); D. Minn. LR 72.2(b). A federal court may grant a state prisoner's habeas petition if the state court proceeding resulted in a decision "that was contrary to, or involved an unreasonable application of, clearly established Federal law" or "that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

I. Procedural Default

Many of the arguments that Keita raises in his federal habeas petition pertain to claims that the magistrate judge found were procedurally defaulted. "A claim is procedurally defaulted if not fairly presented in state court before raising it in federal court." Cox v. Burger, 398 F.3d 1025, 1031 (8th Cir. 2005). When a state prisoner procedurally defaults federal claims in state court "pursuant to an independent and adequate state procedural rule, " a federal habeas court is barred from reviewing those claims "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Keita argues that (1) his Sixth Amendment right to a jury trial was violated when the trial court failed to provide the jury with a "not guilty" verdict form for the first-degree criminal sexual conduct charges, (2) the trial court violated his right to due process by providing the jury with a lesser included offense instruction, (3) his trial and appellate counsel were ineffective, (4) the evidence offered at trial was insufficient to convict him of either charge, and (5) the trial court committed error by instructing the jury to focus solely on his believability ...

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