THOMAS PATRICK KEELAN v. UNITED STATES OF AMERICA
CASE NO. 17-20158-CIV-MARTINEZ/GOODMAN (CASE NO. 12-20496-CR-MARTINEZ)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION
04/01/2022
Jonathan Goodman, UNITED STATES MAGISTRATE JUDGE
FED. R. CIV. P. 60(d)(3) MOTION
Movant Thomas Keelan filed a motion to set aside his conviction and sentence for using a cell phone and the internet to knowingly persuade, induce, or entice a minor to engage in illegal sexual activity. [ECF No. 55]. Keelan argues that his conviction and sentence should be set aside under
For the reasons discussed below, the Undersigned respectfully recommends that the District Court dismiss for lack of jurisdiction Keelan‘s motion to set aside his conviction.
I. Factual and Procedural Background
This case involves conduct that took place between Keelan, a 51-year-old teacher, and his former student J.S., then 15 years old. U.S. v. Keelan, 786 F.3d 865, 865-69 (11th Cir. 2015). On direct appeal of his conviction, the Eleventh Circuit described the facts surrounding Keelan‘s arrest:
Acting on a rumor circulating through the school, Keelan confronted J.S. after class about his cutting. Keelan offered words of comfort and encouraged J.S. to call or text him whenever he felt the urge to cut. At Keelan‘s suggestion, they began meeting each other during the school lunch hour to play chess in Keelan‘s classroom and discuss J.S.‘s emerging identity issues.
One night Keelan texted J.S. and revealed he was at a gay bar on South Beach. J.S. told Keelan he believed he was gay. After this exchange, Keelan and J.S. began texting and talking each day for several hours, and Keelan began inserting sexual innuendo into their conversations. Keelan eventually asked J.S. if he wanted to have sex with him, and J.S. said yes.
At trial, Dr. Terri Patterson, an expert in child exploitation offenses, testified Keelan‘s interactions with J.S. were part of the “grooming process” typically employed by child predators. The six phases of grooming—identification, connection, information gathering, need fulfillment, sexual inhibition reduction, and preservation—were intended to establish Keelan‘s psychological control over J.S. Based on her review of the evidence, Dr. Patterson opined Keelan groomed J.S.
During J.S.‘s junior year of high school, Keelan moved to Virginia to take a new teaching job. Despite the long distance, Keelan selected, reserved, and paid for a room in a Hollywood, Florida hotel where he and J.S. had sex.
For reasons unknown to J.S., his parents began to suspect he was in an inappropriate relationship with Keelan. During his senior year of high school, J.S.‘s parents enrolled him at a wilderness camp in Georgia and a residential treatment center in Texas. J.S. could not communicate with Keelan during this time. When Keelan returned to Florida, J.S. decided he wanted to cooperate with law enforcement officials.
A few months before his 18th birthday, J.S. made wiretapped phone calls to Keelan. Keelan revealed he kept one of J.S.‘s old vocabulary tests in which J.S. scored a perfect 20 out of 20. Keelan kissed it “every day” and kept it as a talisman of J.S. During one call, Keelan admitted he was masturbating to the sound of J.S.‘s voice and said he loved the way J.S. performed oral sex.
On June 1, 2012, Keelan and J.S. agreed to meet at the Hollywood Gateway Inn at Hollywood, Florida. Keelan reserved a room for seven nights with two adults and one king-sized bed. On June 15, 2012, Keelan began driving from Virginia to South Florida. On June 16, 2012, law enforcement officers surveilled Keelan stopping at the Lion‘s Den in Fort Pierce, Florida. While there, Keelan bought several sex toys before resuming his journey toward J.S.
Later that day, Keelan arrived at the hotel where officers arrested him and searched his car. The search uncovered a wide array of sex toys, bondage devices, lubricant, and pornographic DVDs featuring young adult males. Following his arrest, Keelan admitted to his sexual relationship with J.S.
Id. at 868-69.
On January 25, 2013, a jury found Keelan guilty of knowingly using a means of interstate commerce to persuade, induce, or entice J.S. to engage in sexual activity, in
At trial, Keelan admitted that he used his email and a cell phone to contact J.S. and did have sex with him. [ECF No. 24, p. 5]. But the defense‘s theory was that Keelan did not persuade J.S. because J.S. was pursuing Keelan, not the other way around. Id. Keelan filed a pre-trial motion to introduce evidence of prior sexual activity under
Keelan also filed a pre-trial motion in limine to exclude evidence at trial of the graphic details surrounding Keelan and J.S.‘s sexual activity, sex toys found in Keelan‘s
On April 26, 2013, Keelan filed a notice of appeal. [CRDE No. 120]. Keelan argued, in part, that the District Court erred by: (1) denying his motion in limine to exclude “irrelevant, highly prejudicial, and graphic testimony and physical evidence . . . pertaining to specific homosexual activity between Mr. Keelan and J.S.“; and (2) denying Keelan‘s motion to introduce evidence of “J.S.‘s consensual sexual activity with other males of the same age and demographic background as Mr. Keelan,” which Keelan claimed was relevant to whether J.S. was persuaded into sexual activity and relevant to J.S.‘s credibility. [ECF No. 20-1, p. 5].
The Eleventh Circuit affirmed Keelan‘s conviction. Keelan, 786 F.3d at 869 n.1 (“Keelan also raised the following: . . . the district court erred in admitting J.S.‘s testimony about the sex acts performed with Keelan [and] pornographic videos found; . . . and the district court erred in denying his sealed
Following the resolution of his appeal, with the assistance of counsel, Keelan filed a habeas motion requesting relief under
After receiving the Government‘s response [ECF No. 19] and Keelan‘s Reply [ECF No. 24], the Undersigned recommended that the District Court deny Keelan‘s request for habeas relief. [ECF No. 25]. Keelan filed objections to the report and recommendations. [ECF No. 34]. The District Court adopted the Undersigned‘s Report and Recommendations in its entirety, denied Keelan‘s habeas petition and denied issuance of a certificate of appealability. [ECF No. 35].
Keelan appealed the District Court‘s non-issuance of a certificate of appealability to the Eleventh Circuit Court of Appeals. After articulating Keelan‘s burden of proof to obtain a certificate of appealability, United States Circuit Judge Robin S. Rosenbaum denied Keelan‘s request, stating,
Here, reasonable jurists would not debate the district court‘s denial of Keelan‘s claims. As to Claim 1, the record confirms that counsel attempted to introduce evidence of J.S.‘s mental state and questioned J.S. regarding his mental state at trial. As to Claim 2, the record shows that counsel filed a motion in limine to exclude trial evidence on the details of Keelan‘s sexual relationship with J.S. and objected to the government‘s closing arguments referencing those details. As to Claim 3, counsel was not deficient because the district court listed Keelan‘s use of the internet and a cellular phone as an element of the crime and any additional words regarding the Florida crime of attempt did not change the government‘s burden or allow the jury to convict for an uncharged crime. Finally, Claim 4 was procedurally defaulted for Keelan‘s failure to raise those points on direct appeal, and he did not show cause and prejudice or actual innocence to overcome the default.
Keelan v. United States, No. 20-11487-E, 2020 WL 6158469, at *2 (11th Cir. Aug. 13, 2020), cert. denied, 141 S. Ct. 1525, 209 L. Ed. 2d 259 (2021).
Keelan then sought the District Court‘s permission to file a successive
This Court lacks jurisdiction to grant Movant permission to file a second or successive motion to vacate because Movant can only seek such authorization from the Eleventh Circuit, pursuant to
28 U.S.C. §§ 2255(h) and2244(b)(3)(A) . See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003); see also Rules Governing § 2255 Proceedings, Rule 9. Moreover, the Court cannot appoint counsel for Movant because he is already represented by counsel and the Local Rules for the Southern District of Florida prohibit a party from filing pro se pleadings while represented by counsel. See S.D. Fla. L.R. 11.1(d)(4).
[ECF No. 53].
In his instant motion, Keelan attempts to proceed under
II. Legal Standard
“Rule 60 motions for relief from judgment may not be used to evade the bar on second or successive § 2254 [or § 2255] petitions.”3 Viera v. Fla. Dep‘t of Corr., 817 F. App‘x 810, 812 (11th Cir. 2020), cert. denied sub nom. Viera v. Fla. Dep‘t of Correction, 141 S. Ct. 2532, 209 L. Ed. 2d 558 (2021). Thus, a Rule 60 motion will be construed as a second or
III. Analysis
Keelan begins the summary of his fraud allegations by claiming that he “was used to get MONEY FOR MURDER.” [ECF No. 55]. Following this provocative -- but unsubstantiated -- statement is Keelan‘s contention that his relationship with J.S. saved J.S.‘s life and his belief that J.S.‘s family, FBI agents, the prosecution, and his defense attorneys all conspired to coerce perjury and suppress evidence. Id.
Keelan then attacks the legitimacy of the evidence presented at the trial as well as the Eleventh Circuit‘s assessment of his appeal. He claims that he was set up and that the only crime for which he is guilty is the crime of statutory rape, which would have resulted in him being released years ago.
As a basis for his “fraud” claim, Keelan claims the following dishonest arguments were made to the court: (1) his actions caused J.S.‘s suicidal behavior; (2) he was J.S.‘s first older lover; and (3) that he persuaded, enticed, induced, or coerced J.S.
As so-called evidence of this fraud, Keelan includes alleged trial or hearing testimony followed by his own statements that the testimony was untruthful or inaccurate. As an illustration of the structure of Keelan‘s argument, the Undersigned provides the following excerpt from Keelan‘s motion:
FACT: AUSA Johannes correctly asserted that J.S.‘s multiple prior lovers were known to the government. (Quote “F“: Keelan quoting Johannes‘s
response to 2255, approved by Goodman and Martinez) FRAUD: J.S. twice at trial said Keelan was first. The quotations are AUSA Altman in summation. Thus, according to Johannes, Altman knew he was lying. That Keelan was the first was the main point of McAliley‘s restitution ruling. As well, J.S. said, “I, uhm, never experienced anything sexual before,” in the statement given to the grand jury.
[ECF No. 55, p. 6].
After he finishes addressing trial and hearing testimony, Keelan then transitions his focus to statements allegedly made by the Government in its closing argument that, in Keelan‘s opinion, are either false statements unsupported by evidence or are statements that contradict the elements of the crimes with which he was convicted. According to Keelan, these statements constitute a crime under
In his final argument on the merits, Keelan alleges his defense attorney made three major mistakes. Keelan believes these mistakes were intentional because his attorney was either cooperating with the prosecution or was homophobic. Specifically, Keelan alleges his attorney: (1) should have moved to change the venue of the trial; (2) failed to assert a selective or vindictive prosecution defense; and (3) failed to expose false grand jury testimony.
At the end of Keelan‘s motion, he includes an ancillary argument that the prison in which he is housed has treated him unfairly by, among other allegations, disconnecting
In the Government‘s response, it characterizes Keelan‘s motion as an attack on the merits of the underlying conviction. [ECF No. 57]. This, it claims, transforms Keelan‘s Rule 60 motion into a § 2255 motion. And, as the Government highlights, Keelan has previously litigated an unsuccessful § 2255 motion -- which would make this improperly titled motion successive.
The Undersigned agrees with the Government‘s characterization. It is obvious that Keelan‘s arguments are meant to address only his underlying conviction and appeal.
In fact, many of the claims Keelan raises in this motion are nearly identical to claims raised in his first § 2255 motion. In both motions, Keelan complains about J.S.‘s alleged prior interactions with other older gay men and his seeming assent to sexual activity with Keelan. Compare [ECF No. 3, pp. 18-22, 31-34] with [ECF No. 55, pp. 2, 6, 10]. Likewise, in both motions, Keelan claims the Government made improper statements during the trial. Compare [ECF No. 3, pp. 34-36] with [ECF No. 55, pp. 7-8].
The label of Keelan‘s motion is not determinative of its treatment. Federal courts “have an obligation to look behind the label of a motion filed by a pro se inmate . . . .” United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990) (citation omitted) (emphasis added). In this case, many of Keelan‘s “fraud” claims are identical to those raised in his initial § 2255 motion attacking the underlying proceedings. Further, his new ineffective assistance of counsel and collusion claims also seek to challenge the underlying
Because of this, his motion is properly considered as a second or successive § 2255 motion. See Cano v. United States, 796 F. App‘x 647, 648 (11th Cir. 2019) (holding that where movant filed a
The actual nature of Keelan‘s
But the types of allegations raised by Keelan -- lies by the prosecution and perjury at the trial level -- have been specifically rejected as valid
Thus, the Undersigned finds that Keelan‘s motion is actually a § 2255 motion
“Before presenting a second or successive motion, the moving party must obtain an order from the appropriate court of appeals authorizing the district court to consider the motion.” Rules Governing § 2255 Proceedings, Rule 9. As authorization has not been granted, this Court lacks jurisdiction to consider Movant‘s second or successive § 2255 motion. See Farris, 333 F.3d at 1216.
Therefore, the Undersigned respectfully recommends that the District Court dismiss Keelan‘s motion for lack of jurisdiction.
Further, because the court “lack[s] subject matter jurisdiction to consider the [instant] successive petition, [the court may] not issue a [certificate of appealability].” See Williams v. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007) (citation omitted).
IV. Conclusion
For the reasons discussed above, the Undersigned respectfully recommends that the District Court dismiss Keelan‘s habeas motion.4
V. Objections
The parties will have 14 days from the date of this Report and Recommendations
RESPECTFULLY RECOMMENDED in Chambers, at Miami, Florida, April 1, 2022.
Jonathan Goodman
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
The Honorable Jose E. Martinez
Counsel of Record