Keller v. Genovese, No. 21-6037 (6th Cir. 2023)
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In 2010, Keller and others broke into a Shelby County house occupied by Morrow and Jones and two minor children. Keller threatened the occupants with a gun while demanding money. One assailant repeatedly struck Morrow in the head. All the assailants ransacked the house. One child hid and called 911. After his conviction Keller sought a new trial, raising several challenges to his convictions and sentence; he did not raise a double-jeopardy claim. For the first time, on appeal to the Tennessee Court of Criminal Appeals, Keller argued his convictions violated the Double Jeopardy Clause, in that his convictions for attempted especially aggravated robbery and aggravated assault of Morrow were for the same offense, and that all of his convictions should have merged into a single conviction for aggravated robbery of Morrow. The Tennessee Court of Criminal Appeal found that Keller waived his double-jeopardy claim by not raising it in his motion for a new trial as required by Tennessee’s procedural rules. Keller had acknowledged the waiver. Considering Keller’s double-jeopardy claim under plain-error review, the court held that the double-jeopardy claim failed.
After unsuccessfully seeking post-conviction relief in state court, Keller filed a federal habeas petition. The Sixth Circuit affirmed the denial of his federal 28 U.S.C. 2254 habeas petition on the double jeopardy claim. Keller, by his own concession, procedurally defaulted his double-jeopardy claim.
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