Kinne v. Sec'y, Dep't of Corr.

• Decision Date: 30 November 2020
• Docket Number: No. 8:17-cv-2844-T-02SPF,8:17-cv-2844-T-02SPF
• Parties: KATHERINE KINNE, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

KATHERINE KINNE, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

No. 8:17-cv-2844-T-02SPF

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

November 30, 2020

ORDER DENYING PETITION

Katherine Kinne petitions for the writ of habeas corpus under 28 U.S.C. § 2254 and challenges her state court conviction for unlawful sexual activity with a minor. After careful consideration of the petition (Doc. 1) and the response (Doc. 8) and supporting appendix (Doc. 11)¹, the Court denies the petition.

Background and Procedural History

Ms. Kinne had oral and vaginal sex with A.B., a 16-year-old boy. A.B. testified that he and Ms. Kinne had sex in her bedroom. (Doc. 11, Ex. 20 at 197-99, 204-09) Several weeks later, A.B.'s mother discovered sexually explicit text messages from Ms. Kinne on A.B.'s telephone and called the police.(Doc. 11, Ex. 20 at 267-69) Also, Ms. Kinne told A.B.'s ex-girlfriend that she was having sex with A.B. (Doc. 11, Ex. 20 at 345-49)

When a detective confronted Ms. Kinne with the sexually explicit text messages, Ms. Kinne denied both having sex with A.B. and sending him the messages. (Doc. 11, Ex. 20 at 382, 411) Ms. Kinne said that her teenaged daughter and her daughter's friend sent the messages. (Doc. 11, Ex. 20 at 383-89, 395, 399, 406) Ms. Kinne claimed that she was drunk and joking when she told A.B.'s ex-girlfriend about the sex. (Doc. 11, Ex. 20 at 407)

A.B. reported the crime to police only after police questioned him about throwing rocks at Ms. Kinne's car. (Doc. 11, Ex. 20 at 246-49) A.B. was mad at Ms. Kinne because she had called police to have A.B.'s brother arrested. (Doc. 11, Ex. 20 at 240-44) During the defense's case-in-chief, Ms. Kinne's daughter testified that she had feelings for A.B. and had sent him sexually explicit text messages with her mother's telephone. (Doc. 11, Ex. 20 at 461-63, 478-79, 483-84) Her daughter's friend testified that she had feelings for A.B.'s brother and had sent him sexually explicit text messages with the telephone as well. (Doc. 11, Ex. 20 at 557-58)

The jury found Ms. Kinne guilty of unlawful sexual activity with a minor (Doc. 3) and the trial court sentenced her to 10 years in prison. (Doc. 2) The state appellate court affirmed the conviction and sentence. (Docs. 2 and 8) Ms. Kinnesought relief on post-conviction. (Doc. 10) The post-conviction court summarily denied relief (Doc. 11) and the state appellate court affirmed in an unelaborated decision. (Doc. 14) Ms. Kinne's timely federal petition followed.

Exhaustion and Procedural Default

A petitioner must exhaust the remedies available in state court before a federal court can grant relief on habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner must (1) alert the state court to the federal nature of his claim and (2) give the state court one full opportunity to resolve the federal claim by invoking one complete round of the state's established appellate review process. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A federal court may stay — or dismiss without prejudice — a habeas case to allow a petitioner to return to state court to exhaust a claim. Rhines v. Weber, 544 U.S. 269 (2005); Rose v. Lundy, 455 U.S. 509 (1982). If the state court would deny the claim on state procedural grounds, the federal court should instead deny the claim as procedurally barred. Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).

A federal court also must deny a claim as procedurally barred if the state court denied the claim on independent and adequate state procedural grounds.Coleman, 501 U.S. at 729-30. The last state court reviewing the federal claim must clearly and expressly state that the ruling rests on the state procedural bar. Harris v. Reed, 489 U.S. 255, 263 (1989). If the last state court rejected the federal claim in an unexplained decision, the federal court must look through the unexplained decision to the last reasoned order to rule on the claim. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). If the last reasoned order imposed a state procedural bar, the federal court should presume that the later unexplained decision did not silently disregard the bar and consider the merits. Id.

A petitioner may avoid a procedural default on federal habeas by (1) showing cause for the default and actual prejudice from the alleged violation of federal law or (2) demonstrating a miscarriage of justice. Maples v. Thomas, 565 U.S. 266, 280 (2012); House v. Bell, 547 U.S. 518, 536-37 (2006).

Respondent asserts that Ground One, Ground Four, and Ground Five are unexhausted and procedurally barred. (Doc. 8 at 4, 14-15, 30, 31-32)

Ground One

Ms. Kinne contends that, during closing argument, the prosecutor denigrated her character and the defense's theory of the case, commented on facts not in evidence, and shifted the burden of proof to the defense. (Doc. 1 at 7-8) She asserts that trial counsel was ineffective for not objecting to the prosecutor's comments. (Doc. 1 at 7)

Ms. Kinne raised this claim in her state post-conviction motion. (Doc. 11, Ex. 10 at 3-5) She did not file a brief on appeal but was not required to do so because the post-conviction court denied the motion without an evidentiary hearing. (Doc. 11) Fla. R. App. P. 9.141(b)(2)(C)(i). Even though Ms. Kinne cited neither Strickland v. Washington, 466 U.S. 668 (1984) nor the Sixth Amendment in her motion, Strickland governs an ineffective assistance of counsel claim in a Florida court. Carratelli v. State, 961 So. 2d 312, 320 (Fla. 2007) ("A defendant's claim that his counsel offered ineffective assistance at trial, for whatever reason, must be analyzed under the standard the Supreme Court enunciated in Strickland."). The post-conviction court evaluated the claim under Strickland. (Doc. 11 at 30-31) Because she adequately alerted the state court to the federal nature of her claim and gave the state court a full opportunity to resolve the claim, Ms. Kinne is entitled to a review of the claim on the merits. Boerckel, 526 U.S. at 845; Connor, 404 U.S. at 278.

Ground Four

Ms. Kinne asserts that the state court erred by denying her motion for judgment of acquittal because the prosecution failed to rebut her hypothesis of innocence ("Trial Claim") and trial counsel was ineffective for not presenting an expanded motion for judgment of acquittal ("Ineffective Assistance of Counsel Claim"). (Doc. 1 at 15)

Trial Claim

Ms. Kinne moved for a judgment of acquittal at trial (Doc. 11, Ex. 20 at 453-55, 578-79) but did not raise the issue in her brief on direct appeal. (Doc. 5 at ii, 20-21) Because Ms. Kinne did not give the state court one full opportunity to resolve the trial claim by invoking one complete round of the state's established appellate review process, the trial claim is unexhausted. Boerckel, 526 U.S. at 845.

Also, Ms. Kinne raised the trial claim in her state post-conviction motion. (Doc. 11, Ex. 10 at 10) However, she neither labeled the claim "federal" nor cited the federal constitution or a case deciding a similar claim on federal law. Reese, 541 U.S. at 32. The trial claim is unexhausted for that reason as well. Preston v. Sec'y, Fla. Dep't Corrs., 785 F.3d 449, 459 (11th Cir. 2015) ("'Simply referring' to sufficiency of the evidence 'is not a sufficient reference to a federal claim, any more than a reference to' a constitutional right of confrontation of witnesses or ineffective assistance of counsel was sufficient in the past.") (citations omitted).

Lastly, the post-conviction court denied the claim as follows (Doc. 11, Ex. 11 at 3):

. . . Defendant argues that the trial court erred in denying the Defendant's Motion for Judgment of Acquittal. Trial court errors are not cognizable in rule 3.850 motions. See Steward v. State, 931 So. 2d 133 (Fla. 2d DCA 2006); Bruno v. State, 807 So. 2d 55, 63 (Fla. 2001).

Because Ms. Kinne could have raised the trial claim on direct appeal, the post-conviction court concluded that the trial claim was not cognizable and procedurally barred. Fla. R. Crim. P. 3.850(c) ("This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence."); Bruno, 807 So. 2d at 63 ("A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion, and a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal."). The post-conviction court's denial of the claim was based on independent and adequate state procedural grounds, and the trial claim is procedurally defaulted on federal habeas. Waldrop v. Jones, 77 F.3d 1308, 1314 (11th Cir. 1996).

Ms. Kinne asserts neither cause and prejudice nor manifest injustice to excuse the procedural default. If Ms. Kinne returns to state court to exhaust the trial claim, the state court would dismiss the claim as untimely and procedurally barred. Fla. R. Crim. P. 3.850(b), (c). Consequently, the trial claim in Ground Four is procedurally barred from federal review. Snowden, 135 F.3d at 736.

Ineffective Assistance of Counsel Claim

Ms. Kinne asserted in her post-conviction motion that trial counsel was ineffective for not presenting an expanded motion for judgment of acquittal. (Doc. 11, Ex. 10 at 10) She did not file a brief on appeal but was not required todo so because the post-conviction court denied the motion without an evidentiary hearing. (Doc. 11) Fla. R. App. P. 9.141(b)(2)(C)(i). Even though Ms. Kinne cited neither Strickland nor the Sixth Amendment in her motion, Strickland governs an ineffective assistance of counsel claim in a Florida court. Carratelli, 961 So. 2d at 320. The state court did not rule on the claim (Doc. 11,...