Kinsel v. Cain

• Decision Date: 19 July 2011
• Docket Number: No. 10–30443.,10–30443.
• Citation: 647 F.3d 265
• Parties: John KINSEL, Petitioner–Appellant Cross–Appellee,v.Burl CAIN, Warden, Louisiana State Penitentiary, Respondent–Appellee Cross–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

647 F.3d 265

John KINSEL, Petitioner–Appellant Cross–Appellee,

v.Burl CAIN, Warden, Louisiana State Penitentiary, Respondent–Appellee Cross–Appellant.

No. 10–30443.

United States Court of Appeals, Fifth Circuit.

July 19, 2011.

Autumn Alycia Town (argued), Law Office of Autumn Town, New Orleans, LA, for Petitioner–Appellant Cross–Appellee.Anne Mary Wallis, Assistant District Attorney (argued), Gretna, LA, for Respondent–Appellee Cross–Appellant.Appeals from the United States District Court for the Eastern District of Louisiana.Before SMITH, WIENER and OWEN, Circuit Judges.WIENER, Circuit Judge:

Petitioner–Appellant John Kinsel's conviction in Jefferson Parish, Louisiana district court for sexually abusing A.M., the ten-year-old daughter of his girlfriend at the time, was based primarily on A.M.'s trial testimony against him. Eight years later, as an adult, A.M. voluntarily approached the parish district attorney's office to recant her testimony under oath. Kinsel then filed a state postconviction petition, asking for his conviction to be vacated or, in the alternative, for a new trial in light of the newly discovered evidence of A.M.'s recantation. After holding an evidentiary hearing at which A.M. testified, the Louisiana trial court ordered a new trial. The Louisiana appellate court reversed, however, holding that the trial court abused its discretion and dismissing Kinsel's petition for failure to establish a constitutional violation at trial. The Louisiana Supreme Court affirmed without opinion. Kinsel then filed this federal habeas corpus application, which the district court dismissed. For the reasons that follow, we affirm.

I. FACTS & PROCEEDINGS

A. Facts

On January 30, 1997, Kinsel was charged with the aggravated rape of a child—his girlfriend's daughter, A.M. The primary evidence presented against Kinsel at trial was A.M.'s testimony. The only other family member who corroborated A.M.'s testimony was Jason Medlin, A.M.'s older brother, who was fifteen years old at the time. Jason testified that on one occasion Kinsel had told him and his other sister to take a nap while Kinsel went into a room with A.M. Jason testified that he heard “kissing sounds” coming from the room and that A.M. became angry when he asked her about it afterwards.

Dr. Scott Benton, an expert in pediatric forensic examinations, was also proffered by the prosecution. He had examined A.M. on October 9, 1996 and observed “abnormalities” in the area around the hymen, which were consistent with but not indicative of sexual abuse. Dr. Benton's report also indicated that A.M. did not have any vaginal discharge or scars or bruises in the vaginal or anal areas. It also recorded A.M.'s telling Dr. Benton that Kinsel had sexually abused her “every morning” while she lived at her grandfather's house, which was later controverted as an impossibility by the testimony of A.M.'s mother, grandfather, and Kinsel.

The defense presented numerous witnesses that undermined A.M.'s testimony. Adrienne Medlin, A.M.'s mother and Kinsel's girlfriend, testified that she never suspected Kinsel of any sort of child sexual abuse and therefore did not call the police when A.M. first told her of the alleged abuse. Adrienne claimed that she never saw Kinsel act inappropriately with A.M. and that, to the contrary, he acted “like a father” to and was “protective” of all of her children, namely A.M., Jason, and her other daughter from a previous marriage, and her son with Kinsel. Adrienne also testified that, although A.M. claimed that Kinsel sexually abused her every morning at Adrienne's father's house, Kinsel never spent one single night with the family when they were living there. Furthermore, Adrienne noted that when A.M. was two years old, she had placed a crayon in her vagina, which could have caused the slight physical abnormalities noted by Dr. Benton. She explained that she had always suspected her daughter of lying about the sexual abuse because (1) A.M.'s friend had previously falsely accused someone of similar acts, and (2) A.M. had stated that Kinsel had black pubic hair when Adrienne knew that he had blonde pubic hair.

Earl Roberts, A.M.'s grandfather, also testified for the defense, corroborating Adrienne's testimony that Kinsel never stayed at his house when A.M. and her family lived with him. He testified that he never saw Kinsel act in a sexually inappropriate manner. Stacey Plaisance, A.M.'s aunt and Adrienne's sister, testified that “[A.M.] just hated [Kinsel] because he made them pick up their mess and mind their mother. [A.M.'s] always been kind of unruly, smart mouth. She just never had no discipline until [Kinsel] come around. She just resented it, I guess.” And Georgette Evans, a friend of A.M., testified that once when she was alone with A.M. she asked why A.M. had said “all that stuff” about Kinsel, and “[A.M.] said ‘Because whenever he met my mom, I didn't think my mom was happy so I said all that stuff ‘cause I never liked him and I wanted my mom to be happy and I didn't think she was happy.’ ”

Finally, Kinsel took the stand and unequivocally denied all of A.M.'s allegations of sexual abuse, threats, and physical violence. He testified about the hours he worked and about the houses where he stayed with A.M.'s family, implying that it was physically impossible for him to have committed the alleged acts without any other adult being in the house and knowing about it.

The jury found Kinsel guilty as charged of aggravated rape, and the trial judge sentenced him to life imprisonment at hard labor without parole. The Louisiana Fifth Circuit Court of Appeal affirmed Kinsel's conviction,¹ and the Louisiana Supreme Court denied relief without opinion on March 28, 2002.² On March 28, 2003, Kinsel filed a state postconviction petition in the Louisiana trial court, which was denied. The Louisiana Fifth Circuit affirmed, and the Louisiana Supreme Court denied Kinsel's appeal without opinion.³ Kinsel then filed a federal habeas corpus petition, which was dismissed with prejudice by the district court on January 5, 2005. His certificate of appealability was denied on March 15, 2006.⁴

In May 2005, when A.M. was eighteen years old and living in Colorado, she contacted Kinsel's attorney's office. Kinsel's attorney told A.M. that she could not speak with her because she represented Kinsel but advised A.M. to contact the Jefferson Parish (Louisiana) district attorney's office. A.M. subsequently moved back from Colorado to New Orleans, and, on October 20, 2005, she made a sworn statement to the district attorney recanting her accusations against Kinsel.

B. Proceedings

On March 14, 2006, Kinsel, acting pro se, filed his second state postconviction petition. His counsel filed a revised petition on Kinsel's behalf on June 1, 2006, asking for his conviction to be vacated or, in the alternative, for a new trial in light of the newly discovered evidence of A.M.'s recantation.

The Louisiana trial court held an evidentiary hearing on October 4, 2006, at which A.M. and others testified. A.M. affirmed her recantation under oath but made misleading statements on cross-examination regarding her recollection and her motivation to make perjured testimony in the first place. The state trial judge concluded:

I'm not sure I believe [A.M.] about whether it happened or not, but I don't know at which time I'm supposed to believe her. So, based on that ... and also based on reviewing the rest of the evidence and the testimony, I find that in no way can one convict absent her testimony. And, therefore, I have nothing else to hang the conviction on than her testimony.

Based on this reasoning, the trial judge granted Kinsel a new trial.

The State appealed the trial court's decision to the Louisiana Fifth Circuit Court of Appeal. With one judge dissenting, the panel majority held that the district court had abused its discretion in granting Kinsel a new trial and therefore reversed the district court's order.⁵ The Louisiana Supreme Court denied Kinsel's appeal without reasons on November 9, 2007.⁶

On April 2, 2008, Kinsel filed his second federal habeas corpus application. The district court transferred the petition under 28 U.S.C. § 1631 to a previous panel of this court to determine whether the successive habeas application should be allowed. We “conclude[d] Kinsel's claim of witness recantation at least warrant[ed] a fuller exploration by the district court” but “note[d] that the district court may dismiss the motion if it determines that this claim does not satisfy the successive standard.” ⁷

Following our authorization, a magistrate judge first issued a report and recommended that the district judge dismiss the petition as untimely because more than one year had passed between the time that A.M. called Kinsel's attorney and Kinsel filed his federal habeas petition (notwithstanding the time that was tolled for his state postconviction proceedings). The district court disagreed, however, finding that the petition was timely because the statute of limitations had not begun to run until A.M. actually recanted under oath. The district court nevertheless dismissed Kinsel's petition, ruling that the Louisiana Fifth Circuit reasonably applied established federal law and reasonably determined the facts in dismissing Kinsel's postconviction petition. The district court did not expressly consider whether Kinsel had satisfied the standard for filing a successive federal habeas application.

Kinsel timely filed a notice of appeal.

II. ANALYSIS

A. Standard of Review

“On appeal from the denial of a § 2254 petition, this court reviews a district court's findings of fact for clear error, and it reviews a district court's conclusions of law de novo, applying the same standard of review to the state court's decision as the district court.” ⁸ Because Kinsel filed his federal habeas application after 1996, the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA)...