Kuhns v. S Ecret Ary Dep't Of Corr., Case No. 2:08-cv-163-FtM-29SPC

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtJOHN E. STEELE
PartiesRICHARD D. KUHNS, Petitioner, v. S ECRET ARY DEPARTMENT OF CORRECTIONS; ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.
Decision Date21 March 2011
Docket NumberCase No. 2:08-cv-163-FtM-29SPC

RICHARD D. KUHNS, Petitioner,
v.
S ECRET ARY DEPARTMENT OF CORRECTIONS; ATTORNEY
GENERAL, STATE OF FLORIDA, Respondents.

Case No. 2:08-cv-163-FtM-29SPC

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

Dated: March 21, 2011


OPINION AND ORDER

Petitioner Richard D. Kuhns, Sr. (hereinafter "Kuhns" or "Petitioner") initiated this action by filing a Petition for Writ of Habeas Corpus (Doc. #2, Petition) pursuant to 28 U.S.C. § 2254, on February 13, 20081 challenging his judgment of conviction entered October 24, 2002, by the Twentieth Judicial Circuit Court in Collier County, Florida for: Count I-battery;2 Count II-

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lewd assault on a child under the age of 16 years; and, Count III-lewd act committed in the presence of a child. Petition at 1.3The Petition sets forth the following five grounds for relief:

Ground 1

Petitioner was denied his U.S. Constitutional rights against double jeopardy, to due process, a fair trial, and equal protection of law when the trial court denied Petitioner's motion for a statement of particulars, where the information charged a time frame of almost two years and testimony alleged the acts occurred both inside and outside the jurisdiction of the trial court.

Ground 2

Petitioner was denied his U.S. Constitutional rights to due process, a fair trial, and equal protection of law when the trial court allowed child hearsay statements made to the child's mother and to the child protection team worker to come into trial.

Ground 3

Petitioner was denied his U.S. Constitutional rights to cross-examine witnesses, due process, a fair trial, and equal protection of law when the trial court prohibited the defense from impeaching the credibility of the petitioner's ex-wife and her statements to the alleged child victim's mother.

Ground 4

Petitioner was denied his U.S. Constitutional rights to due process, a fair trial, and equal protection of law when the trial court denied Petitioner's motion for a new trial and for arrest of judgment because evidence of collateral crimes outside the court's jurisdiction [was] introduced and there is a reasonable probability the jury

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found Petitioner guilty on the basis of committing those crimes.

Ground 5

Petitioner was denied his U.S. Constitutional rights to effective assistance of counsel where counsel failed to properly object to child hearsay testimony.

Petition at 4-13. The Respondent filed an amended Response (Doc. #20, Response) in opposition to the Petition and submitted supporting exhibits in paper format (Doc. #11), consisting of the record on direct appeal, the trial transcript, and the post-conviction pleadings.4 Petitioner filed a Reply (Doc. #24, Reply). This matter is ripe for review.

I. Procedural History

On August 31, 2001, Kuhns was charged in a three-count Information as follows:

1. Between January 1, 1998 and December 31, 1999 in Collier County Florida, being eighteen years or older, did unlawfully commit a sexual battery upon T.L., 5 a child less than 12 years of age, by putting the child's penis inside or in union with his mouth, contrary to Florida Statute 794.011(2)[;]

2. Between January 1, 1998 and September 30, 1999 in Collier County Florida, did unlawfully handle, fondle, or make an assault upon T.L., a child under the age of 16

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years, in a lewd, lascivious or an indecent manner, by touching the child's penis with his hand, contrary to Florida Statute 800.04(1)[;]

3. Between January 1, 1998 and September 30, 1999 in Collier County Florida, did unlawfully and knowingly commit a lewd or lascivious act in the presence of T.L., a child under the age of 16 years, by exposing and masturbating his penis, contrary to Florida Statute 800.04(4).

Appx. A, Exh. 1 at 20-21. On August 6, 2002, the State filed a "Notice of Intent to Introduce Child's Hearsay Statement" and "William's Rule Notice."6 Id. at 32-33, 34-35. On August 27, 2002, Kuhns filed a "Motion for Statement of Particulars, " "Motion to Exclude Child Hearsay Statement, " and, "Motion to Exclude William's Rule Evidence." Id. at 36-37, 38-40, 41-43. On September 4, 2002, Kuhns filed a "Motion to Dismiss Counts II and III for Double Jeopardy." Id. at 44-45. On September 10, 2002, the court held a pretrial evidentiary hearing on the pending motions. Id. at 46-48; Appx. F (transcript of hearing). At the conclusion of the hearing, the court denied Kuhns' Motion to Exclude Child Hearsay and Motion for Particulars, and granted

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Kuhns' Motion to Exclude Williams Rule Evidence as to victims M.S, J.S. and C.H. Appx. A, Exh. 1, 48; Appx. F, 373-374, 392-396. On September 11, 2002, prior to the start of trial, the court denied Kuhns' Motion to Dismiss Counts II and III for Double Jeopardy. Appx. G, 9. On September 12, 2002, the jury returned a verdict finding Kuhns guilty on Count I of the lesser included offense of Battery; guilty on Count II as charged of Lewd and Lascivious Assault on a Child under 16; and, guilty on Count III of the lesser included offense of Committing an Unnatural and Lascivious Act. Appx. A, Exh. 2.

A. Motion for a New Trial

On September 18, 2002, Petitioner filed a Motion for New Trial and for Arrest of Judgment. Appx. A, Exh. 3. Kuhns raised the following grounds in support: 1) the verdict on Counts I, II and III were against the greater weight of the evidence; 2) the trial court erred in denying Petitioner's pretrial motion for particulars; 3) the trial court erred in prohibiting cross examination of the victim's mother with regard to the potential bias of Petitioner's ex-wife; and; 4) the jury could have convicted Petitioner of alleged criminal activity occurring outside the territorial jurisdiction of the court, which constituted fundamental error because Defendant may have been convicted for crimes outside the court's jurisdiction and for which Petitioner was never charged. Id. On September 23, 2002, the trial court

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entered an order denying Petitioner's Motion for New Trial and Arrest of Judgment. Id., Exh. 4. On October 24, 2002, the State court sentenced Petitioner to 84.5 months in prison, followed by seven years of probation. Id., Exh. 5.7

B. Direct Appeal

On November 14, 2002, Kuhns filed a direct appeal. Id., Exh. 6. Kuhns raised the following four grounds on appeal:

1. Whether the trial court erred in denying Defendant's Motion for Statement of Particulars when the information charged a time frame of almost two years and testimony alleged the acts occurred both inside and outside of the jurisdiction of the court.

2. Whether the trial court erred in evaluating and admitting child hearsay statements made to the child's mother and to the child protection team worker, which did not include age appropriate language and should have been deemed unreliable.

3. Whether the trial court erred in limiting the Defendant's right to cross examine the witnesses against him when the court prohibited the defense counsel from impeaching the credibility of the Defendant's ex-wife and her statements to the child victim's mother.

4. Whether the trial court erred in denying the Defendant's Motion for a New Trial and for Arrest of Judgment because evidence of collateral crimes committed outside the court's jurisdiction were introduced and the jury could have found the Defendant guilty of committing those crimes.

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Appx. B, Exh. 5. The State filed an Answer Brief. Appx. D, Exh. 1. On September 26, 2003, the appellate court affirmed Petitioner's conviction and sentence without a written opinion. Kuhns v. State, 860 So. 2d 420 (Fla. 2nd DCA 2003); Appx. D, Exh. 2.

C. Rule 3.850 Motion

Thereafter, on September 22, 2004, Petitioner, represented by counsel, filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 raising four grounds of ineffective assistance of counsel. Appx. B, Exh. 1. The State filed a response. Id., Exh. 2. The post-conviction court summarily denied Petitioner's third claim and granted Petitioner an evidentiary hearing on claims 1, 2, and 4. Id., Exh. 3. At the evidentiary hearing, Petitioner, represented by counsel, agreed to abandon claim 2, deemed claim 4 moot, and proceed only as to claim 1: that trial counsel was ineffective in failing to properly object to the sufficiency of the evidence used by the trial court in its determination of the reliability of the child hearsay statements that were admitted at trial. Appx. C (transcript of January 3, 2006 evidentiary hearing). On June 5, 2006, the post-conviction court denied Petitioner relief on this final claim for relief. Appx. B, Exh. 4.

Petitioner, represented by counsel, filed an appeal of the post-conviction court's June 5, 2006 order. Appx. D, Exh. 4. The

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State filed an answer brief. Id., Exh. 5. On November 2, 2007, the appellate court affirmed the post-conviction court's June 5, 2006 order without opinion. Kuhns v. State, 968 So. 2d 567 (Fla. 2nd...

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