John Kinsel v. Burl Cain, Warden

Filing

PUBLISHED OPINION FILED. [10-30443 Affirmed] Judge: JES , Judge: JLW , Judge: PRO. Mandate pull date is 08/09/2011 [10-30443]

Case: 10-30443

Document: 00511544570

Page: 1

Date Filed: 07/19/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
July 19, 2011

No. 10-30443

Lyle W. Cayce
Clerk

JOHN KINSEL
Petitioner-Appellant Cross-Appellee
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY
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

Case: 10-30443

Document: 00511544570

Page: 2

Date Filed: 07/19/2011

No. 10-30443
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
2

Case: 10-30443

Document: 00511544570

Page: 3

Date Filed: 07/19/2011

No. 10-30443
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.
3

Case: 10-30443

Document: 00511544570

Page: 4

Date Filed: 07/19/2011

No. 10-30443
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.

1

State v. Kinsel, 783 So. 2d 532 (La. App. 2001).

2

State v. Kinsel, 812 So. 2d 641 (La. 2002).

3

State v. Kinsel, 870 So. 2d 267 (La. 2004).

4

Kinsel v. Cain, No. 05-30170, Order (Mar. 16, 2007).

4

Case: 10-30443

Document: 00511544570

Page: 5

Date Filed: 07/19/2011

No. 10-30443
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

5

State v. Kinsel, 06-KH-858 (La. App. 2006).

6

State v. Kinsel, 967 So. 2d 499 (La. 2007).

7

(internal quotation marks omitted) (citing Reyes-Requena v. United States, 243 F.3d
893, 899 (5th Cir. 2001); 28 U.S.C. § 2244(b)(4)).

5

Case: 10-30443

Document: 00511544570

Page: 6

Date Filed: 07/19/2011

No. 10-30443
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) applies to his claims.9 Pursuant to the AEDPA, a federal court
may grant habeas corpus relief to Kinsel only if the state court’s adjudication of
his claims on the merits:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as

8

Robertson v. Cain, 324 F.3d 297, 301 (5th Cir. 2003) (emphasis in original and citation
omitted).
9

Lindh v. Murphy, 521 U.S. 320, 324-26 (1997).

6

Case: 10-30443

Document: 00511544570

Page: 7

Date Filed: 07/19/2011

No. 10-30443
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.10
The Supreme Court has recently made a point to explain that this standard “is
a difficult to meet and highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given the benefit of the
doubt.”11 Specifically, “for a federal court to find a state court’s application of
[Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have
been more than incorrect or erroneous. The state court’s application must have
been ‘objectively unreasonable.’”12 In addition, the AEDPA instructs that “a
determination of a factual issue made by a State court shall be presumed to be
correct.”13
B. Kinsel’s Claim Is Barred by the AEDPA’s Bar on Successive Petitions
The AEDPA bars state prisoners from filing second or successive federal
habeas applications with one relevant exception:
A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless . . . the factual predicate for
the claim could not have been discovered previously through the
exercise of due diligence; and [ ] the facts underlying the claim, if
proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the

10

28 U.S.C. § 2254(d).

11

Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal quotation marks and
citations omitted).
12

13

Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (citations omitted).
28 U.S.C. § 2254(e)(1).

7

Case: 10-30443

Document: 00511544570

Page: 8

Date Filed: 07/19/2011

No. 10-30443
applicant guilty of the underlying offense.14
This actual innocence exception thus allows a petitioner to overcome the
AEDPA’s bar on successive applications and pass through the “gateway” to argue
the merits of his habeas claims if he establishes by clear and convincing evidence
that the outcome of the trial would have been different but for constitutional
error. In the instant case, we granted Kinsel leave to file this successive federal
application, noting that “the district court may dismiss the motion if it
determines that this claim does not satisfy the successive standard.” The district
court, however, failed to analyze whether Kinsel’s claims satisfy the successive
standard and instead dismissed the claims on the merits. This was an error,15
and we must first determine on appeal whether Kinsel has satisfied the AEDPA
standard.
Kinsel asserts in his application that (1) he is “actually innocent of the
crime,” i.e., he did not sexually abuse A.M., as supported by her newly discovered
recantation, and (2) his rights “to a fair trial, due process of law, and his right
to confront his accusers, in violation of the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution” were violated. Although the
newly discovered evidence of A.M.’s recantation does call her trial testimony into
question, the Louisiana trial judge concluded, not that Kinsel was “actually
14

Id. § 2244(b)(2)(B)(ii). The AEDPA provides another exception if the petitioner can
show “that the claim relies on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable,” id.
§ 2244(b)(2)(B)(I), but this exception is inapplicable here.
15

See Brown v. Lensing, 171 F.3d 1031, 1032 (5th Cir. 1999) (“Our authorization for
[petitioner] to file a successive petition is not dispositive of the critical question. . . . [T]he trial
court was obliged by the statute to dismiss [petitioner’s] claim if it did not meet the
requirements of § 2244.”). See also, e.g., Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1357
(11th Cir. 2007) (“[T]he district court not only can, but must, determine for itself whether th[e]
requirements [of § 2244(b)(2)] are met.”); Bennett v. United States, 119 F.3d 468, 470 (7th Cir.
1997) (“[T]he district court must dismiss the motion that we have allowed the applicant to file,
without reaching the merits of the motion, if the court finds that the movant has not satisfied
the requirements for the filing of such a motion.”).

8

Case: 10-30443

Document: 00511544570

Page: 9

Date Filed: 07/19/2011

No. 10-30443
innocent” and should therefore be exonerated because no reasonable juror could
convict him in light of the recantation, but rather that Kinsel was entitled to a
new trial because, if reasonable jurors should believe the recantation, none could
convict “absent her testimony.” In the end, the trial judge stated that he did not
know when to believe A.M.—at trial or at the postconviction evidentiary
hearing—and therefore determined that Kinsel should have a new trial. On
appeal, the Louisiana Fifth Circuit likewise found A.M.’s recantation to be
“unreliable and inconsistent.”
Under the AEDPA, we must presume the correctness of the state court’s
factual finding that A.M.’s recantation lacked credibility,16 recognizing that
credibility determinations in particular are entitled to a strong presumption of
correctness.17 Although Kinsel could have rebutted this presumption,18 he has
not succeeded in doing so.19 We conclude, therefore, that Kinsel’s reliance on
A.M.’s recantation alone does not satisfy his burden under § 2244(b)(2)(B)(ii).20
16

Id. § 2254(e)(1).

17

See Pippin v. Dretke, 434 F.3d 782, 792 (5th Cir. 2005) (“A trial court’s credibility
determinations made on the basis of conflicting evidence are entitled to a strong presumption
of correctness and are virtually unreviewable by the federal courts.” (internal quotation marks
and citations omitted)).
18

See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“A federal court can disagree with
a state court’s credibility determination and, when guided by AEDPA, conclude the decision
was unreasonable or that the factual premise was incorrect by clear and convincing
evidence.”).
19

On this point we think it important to clarify that, although we do not consider state
court credibility determinations when determining whether a petitioner has made a prima
facie showing of his entitlement to bring a successive petition, In re Wilson, 442 F.3d 872, 878
(5th Cir. 2006), such determinations may be relevant when, as here, we are tasked with
determining whether a petitioner has actually satisfied § 2244(b)(2)(B)’s requirements.
20

To the extent that Kinsel asserts a freestanding actual innocence claim, i.e., that his
continued imprisonment itself violates the Eighth Amendment and warrants habeas relief, see
Herrera v. Collins, 506 U.S. 390, 417 (1993), we have repeatedly stated that such claims are
not cognizable in the Fifth Circuit. Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003)
(collecting cases). Moreover, even if we were to consider the merits of that claim, because “the

9

Case: 10-30443

Document: 00511544570

Page: 10

Date Filed: 07/19/2011

No. 10-30443
In addition, we agree with the district court that the Louisiana Fifth
Circuit reasonably determined that Kinsel has not established that errors at
trial violated his rights under the Due Process Clause, the Confrontation Clause,
or the Sixth Amendment.
Initially, Kinsel asserted that the state prosecutor knew that A.M. was
going to perjure her testimony before she testified at trial. If this allegation had
proved to be true, the State would have violated Kinsel’s due process rights, as
articulated by clearly established federal law.21 But, the Louisiana Fifth Circuit
here determined that “the record as a whole does not show the prosecutors either
coerced or knowingly used false testimony from the victim.”22 The court based
this finding on the prosecutors’ testimony that A.M. never informed them that
she was lying, and on A.M.’s own testimony that she did not tell the prosecutors
that she was lying, only that she did not want to testify on the morning of trial:
Q.
You never told [the district attorney] that you were lying
about this defendant Mr. Kinsel representing (sic) you. What you
told him was, I don’t want to do any—I don’t want to do anymore.
I’m tired, I’m scared, I want to go home? Is that right?
A. Yes—yes.
The Louisiana Fifth Circuit’s factual finding that the prosecutors did not know
that A.M. was lying,23 therefore, is reasonable if for no reason other than by
A.M.’s own testimony.

threshold showing for such an assumed right would necessarily be extraordinarily high,”
Herrera, 506 U.S. at 417, Kinsel would not be able to meet it for the same reasons he cannot
meet the lesser AEDPA standard, i.e., recantations are suspect and A.M. is not a credible
witness. See House v. Bell, 547 U.S. 518, 554-55 (2006).
21

See, e.g., Durley v. Mayo, 351 U.S. 277, 290-91 (1956) (“It is well settled that to obtain
a conviction by the use of testimony known by the prosecution to be perjured offends due
process.”).
22

Kinsel, 06-KH-858, at 5.

23

The Louisiana trial court did not make a factual determination on this issue.

10

Case: 10-30443

Document: 00511544570

Page: 11

Date Filed: 07/19/2011

No. 10-30443
The Supreme Court has held that the Due Process Clause is violated when
the government knowingly uses perjured testimony to obtain a conviction.24
Although some circuits recognize a due process violation when perjured
testimony is provided by a government witness even without the government’s
knowledge,25 we are limited by the AEDPA to applying only established Supreme
Court precedent in our review of a state court’s reasonableness.26 Consequently,
given the Louisiana Fifth Circuit’s reasonable factual finding that the
prosecutors did not know that A.M. was lying at trial, we cannot say that the
state court unreasonably applied established federal law in determining that
Kinsel’s due process rights were thus not violated.
Kinsel never explains how his Confrontation Clause rights were violated
at trial, as his attorney did have an opportunity to cross-examine A.M. Neither
does Kinsel provide any analysis of how his Sixth Amendment right to a fair
trial was violated by A.M.’s perjured testimony. Although the perjury may have

24

See Napue v. Illinois, 360 U.S. 264, 269 (1959). See also Creel v. Johnson, 162 F.3d
385, 391 (5th Cir. 1998) (“A state denies a criminal defendant due process when it knowingly
uses perjured testimony at trial or allows untrue testimony to go uncorrected. The defendant
must show that (1) the testimony was false, (2) the state knew it was false, and (3) the
testimony was material.” (internal citations omitted)).
25

See Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir. 2003) (“[W]hen false testimony is
provided by a government witness without the prosecution’s knowledge, due process is violated
only if the testimony was material and the court is left with a firm belief that but for the
perjured testimony, the defendant would most likely not have been convicted.” (internal
quotation marks omitted)). But see United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980)
(“[F]or perjury by a witness to constitute grounds for relief appellant would have to show that
the Government knowingly used the perjured testimony.”).
26

See Schaff v. Snyder, 190 F.3d 513, 530 (7th Cir. 1999):

A habeas petitioner must support his claim with a Supreme Court decision that
clearly establishes the proposition essential to his position. The clearly
established Supreme Court precedent demands proof that the prosecution made
knowing use of perjured testimony. [Petitioner] has admitted that, in this case,
the prosecution did not; as a consequence, he cannot make a substantial
showing of the denial of his right to due process . . . .

11

Case: 10-30443

Document: 00511544570

Page: 12

Date Filed: 07/19/2011

No. 10-30443
made the trial “unfair,” the Supreme Court has never held that perjured
testimony alone violates a defendant’s Sixth Amendment right to a fair trial.
In sum, Kinsel has not established by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would have found him
guilty of the underlying offense. In fact, Kinsel ultimately does not allege a
constitutional error at all given that the prosecutors did not knowingly present
false testimony at his trial. His successive federal application is therefore barred
by the AEDPA (and would fail on the merits even if it were not barred).
C. Kinsel’s Due Process Claim
Beyond our limited review of his habeas claims under the AEDPA and
apart from his assertion of actual innocence, Kinsel contends that the Louisiana
appellate court violated his due process rights during his state postconviction
proceedings. He asserts that the Louisiana Fifth Circuit deprived him of due
process by refusing to give deference to the trial court’s credibility
determinations and by denying him the opportunity to present A.M.’s
recantation to a jury. The dissenting Louisiana Fifth Circuit judge aptly summed
up the constitutional error allegedly made by the majority:
In the instant case, the trial judge found that the recanted
testimony would materially affect the jury verdict. The trial judge
evaluated the credibility of the recanting witness and struggled to
determine which testimony, the trial testimony or the testimony
during the Motion for New Trial, was truthful. In ruling the trial
judge stated, “I’m not sure I believe her about whether it happened
or not . . .” concluding, “I find that in no way can one convict absent
her testimony.”
Given the vast discretion afforded the trial court in evaluating
evidence and ascertaining whether a new trial is warranted, I find
in this case, where the victim of the crime, upon whose testimony
the guilty verdict rests, recants that testimony, the trial court has
a valid legal basis to grant a new trial.27

27

Kinsel, 06-KH-858, at 12 (Daley, J., dissenting) (emphasis added).

12

Case: 10-30443

Document: 00511544570

Page: 13

Date Filed: 07/19/2011

No. 10-30443
Undeniably, the trial court (along with the dissenting judge) and the
appellate court hold Kinsel’s postconviction petition to different standards: The
trial court granted Kinsel a new trial based on its determination that A.M.’s
recantation undermined her trial testimony without which no reasonable juror
could have convicted Kinsel. The appellate court, in contrast, focused on the fact
that Kinsel did not “establish[] a due process violation so as to make his postconviction claim cognizable under [the Louisiana postconviction statute].”
The differing approaches could stem from the fact that the trial court and
the dissenting appellate judge treat Kinsel’s postconviction petition as a motion
for a new trial,28 for which Louisiana law only requires the movant to show that
“if the evidence had been introduced at the trial[,] it would probably have
changed the verdict or judgment of guilty.”29 If this standard were applicable to
Kinsel’s postconviction petition requesting a new trial, then the Louisiana Fifth
Circuit might well have erred in reversing the trial court’s decision.30 But, if the
Louisiana Fifth Circuit were correct that Kinsel must first show that his
“conviction was obtained in violation of the constitution of the United States or
the state of Louisiana”31—regardless of his request for a new trial in the
alternative to exoneration—then that court did not err in concluding that Kinsel
failed to establish that a constitutional violation occurred at his trial.

28

Both the trial court and the appellate dissent refer to Kinsel’s petition as a motion
for a new trial. See State R. at 167 (“I feel I have no other decision to make other than to grant
your motion for a new trial.”); Kinsel, 06-KH-858, at 12 (Daley, J., dissenting) (“The trial judge
evaluated the credibility of the recanting witness and struggled to determine which testimony,
the trial testimony or the testimony during the Motion for New Trial, was truthful.”).
29

LA. CODE CRIM. PROC. ANN. art 851(3).

30

See State v. Prudholm, 446 So.2d 729, 735 (La. 1984) (“The application of [motion for
a new trial] precepts to newly discovered evidence by the trial judge, although a question of
law, is entitled to great weight, and his discretion should not be disturbed on review if a
reasonable man could differ as to the propriety of the trial court’s action.” (emphasis added)).
31

LA. CODE CRIM. PROC. ANN. art 930.3(1).

13

Case: 10-30443

Document: 00511544570

Page: 14

Date Filed: 07/19/2011

No. 10-30443
The bottom line is that the proper court to review whether the Louisiana
Fifth Circuit deprived Kinsel of due process during his postconviction
proceedings was either the Louisiana Supreme Court, which dismissed Kinsel’s
direct appeal of the decision, or the U.S. Supreme Court, to which Kinsel never
petitioned for certiorari review of his state postconviction proceedings. We, as a
federal appeals court entertaining a federal habeas corpus application, are
without jurisdiction to review the constitutionality of Kinsel’s state
postconviction proceedings. Indeed, we are barred from doing so by our “no state
habeas infirmities” rule.32 It is beyond regrettable that a possibly innocent man
will not receive a new trial in the face of the preposterously unreliable testimony
of the victim and sole eyewitness to the crime for which he was convicted. But,
our hands are tied by the AEDPA, preventing our review of Kinsel’s attack on
his Louisiana postconviction proceedings, so we dutifully dismiss his claim.
CONCLUSION
For the foregoing reasons, the district court’s denial of federal habeas relief
to Kinsel is AFFIRMED.33

32

See, e.g., Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999) (“[The petitioner]
argues that he was denied due process in his state habeas proceeding . . . . Our circuit
precedent makes clear that [the petitioner’s] claim fails because infirmities in state habeas
proceedings do not constitute grounds for relief in federal court.” (internal quotation marks
and citations omitted)); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995):
[E]rrors in a state habeas proceeding cannot serve as a basis for setting aside
a valid original conviction. An attack on a state habeas proceeding does not
entitle the petitioner to habeas relief in respect to his conviction, as it is an
attack on a proceeding collateral to the detention and not the detention itself.
(internal quotation marks and citation omitted).
33

Because we determine that Kinsel’s successive habeas application is barred by the
AEDPA, we need not reach the issue whether his application was timely.

14