For folks who really still think the system of justice works for the innoenct: read how in Kinsel v Cain, the 5th Circuit Court of Appeals laments that it can't let his man go, despite clear evidence that he was wrongfully convicted. And they identify the law that's at the heart of so many problems - the Anti-Terrorism and Effective Death Penalty Act of 1996 (thanks Clinton, you jerk).
So we all know this man is innocent and that the state, citing its rules of order, plans to let him die in prison anyway. That's sick - and unacceptable that it's being done in the name of our public safety. This is a system which serves itself, not justice or the People. It's played by lawyers and judges like it's a game, only they aren't the ones who ultimately pay if they lose...witness the execution of Troy Davis, for example.
Screw the AEDPA and please hit this petition to free Courtney Bisbee,
who has been in prison for 6 years already on maliciously fabricated charges...
------------------
JOHN KINSEL Petitioner–Appellant Cross–Appellee v. BURL CAIN,
WARDEN, LOUISIANA STATE PENITENTIARY Respondent–Appellee Cross–Appellant
No. 10–30443 -- July 19, 2011
Before SMITH, WIENER, and OWEN, Circuit Judges.
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) 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 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 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 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
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.
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 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
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 post-conviction claim cognizable
under [the Louisiana ]
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.
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
FOOTNOTES
1. FN1. State v. Kinsel, 783 So.2d 532 (La.App.2001).
2. FN2. State v. Kinsel, 812 So.2d 641 (La.2002).
3. FN3. State v. Kinsel, 870 So.2d 267 (La.2004).
4. FN4. Kinsel v. Cain, No. 05–30170, Order (Mar. 16, 2007).
5. FN5. State v. Kinsel, 06–KH–858 (La.App.2006).
6. FN6. State v. Kinsel, 967 So.2d 499 (La.2007).
7. FN7.
(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)).
8. FN8. Robertson v. Cain, 324 F.3d 297, 301 (5th Cir.2003) (emphasis in original and citation omitted).
9. FN9. Lindh v. Murphy, 521 U.S. 320, 324–26 (1997).
10. FN10. 28 U.S.C. § 2254(d).
11. FN11. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (internal quotation marks and citations omitted).
12. FN12. Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (citations omitted).
13. FN13. 28 U.S.C. § 2254(e)(1).
14. FN14.
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. FN15.
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.”).
16. FN16. Id. § 2254(e)(1).
17. FN17.
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. FN18.
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. FN19.
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. FN20.
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 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. FN21.
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. FN22. Kinsel, 06–KH–858, at 5.
23. FN23. The Louisiana trial court did not make a factual determination on this issue.
24. FN24.
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. FN25.
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. FN26.
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․
27. FN27. Kinsel, 06–KH–858, at 12 (Daley, J., dissenting) (emphasis added).
28. FN28.
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. FN29. La.Code Crim. Proc. Ann. art 851(3).
30. FN30.
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. FN31. La.Code Crim. Proc. Ann. art 930.3(1).
32. FN32.
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. FN33.
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.
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