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 AM.’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
Earl Roberts, AM.’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
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 warranted] 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 post-conviction 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 dis
(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 AED-PA’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 AED-PA’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 applica
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
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
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
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 post-conviction 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
CONCLUSION
For the foregoing reasons, the district court’s denial of federal habeas relief to Kinsel is AFFIRMED. 33
Notes
.
State v. Kinsel,
. State v. Kinsel, 812 So.2d 641 (La.2002).
.
State v. Kinsel,
. Kinsel v. Cain, No. 05-30170, Order (Mar. 16, 2007).
. State v. Kinsel, 06-KH-858 (La.App.2006).
. State v. Kinsel, 967 So.2d 499 (La.2007).
.(internal quotation marks omitted) (citing
Reyes-Requena v. United States,
.
Robertson v. Cain,
.
Lindh v. Murphy, 521 U.S.
320, 324-26,
. 28 U.S.C. § 2254(d).
.
Cullen v. Pinholster,
- U.S. -,
.
Wiggins v. Smith,
. 28 U.S.C. § 2254(e)(1).
. 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)®, but this exception is inapplicable here.
.
See Brown v. Lensing,
. Id. § 2254(e)(1).
.
See Pippin v. Dretke,
.
See Miller-El v. Cockrell,
. 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,
. To the extent that Kinsel asserts a freestanding actual innocence claim, i.e., that his continued imprisonment itself violates the
.
See, e.g., Durley v. Mayo,
. Kinsel, 06-KH-858, at 5.
. The Louisiana trial court did not make a factual determination on this issue.
.
See Napue v. Illinois,
.
See Ortega v. Duncan,
.
See Schaff v. Snyder,
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....
. Kinsel, 06-KH-858, at 12 (Daley, J„ dissenting) (emphasis added).
. 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.").
. La.Code Crim. Proc. Ann. art. 851(3).
.
See State v. Prudholm,
. La.Code Crim. Proc. Ann. art. 930.3(1).
.
See, e.g., Trevino v. Johnson,
[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).
. 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.