United States District Court, D. Minnesota
Kindred, pro se
Matthew Frank, James B. Early, Peter R. Marker, for
Respondent Jeff Titus
REPORT AND RECOMMENDATION
BOWBEER UNITED STATES MAGISTRATE JUDGE.
Kindred filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 challenging a judgment entered
against him in Minnesota state court. (Pet. Writ Habeas
Corpus [Doc. No. 1].) Respondent Jeff Titus moved to dismiss
the petition, asserting that Kindred's claims are
procedurally defaulted because they were not fairly presented
to each level of the state courts and no state court remedy
remains. (Resp't's Mem. Supp. Mot. Dismiss [Doc. No.
7].) For the reasons set forth below, the Court recommends
that the motion to dismiss be granted and the petition for a
writ of habeas corpus be denied.
December 11, 2013, Kindred was charged with two counts of
first-degree criminal sexual conduct under Minn. Stat. §
609.342, subd. 1(h)(iii). State v. Kindred, No.
A14-2212, 2016 WL 22239, at *2 (Minn.Ct.App. Jan. 4, 2016).
The charges alleged that Kindred engaged in numerous sexual
acts with the daughters of his son's girlfriend.
(Resp't's App. to Mem. Supp. at 9 [Doc. No. 8-1].)
Both girls were minors. (Id.) From a young age, the
victims regularly spent time with Kindred; he would babysit
them while their mother was working and they occasionally
stayed overnight at his house. (Id.) Further, the
victims referred to Kindred as “Grandpa” even
though he was not related to the children by blood, marriage
or adoption. (Id.) At trial, the victims testified
regarding the various sexual acts that Kindred had subjected
them to over the course of the past decade as well as the
circumstances under which the acts took place. (Id.
at 9-11.) The State also played a video for the jurors of an
interview of one of the victims conducted by a nurse at the
Midwest Children's Resource Center describing in detail
the sexual conduct that took place with Kindred.
(Id. at 11.) Near the end of the trial and at the
jurors' request, the court allowed the State to replay
the video of the victim interview. (Id.) Based on
victim testimony, the video of the interview, and other
evidence presented at trial, the Ramsey County jury convicted
Kindred of both counts first-degree criminal sexual conduct.
(Id. at 5.) The court later sentenced him to a
24-year prison term which he is currently serving at the Rush
City Correction Facility where Jeff Titus serves as warden.
(Id. at 4; see also Resp't's Mem.
Supp. Mot. Dismiss [Doc. No. 7].)
directly appealed and argued, inter alia, that the
State failed to prove beyond a reasonable doubt that he had a
“significant relationship” to the victims,
i.e. that he was related to or resided in the same
dwelling as them. State v. Kindred, No. A14-2212,
2016 WL 22239, at *1 (Minn.Ct.App. Jan. 4, 2016). A sexual
assailant who victimizes a child with whom he has a
“significant relationship” in the manner
described by the statute is guilty of the most serious
category of sex crime and subject to the steepest penalties.
Minn. Stat. § 609.342, subd. 1(h)(iii). A
“significant relationship” exists if the accused
is related to or “jointly resides intermittently or
regularly in the same dwelling” as the victimized
child.” Minn. Stat. § 609.341, subd.
Arguing before the Minnesota Court of Appeals, Kindred
asserted the State was unable to show he had a significant
relationship to the victims because it failed to prove beyond
a reasonable doubt that he resided with them.
Kindred, 2016 WL 22239, at *2. In particular,
Kindred asserted the State was only able to show the victims
“sometimes” stayed over at his house which,
Kindred argued, was insufficient to show that the victims
“reside[d] intermittently or regularly in the same
dwelling” as required by the statute. Id. The
Minnesota Court of Appeals disagreed and upheld the
conviction. In particular, the Minnesota Court of Appeals
noted that state court precedent treats discontinuous
overnight stays as sufficient to meet the “resided
with” requirement for a finding of a significant
relationship. Id. at *3-6. Kindred appealed to the
Minnesota Supreme Court, and the Court declined to review on
March 15, 2016. (Resp't's Mem. Supp. Mot. Dismiss at
7 [Doc. No. 7].)
petition, Kindred seeks federal habeas corpus relief pursuant
to 28 U.S.C. § 2254. (Pet. at 1.) Under that provision
of the federal habeas statutes, the district court
“shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254. Kindred
asserts four grounds for relief. In Grounds One and Two,
Kindred argues that his constitutional right to due process
was violated because the State failed to show he had a
significant relationship with the victims, which is an
essential element for conviction under Minn. Stat. §
609.342, subd. 2. (Pet. at 6-8.) In Ground Three, Kindred
argues the trial court violated his right to due process when
it replayed the video of a victim's interview with the
Midwest Children's Resource Center. (Pet. at 9-10.) In
Ground Four, Kindred asserts he was denied due process by the
inadequate medical examinations of the victims. (Pet. at 11.)
Lastly, in Ground Five, Kindred asserts his conviction was
improper due to various evidentiary shortcomings which, if
properly addressed, would have tended to prove his innocence.
(Pet. at 11.)
of habeas corpus enables a prisoner to appear before the
court to challenge the legality of his confinement and, if
successful, obtain his release. Preiser v.
Rodriguez, 411 U.S. 475, 485 (1973) (“[T]he writ
of habeas corpus [is] a remedy . . . from any confinement
contrary to the Constitution or fundamental law.”). The
right to petition for habeas relief is a foundational legal
principal in the American system, see U.S. Const.
art. 1 § 9, and has been recognized as “an
integral part of our common-law heritage.”
Preiser, 411 U.S. at 485. However, the right is not
absolute and has been shaped by common law doctrine and
federal statutes. See 28 U.S.C. §§
2241-2255; see also, e.g., Antiterrorism and
Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.
limitation on the right to habeas review is the exhaustion
principle. 28 U.S.C. § 2554(b). Federal courts may
entertain a habeas petition brought by a state prisoner only
if the prisoner has exhausted all available state court
remedies relating to those claims. O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). A claim is exhausted
when the petitioner “has afforded the highest state
court a fair opportunity to rule on the factual and
theoretical substance of his claim.” Ashker v.
Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993). The highest
state court is afforded that opportunity only when the
petitioner invokes “a specific federal constitutional
right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent
federal constitutional issue in a claim before the state
courts.” McCall v. Benson, 114 F.3d 754, 757
(8th Cir. 1997) (quotation and quotation marks omitted). If
unexhausted claims are presented in a habeas petition, and
state court remedies remain available with respect to those
claims, the federal court may either dismiss the claims
without prejudice or stay the proceedings to allow for the
petitioner to attempt to obtain the state court remedies.
Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir.
limitation on the right to habeas review is the procedural
default principle. In general, federal courts may not hear
habeas petitions where the claims have been procedurally
defaulted. Coleman v. Thompson, 501 U.S. 722, 750
(1991). A claim is procedurally defaulted when a habeas
petitioner failed to raise it before the state courts, and
the state courts can no longer review it at that point
because an “independent and adequate state procedural
rule” precludes further litigation of the claim.
Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). In
other words, procedural default occurs when a state
petitioner raises an unexhausted claim in his federal habeas
petition but, due to a procedural rule, has missed the window
to go back and exhaust the claim. In that situation, the
Court then must typically dismiss the defaulted claim with
prejudice. Armstrong, 418 F.3d at 927 (indicating
that procedural default “prevents federal habeas corpus
review of the defaulted claim”).
claim is procedurally defaulted on federal habeas review, a
federal court may hear the petition only under two limited
circumstances: (1) if the petitioner can demonstrate cause
for the procedural default and actual prejudice resulting
from the alleged violation of federal law; or (2) if the
court's failure to consider the claim will result in a
fundamental miscarriage of justice. See McCall, 114
F.3d at 758 (citing Coleman, 501 U.S. at 750). To
establish cause for the default, a petitioner generally must
“show that some objective factor external to the
defense impeded counsel's efforts to comply with the
State's procedural rule.” Murray v.
Carrier, 477 U.S. 478, 488 (1986). To establish
prejudice, the petitioner “must show that the errors of
which he complains ‘worked to his actual and
substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.'” Ivy v.
Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999) (quoting
United States v. Frady, 456 U.S. 152, 170 (1982))
(emphasis in Ivy omitted). A court need not consider
prejudice unless the petitioner demonstrates cause.
McCall, 114 F.3d at 758. The second
exception-miscarriage of justice-is available only when the
petitioner establishes that a constitutional violation likely
caused the conviction of an innocent person. Id.
(quoting Brownlow v. Groose, 66 F.3d 997, 999 (8th
Cir. 1995)). If neither exception applies, the procedural
default cannot be excused, and the court should deny the
petition without reaching the merits of the claims. See
Carney v. Fabian, 441 F.Supp.2d 1014, 1029 (D. Minn.
Motion to Dismiss
these principles to the present case, the Court finds that
each of Kindred's claims for habeas relief has been
procedurally defaulted. Under Minnesota state law, an
appellant in a criminal conviction has one opportunity to
raise grounds for reversal on direct appeal. State v.
Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). If an
appellant fails to raise a known ground for reversal, it
“will not be considered upon a subsequent petition for
postconviction relief.” Id. Additionally, when
the Knaffla rule would bar an individual from
raising his claims in state court because he did not raise
them previously on direct appeal, those claims are
procedurally defaulted in federal court. Buckingham v.
Symmes, 11-cv-2489 (PJS/SER), 2012 WL 3611893, at *2 (D.
Minn. Aug. 21, 2012) (citing McCall, 114 F.3d at
757-58). However, the Minnesota Supreme Court has carved out
two limited exceptions to the Knaffla rule: a party
may re-raise an issue on appeal if “(1) the claim is
novel or (2) the interests of fairness and justice warrant
relief.” Andersen v. State, 830 N.W.2d 1, 8
(Minn. 2013). Here, Kindred has procedurally defaulted on
each of his claims, either by failing to raise it on direct
appeal or by failing to raise it in his petition for review
to the Minnesota Supreme Court.
Significant Relationship by Blood, ...