United States District Court, W.D. Washington, Seattle
JEFFERY M. KINZLE, Petitioner,
MIKE OBENLAND, Respondent.
REPORT AND RECOMMENDATION
MICHELLE L. PETERSON, UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION AND SUMMARY CONCLUSION
Jeffery Kinzle is a Washington prisoner who is currently
confined at the Monroe Correctional Complex - Washington
State Reformatory Unit. He seeks relief under 28 U.S.C.
§ 2254 from three Snohomish County Superior Court
judgments. The operative petition in this action is
Petitioner's third amended petition filed on September
25, 2018. (Dkt. # 60.) Respondent has filed an answer to
Petitioner's third amended petition (dkt. # 66),
Petitioner has filed a response to Respondent's answer
(dkt. # 71), and Respondent has filed a reply to
Petitioner's response (dkt. # 77). Respondent has also
submitted the portions of the state court record he deems
relevant to review of the petition. (See Dkt. ## 19,
45, 67.) Petitioner has submitted additional portions of the
state court record for review, as well as exhibits in support
of his third amended petition. (See Dkt. ## 33, 61.)
Court, having carefully reviewed Petitioner's third
amended petition, all briefing of the parties relating to
that petition, and the balance of the record, concludes that
Petitioner's third amended petition should be denied and
this action should be dismissed with prejudice.
seeks to challenge three separate judgments of the Snohomish
County Superior Court, those filed under cause numbers
11-1-0617-9, 11-1-00709-4, and 11-1-00710-8.
Cause No. 11-1-0617-9
cause number 11-1-0617-9, Petitioner was convicted, following
a guilty plea, of one count of failing to register as a sex
offender, and was sentenced to 90 days confinement on that
charge. (See Dkt. # 21, Ex. 28.)
Cause No. 11-1-00709-4
cause number 11-1-00709-4, Petitioner was convicted,
following a jury trial, of one count of indecent liberties by
forcible compulsion, and was sentenced under RCW 9.94A.507 to
an indeterminate sentence with a minimum term of 102 months
imprisonment and a maximum term of life. (See id.,
Cause No. 11-1-00710-8
cause number 11-1-00710-8, Petitioner was convicted,
following a jury trial, of two counts of first degree child
molestation, and was sentenced under RCW 9.94A.507 to an
indeterminate sentence with a minimum term of 198 months
imprisonment and a maximum term of life. (See id.,
Ex. 29.) One of the two counts of child molestation was
reversed on appeal, and the case was remanded to the superior
court. See State v. Kinzle, 181 Wn.App. 774 (2014).
Petitioner was thereafter resentenced on the surviving count
to an indeterminate sentence with a minimum term of 171
months imprisonment and a maximum term of life. (See
Dkt. # 33, Ex. 31.) Petitioner was ordered to serve this
sentence consecutive to the sentence imposed in cause number
11-1-00709-4. (See id.)
Failure to Register as a Sex Offender (Cause No.
in his guilty plea statement in cause no. 11-1-00617-9,
stated the facts underlying his failure to register charge as
On or about Feb. 4, 2000, in Snohomish Co, WA, I was
convicted of a sex offense requiring registration and did, on
March 13, 2011, knowingly fail to register with the Snohomish
County Sheriff while I was a resident of Snohomish County.
(Id., Ex. 48 at 7.)
Indecent Liberties (Cause No. 11-1-00709-4)
Washington Court of Appeals, on direct appeal of
Petitioner's conviction under cause number 11-1-00709-4,
summarized the facts relevant to Petitioner's indecent
liberties conviction as follows:
On March 13, 2011, the complaining witness was working alone
in a small grocery store when two males, whom she had not
seen before, entered the store. At that time, there were no
other customers in the store. One of the men, Jeffrey Kinzle,
asked her to show him where to find the cans of
jalapeño peppers. As she led the men toward the canned
food area, Kinzle grabbed her buttocks. She asked Kinzle what
was going on, and he responded with laughter. The complaining
witness told him to pay for the jalapeños and leave
the store. She and Kinzle walked to the cash register.
Shortly afterward, the other man, Nathan Wood, asked the
complaining witness to show him where the chipotle peppers
were located. As she neared that area of the store, Kinzle
grabbed her from behind and took her to the canned food area.
He held her around the waist, squeezed her buttocks and
breast, pulled on her clothing, kissed her neck, and rubbed
his penis against her. As she tried to resist, she ended up
face-to-face with Kinzle. She tried to push him away and
yelled in Spanish for him to let her go. During the incident,
Wood remained in a separate area of the aisle and did not
observe what took place. After Wood heard the complaining
witness scream, “like [Kinzle] was attacking her,
” Wood saw Kinzle run out of the store. The complaining
witness ran out of the store and yelled for help. A bystander
helped her call the police.
When the police arrived, Wood told them that Kinzle, his
roommate, attacked the complaining witness. Wood escorted the
police to their apartment. The police questioned Kinzle,
arrested him, and transported him to the store. After viewing
Kinzle outside the store, the complaining witness said that
she was confused and did not know whether he was the person
who attacked her.
The State charged Kinzle with indecent liberties by forcible
compulsion. Before trial, Kinzle moved to substitute counsel.
After two hearings on the matter in July 2011, the court
denied the motion.
In August 2011, the State moved to clarify a potential
conflict of interest between Kinzle and his attorney. The
State received information that Kinzle threatened his
attorney and threatened to blow up government buildings and
to kill various people, including the president, police
officers, and corrections deputies. In its motion, the State
cautioned, “The State has also considered that the
Defendant may be deliberately manufacturing a situation that
would compel replacement of his attorney.” Kinzle's
attorney expressed confidence in her ability to continue
representing him. On October 31, 2011, during motions in
limine, the court raised the issue presented in the
State's earlier motion. After a colloquy with Kinzle and
his attorney, the court decided that Kinzle's attorney
would continue to represent him.
Kinzle did not testify at trial. The complaining witness
testified through an interpreter. She testified that when
Kinzle entered the store, he had brown hair and blue eyes and
wore a hat, blue pants, a jacket, brown shoes, and a red or
burgundy sweatshirt. He also had “a little bit of a
beard.” When the police brought Kinzle to the store
later that evening, he was clean-shaven. Her testimony
included details that she did not reveal to police during
earlier interviews. At trial, she stated that Kinzle asked
her if she wanted to feel his penis, that his fly was down
during the incident, and that she could feel that he had an
erection when he rubbed himself against her.
Wood testified that Kinzle did not appear differently when he
was arrested than he appeared at the time of the incident.
Michael Flavin, Kinzle's other roommate, testified that
before police arrived at the apartment, Kinzle shaved and
removed his hat and a gray fleece jacket that had dark
sleeves and put on a sweatshirt. Brent Vannoy, who was in
jail with Kinzle, also testified for the State. He told the
court that Kinzle planned to “beat his charge”
by shaving after the incident and by acting “crazy and
stuff for the Court so they thought he was looney and get
away with what he did.”
A jury convicted Kinzle as charged. He had an offender score
of five, a total standard range of 77-102 months, and a
maximum life term. The court sentenced Kinzle to an
indeterminate sentence, with a minimum sentence of 102 months
confinement and a maximum sentence of life imprisonment. The
sentence included 21 conditions of community custody.
(Dkt. # 21, Ex. 16 at 2-5.)
First Degree Child Molestation (Cause No.
Washington Court of Appeals, on direct appeal of
Petitioner's conviction under cause number 11-1-00710-8,
summarized the facts relevant to Petitioner's child
molestation conviction as follows:
On March 17, 2011, Kinzle stayed at the apartment of a friend
who lived with his girlfriend, ES, and their two daughters,
eight-year-old R and four-year-old N. ES returned to the
apartment after Kinzle had gone to bed. She found the girls
sitting under a small table in her bedroom. The girls were
crying. They told their mother that Kinzle “rubbed some
stuff” on their private parts. ES found prescription
eye cream in the girls' bedroom. The cream had been
stored in the bathroom medicine cabinet. ES called the police
and then took the girls to the hospital. Paula Newman
Skomski, a forensic nurse examiner employed by the hospital,
interviewed and examined both girls.
On March 21, 2011, at the request of a police detective, the
girls were interviewed by Razi Leptich, a child interview
specialist. The interview was recorded. In response to
questions, N, the four-year-old, told Leptich that her
“dad's friend” “Jeff” put
“eye cream” on her “butt” and
“pee-pee.” Laboratory testing revealed traces of
eye cream on R's underwear and on swabs from both
girls' perineal areas.
The State charged Kinzle with two counts of first degree
child molestation. At a pretrial hearing on September 10,
2012, the court determined that both R and N were competent
to testify and ruled that certain out-of-court statements
made by each child were admissible under Washington's
statutory exception to the hearsay rule, RCW 9A.44.120.
Kinzle's jury trial occurred September 12-14, 2012. At
trial, the prosecutor asked the older girl, R, whether any of
her dad's friends were in the courtroom. She identified
Kinzle. He asked if she remembered the last time she saw
Kinzle at her house. When she said it had been a year, the
prosecutor asked, “Is there a particular reason that
you don't see him anymore?” R testified,
“When he was over, he put stuff on a private
part.” When the prosecutor asked what she meant by
“stuff” and “private part, ” R
testified, consistent with her previous statements, that
Kinzle rubbed “lotion” on her “butt and
pee-pee.” It is undisputed that Kinzle's right to
confront R was not violated and that the State sufficiently
proved count 1.
State v. Kinzle, 181 Wn.App. 774, 777-78 (2014).
Global Plea Offer
many of Petitioner's federal habeas claims is a plea
offer which encompassed all three of the cases filed against
Petitioner in Snohomish County Superior Court, an offer that
Petitioner rejected. The Washington Court of Appeals, in
Petitioner's most recent personal restraint proceeding,
cause number 74670-7-1, summarized the facts pertaining to
Petitioner's claims regarding his rejection of the global
plea offer as follows:
Kinzle has a history of mental illness. When he was booked
into the Snohomish County Jail (SCJ) in March 2011, he
informed jail staff that he was mentally ill and took a
number of medications. The jail did not immediately obtain
these medications or begin treating Kinzle.
Kinzle was charged with failure to register as a sex
offender, indecent liberties, and one count of child
molestation. In early April, the Office of Public Defense
appointed Cassie Trueblood to represent Kinzle. It appears
that Trueblood did not meet with Kinzle for at least two
weeks. During this period before their first meeting, Kinzle
twice sent kites, or written requests, to the public
defender's office asking for a new attorney. App. 37-38.
He asserted that Trueblood “refused to do her
job.” Appendix (App.) 37.
On April 7, the State proposed a plea bargain that
encompassed all of the charges. The record contains no
evidence concerning Kinzle's response or his discussion
with Trueblood about the offer. Kinzle later indicated,
however, that he refused the plea against Trueblood's
Near the end of April, Kinzle told jail staff he was
experiencing mood swings and asked to resume Lithium
treatment. A mental health evaluation was conducted.
The mental health professional documented Kinzle's report
of rapid cycling between mania and depression. She evaluated
Kinzle having organized thought processes, reality based
thought content, no sensory disturbance, and normal
intellectual functioning. Kinzle resumed Lithium treatment on
In June, the State amended the information to add a second
count of child molestation. A short time later, Kinzle
pleaded guilty to failure to register. At the end of June,
the State proposed a second plea offer. Kinzle rejected the
offer against Trueblood's advice.
On June 29 and 30, Kinzle addressed five kites to Trueblood.
He asked for copies of discovery as well as laws and legal
definitions related to his charges. Kinzle also sent a kite
to the director of public defense requesting a new attorney.
He asserted that Trueblood was doing more to accommodate the
prosecutor than to defend him and alleged that she would not
fight for him at trial. Id. Kinzle also alleged that
Trueblood refused to pursue all of the investigations he
In July, after negotiation with Trueblood, the State renewed
its plea offer. Kinzle indicated that he would accept the
offer and a hearing was set. Prior to the hearing, Kinzle
addressed seven kites to Trueblood asking her to investigate
various defense theories.
At the hearing, Kinzle rejected the plea offer and also moved
to substitute counsel. He asserted that Trueblood had been
trying to “strong arm” him into accepting a plea
deal. App. 56. Kinzle explained that, as he was facing a life
sentence, he wanted to fight the charges, not plead to them.
He also alleged that Trueblood refused his requests to
investigate additional evidence, she had not given him copies
of the laws and legal definitions requested, and he did not
believe he would get a fair trial with her as his attorney.
Trueblood acknowledged there had been a breakdown in
communication, especially in the past week. But she stated
that she had done substantial investigation and believed she
was competent to handle the case. Trueblood left the decision
whether to replace her to the court. The court continued the
motion one week to allow Kinzle and Trueblood an opportunity
to reestablish communication.
When the hearing resumed, Kinzle stated that he had spoken
with Trueblood but he was still opposed to her approach
concerning plea offers. The court found that the parties were
communicating and Trueblood was investigating all of
Kinzle's witnesses. The court denied Kinzle's motion
to substitute counsel.
In August, inmates reported to SCJ corrections officers that
Kinzle made threatening statements concerning Trueblood and
other targets. When informed of these statements, the
prosecutor was concerned that Kinzle's threats could
provide Trueblood with a motive to want Kinzle to receive a
lengthy sentence and could thus be a conflict of interest.
The prosecutor raised his concerns in a motion to clarify the
potential conflict of interest. At the hearing on the motion,
Trueblood stated that she was prepared for trial, she was not
afraid of Kinzle, and she felt confident representing him.
The court did not issue a ruling but stated that “Ms.
Trueblood believes she can adequately represent [Kinzle], and
I've heard nothing to the contrary, and off you
go.” App. 68.
The court address Kinzle's representation again on
October 31, the first day of the indecent liberties trial.
During motions in limine, the court inquired about the prior
motion concerning a conflict of interest and asked Trueblood
to address the issue of representation. Trueblood stated that
she was prepared for trial and did not see the need for new
counsel. The court then addressed Kinzle:
The Court: Let me just ask you, given that
your attorney has represented that she is prepared to
represent you today, she's not concerned about whatever
you might have communicated at the jail to other people or
whatever threats or whatever may have gone on. . . . So
we're ready to go. If that meets with your approval.
Kinzle: Yes, sir.
The Court: O.K. . . . I don't see that
there's anything carrying over today that would impact
Ms. Trueblood's ability to represent Mr. Kinzle. He's
indicated today that he's comfortable having Ms.
Trueblood continue to represent him, so I don't perceive
a conflict that would require . . . any change of attorney to
be addressed at this time. . . .
Kinzle was convicted of indecent liberties. In a separate
trial, he was also convicted of two counts of child
molestation. We affirmed his indecent liberties conviction in
State v. Kinzle, 174 Wn.App. 1073, 2013 WL 1960159
(2013) (Kinzle I). In State v. Kinzle, 181
Wn.App. 774, 326 P.3d 870 (2014) (Kinzle II), we
affirmed one count of child molestation, reversed one count,
and remanded for correction of improper community custody
(Dkt. # 67, Ex. 73 at 2-5.)
State Court Procedural History
did not appeal his failure to register conviction, though he
did seek direct review of his indecent liberties and first
degree child molestation convictions. Petitioner also ...