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Kinzle v. Obenland

United States District Court, W.D. Washington, Seattle

October 9, 2019

JEFFERY M. KINZLE, Petitioner,
v.
MIKE OBENLAND, Respondent.

          REPORT AND RECOMMENDATION

          MICHELLE L. PETERSON, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION AND SUMMARY CONCLUSION

         Petitioner 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.)

         This 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.

         II. CHALLENGED JUDGMENTS

         Petitioner 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.

         A. Cause No. 11-1-0617-9

         In 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.)

         B. Cause No. 11-1-00709-4

         In 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., Ex. 10.)

         C. Cause No. 11-1-00710-8

         In 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.)

         III. FACTUAL HISTORY

         A. Failure to Register as a Sex Offender (Cause No. 11-1-00617-9)

         Petitioner, in his guilty plea statement in cause no. 11-1-00617-9, stated the facts underlying his failure to register charge as follows:

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.)

         B. Indecent Liberties (Cause No. 11-1-00709-4)

         The 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.)

         C. First Degree Child Molestation (Cause No. 11-1-00710-8)

         The 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).

         D. Global Plea Offer

         Underlying 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 advice.
Near the end of April, Kinzle told jail staff he was experiencing mood swings and asked to resume Lithium treatment.[1] 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 May 1.[2]
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 requested.
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 conditions.

(Dkt. # 67, Ex. 73 at 2-5.)

         IV. PROCEDURAL HISTORY

         A. State Court Procedural History

         Petitioner 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 ...


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