United States District Court, D. Nebraska
WILLIAM D. KINSER, JR., Petitioner,
DIANE SABATKA-RINE, Respondent.
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
This matter is before the court on Petitioner William D. Kinser's ("Kinser" or "Petitioner") Petition for Writ of Habeas Corpus (Filing No. 1). Respondent Diane Sabatka-Rine ("Respondent") argues all of Kinser's claims are procedurally defaulted. (Filing No. 19.) The court agrees, and also finds that, even if Kinser's claims were not procedurally defaulted, he would not be entitled to relief.
Liberally construed, Kinser argued in his petition that he is entitled to a writ of habeas corpus based on the following claims:
Claim One: Petitioner was denied due process of law in violation of the Fourteenth Amendment because he "was sentenced [as] a habitual offender where the felony conviction is already an enhancement of a misdemeanor."
Claim Two: Petitioner was denied due process of law in violation of the Fourteenth Amendment because he was sentenced "in a manner in which the intent of the trial court [was] frustrated by the habitual offender statute."
Claim Three: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because Petitioner's trial counsel "allowed the district court to further enhance an already enhanced offense."
Claim Four: Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because Petitioner's trial counsel "failed to properly cross-examine witnesses."
Claim Five: Petitioner was denied due process of law in violation of the Fourteenth Amendment because the prosecution "used prior convictions and sentences [that] were insufficient to be used for enhancement purposes."
(Filing No. 11 at CM/ECF pp. 1-2 (quoting Kinser's habeas corpus petition at Filing No. 1 at CM/ECF pp. 5-10).)
A. Conviction and Sentence
The court states the facts as they were recited by the Nebraska Supreme Court in State v. Kinser, 811 N.W.2d 227, 229-230 (Neb. 2012) (affirming Kinser's conviction and sentence on direct appeal). See Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006).
On the evening of December 23, 2010, Deputy Lanny Hanks was observing traffic on Lake Minatare Road in Scotts Bluff County, Nebraska. He saw a vehicle exceeding the speed limit and undertook pursuit. Hanks initially activated only his patrol car's overhead lights, but when he realized the vehicle was not stopping, he activated his car's siren. After a chase of approximately 10 miles, Hanks was able to immobilize the vehicle. Kinser was identified as the operator of the vehicle.
The State of Nebraska ("State") charged Kinser with felony operation of a motor vehicle to avoid arrest; driving under revocation, first offense; and driving while under the influence of alcohol ("DUI"), second offense, in the District Court of Scotts Bluff County, Nebraska ("state district court"). The State alleged that Kinser's flight to avoid arrest involved willful reckless operation of a motor vehicle, which made the offense a Class IV felony under Neb. Rev. Stat. § 28-905(3)(a)(iii) (Reissue 2008). The State also alleged that Kinser was a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 2008). A jury trial was held on the flight to avoid arrest and driving under revocation charges. The jury found Kinser guilty of both offenses.
Prior to sentencing, the State notified Kinser and the state district court that it would present evidence that Kinser was a habitual criminal. At the hearing, the State introduced five prior convictions, and certified records showing that Kinser received a sentence of at least one year's imprisonment for each of these convictions and that Kinser was represented by counsel at the time of each conviction and each sentencing.
Following the hearing, the state district court found there were five valid and usable prior convictions and sentenced Kinser as a habitual criminal on the felony flight to avoid arrest conviction. The state district court sentenced Kinser to 18 to 30 years' imprisonment on the felony charge of flight to avoid arrest. It sentenced Kinser to six months' imprisonment on the misdemeanor charge of driving under revocation.
B. Direct Appeal
Kinser appealed his conviction and sentence to the Nebraska Court of Appeals. The Nebraska Supreme Court ordered that the case be moved to its docket. ( See Filing No. 15-1 at CM/ECF p. 2.) Kinser argued on appeal that the state district court's habitual criminal determination was erroneous because it resulted in an improper double enhancement of his sentence. Kinser also argued the sentencing order had to be reversed because the state district court had intended for him to be eligible for parole after 10 years, whereas, under the sentence actually imposed, he would be eligible for parole after 14 years. (Filing No. 15-5 at CM/ECF pp. 1-21.)
The Nebraska Supreme Court affirmed Kinser's conviction and sentence in a written opinion dated March 23, 2012. See Kinser, 811 N.W.2d at 234. The Nebraska Supreme Court overruled a motion for rearing on April 25, 2012, and issued its mandate on May 16, 2012. (Filing No. 15-1 at CM/ECF p. 2.)
C. Postconviction Action
Kinser filed a motion for postconviction relief in the state district court on April 29, 2013. (Filing No. 15-12 at CM/ECF pp. 11-20.) Kinser argued his trial counsel failed to effectively represent him in the trial court proceedings, and also that the prosecutor for the State committed prosecutorial misconduct. The state district court denied postconviction relief, without holding an evidentiary hearing, on August 15, 2013. ( Id. at CM/ECF pp. 30-33.) Kinser appealed.
On appeal, Kinser argued the state district court erred in denying an evidentiary hearing. (Filing No. 15-8 at CM/ECF p. 5.) The Nebraska Court of Appeals affirmed the state district court's judgment on May 7, 2014. (Filing No. 15-4 at CM/ECF pp. 1-9.) The Nebraska Supreme Court denied a petition for further review on June ...