Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RAYMOND EDWARD KITCHEN,

Petitioner,

v. Case No. 3:10cv237/LC/CJK

KENNETH S. TUCKER,1

Respondent.

___________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

Before the Court is a petition for writ of habeas corpus filed under 28 U.S.C.

§ 2254. (Doc. 1). Respondent filed an answer (doc. 25), submitting relevant portions

of the state court record (docs. 34, 35). Petitioner replied. (Doc. 37). The matter is

referred to the undersigned magistrate judge for report and recommendation pursuant

to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of the

issue raised by petitioner, the undersigned concludes that no evidentiary hearing is

required for the disposition of this matter. Rule 8(a) of the Rules Governing Section

2254 Cases in the United States District Courts. The undersigned further concludes

that the pleadings and attachments before the Court show that petitioner is not

entitled to federal habeas relief, and that the petition should be denied.

Kenneth S. Tucker succeeded Edwin G. Buss as Secretary of the Florida Department of 1

Corrections, and is automatically substituted as the respondent. Fed.R.Civ.P. 25(d).

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 1 of 30
Page 2 of 30

BACKGROUND AND PROCEDURAL HISTORY

On May 5, 2005, petitioner was convicted upon jury verdict of Sexual Battery

Upon a Person Less Than Twelve Years of Age by a Person Eighteen Years of Age

or Older (Count I), Sexual Battery by a Person in Position of Familial or Custodial

Authority (Count II), and Lewd or Lascivious Molestation (Count III), for acts

petitioner committed upon his stepson and stepdaughter. (Doc. 34, Ex. B, pp. 155-56,

177-83). Petitioner was sentenced to consecutive terms of life imprisonment on

Count I, thirty years imprisonment on Count II and fifteen years imprisonment on

Count III. (Doc. 34, Ex. B, pp. 177-83). Petitioner’s judgment of conviction and

sentence was affirmed on direct appeal on May 11, 2007. Kitchen v. State, 956 So.2d

1186 (Fla. 1st DCA 2007) (Table) (copy at Doc. 34, Ex. J). 

On August 20, 2007 petitioner, represented by counsel, filed a motion for

postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 34, Ex.

K, pp. 1-24). Petitioner raised ten grounds for relief. In an order entered May 22,

2008, the Rule 3.850 court summarily denied relief on some claims (grounds 4, 5, 7,

8 and 9, as well as several sub-claims of ground 10 (subsections 11.j.i) through

11.j.viii), subsection 11.j.ix)b) and subsection 11.j.ix)c)); granted an evidentiary

hearing on other claims (grounds 1, 2, 3 and 6, as well as one sub-claim of ground 10

(subsection 11.j.ix)d)); and dismissed with leave to amend the remaining sub-claim

of ground 10 (subsection 11.j.ix)a). (Doc. 35, Ex. K, pp. 238-59). After petitioner

amended the relevant sub-claim of ground 10, (see doc. 35, ex. K, pp. 263-285), the

Rule 3.850 court ruled that the amended sub-claim would also be considered at the

evidentiary hearing. (Doc. 35, Ex. K, p. 286). The court conducted an evidentiary

hearing on August 10, 2008. (Doc. 35, Ex. L). On August 27, 2008, the Rule 3.850

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 2 of 30
Page 3 of 30

court denied relief on grounds 1, 2, 3, 6 and the pending sub-claims of ground 10

(subsections 11.j.ix)a) and 11.j.ix)d)). (Doc. 35, Ex. K, pp. 302-317). The First DCA

per curiam affirmed without written opinion on January 28, 2010. Kitchen v. State,

29 So.3d 1121 (Fla. 1st DCA 2010) (Table) (copy at Doc. 35, Ex. Q). The mandate

issued April 1, 2010. (Doc. 35, Ex. T). 

Petitioner filed his federal habeas petition in this Court on June 23, 2010. 

(Doc. 1). The petition presents one ground for relief: “Court appointed interpreter

was not qualified to act as such.” (Id., p. 6). Petitioner alleges in support of this

claimthat the court appointed interpreter made over 400 incorrect translations during

petitioner’s trial, which “denied petitioner per se a fair trial.” (Id.). Respondent

asserts that petitioner is not entitled to relief, because the claim is procedurally

defaulted and without merit. (Doc. 25).

LEGAL STANDARDS

Exhaustion and Procedural Default

Before bringing a § 2254 habeas action in federal court, a petitioner must

exhaust all available state court remedies for challenging his conviction, 28 U.S.C.

§ 2254(b)(1), thereby giving the state the “‘opportunity to pass upon and correct’ 2

Section 2254 provides, in pertinent part: 2

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears that–

(A) the applicant has exhausted the remedies available in the courts of the

State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the

rights of the applicant.

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 3 of 30
Page 4 of 30

alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364,

365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S.

270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). The petitioner

“must give the state courts one full opportunity to resolve any constitutional issues

by invoking one complete round ofthe State’s established appellate review process.” 

O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999);

Picard, 404 U.S. at 277-78. A claim that was not presented to the state court and

which can no longer be litigated under state procedural rules is considered

procedurally defaulted, i.e., procedurally barred fromfederalreview. O’Sullivan, 526

U.S. at 839-40, 848, 119 S. Ct. 1728; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th

Cir. 1999); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998)

(holding that federal habeas courts should enforce applicable state procedural bars

even as to claims that were never presented to the state courts). A claim is also

considered procedurally defaulted if it was presented in state court and rejected on the

independent and adequate state ground of procedural bar or default. Coleman v.

Thompson, 501 U.S. 722, 729-30, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (holding

that the independent and adequate state ground doctrine “applies to bar federal habeas

when a state court declined to address a prisoner’s federal claims because the prisoner

had failed to meet a state procedural requirement.”); Caniff v. Moore, 269 F.3d 1245,

1247 (11th Cir. 2001) (“[C]laims that have been held to be procedurally defaulted

under state law cannot be addressed by federal courts.”); accord Tower v. Phillips,

. . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts

of the State, within the meaning of this section, if he has the right under the law of the State

to raise, by any available procedure, the question presented. 

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 4 of 30
Page 5 of 30

7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876 F.2d 1470 (11th Cir. 1990),

rev’d on other grounds, 498 U.S. 308, 111 S. Ct. 731, 112 L.Ed.2d 812 (1991). In

the first instance, the federal court must determine whether any future attempt to

exhaust state remedies would be futile under the state’s procedural default doctrine. 

Bailey, 172 F.3d at 1303. In the second instance, the federal court must determine

whether the state’s procedural default ruling rested on adequate state grounds

independent of the federal question. See Harris v. Reed, 489 U.S. 255, 109 S. Ct.

1038, 1043, 103 L. Ed. 2d 308 (1989). 

A petitioner seeking to overcome a procedural default must show cause and

prejudice, or a fundamental miscarriage of justice. Tower, 7 F.3d at 210. “For cause

to exist, an external impediment, whether it be governmental interference or the

reasonable unavailability of the factual basis for the claim, must have prevented

petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467, 497, 111 S. Ct.

1454, 113 L. Ed. 2d 517 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct.

2639, 91 L. Ed. 2d 397 (1986)). The miscarriage of justice exception requires the

petitioner to show that “a constitutional violation has probably resulted in the

conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115

S. Ct. 85, 130 L. Ed. 2d 808 (1995). “To establish the requisite probability, the

petitioner must show that it is more likely than not that no reasonable juror would

have convicted him.” Schlup, 513 U.S. at 327. Further:

a substantial claim that constitutional error has caused the conviction of

an innocent person is extremely rare. To be credible, such a claim

requires [a] petitioner to support his allegations of constitutional error

with new reliable evidence – whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence

– that was not presented at trial.

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 5 of 30
Page 6 of 30

Id.

Section 2254 Standard of Review

Federal courts may issue habeas corpus relief for persons in state custody

pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. 

Section 2254(d) provides, in relevant part:

(d) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim–

(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.

28 U.S.C. § 2254(d) (2011).

The United States Supreme Court explained the framework for § 2254 review

in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). The 3

appropriate test was described by Justice O’Connor as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ

Unless otherwise noted,references to Williams are to the majorityholding, written byJustice 3

Stevens for the Court (joined byJustices O’Connor, Kennedy, Souter, Ginsburg, and Breyer)in parts

I, III, and IV of the opinion (529 U.S. at 367-75, 390-99); and Justice O’Connor for the Court (joined

by Justices Rehnquist, Kennedy, Thomas, and – except as to the footnote – Scalia) in part II (529

U.S. at 403-13). The opinion of Justice Stevens in Part II was joined by Justices Souter, Ginsburg,

and Breyer. 

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 6 of 30
Page 7 of 30

if the state court arrives at a conclusion opposite to that reached by this

court on a question of law or if the state court decides a case differently

than this Court has on a set of materially indistinguishable facts. Under

the “unreasonable application” clause, a federal habeas court may grant

the writ if the state court identifies the correct governing legal principle

fromthisCourt’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.

Id., 529 U.S. at 412-13 (O’Connor, J., concurring). 

Employing the Williams framework, on any issue raised in a federal habeas

petition upon which there has been an adjudication on the merits in a state court

proceeding, the federal court must first ascertain the “clearly established Federal

law,” namely, “the governing legal principle or principles set forth by the Supreme

Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538

U.S. 63, 71-72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is “clearly

established” only when a Supreme Court holding at the time of the state court

decision embodies the legal principle at issue. Thaler v. Haynes, — U.S. —, 130 S.

Ct. 1171, 1173, 175 L. Ed. 2d 1003 (2010); Bowles v. Sec’y for Dep’t of Corr., 608

F.3d 1313, 1315 (11th Cir. 2010).

After identifying the governing legal principle(s), the federal court determines

whether the state court adjudication is contrary to the clearly established Supreme

Court case law. The adjudication is not contrary to Supreme Court precedent merely

because it fails to cite to that precedent. Rather, the adjudication is “contrary” only

if either the reasoning or the result contradicts the relevant Supreme Court cases. 

Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (“Avoiding

th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases – indeed, it does

not even require awareness of our cases, so long as neither the reasoning nor the

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 7 of 30
Page 8 of 30

result of the state-court decision contradicts them.”). If the state court decision is

contrary to clearly established federal law, the federal habeas court must

independently consider the merits of the petitioner’s claim. See Panetti v.

Quarterman, 551 U.S. 930, 954, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007).

If the state court decision is not contrary to clearly established federal law, the

federal habeas court next determines whether the state court “unreasonably applied”

the governing legal principles set forth in the Supreme Court’s cases. The federal

court defers to the state court’s reasoning unless the state court’s application of the

legal principle(s) was “objectively unreasonable” in light of the record before the

state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652,

124 S. Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S.

685, 697 n. 4, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (declining to consider

evidence not presented to state court in determining whether its decision was contrary

to federal law). An objectively unreasonable application of federal law occurs when

the state court “identifies the correct legal rule from Supreme Court case law but

unreasonably applies that rule to the facts of the petitioner’s case” or “unreasonably

extends, or unreasonably declines to extend, a legal principle from Supreme Court

case law to a new context.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). 

A state court, however, may “decline to apply a specific legal rule that has not been

squarely established by [the Supreme Court]” without running afoul of the

“unreasonable application” clause. Knowles v. Mirzayance, 556 U.S. 111, 122, 129

S. Ct. 1411, 173 L. Ed. 2d 251 (2009). 

When faced with a state appellate court’s summary affirmance of a trial court’s

decision, the “unreasonable application” standard focuses on the state court’s ultimate

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 8 of 30
Page 9 of 30

conclusion, not the reasoning that led to it. See Gill v. Mecusker, 633 F.3d 1272,

1287 (11th Cir. 2011) (citing Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786,

178 L. Ed. 2d 624 (2011)). The federal court must determine what arguments or

theories supported or could have supported the state court’s decision, and then ask

whether it is possible that fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior Supreme Court decision. See

Richter, 131 S. Ct. at 786; see also Gill, 633 F.3d at 1292 (holding that the federal

district court may rely on grounds other than those articulated by the state court in

determining that habeas relief was not warranted, so long as the district court did not

err in concluding that the state court’s rejection of the petitioner’s claims was neither

an unreasonable application of a Supreme Court holding nor an unreasonable

determination of the facts). In sum, “[a]s a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that the state court’s ruling on the

claim . . . was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” 

Richter, 131 S. Ct. at 786-87.

Section 2254(d) also allows federal habeasrelief for a claim adjudicated on the

merits in state court where that adjudication “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.” 28 U.S.C. § 2254(d)(2). As with the “unreasonable

application” clause, the federal court applies an objective test. Miller-El v. Cockrell,

537 U.S. 322, 340, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (holding that a state

court decision based on a factual determination “will not be overturned on factual

grounds unless objectively unreasonable in light ofthe evidence presented in the state

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 9 of 30
Page 10 of 30

court proceeding.”). The “unreasonable determination of the facts” standard is

implicated only to the extent the validity of the state court’s ultimate conclusion is

premised on unreasonable fact finding. See Gill, 633 F.3d at 1292. 

When performing review under § 2254(d), the federal court presumes that all

factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). 

The petitioner bears “the burden of rebutting the presumption of correctness by clear

and convincing evidence.” Id.; see, e.g., Miller-El, 537 U.S. at 340 (explaining that

a federal court can disagree with a state court’s factual finding and, when guided by

AEDPA, “conclude the decision was unreasonable or that the factual premise was

incorrect by clear and convincing evidence”). Neither the Supreme Court nor the

Eleventh Circuit has interpreted how § 2254(d)(2) and §2254(e)(1) interact in the

context of fact-based challenges to state court adjudications. Cave v. Sec’y for Dep’t

of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit recently 

declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate

court’s summary affirmance, where it found that the validity of the state court

decision was not premised on the trial court’s unreasonable fact finding, and that the

petitioner failed to demonstrate “by clear and convincing evidence that the record

reflect[ed] an insufficient factual basis for affirming the state court’s decision.” Gill,

633 F.3d at 1292.

Only if the federal habeas court finds that the petitioner satisfied AEDPA and

§ 2254(d), does the court take the final step of conducting an independent review of

the merits of the petitioner’s claims. See Panetti, 551 U.S. 930, 954, 127 S. Ct. 2842. 

Even then, the writ will not issue unless the petitioner shows that he is in custody “in

violation of the Constitution or laws and treaties of the United States.” 28 U.S.C.

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 10 of 30
Page 11 of 30

§ 2254(a). “If this standard is difficult to meet, that is because it was meant to be.” 

Richter, 131 S. Ct. at 786.

PETITIONER’S CLAIM

Petitioner raises one ground for relief: “Court appointed interpreter was not

qualified to act as such.” (Doc. 1, p. 6). Petitioner alleges the following facts in

support of his claim: “The court appointed interpreter made over 400 incorrect and

erroneous tra[n]slations during jury trial and denied petitioner per se a fair trial.” 

(Id.). Petitioner asserts that he raised this claim on direct appeal and in his

postconviction proceeding. (Id.). Respondent, construing petitioner’s claim as a

federal due process claim, asserts a procedural default defense, arguing that although

petitioner challenged the interpreter’s alleged mistranslations on direct appeal and in

his postconviction proceeding, he did not, although represented by counsel in both

proceedings, fairly present the issue as a federal constitutional claim. Respondent

argues further that because petitioner is barred by state procedural rules from

returning to state court to present the federal constitutional nature of his claim, the

claim is procedurally defaulted. (Doc. 25, pp. 5-7). Respondent alternatively argues

that petitioner’s claim is without merit. (Id., pp. 7-19).

A. Exhaustion and Procedural Default

i. Standard for Determining Whether Petitioner Fairly

Presented His Federal Due Process Claim to the State

Courts

In Picard v. Connor, supra, the Supreme Court held that, for purposes of

exhausting state remedies, a claim for relief in habeas corpus must include reference

to a specific federal constitutional guarantee, as well as a statement of the facts which

entitle the petitioner to relief. In announcing that “the substance of a federal habeas

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 11 of 30
Page 12 of 30

corpus claim must first be presented to the state courts,” id. at 278, 92 S. Ct. at 513,

the Court rejected the contention that the petitioner satisfied the exhaustion

requirement by presenting the state courts only with the facts necessary to state a

claim for relief.

The Supreme Court has also indicated that it is insufficient to make a general

appeal to a constitutional guarantee as broad as due process to present the “substance”

of such a claim to a state court. In Anderson v. Harless, 459 U.S. 4, 103 S. Ct. 276,

74 L. Ed. 2d 3 (1982), the district court granted relief to a habeas petitioner on the

ground that a jury instruction violated due process because it obviated the

requirement that the prosecutor prove all the elements of the crime beyond a

reasonable doubt. Id. 459 U.S. at 7, 103 S. Ct. at 278 (citing Sandstrom v. Montana,

442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979)). The only manner in which the

petitioner had cited federal authority in the Michigan state courts was by referring to

a state court decision where the defendant “asserted a broad federal due process right

to jury instructions that properly explain state law.” Anderson, 459 U.S. at 7, 103 S.

Ct. at 278 (internal quotation marks omitted). The Court expressed doubt that a

petitioner’s citation to a state-court decision predicated solely on state law was

sufficient to fairly apprise a reviewing court of a potential federal claim merely

because the defendant in the cited case advanced a federal claim. Furthermore, the

Court clarified that such a citation was obviously insufficient when the record

satisfied the federal habeas court that the federal claim asserted in the cited case was

not the same asthe federal claim on which federal habeasrelief wassought. 459 U.S.

at 7 and n. 3, 103 S. Ct. at 278 and n. 3.

Yearslater,the Supreme Court re-addressed the “fair presentation” requirement

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 12 of 30
Page 13 of 30

in Duncan v. Henry, supra. The Duncan Court strictly construed the exhaustion

requirement so as to mandate that, if state and federal constitutional law overlap in

their applicability to a petitioner’s claim, the petitioner must raise his issue in terms

of the applicable federal right in state court in order to obtain federal review of the

issue. The Supreme Court explained,”[i]f a habeas petitioner wishes to claim that an

evidentiary ruling at a state court trial denied him the due process of law guaranteed

by the Fourteenth Amendment, he must say so, not only in federal, but in state court.”

Duncan, 115 S. Ct. at 888. More recently the Supreme Court again focused upon the

requirement of “fair presentation,” holding that “ordinarily a state prisoner does not

‘fairly present’ a claim to a state court if that court must read beyond a petition or a

brief (or a similar document) that does not alert it to the presence of a federal claim

in order to find material, such as a lower court opinion in the case, that does so.”

Baldwin v. Reese, 541 U.S. 27, 124 S. Ct. 1347, 1351, 158 L. Ed. 2d 64 (2004). The

Baldwin Court commented that “a litigant wishing to raise a federal issue can easily

indicate the federal law basis for his claim in a state court petition or brief, for

example, by citing in conjunction with the claim the federal source of law on which

he relies or a case deciding such a claim on federal grounds, or by simply labeling the

claim ‘federal.’” Id. This language, while not part of the Court’s holding, provides

an instructive rule of thumb. With regard to this statement, the Eleventh Circuit

stated in McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005): 

If read in a vacuum, this dicta might be thought to create a low floor

indeed for petitioners seeking to establish exhaustion. However, we

agree with the district court that this language must be “applied with

common sense and in light of the purpose underlying the exhaustion

requirement[:] ‘to afford the state courts a meaningful opportunity to

consider allegations of legal error without interference from the federal

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 13 of 30
Page 14 of 30

judiciary.’” McNair [v. Campbell], 315 F. Supp. 2d at 1184 (quoting

Vasquez v. Hillery, 474 U.S. 254, 257, 106 S. Ct. 617, 620, 88 L. Ed. 2d

598 (1986)). This is consistent with settled law established by the

Supreme Court. . . . We therefore hold that “‘[t]he exhaustion doctrine

requires a habeas applicant to do more than scatter some makeshift

needles in the haystack of the state court record.’”

Id., 416 F.3d at 1302-03 (citations omitted).

The Eleventh Circuit, prior to Duncan, broadly interpreted the “fair

presentation” requirement; however, the EleventhCircuit now takes a more restrictive

approach. For example, in Zeigler v. Crosby, 345 F.3d 1300 (11th Cir. 2003), the

Circuit Court held that the habeas petitioner failed to “fairly present” his juror

misconduct claims to the state courts where his brief to the state appellate court did

not refer to the federal constitutional issues raised in his federal habeas petition, and

none of the cases cited in his direct appeal discussed the Federal Constitution. Id. at

1307. The court specifically noted that the section of the petitioner’s appellate brief

which dealt with juror misconduct contained the words: “Appellant was denied due

process and a fair trial. . . .,” which could be interpreted as asserting a fair trial claim

under the Florida Constitution and Florida’s Due Process Clause. Id. at 1308 n. 5. 

The only cases cited in the discussion of the issue in petitioner’s state appellate brief

were state supreme court cases that made no mention of the United States

Constitution and cited no federal cases. The court concluded that petitioner’s

“[c]ursory and conclusional sentence (unaccompanied by citations to federal law), .

. . did not present to the Florida courts the federal claim asserted to us.” Id. 

In McNair v. Campbell, supra, the Eleventh Circuit held that a federal habeas

petitioner’s claim that jurors violated the Sixth Amendment by considering

extraneous evidence during deliberations was not fairly presented to the state courts

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 14 of 30
Page 15 of 30

and thus procedurally barred. Although the petitioner’s direct appeal brief cited to

a federal case and his closing paragraph cited several federal constitutional

amendments, the petitioner did not argue the Sixth Amendment issue or the

applicable federal standard, but only argued that the jurors’ conduct violated state

law. Id. at 1303-04.

This year the Eleventh Circuit in Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342

(11th Cir. 2012), held that a federal habeas petitioner did not “fairly present” his

federal constitutional right-to-confrontation claim to the state courts and thus did not

exhaust his state law remedies, where the petitioner’s direct appeal brief simply

objected to the state trial court’s admission of certain testimony as allegedly a

violation of his “constitutional right of confrontation,” without citing the Sixth

Amendment or otherwise alerting the state court to the fact that petitioner was making

a federal constitutional claim as opposed to one involving the right of confrontation

guaranteed by the Florida Constitution. The court explained:

[T]o the extent Lucas relies on his state petition’s reference to a

“constitutional right of confrontation of witnesses,” to argue that he

raised a federal claim before the state courts, the Supreme Court in

Baldwin flatly rejected an analogous argument. There, Baldwin had

argued that his petition fairly presented a federal ineffective assistance

of counsel claim because “ineffective” was a term of art in Oregon that

referred only to federal law claims. Baldwin, 541 U.S. at 32, 124 S. Ct.

1347. The Supreme Court disagreed, reasoning that the petitioner had

failed to demonstrate that Oregon state law used “ineffective assistance”

to refer only to federal law claims rather than a similar state law claim. 

Id. Here, Lucas does not even attempt to argue that the phrase

“constitutionalright of confrontation of witnesses” is peculiar to federal

law. Simply referring to a “constitutional right of confrontation of

witnesses” is not a sufficient reference to a federal claim, any more than

a reference to “ineffective assistance of . . . counsel” was sufficient in

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 15 of 30
Page 16 of 30

Baldwin, 541 U.S. at 32-33, 124 S. Ct. 1347. Moreover, none of the

cases cited in Lucas’s state briefs discussed the right to confront

witnesses, under either the state or federal constitutions, and Lucas’s

briefs also failed to cite to any constitutional provision. Thus, Lucas

cannot be said to have fairly apprised the state court of his federal

constitutional right-to-confrontation claim.

Id. at 1352-53.

ii. Petitioner’s direct appeal

Petitioner was represented by counsel on direct appeal. Petitioner’s amended

initial brief presented the following claim as Issue 1: “The Trial Court Erred In

Failing to Provide Adequate Interpretation Of The Khmer Language In That Rath

Som [the court-appointed interpreter] Did Not Interpret According To The

Requirements Of Law. Thus, Appellant Was Denied His Fundamental Right To

Confront And Cross Examine Witnesses.” (Doc. 34, Ex. F, pp. i, 9). In support of

this claim, appellate counsel argued that the court interpreter failed to meet state law

standards for court interpretation and that the interpreter’s alleged mistranslations

rendered petitioner’s trial “fundamentally unfair” (doc, 34, Ex. F, p. 7), and denied

petitioner “the right to confront the witnesses against him” (id., p. 8), “[petitioner’s]

right to effectively cross-examine the witnesses” (id.), and “[petitioner’s]

fundamental, constitutional right to cross-examine the witnesses against him” (id., p.

9). Counsel referenced petitioner’s claim as “constitutional”, but never identified the

legal basis of petitioner’s claim as involving the Sixth Amendment, the Fourteenth

Amendment, or the United States Constitution. Appellate counsel argued that the

applicable standard was “whether or not [petitioner] received a fundamentally fair

trial” (id., p. 17), without citation to any federal constitutional provision or case law. 

Petitioner’s legal argument in support of this claim cited to state law cases, with the

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 16 of 30
Page 17 of 30

exception of United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985), which

petitioner cited for “the federal procedure for disputes over translations” (ex. F, p.

12) ; United States v. Joshi, 891 F.2d 1303, 1309-1310 (11th Cir. 1989), which 4

petitioner cited for the proposition that word-for-word translation isthe standard, but

minor deviations from that standard will not necessarily contravene a defendant’s

constitutional rights (ex. F, p. 24); and Perez-Lastor v. INS, 208 F.3d 773 (9th Cir.

2000), which petitioner cited for the propositions that: (1) “[i]t is the cumulative

effect of seemingly evasive and insufficiently precise answer that destroys any

semblance of a fair trial,” (ex. F, pp. 34-35) and (2) the standard for determining

whether the incompetent translation prejudiced the outcome of the case is “whether

or not a better translation would potentially make a difference in the outcome of the

case.” (Id., p. 35 (citing Perez-Lastor at 780 and n. 8)). The state law cases petitioner

discussed (cases from Florida and other states) all dealt with inadequate

interpretation, but applied different standards: one court applied a harmless-error

analysis, another applied an abuse of discretion standard, and another applied the

prejudice standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), because the claim arose in the context of an

ineffective assistance of counsel claim. Petitioner conceded that the facts supporting

his claim were never heard or evaluated by the trial court, (doc. 35, ex. F, p. 11), but

argued that his claim should nonetheless be reviewed on direct appeal as opposed to

Appellate counsel stated that he had encouraged the state trial court and the prosecution to 4

utilize the Cruz procedure for resolving the dispute over the translations, suggesting that the trial

court try to produce a stipulated transcript through collaboration among the parties and, if that was

not possible, to require each side to produce its own version of the transcript and put on evidence

supporting the accuracy of that version and challenging the accuracy of the other side’s version. 

(Doc. 34, Ex. F, pp. 12-13). 

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 17 of 30
Page 18 of 30

collateral review, because the error was fundamental and because the only way the

claim could be raised on collateral review was through a challenge to defense

counsel’s effectiveness which would improperly shift responsibility for competent

translation from the trial judge to defense counsel and would improperly place the

burden of proof on petitioner to show prejudice (id., pp. 15-16). Appellate counsel

argued that it would be “unconstitutional” to require petitioner to raise the issue in a

collateral attack instead of direct appeal. (Id., p. 16).

The State on direct appeal asserted a procedural defense, arguing that the

translation issue: (1) was not preserved below, and (2) was not properly brought in

an appellate forum, because petitioner’s claim relied on additional evidence that was

not part of the trial record (an alternate transcription of the trial proceedings provided

by Matthew Madden, an interpreter petitioner retained after trial) and required the

appellate court to determine factual issues. (Doc. 34, Ex. G, pp. 5-6, 9-17). The State

argued that the appellate court should reject petitioner’s claim without prejudice to

petitioner seeking proper relief in a postconviction proceeding under Fla. R. Crim. P.

3.850. The State did not address the merits of petitioner’s claim. 

The First DCA heard oral argument and on May 11, 2007, and per curiam

affirmed petitioner’s convictions and sentences without written opinion. (Doc. 34,

Exs. I, J; see also Kitchen v. State, 956 So.2d 1186 (Fla. 1st DCA 2007) (Table)). 

With the principles underlying the “fair presentation” requirement in mind, the

undersigned concludes that petitioner did not apprise the state appellate court that the

legal argument in support of his claim relied upon the due process and confrontation

clauses ofthe United StatesConstitution. Although petitioner sprinkled his argument

with assertions that the interpreter’s inadequacy deprived him of a fair trial, the right

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 18 of 30
Page 19 of 30

to confront witnesses and his constitutional rights, petitioner’s argument was not

sufficient to reference a federal claim as opposed to one arising under the Florida

Constitution. See Lucas, 682 F.3d at 1352-53 (holding that petitioner’s argument on

direct appeal that he was deprived “of his constitutional right of confrontation of

witnesses against him” was not a sufficient reference to a federal claim); see also

McNair, 416 F.3d at 1303 (holding that petitioner’s references to federal law in his

state habeas proceedings were “exactly the type of needles in the haystack that we

have previously held are insufficient to satisfy the exhaustion requirement”). 

iii. Petitioner’s postconviction proceeding

Petitioner again raised the issue of the court interpreter in his counseled Rule

3.850 motion. Petitioner claimed in Ground 1 that newly discovered evidence

established that Rath Som, the court-appointed interpreter, did not correctly interpret

ortranslate the testimony of Khmer-speaking witnesses, including one ofthe victims. 

(Doc. 34, Ex. K, pp. 2-3). Petitioner argued that the newly discovered evidence was

not, and could not have been known at the time of trial, and that the new evidence

“w[ould] probably produce an acquittal on retrial.” (Id., p. 3). The State conceded,

and the Rule 3.850 court agreed, that petitioner was entitled to an evidentiary hearing

on this claim. (Doc. 35, Ex. K, p. 238). 

Petitioner claimed in Ground 7 of his Rule 3.850 motion that the “inadequate”

court interpreter rendered his conviction “unconstitutional.” (Doc. 34, Ex. K, p. 14). 

Petitioner’s counsel argued:

The Court failed in its primary duty to provide an adequate court

interpreter. Thus, Defendant’s convictions were unconstitutionally

imposed for a number ofreasons including the fact that DefenseCounsel

could not object to testimony that no one knew (perhaps not even Rath

Som) the witnesses were giving. There can be no effective crossCase No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 19 of 30
Page 20 of 30

examination when the witnesses being cross-examined are asked

questions by the court interpreter that the Defense Counsel did not ask

or when the court interpreter misinterprets the answers given to the

questions he misinterpreted to begin with.

(Doc. 34, Ex. K, pp. 14-15). The State argued, and the Rule 3.850 court agreed, that

petitioner was procedurally barred from raising this claim on collateral review,

because “the appellate court reviewed this issue on direct appeal.” (Doc. 35, Ex. K,

pp. 73, 239). The Rule 3.850 court ruled that “[t]o the extent that defendant is

attempting to expand his argument beyond the issue raised on appeal, this Court finds

Defendant’s complaints about the trial court’s selection of the court interpreter are

matters that should have been addressed on appeal; therefore, he is not entitled to

make those claims in this proceeding. (Id., pp. 239-240). 

After the evidentiary hearing, the Rule 3.850 court made extensive findings of

fact and denied relief on Ground 1 as follows:

Kitchen raises as ground one newly discovered evidence. He

claims that Som, the court-appointed interpreter, did not correctly

interpret or translate most of the Khmer testimony. Although the

appellate court previously denied Kitchen relief on appeal when he

challenged the trial court’s appointment of the interpreter, Kitchen

argues in this proceeding that a transcript of the trial that was produced

with the assistance of another interpreter, Matthew Madden (“Madden”)

reveals a substantial amount of new material evidence. Madden testified

at the evidentiary hearing, and the Court finds that his testimony is

credible, yet not sufficient to warrant relief in this proceeding. Madden

translated portions of the voice-recordings of the trial and compared

them to the transcript produced based on Som’s translations. While the

interpretations differ, the court finds that Madden’s interpretation is not

new evidence which would probably produce an acquittal on retrial.

The Supreme Court of the State of Florida recently explained the

analysis that a trial court must employ when faced with a claim of newly

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 20 of 30
Page 21 of 30

discovered evidence in a postconviction proceeding.

First, the evidence must not have been known by the trial

court, the party, or counsel at the time of trial, and it must

appear that the defendant or defense counsel could not

have known of it by the use of diligence. Second, the

newly discovered evidence must be of such nature that it

would probably produce an acquittal on retrial. See Jones,

709 So. 2d at 521. Newly discovered evidence satisfies the

second prong of the Jones test if it “weakens the case

against [the defendant] so as to give rise to a reasonable

doubt as to his culpability.” Jones, 709 So. 2d at 526

(quoting Jones v. State, 678 So. 2d 809, 315 (Fla. 1996)). 

If the defendant is seeking to vacate a sentence, the second

prong requires that the newly discovered evidence would

probably yield a less severe sentence. See Jones v. State,

591 So. 2d 911, 915 (Fla. 1991).

In determining whether the evidence compels a new trial,

the trial court must “consider all newly discovered

evidence which would be admissible” and must “evaluate

the weight of both the newly discovered evidence and the

evidence which was introduced at the trial.” Id. at 916.

This determination includes whether the evidence goes to

the merits of the case or whether it constitutes

impeachment evidence. The trial court should also

determine whether the evidence is cumulative to other

evidence in the case. The trial court should further

consider the materiality and relevance of the evidence and

any inconsistencies in the newly discovered evidence.

Preston v. State, 970 So. 2d 789, 797-801 (Fla. 2007). This Court has

conducted the cumulative analysis required by law and finds that

Kitchen is not entitled to relief based on his claim of newly discovered

evidence.

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 21 of 30
Page 22 of 30

With regard to count 1, Madden’s interpretation has no effect. 

B.S. testified in English. As stated earlier, B.S. vividly explained how

Kitchen sexually abused him. None of Madden’s translation addresses

the merits of B.S.’s allegations of abuse or calls into question the

reliability of B.S.’s testimony. Likewise, the translation has little effect

with regard to count 3. Count 3 of the information charged Kitchen with

lewd or lascivious molestation of M.S. by touching her “breasts,

genitals, genital area, or buttocks, or the clothing covering them.” 

(Exhibit B). At trial, M.S. testified, according to Som, that Kitchen

touched “[her] chest, [her] butt, and [her] vagina (Indicating).” (Exhibit

C, Transcript, p. 61). Madden’s translation, that is, “he touched [my]

breasts, touched [my] butt, touched that place [unintel],” only

strengthens M.S.’s testimony. (Madden’s Translation of testimony of

M.S., p. 10 of 60). The likelihood that Kitchen would be acquitted of

the crime charged in count 3, actually is decreased by consideration of

Madden’s translation.

Madden’s translation is relevant with regard to count 2, that is,

Kitchen committed sexual battery of M.S. while in a position of familial

or custodial authority by placing his mouth on her vagina. Madden

testified that M.S. never testified that Kitchen touched her vagina. 

According to him, although Somtranslated M.S.’s testimonyasreferring

to her vagina, the word she actually said was anus. Because the

charging document specifically refers to Kitchen’s oral contact with

M.S.’s vagina, the court has conducted a thorough review of the entire

trial transcript that wastranscribed by the court reporter based on Som’s

translation, the entire transcript provided by Madden, and the additional

evidence presented at the evidentiary hearing. In accordance with

Preston v. State, 970 So. 2d 797-801 (Fla. 2007), the Court has

evaluated the weight of both the newly discovered evidence and the

evidence which was introduced at the trial.

Even if Kitchen were afforded a retrial with regard to count 2, the

evidence against him would not consist solely of Madden’s translation

of M.S.’s testimony which indicates that M.S. referred only to her anus

and not her vagina. Som’s previous interpretation indicated that M.S.

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 22 of 30
Page 23 of 30

explained how Kitchen touched her vagina with his mouth. On redirect

examination of M.S. at trial, the State was allowed to question her about

her deposition testimony, which she provided to another interpreter in

February 2005. In that deposition, as interpreted by Chhay Hour and as

pointed out during trial, M.S. specifically referred to Kitchen touching

her “vagina.” See Exhibit D which is the portion of the trial transcript

in which M.S. discusses her deposition testimony. Although the report

of M.S.’s interview with the Georgia Center for Children was not

admissible at trial, at the evidentiary hearing the document was

admitted. It reveals that a fourth interpreter, William Lam, interpreted

M.S.’s report of Kitchen putting his mouth on her “pussy.” While

Madden’s translation does go to the merits of the allegation, its primary

force is to create a battle of the interpreters. At this point, the Court has

no method of determining which interpretation is correct. And even

assuming Madden’s interpretation of M.S.’s testimony were more

accurate than Som’s interpretation, the Court could not reasonably

conclude that Madden’s translation would probably produce an acquittal

on retrial. To reach that result the Court would be required to ignore the

interpretations of the two other interpreters used in this case. 

Furthermore, the Court would be required to ignore the Williams Rule

testimony presented by K.S. and the fact that the transcript repeatedly

shows that M.S. was indicating by motions throughout the trial where

Kitchen had touched her. The Court has considered the newly

discovered evidence and findsthat it is not of such a nature that it would

probably produce an acquittal on retrial.

(Doc. 35, Ex. K, pp. 304-08) (footnote omitted).

Petitioner appealed pro se, raising as “Issue Two” the Rule 3.850 court’s denial

of relief on his newly discovered evidence claim (Ground 1 of the postconviction

motion). (Doc. 35, Ex. N, pp. 14-20). Petitioner identified the issue raised in “Issue

Two” as: “The Appellant Was Denied A Fair Trial In That Court Appointed

Interpreter Incorrectly Translated Witness Testimony Presented To The Jury

Prejudicing The Outcome Of The Jury Verdict.” (Doc. 35, Ex. N, p. ii and p. 14). 

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 23 of 30
Page 24 of 30

Petitioner argued that his newly discovered evidence of the interpreter’s

mistranslations established that he was “convicted and sentenced on evidence that is

false, misleading and/or questionable at best,” (doc. 35, Ex. N, pp. 16-17), and that

the inadequacy of the interpretation made his trial fundamentally unfair. (Id., p. 19). 

Petitioner cited to federal cases, Valladares v. United States, 871 F.2d 1564 (11th Cir.

1989); United States v. Lim, 794 F.2d 469, 470 (9th Cir. 1986); and United States v.

Joshi, 896 F.2d 1303 (11th Cir. 1990), which discussed a federal court’s duty to

provide an interpreter under the Court Interpreters Act, 18 U.S.C. 1827, and also

discussed the constitutional implications of adequate interpretation, framing the

inquiry as “whether any inadequacy in the interpretation made the trialfundamentally

unfair.” Petitioner also appealed the summary denial of relief on Ground 7 of his

postconviction motion. (Doc. 35, Ex. N, pp. 9-10). Specifically, petitioner raised as

“Issue One” the following: “The Lower Court Abused It’s [sic] Discretion In

Denying Appellant’s Claims Without Holding An Evidentiary Hearing And/Or

Misapplying Case Law Violated Appellant’s Constitutional Guarantees Of Due

Process And A Fair Trial With Effective Assistance Of Counsel.” (Doc. 35, Ex. N,

p. 6). Petitioner cited to a single case, a state law case, in support of his argument that

the interpreter’s erroneous translation amounted to fraud on the court and warranted

vacation of the judgment of conviction. (Id., p. 9 (citing State v. Burton, 314 So.2d

136, 138 (Fla. 1975) (holding that any judgment or order procured from any court by

the practice of fraud or deception may be set aside at any time))). The First DCA per

curiam affirmed without written opinion on January 28, 2010. Kitchen v. State, 29

So.3d 1121 (Fla. 1st DCA 2010) (Table) (copy at Doc. 35, Ex. Q). 

Respondent asserts that neither petitioner’s direct appeal brief nor his

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 24 of 30
Page 25 of 30

postconviction appeal brief fairly presented a federal due process claim arising under

the Fourteenth Amendment of the United States Constitution. (Doc. 25, p. 5). 

Respondent acknowledges that petitioner’s Rule 3.850 motion asserts a constitutional

violation, but argues that the Rule 3.850 motion “does not assert what the

constitutional violation was and certainly does not mention any federal constitutional

violation. Merely claiming a constitutional violation does not fairly present to the

state court a federal question because Florida’s State Constitution has its own due

process clause, and it has its own constitutional trial rights provisions. . . . 

Petitioner’s claims neither identified the particular legal basis nor identified the claim

as federal.” (Doc. 25, pp. 5-6). 

Petitioner argues in his reply that he fairly presented his federal due process

claim to the state postconviction court, because his Rule 3.850 motion made the

opening statement that petitioner’s judgment was imposed in violation of the

Constitution or laws of the United States and of the State of Florida, and because one

or more of petitioner’s individual grounds for relief referenced the denial of

petitioner’s right to confront and cross-examine witnesses. (Doc. 37). The individual

references petitioner cites, however, were all made in petitioner’s presentation of his

ineffective assistance of counsel claims (Grounds 6 and 10). Petitioner further argues

that he presented his federal due process claim in his postconviction appeal by

asserting in his Summary of the Argument that the court interpreter’s alleged

mistranslations constituted fundamental error and “reache[d] to the very foundation

of due process and a fair trial as guaranteed by the United States Constitution.” (Doc.

37, p. 6 (quoting Doc. 35, Ex. N, p. 4)). Petitioner also cites to other portions of his

postconviction appellate brief which refer to petitioner’s constitutional rights, but

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 25 of 30
Page 26 of 30

those references were not made in petitioner’s argument concerning the Rule 3.850

court’s denial of relief on Ground 1 (the newly discovered evidence of the

interpreter’s alleged mistranslations). Petitioner’s conclusion in his postconviction

appellate brief asserted that the Rule 3.850 trial court’s denial of postconviction relief

“denied Appellant effective assistance of counsel, due process and a fair trial”. (Doc.

35, Ex. N, p. 25). 

Again, neither petitioner’s Ground 1, nor Ground 7 of his counseled

postconviction motion put the state court on notice that petitioner wasraising federal

constitutional claims. The same is true of petitioner’s appellate brief. Petitioner’s

failure to frame his claimas one involving the United StatesConstitution is especially

pronounced in that petitioner did specifically raise federal constitutional objections

before the state court based on different claims (for example, petitioner’s ineffective

assistance of counsel claims).

Petitioner’s failure to raise a federal argument in his direct appeal or in his Rule

3.850 proceeding in the Florida courts bars him from raising the argument in a

successive state postconviction proceeding. See Turner v. Crosby, 339 f.3d 1247,

1281 (11th Cir. 2003). Petitioner’s claim is procedurally defaulted for purposes of

federal habeas review. Petitioner has made none of the requisite showings to excuse

his default. Petitioner’s procedural default bars federal habeas review.

B. Merits

Even if the Court gave petitioner the benefit of all doubt and concluded that he

properly exhausted his federal due process claim in the state courts and that the state

courts adjudicated the claim on the merits, petitioner is not entitled to federal habeas

relief. The Supreme Court has not published an opinion addressing an assertion of

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 26 of 30
Page 27 of 30

a due process violation arising from a trial court’s selection of a court interpreter (i.e.,

a trial court’s appointment of an unqualified interpreter), or a court-appointed

interpreter’s translation of witnesses’ examination during a criminal trial. Given the

lack of Supreme Court precedent that “squarely address[es]” the constitutional

implications of a court-appointed interpreter’s translation during trial proceedings

under the circumstances presented in this case, petitioner’s claim fails to make the

required showing that the state courts either acted contrary to “clearly established”

federal law or unreasonably applied “clearly established” federal law. See Wright v.

Van Patten, 552 U.S. 120, 126, 128 S. Ct. 743, 747, 169 L. Ed. 2d 583 (2008)

(“Because our cases give no clear answer to the question presented, let alone one in

Van Patten’s favor, it cannot be said that the state court unreasonably applied clearly

established federal law.”) (internal quotation marks omitted); Schriro v. Landrigan,

550 U.S. 465, 478, 127 S. Ct. 1933, 1942, 167 L. Ed. 2d 836 (2007) (The Arizona

Supreme Court did not unreasonably apply federal law because “we have never

addressed a situation like this.”); Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649,

654, 166 L. Ed. 2d 482 (2006) (“Given the lack of holdingsfrom this Court regarding

the potentially prejudicial effect of spectators’ courtroom conduct of the kind

involved here,” the denial of relief by the California Court of Appeal “was not

contrary to or an unreasonable application of clearly established federal law.”);

Blanco v. Sec’y, Fla. Dep’t of Corr., — F.3d —, 2012 WL 3081313, at *14 (11th Cir.

July 31, 2012) (“There is nothing in United States Supreme Court precedent that

would support a claim such as the one Blanco raises before us. As a result, the trial

court did not act contrary to clearly established Federal law, and its decision was not

based on an unreasonable determination of the facts in light of the evidence

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 27 of 30
Page 28 of 30

presented.”); Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1287-88 (11th Cir.

2012) (“[T]he Supreme Court has never held that a prosecutor’s closing arguments

were so unfair as to violate the right of a defendant to due process. [Petitioner] is not

entitled to habeas relief because ‘it is not an unreasonable application of clearly

established Federal law for a state court to decline to apply a specific legal rule that

has not been squarely established by [the Supreme Court].’”) (quoting Knowles v.

Mirzayance, 556 U.S. 111, 122, 129 S. Ct. 1411, 1419, 173 L. Ed. 2d 251 (2009));

see also Jaworski v. Sec’y, Fla. Dep’t of Corr., 464 F. App’x 806, 809 (11th Cir.

2012) (denying habeas relief on petitioner’s claim that his constitutional rights were

violated when the trial judge absented himself during jury deliberations: “Given the

lack of binding precedent that ‘squarely address[es]’ the constitutional implications

of a trial judge’s absence under the circumstances presented in this case, Jaworski’s

claim on Ground 1 failed to make the required showing that the state court acted

contrary to ‘clearly established’ federal law.”).

Petitioner has pointed to no Supreme Court precedent, in his state court

pleadings or here, holding that a court-appointed interpreter’s translation of

witnesses’ examination under the circumstances presented here violates a defendant’s

federal constitutional rights to due process and confrontation. The undersigned has

not found any such precedent. Petitioner has not shown that the state courts’ rejection

of his claim was contrary to clearly established federal law, involved an unreasonable

application of clearly established federal law, or was based on an unreasonable

determination of the facts in light of the record before the state court. 

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 28 of 30
Page 29 of 30

District Courts provides: “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” If a certificate is

issued, “the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed,

even if the court issues a certificate of appealability. Rule 11(b), Rules Governing

Section 2254 Cases.

The petitioner in this case fails to make a substantial showing of the denial of

a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

483-84, 120 S. Ct. 1595, 1603-04, 146 L. Ed. 2d 542 (2000) (explaining the meaning

of this term) (citation omitted). Accordingly, the court should deny a certificate of

appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate should

issue.” Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to

this recommendation by either party, that party may bring such argument to the

attention of the district judge in the objections permitted to this report and

recommendation.

Accordingly, it is ORDERED:

The clerk shall change the docket to reflect that Kenneth S. Tucker has been

substituted as respondent in this cause. 

And it is respectfully RECOMMENDED:

1. That the petition for writ of habeas corpus (doc. 1), challenging the

judgment of conviction and sentence in State of Florida v. Raymond Edward Kitchen

in the Circuit Court for Santa Rosa County, Florida, Case No. 04-651 be DENIED,

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 29 of 30
Page 30 of 30

and that the clerk be directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida this 20th day of September, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No: 3:10cv237/LC/CJK

Case 3:10-cv-00237-LC-CJK Document 38 Filed 09/20/12 Page 30 of 30