Medearis v. U.S., CIV.05 3035.

• Decision Date: 15 November 2006
• Docket Number: No. CR. 02 30026.,No. CIV.05 3035.,CIV.05 3035.,CR. 02 30026.
• Citation: 469 F.Supp.2d 779
• Parties: Cody Cheyenne MEDEARIS, Petitioner, v. UNITED STATES of America, Respondent.<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. District Court — District of South Dakota

469 F.Supp.2d 779

Cody Cheyenne MEDEARIS, Petitioner, v. UNITED STATES of America, Respondent.¹

No. CIV.05 3035.

No. CR. 02 30026.

United States District Court, D. South Dakota, Central Division.

November 15, 2006.

COPYRIGHT MATERIAL OMITTED

Randolph J. Seiler, Assistant United States Attorney, Pierre, SD, for Plaintiff.

Brad A. Schreiber, Schreiber Law Firm, Belle Fourche, SD, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE AND DENYING CERTIFICATE OF APPEALABILITY

KORNMANN, District Judge.

The Court submitted the above-entitled matter to U.S. Magistrate Judge Mark A. Moreno and the magistrate judge submitted his report and recommendation to the Court on October 23, 2006, Doc. 19. The report and recommendation was served on the petitioner as required by 28 U.S.C. § 636. Petitioner timely filed objections, Doc. 21, on November 2, 2006.

The Court has conducted a de novo review of the file and has considered petitioner's claims of ineffective assistance of counsel. I was the trial judge and observed counsel. I also heard all the evidence and arguments. A claim of ineffective assistance of counsel is scrutinized under the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For petitioner to prevail, he must show: "(1) that his attorney's performance was deficient, falling below professional standards of competence; and (2) that the deficient performance prejudiced his defense." Blankenship v. United States, 159 F.3d 336, 338 (8th Cir. 1998) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674).

Petitioner objects to the recommendation that trial counsel was not ineffective in failing to call a medical expert to rebut the opinions of Dr. Zijad Sabovic, the emergency room physician who treated the victim. Dr. Sabovic opined that the victim sustained injuries which were consistent with forced sexual intercourse. I granted a defense motion (although untimely) to prevent. Dr. Sabovic from expressing any opinion as to the ultimate issue — sexual abuse or rape — and he complied with the order. Upon cross examination, Dr. Sabovic admitted that he could not express an opinion as to whether the sex was consensual or not. He also admitted that "rough sex" could cause the laceration suffered by the victim. The defense in this case was that the victim and the defendant had consensual "rough sex" in a car, which caused small bruises on the victim. Defense counsel argued in closing that the bruises were consistent with "rough sex" in a car and he also reminded the jury that Dr. Sabovic said that the laceration the victim suffered could have resulted from consensual sex. No non-treating expert doctor could have said anything more favorable. Counsel was not deficient in failing to call a medical expert.

The affidavit (Doc. 18-2). from Mary E. Carr, M.D., claims that the government expert witness at trial was not competent to express an opinion vis-a-vis rough consensual sex and forced sex. I reject that. Dr. Carr may well be more qualified but that does not make Dr. Sabovic unqualified. I would not have prohibited Dr. Sabovic from expressing the opinions he expressed. I also reject the claim of Dr. Carr that victims of rape "are normally in extreme distress to the point of being uncontrollable and needing sedation." I have presided over hundreds of sexual assault cases and know that this claim of Dr. Carr is not true.

Petitioner objects to the recommendation that trial counsel was not ineffective in failing to timely disclose a letter written by the victim to the defendant wherein she recorded her "fear of losing him." That letter was excluded by me because I do not permit either side to conduct a trial by ambush. I concluded that defense counsel had not timely disclosed the letter and should have done so. On appeal, the ruling was that it was harmless error to exclude the letter. I concur with the court of appeals. Petitioner was not unfairly prejudiced by the exclusion of that letter. The testimony as a whole was sufficient, and trial counsel vigorously argued in closing, that the victim repeatedly broke off her relationship with the defendant and then tried to re-establish the relationship, becoming very angry when she would learn that the defendant had dated other women in the interim. The letter would have added nothing that the jury had not already heard from other evidence. The jury knew that the victim clearly had a motive to lie but found that she was not lying as to her allegations made against the defendant in this case.

I continue to believe that the sentence which I was required to impose was excessive and unfair. That, however, does not permit me to set aside the conviction and sentence.

I find that the report and recommendation of the magistrate judge should be accepted and the case dismissed.

Now, therefore,

IT IS ORDERED:

1. The report and recommendation of the U.S. Magistrate Judge filed October 23, 2006, Doc. 19, shall be and is hereby adopted as the findings of fact and conclusions of law herein.

2. The petitioner's objections, Doc. 21, are overruled.

3. The motion to vacate, set aside, or correct petitioner's conviction and sentence is denied.

IT IS HEREBY CERTIFIED that there does not exist probable cause of an appealable issue with respect to the Court's order denying petitioner's petition for a writ of habeas corpus. No certificate of appealability will be granted. 28 U.S.C. § 2253(c). This in no way hampers the petitioner's ability to request issuance of the certificate by a circuit judge pursuant to Fed. R.App. P. 22.

REPORT AND RECOMMENDATIONS FOR DISPOSITION OF MOTION UNDER § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE

MORENO, United States Magistrate Judge.

[¶ 1] The above-captioned 28 U.S.C. § 2255 case was referred to this Court by the District Court² pursuant to 28 U.S.C. § 636(b)(1)(B) for the purpose of conducting any necessary hearings, including evidentiary hearings, and submitting proposed findings of fact and recommendations for disposition thereof. Civ. R. 6.

[¶ 2] Having carefully reviewed and considered all of the records on file and being fully advised in the premises, the Court does now make and propose the following findings, report and recommendations for disposition of the case.

I.

[¶ 3] Defendant, Cody Cheyenne Medearis (Medearis), an Indian, was indicted on and found guilty of two counts of aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153, 2241(a) and 2246(2). Crim. R. 124 (Jury Instr. Nos. 3, 9-11), 125. He was acquitted of one count of kidnapping. Id. at 125. The trial court departed downward to a guideline range of 108 to 135 months, and imposed concurrent sentences totaling 108 months of imprisonment, 3 years of supervised release and $200 in special assessments. Sent. Tr. 37-40, 42.

[¶ 4] Medearis appealed his conviction and sentence. Crim. R. 151. The Eighth Circuit Court of Appeals, however, affirmed the trial court's judgment. United States v. Medearis, 380 F.3d 1049, 1050, 1060 (8th Cir.2004).

[¶ 5] Medearis then filed a timely motion under § 2255 to vacate, set aside or correct his sentence. Civ. R. 1. The District Court thereafter ordered Plaintiff, United States of America (Government), to serve and file an answer or responsive pleading and supporting memorandum. Id. at 5, p. 2. The District Court, at the same time, referred the case to this Court to handle on a report and recommendation basis. Id. at 6.

[¶ 6] The Government complied with the District Court's order, filing an answer, containing a motion to dismiss for failure to state a cognizable claim under § 2255, a supporting memorandum and an affidavit signed by trial counsel. Id. at 11, 12-1, 12-2. Medearis later submitted a reply to the Government's answer and motion as well as an affidavit from a physician retained by him. Id. at 17, 18-1, 18-2.

II.

[¶ 7] The relevant facts are specifically set forth in the Eighth Circuit's decision, see Medearis, 380 F.3d at 1051-53, and may be briefly summarized as follows.

[¶ 8] Medearis and Sherri Lynn Whiting, the victim in this case, had an off-and-on relationship between 1998 and 2002. T. Tr. 91, 94-95, 466. The two had a son together and Whiting had a daughter from a prior relationship. Id. at 90, 93-94, 474.

[¶ 9] During the early morning hours of January 13, 2002, Whiting was taken against her will to a trail just off of a remote road on the Rosebud Indian Reservation. Id. at 135-36. There, Medearis pulled her pants down as she pleaded for him to stop. Id. at 137. Eventually, Medearis forced Whiting's hands behind her head as he drove his penis into her vagina, telling her he "always wanted to do this." Id. at 138, 144. After removing his penis, Medearis inserted his fingers inside Whiting's vagina while she continued to scream. Id. at 139. Medearis then removed his fingers from Whiting's vagina and smeared them across her face, sneering, "this is how you f* * *ing smell." Id. at 141-42. Following this, Medearis again tried to insert his penis into Whiting's vagina, but was unable to maintain an erection and penetrate her. Id. at 141, 246. A short time later, Whiting exited the car and walked to Medearis' mother's house and was taken to her aunt's house. Id. at 139, 145-48. Eventually, Whiting was transported to the Indian Health Service Hospital in Rosebud where Dr. Zijad Sabovic examined her and a rape kit was administered. Id. at 148, 151-52.

[¶ 10] The incident was reported to law enforcement authorities that day. Id. at 149-50. An Indictment was returned against Medearis about two and-a-half months later. Crim. R. 1.

[¶ 11] The jury trial lasted three days. Id. at 126. Medearis himself testified along with four other defense witnesses. Id. at 126, pp. 5-6. On January 10, 2003, the jury acquitted Medearis of the kidnapping charge, but found him guilty of the two aggravated sexual abuse...