Olawale v. Hodge
| Decision Date | 22 January 2016 |
| Docket Number | No. 13 C 8535,13 C 8535 |
| Parties | ABOLAJI F. OLAWALE (R-59479), Petitioner, v. MARC HODGE, Warden, Lawrence Correctional Center, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Before the Court is pro se petitioner Abolaji F. Olawale's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). For the following reasons, the Court denies the petition and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
Olawale challenges his 2006 Cook County, Illinois convictions for criminal sexual assault of two girls, ages fifteen and seventeen, during a sleepover at his home.
Before turning to the merits of the habeas corpus petition, the Court notes that Olawale is no longer in respondent's custody. Olawale filed the petition while serving his prison sentence on the instant convictions in the Illinois Department of Corrections. However, according to Olawale's filing in a separate case, Olawale v. Madigan, No. 15-3758 (7th Cir.) (Docket #1 at 1), he completed his sentence and was released from custody on March 25, 2015, and is presently in the custody of the United States Department of Homeland Security, United States Immigration and Customs Enforcement (ICE), at the Tri-County Detention Center in Ullin, Illinois, where he faces removal. Olawale is no longer listed as an inmate on the Illinois Department of Corrections (IDOC) inmate locator website.
The Court has subject matter jurisdiction to adjudicate the present habeas corpus petition because Olawale filed the petition while he was in respondent's custody for the instant convictions. See Stanbridge v. Scott, 791 F.3d 715, 718 (7th Cir. 2015) (citing Maleng v. Cook, 490 U.S. 488, 490-91 (1989)). Because Olawale faces collateral consequences from his conviction, namely, deportation, Olawale's release from respondent's custody during the pendency of this litigation does not moot this case. See Eichwedel v. Curry, 700 F.3d 275, 278 (7th Cir. 2012) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)). There is a presumption that a convict faces collateral consequences from his conviction, Cochran v. Buss, 381 F.3d 637, 641 (7th Cir. 2004), and Olawale alleges the collateral consequence of facing removal proceedings, see Spencer, 523 U.S. at 9 (citing Fiswick v. United States, 329 U.S. 221-23 (1946)) (conviction resulting in deportation satisfies the collateral consequence standard). Thus, this action has not been rendered moot due to the completion of Olawale's criminal sentence and release to ICE. The Court will decide the petition on the merits.
When considering habeas petitions, federal courts must presume that the factual findings made by the last state court to decide the case on the merits are correct unless the habeas petitioner rebuts those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Rhodes v. Dittmann, 783 F.3d 669, 674 (7th Cir. 2015). Olawale has not provided clear and convincing evidence to rebut this presumption, so the following factual background is drawn from the Illinois Appellate Court's findings in their decisions on direct appeal, People v. Olawale, No. 1-07-0781 (1st Dist. Nov. 21, 2008) (Dkt. No. 10-1), and postconviction review,People v. Olawale, 2012 IL App (1st) 102849-U (Ill. App. Ct. July 31, 2012) (Dkt. No. 10-5). These decisions are the relevant decisions for this Court's review because they are last decisions to adjudicate Olawale's claims on the merits. See Greene v. Fisher, --- U.S. ----, 132 S. Ct. 38, 45 (2011); Eichwedel, 696 F.3d at 671. Furthermore, the Court has reviewed the record in full and confirmed that the state-court findings are supported by the record.
Olawale was convicted of the criminal sexual assault of 15-year-old Melissa B. and 17-year-old Marjorie B. (Dkt. No. 10-1 at 1.) Marjorie lived with her cousin and legal guardian, Tracie B. (Id. at 2.) Olawale was married to Tracie. (Id.) Tracie and Marjorie had a mother-daughter relationship, and Marjorie treated Olawale as her stepfather. (Id.) Tracie's two children and her friend Denise Westmoreland also lived in the family home with Olawale, Tracie, and Marjorie. (Id.)
On May 30, 2004, Marjorie hosted a sleepover at her home. (Id. at 1-2.) Joining Marjorie for the sleepover were Melissa; Melissa's 14-year-old cousin, Jasmen T.; and a 16-year-old friend, Rashaan R. (Id.) Olawale drove the four girls to a video store to rent movies for the sleepover. (Dkt. No. 10-5 at 2.) He also purchased alcohol—Long Island iced tea—at the girls' request. (Id.) Olawale originally refused the request, but subsequently agreed. (Dkt. No. 10-1 at 2.)
All four girls testified at trial. Marjorie testified that, during the drive to the video store, Olawale said that it was beautiful for girls to have sex. (Id.) Marjorie also testified that Melissa had announced in the car that she had "'eaten'" Marjorie's "'pussy,'" but it was not true, and Marjorie had told Melissa to stop it. (Id.) However, Melissa and Jasmen testified that they could not recall Melissa making the comment in the car. (Id.)
Upon returning to the home, the girls changed clothes, ate pizza, and watched movies in the basement. (Id.) Olawale and Tracie were initially downstairs with the girls. (Id. at 2-3.) Tracie then fell asleep. (Id. at 3.) Olawale woke Tracie up and walked her to a bedroom on the second floor. (Id.)
Olawale then returned to the basement with the Long Island iced tea for the girls. (Id.) The girls, as well as Olawale, drank the alcohol. (Id.) Marjorie, Melissa, and Jasmen testified that this was their first time drinking alcohol. (Id.) The group finished the bottle, and the girls then suggested that they try apple vodka. (Id.) Olawale went to the liquor store to purchase the vodka. (Id.) He returned to the basement, and the girls drank the vodka, with Marjorie and Melissa drinking the most. (Id.)
At this point, Melissa, Marjorie, and Jasmen were drunk. Melissa and Marjorie, who were both wearing clothes, including pants, began pillow fighting and "acting crazy." Olawale sat in the basement corner smoking a cigarette and watching Melissa and Marjorie. Jasmen was on the couch and covered her entire body and face with a blanket. (Id.) Rashaan, who was the most sober of the group, became scared and went to Marjorie's room on the second floor. (Id.) Marjorie then hit her head on the entertainment system before passing out on a futon in the basement. (Id.) Melissa passed out on the basement floor. (Id.)
Melissa testified that she next remembered that her pants had been pulled down and Olawale was on top of her. (Id. at 3-4.) She also testified that Olawale put his penis in her vagina and had sexual intercourse with her. (Id. at 4.)
Marjorie was also no longer wearing pants. (Id.) Olawale put Melissa on top of Marjorie and told Melissa to "'hump'" Marjorie while he stood next to the girls. (Id.) This caused Marjorie to wake up. (Id.) Marjorie could feel her vagina touching Melissa's. (Id.) Olawalethen again placed Melissa on top of him and continued to have vaginal intercourse with her. (Id.)
Olawale then engaged in oral sex with Melissa, placing his penis in Melissa's mouth, and his mouth to her vagina. (Id.) Jasmen attempted to pull Melissa off Olawale, but he pushed Jasmin away. (Id.) Melissa explained that she could not feel anything during the incident because she was numb. (Id.) She originally testified that she consented to the sex, but later testified that she did not agree to what had happened. (Id.)
Marjorie testified that she passed in and out of consciousness during the incident. (Id.) She remembered waking up to Melissa being on top of her. (Id.) She also witnessed Olawale having intercourse with Melissa. (Id.) She further testified that Olawale was on top of her at one point during the incident, and she felt his penis penetrating her. (Id.) Marjorie testified that Olawale did not use a condom, but he wiped himself and Marjorie off when he heard someone coming downstairs. (Id.)
Jasmen testified that she removed the blanket from her head during the incident and saw Melissa on top of Marjorie with their private parts touching. (Id. at 5.) She also saw Olawale having sexual intercourse with both Melissa and Majorie. (Id.) Jasmen also testified that Olawale pushed her away when she tried to push him off Melissa. (Id.)
Jasmen then went upstairs to find Rashaan but could not find her. (Id.) Jasmen returned to the basement, where she found Melissa on the floor with her clothes on. (Id.) Melissa told Jasmen that Olawale raped her. (Id.)
Although there is some conflict in the testimony among Melissa, Jasmen, and Rashaan on the order of events, the girls agreed that Melissa and Jasmen eventually found Rashaan upstairs and told Rashaan what had happened. (Id. at 5-6.)
Melissa then called her boyfriend, DeAndre McDonald, and told him to come and get her. (Id.) She then vomited. (Id.) Jasmen took Melissa to the outside porch and went to check on Marjorie. (Id.) Jasmen was unable to wake Marjorie up. (Id.) Melissa walked away from the porch without her shoes. (Id.) Jasmen and Rashaan chased after Melissa. (Id.)
At this point, Tracie woke up to the slamming of the front door. (Id. at 6.) Olawale was standing by the doorway, and Jasmen, Melissa, and Rashaan were outside. (Id. at 6-7.) Tracie asked Olawale what was going on. (Id. at 7.) He responded that Melissa was sick from the pizza and had called her brother to get her. (Id.) Tracie said she would check on Melissa as she walked down the street, but Olawale told Tracie to let him check on Melissa. (Id.) The girls walked away from Olawale as he approached them. (Id.) Olawale came back home and said that he did not know where the girls went. (Id.)
Tracie then dialed the last number on the phone, and McDonald's mother, Carolyn, answered. (Id.) Tracie learned that...
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