Oliver v. Santiago

• Decision Date: 21 June 2017
• Docket Number: Civil Action No. 14-1334 (MCA)
• Parties: LORENZO OLIVER, Petitioner, v. ANGEL L. SANTIAGO, ADMINISTRATOR, ET AL., Respondents.
• Court: U.S. District Court — District of New Jersey

LORENZO OLIVER, Petitioner, v. ANGEL L. SANTIAGO,ADMINISTRATOR, ET AL., Respondents.

Civil Action No. 14-1334 (MCA)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

June 21, 2017

OPINION

I. INTRODUCTION

This matter has been opened to the Court by Petitioner Lorenzo Oliver's filing of a pro se Petition for a writ of habeas corpus challenging his civil commitment under the New Jersey SVPA, pursuant to 28 U.S.C. § 2254. For the reasons explained in this Opinion, the Court will deny the Petition and will also deny a certificate of appealability.

II. FACTUAL BACKGROUND & PROCEDURAL HISTORY

This Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1),¹ will reproduce the recitation of facts as set forth by Superior Court of New Jersey, Appellate Division:

L.O. is a fifty-eight-year-old convicted sexual molester of women. He has a longstanding history of sexual offenses. In 1971, at age sixteen, L.O. was arrested for the rape of a thirteen-year-old girl. The charge was amended to immorality, and he was adjudicateddelinquent and sentenced to a suspended sentence at Yardville and one year probation. L.O. claims the intercourse was consensual.

At age eighteen, L.O. was convicted of assault with intent to commit carnal abuse for attempting to engage in sexual activity with a nine-year-old female he was instructing in karate. He was sentenced to a maximum term of seven years at Yardville. He was arrested two times for sexual offenses in 1973 and 1978 that were dismissed, and in 1980 he was charged with aggravated sexual assault for which he was found not guilty. However, Dr. Mark Frank, a clinical psychologist, reported in a 1989 Adult Diagnostic and Treatment Center (ADTC) evaluation that L.O. told him this incident involved a female acquaintance who at first resisted his advances but later submitted to sex. According to the report, L.O. told the evaluator, "I admit we struggled. I guess she thought it was rape, but it wasn't my definition." At the SVPA trial L.O. denied making that statement.

In 1981, L.O. forced two girls, ages fourteen and sixteen, into his car. He drove them around for several hours and eventually stopped and demanded sex, which they refused. After he pulled the younger girl from the car, the older girl escaped. When police arrived, they observed L.O. "with his pants down to his knees getting up off a black female, unclothed from the waist down." Though the victim initially denied penetration, she later admitted to her sister that L.O. did penetrate her after he pushed her up against a wall, ripped off her pants, and pulled her shirt up to her neck. L.O. was convicted of criminal sexual contact and criminal restraint, and sentenced to a two-year term of probation, fined, and ordered to attend an alcohol treatment program.

In 1983, L.O. was charged with violating probation (VOP) by failing to report, failing to notify probation of a change of residence, leaving the State without the permission of his probation officer, and being arrested and charged with kidnapping and aggravated sexual contact. He was resentenced to a four-year term of incarceration, but on a motion for reconsideration the sentence was vacated, and the matter was held in abeyance pending the disposition of open charges. In 1984, L.O.'s probation was vacated without improvement. In 1985, L.O. was charged with kidnapping and sexual assault. He pled guilty to aggravated sexual assault, but later withdrew his plea and was acquitted after a jury trial. However, while awaiting sentencing prior to withdrawing his plea, on April 21, 1986, L.O. was evaluated at the ADTC by Kay E. Jackson, M.A., who concluded that L.O. fell "under the purview of the New Jersey Sex Offender Act" because he has little control over his antisocial behavior, his crimes are compulsive in nature, and there are indications he has psychosexual pathology. Jacksonnoted in her report that L.O. "acknowledged that he has sexual difficulties, stemming from aggression, for which he needs help."

On June 3, 1988, at age thirty-four, L.O. was charged with the predicate offense, which included two counts of sexual assault, one count of aggravated assault, one count of attempted sexual assault, and two counts of criminal restraint for sexual attacks on two female acquaintances, A.S. and A.D., resulting from L.O. luring the victims into his home and then resorting to brute force to cut off the victims' air supply until they acquiesced. The cases were consolidated for trial, defendant was convicted of the offenses, and sentenced to state prison and a subsequent commitment at the ADTC. We reversed the conviction based on evidentiary rulings and deficient jury charges, and the Supreme Court affirmed the reversal.

L.O.'s retrial occurred on February 7, 1995, and he was convicted of two counts of sexual assault (vaginal and oral sex with two victims), one count of attempted sexual assault (incomplete vaginal sex leading to oral sex), two counts of criminal restraint, and one count of the lesser-included offense of simple assault. He was sentenced on May 15, 1995 to a thirty-year custodial term with a twelve-year parole disqualifier.

II.

In January 2009, the State filed a petition for civil commitment pursuant to the SVPA. On February 4, 2009, a temporary order of commitment was entered. On July 20, 2010, a final commitment hearing was held before Judge James F. Mulvihill. At the hearing, Dr. Alberto M. Goldwaser, M.D., a psychiatrist,² and Dr. Rosemarie V. Stewart, Ph.D., a psychologist, testified on behalf of the State. L.O. testified on his own behalf.

On July 15, 2010, Dr. Goldwaser attempted to perform a clinical evaluation of L.O; however, he refused to be interviewed. Dr. Goldwaser, however, was able to formulate an independent conclusion, write a report, and testify based on his thorough review of L.O.'s complete discovery file and treatment records. His report identified the sources of information he relied on in evaluating L.O., which included: the psychiatric certificates of Drs. Marina Moshkovich and Anasuya Salem; a prison psychological evaluation; mental health parole evaluations; criminal justice records; a forensic psychological evaluation performed by Dr.Stewart; a forensic psychiatric evaluation performed by Dr. Pogos H. Voskanian; and various STU records. Dr. Goldwaser detailed L.O.'s sexual and non-sexual offenses, institutional infractions, personal history, substance abuse history, actuarial risk assessments, and psychological testing. He diagnosed L.O. with paraphilia NOS (non-consent), cocaine dependency (in institutional remission), alcohol abuse, and antisocial personality disorder. He concluded that L.O.'s "sexual predator deviance is deeply ingrained" and opined that "there is substantial clinical evidence that [L.O.]'s conditions qualify him as having a mental abnormality and a personality disorder that place[s] him at high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care, and treatment."

Dr. Stewart based her assessment on a two-hour interview of L.O., review of reports and evaluations prepared by other experts for background information, statements made by L.O. in interviews, his criminal history, and other documentation customarily relied on by experts in her field, but she ultimately made an independent assessment. She testified consistently with her report of August 19, 2009.

Dr. Stewart addressed L.O.'s extensive history of substance and alcohol abuse. She testified that he described himself "as using heavily while he was offending" and "high as heck" when he was with the victims. She opined that the minimal amount of substance abuse treatment L.O. received was insufficient to mitigate the risk that substance abuse contributed to his potential for reoffending.

L.O. scored a twenty-four on the Hare Psychopathy Checklist which reflects significant psychopathic traits, such as manipulativeness, antisocial type behavior, lack of empathy and compassion for other people, and not being restrained by conscience in certain situations. Dr. Stewart asserted that L.O.'s score reinforced her diagnosis of antisocial personality disorder. She also scored him twice for the Static-99, and he scored a seven on the first test and a six on the second, both falling in the high-risk category of sexual recidivism.

Dr. Stewart testified that during her interview with L.O. they talked about his offending history in detail, and he told her that "he saw a pattern" and "how it led him toward aggression with females and particularly sexual aggression with them." However, L.O. believed he was at a very low risk of reoffending because "he had a different moral base and a different value system." Dr. Stewart disagreed based on L.O.'s history of sexual offending and propensity toward violence. She noted that these factors are not mitigated by any treatment and are actually exacerbated by L.O.'s substance abuse and lack of supervision. She found anotherexacerbating factor to be L.O.'s violation of supervisory requirements.

Dr. Stewart opined that L.O. suffers "from a mental abnormality or personality disorder that impacts him volitionally, emotionally or cognitively in such a way that it predisposes him to engage in acts of sexual violence." She made a provisional diagnosis of paraphilia NOS non consent³ and diagnosed him with cocaine dependence, alcohol abuse, and antisocial personality disorder. She further opined that L.O. was highly likely to sexually reoffend in the foreseeable future unless confined in a facility. L.O. claimed that some of the statements attributed to him by Dr. Frank were inaccurate. L.O. testified that Dr. Stewart's report was also inaccurate because he did not violate probation. He explained that when he left the State his probation was over and his probation officer told him he did not have to show up. He denied that many of the criminal incidents occurred,

...