Oliver v. Sec'y, Dep't of Corr.
| Decision Date | 13 July 2012 |
| Docket Number | CASE NO. 6:09-cv-607-Orl-36DAB |
| Parties | CEDRIC OLIVER, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section 2254 (Doc. No. 1). Upon consideration of the petition, the Court ordered Respondents to show cause why the relief sought in the petition should not be granted. Thereafter, Respondents filed a response to the petition for writ of habeas corpus in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases for the United States District Courts (Doc. No. 8). Petitioner filed a reply to the response (Doc. No. 14).
Petitioner alleges six claims for relief in his habeas petition: (1) trial counsel was ineffective for failing to investigate or object to the error in his arrest warrant; (2) trial counsel was ineffective for failing to object to, and preserve for review, the trial court's failure to conduct an evidentiary hearing to determine whether restraints were necessary at trial; (3) trial counsel was ineffective for failing to file a motion to sever the charges; (4) trial counsel was ineffective for failing to preserve for review the issue that the informationwas invalid and divested the trial court of jurisdiction; (5) trial counsel was ineffective for failing to object to, raise, or argue the issue that his trial was fundamentally unfair because a State witness was allowed to vouch for and bolster the credibility of another witness; and (6) trial counsel was ineffective for failing to object to and preserve for review the issue of the State's prosecutorial misconduct during opening and closing statements.
Petitioner was charged with eight counts of capital sexual battery and one count of lewd or lascivious molestation for offenses committed on his girl friend's three daughters. At trial, victim H.S., eleven years old and in fifth grade at the time of trial, testified that Petitioner lived with her family for several years, beginning when she was in first grade (App. B at 92-94). H.S. stated that everyone got along with Petitioner except for her sister, M.G., who frequently argued with Petitioner. Id. at 95. H.S. described several incidents in which Petitioner touched her in a sexually inappropriate manner. Id. at 96. The first time Petitioner touched her, her mother was at work and Petitioner sent her sisters outside and told H.S. to go into her mother's room. Id. H.S. testified that Petitioner instructed her to remove her clothing, get on the bed, and Petitioner blindfolded her and put his penis inside her vagina. Id. at 98-99.
H.S. also testified that when she was in second grade, she was in her mother's room with Petitioner, and he put his penis inside her mouth. Id. at 101. H.S. told the court that Petitioner put his penis "on" her butt on a separate occasion. Id. at 102. On cross-examination, H.S. testified to another occasion where she was sleeping in the living roomon the pull-out couch and Petitioner woke her up, told her to take off her clothes, and put his penis in her vagina. Id. at 115-19. H.S. never told her mother about these incidents because she was afraid, despite the fact that Petitioner never threatened her or told her he was going to hurt her. Id. Furthermore, H.S. admitted that after her sister M.G. had accused Petitioner of inappropriate behavior, she lied to her mother and stated that nothing had happened. Id. at 104-05. After her mother broke up with Petitioner, she told her mother the truth because she knew "they were safe" and Petitioner would no longer be allowed near her and her sisters. Id. at 105-06.
Victim P.S., eight years old at the time of trial, testified that she could not remember how old she was when Petitioner first moved into their house. Id. at 134. P.S. testified regarding one incident of inappropriate touching but she could not remember how old she was or when it happened. Id. at 136-38-40. P.S. also recounted a time that Petitioner rubbed baby oil on her. Id. at 141. P.S. testified that one time she looked under the door of her mother's room and saw H.S. sitting naked on the bed, but P.S. did not see anyone else in the room. Id. at 142. P.S. did not tell her mother because she was scared and thought her mother would be mad. Id. at 143. On cross-examination P.S. admitted that after Petitioner moved out of their house, she drew him pictures and told him she loved him. Id. at 159.
Victim M.G., who was twelve at the time of trial and in seventh grade, testified that she did not always get along with Petitioner. Id. at 163. M.G. told the jury that Petitioner touched her inappropriately for the first time when she was in third grade. Id. at 164.M.G.'s sisters were outside playing and her mother was at work when Petitioner told her to take off her pants and then touched her vagina. Id. at 165-66. M.G. testified that on another occasion, Petitioner touched her butt at night while her sisters were sleeping. Id. at 167-69. On a third occasion Petitioner rubbed her vagina with baby oil. Id. at 170. M.G. also testified that Petitioner once rubbed his penis against her vagina while her eyes were covered with a bandana. Id. at 171-72. M.G. told the jury about a fifth incident, in which Petitioner used his tongue on her vagina. Id. at 174. M.G. also stated that she once observed her sister, H.S., standing naked in her mother's room. Id. at 173.
M.G. testified that she did not tell her mother about Petitioner's inappropriate touching because she did not want him to hurt her mother. Id. at 175. M.G. stated that she did try to tell her mother once, but her sisters denied the allegations, therefore, the issue was dropped. Id. Nurse Deborah Scott, a part of the child protection team, testified that she performed examinations on H.S., P.S., and M.G. Id. at 210-11, 220. Scott did not observe any injuries, traumas, or scars on the victims. Id. at 228, 234-35. Scott also testified that it was not unusual to see no signs of trauma on a child, and the absence of trauma does not confirm or discredit the victims' allegations. Id. at 228, 236.
The victims' mother, Nicole Serna, testified that Petitioner moved into her house in March 1998 and her relationship with him ended in August 2003. Id. at 265. They had a tumultuous relationship, and Petitioner would sometimes leave the house and then move back in. Id. Serna testified that the family dynamics were better when Petitioner was not there. Id. at 266. In July 2002, her daughter, M.G., recounted an incident of inappropriatetouching that occurred between her and Petitioner. Id. at 267. Serna did not believe her daughter's allegations. Id. Serna never observed any unusual or suspicious behavior. Id. at 268.
Serna testified that M.G. again made the same accusations against Petitioner after he moved out of their home, and this time her sisters corroborated her story. Id. at 269. Serna admitted that Petitioner was very controlling, in that he would never let her use the car, and when she would ask him to leave, he would break into her house. Id. at 314-15. Petitioner testified that his relationship with Serna's daughters was good, although he stated that M.G. was "very aggressive, disrespectful" so he had to "handle her a little different than the other girls." Id. at 322. Petitioner denied the victims' allegations. Id. at 323.
Petitioner admitted that he had been convicted of six or seven felonies. Id. at 324. Petitioner also testified that he was not controlling. Id. at 325. Petitioner stated that the other girls were scared of M.G. Id. Petitioner testified that he believed M.G. and Serna were "putting the girls up to what they are saying." Id. Petitioner admitted that he had been convicted of armed robbery, battery on a law enforcement officer, and delivery and possession of cocaine, but stated that he had never been convicted of any sex crimes. Id. at 331.
During the jury trial, the state court granted defense counsel's motion for judgment of acquittal on four of the sexual battery counts (counts two, five, seven, and eight). The jury convicted Petitioner as charged of three counts of capital sexual battery (counts one,four, and six) and of lewd or lascivious molestation (count nine). The state court declared a mistrial with respect to count three, and the State entered a nolle prosequi. The state trial court sentenced Petitioner to concurrent terms of life imprisonment for the capital sexual battery counts and to a thirty-year term of imprisonment for the lewd and lascivious count. The court ordered the sentence for count nine to run consecutively to the other sentences. Petitioner appealed, raising one ground for relief in his initial brief. The Fifth District Court of Appeal per curiam affirmed Petitioner's convictions and sentences.
Petitioner filed a Rule 3.800(a) motion to correct illegal sentence pursuant to the Florida Rules of Criminal Procedure, arguing that the trial court improperly sentenced him to consecutive terms of imprisonment. The state trial court denied relief. There is no indication that Petitioner appealed this denial. While his Rule 3.800(a) motion was pending, Petitioner filed a Rule 3.850 motion for post-conviction relief, alleging six grounds for relief. The state trial court summarily denied claims one, two, four, five, and six, and ordered an evidentiary hearing on claim three. After holding a hearing, the state court denied claim three. Petitioner appealed the denial of all six grounds. The Fifth District Court of Appeal per curiam affirmed. The instant federal habeas corpus petition follows.
Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
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