O'Quinn v. Sec'y, Dep't of Corr., CASE NO. 6:09-cv-217-Orl-36GJK
| Decision Date | 07 March 2012 |
| Docket Number | CASE NO. 6:09-cv-217-Orl-36GJK |
| Parties | JOSEPH M. O'QUINN, 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 alleging the petition was untimely filed (Doc. No. 13). The Court entered an order finding the petition was timely filed and ordered a response on the merits of Petitioner's claims (Doc. No. 25). Respondents filed a supplemental response (Doc. No. 29), and Petitioner has filed a reply (Doc. No. 35).
Petitioner alleges seven claims for relief in his habeas petition: (1) & (2) trial counsel was ineffective for failing to prepare and argue a defense on his behalf and failed to properly pierce the rape shield statute; (3) trial counsel was ineffective for failing to object to, or ask for a curative instruction, regarding several instances of prosecutorialmisconduct; (4) trial counsel was ineffective for failing to file a pre-trial motion to have the victim examined by a psychological expert; (5) trial counsel was ineffective for failing to call two key defense witnesses; (6) a claim of cumulative error; and (7) trial counsel was ineffective for failing to secure a serology expert to testify at trial.
Petitioner was charged with one count of capital sexual battery on a person less than twelve years of age. At trial, the victim, who was nine years old when the incident occurred, testified that she lived with her father and Petitioner (App. B at 90-91). On October 16, 2002, she was home with Petitioner when he asked her if she wanted to have sexual intercourse. Id. at 92. Petitioner then grabbed the victim's arm, pulled her into his bedroom, took off his clothes, and forced her to perform oral sex upon him. Id. at 94-5. The victim testified that Petitioner "peed" in her mouth, most of which got on her shirt. Id. at 95. The victim then went to the bathroom, washed out her mouth, showered, and changed her clothes. Id. The victim testified that she tried to call her father but could not reach him until the next morning. Id. at 96.
The victim's father Michael Frascella ("Frascella") testified that he had known Petitioner for three to four years and had met him on a construction job site where they both worked. Id. at 147-48. Petitioner began living with Frascella and his daughter approximately three weeks prior to the incident. Id. at 149. On October 16, 2002, Frascella had plans to go to a friend's birthday party, and he asked Petitioner if he could watch his daughter until Frascella's aunt came to the house. Id. at 150-51. Frascella did not comehome that night and instead stayed at his girlfriend's house. Id. at 152. The following morning, he received a phone call from his daughter, after which he called the police. Id. On cross-examination, Frascella testified that the week prior to the incident he had an argument with Petitioner but never asked Petitioner to leave the home. Id. at 153.
Pablo Marquez-Cruz ("Marquez-Cruz"), a detective for the Orange County Sheriff's Office, investigated the instant case. Id. at 163. Marquez-Cruz met with the victim on October 17, 2002. Id. at 166. The victim was able to describe the incident, she understood his questions, was coherent, and was consistent in terms of date, time, and place. Id. at 166-67. After the victim began to describe in detail what happened, Marquez-Cruz contacted the Child Protection Team ("CPT") and notified the Department of Children and Families ("DCF"). Id. at 168. Marquez-Cruz also instructed forensics to take pictures and collect evidence, including the multi-colored shirt the victim had been wearing when the incident occurred. Id. at 168. Marquez-Cruz conducted the victim's interview with the CPT and later arrested Petitioner. Id. at 172-73. The detective testified that he read Petitioner his Miranda1 rights, after which Petitioner told police that he had masturbated in the bathroom and used the victim's shirt to wipe semen off. Id. at 174. Marquez-Cruz took an oral swab of Petitioner's saliva to use for DNA testing. Id. at 175.
Nurse practitioner Deborah Scott ("Scott") testified that she works for the CPT and met with the victim on October 17, 2002. Id. at 205-08. Scott performed a medical examination of the victim. Id. at 208. Scott testified that the victim had bruising on her lefttonsil. Id. at 210. The contusions appeared to be fresh because they were darkly colored. Id. at 212-13. At the time the victim was not suffering from a cold or allergies, and there was nothing in the victim's history to suggest that the bruising occurred from something other than a traumatic event. Id. at 213. Scott opined the bruising occurred due to some type of blunt penetration into the victim's oral cavity. Id. at 214. Scott also noted that the victim showed her how the forced oral sex occurred and testified that her findings were consistent with the victim's story. Id.
Jason Werking ("Werking"), who works for the Florida Department of Law Enforcement in the serology and DNA section, testified that he tested the shirt that the police collected as evidence and found the existence of semen. Id. at 289. Werking compared the DNA profile from the seminal fluid to Petitioner's DNA and concluded the two profiles matched. Id. Petitioner testified at trial that the week prior to the incident he had an argument with Frascella at work, after which they had another confrontation at home. Id. at 322-23. Frascella asked Petitioner to leave their home. Id. Petitioner testified that the victim was present for this fight. Id. Petitioner then testified that he watched the victim on October 16, 2002. Id. at 324. Petitioner told the jury that the following morning, he showered and then masturbated over the toilet. Id. at 327-28. Petitioner used a shirt that was lying on the toilet tank to clean himself when done and then placed the shirt back on the tank. Id. at 329. Petitioner stated he never forced the victim to perform oral sex and that the victim's testimony was a lie. Id. at 338.
The jury convicted Petitioner as charged. The trial court sentenced Petitioner to lifeimprisonment. Petitioner appealed; while his appeal was pending with the Fifth District Court of Appeal, he filed a Rule 3.800(b)(2) motion to correct sentence pursuant to the Florida Rules of Criminal Procedure, which was denied. Appellate counsel then filed an Anders2 brief and moved to withdraw from the case. The Fifth District Court of Appeal granted the motion to withdraw and per curiam affirmed.
Petitioner filed a Rule 3.800(a) motion to correct illegal sentence arguing he was entitled to additional days of credit for time served (App. T). The trial court granted the motion on May 10, 2005, and awarded Petitioner 398 days of credit for time served. Petitioner then filed a Rule 3.850 motion, alleging five grounds for relief. Petitioner also filed two addenda which raised additional grounds for relief. The state trial court summarily denied the Rule 3.850 motion. Petitioner appealed, and the Fifth District Court of Appeal affirmed per curiam.
Finally, Petitioner filed a second Rule 3.800(a) motion to correct illegal sentence, raising the same claims that he raised in his first Rule 3.800(a) motion. The state court rejected the merits of the motion, finding Petitioner's claims had already been raised, considered, and previously granted. The appellate court affirmed per curiam the lower court's denial of Petitioner's claims. The instant federal habeas 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:
28 U.S.C. § 2254(d). See Brown v. Patton, 544 U.S. 133, 141 (2005); Price v. Vincent, 538 U.S. 634, 638-39 (2003). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Calliper, 527 F.3d 1144, 1146 (11th Cir. 2008).
"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issues its decision. Carey v. Musladin, 549 U.S. 70, 74 (2006)(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). "[T]o be 'contrary to' clearly established federal law, the state court must either (1) apply a rule that contradicts the governing law set forth by Supreme Court case law, or (2) reach a different result from the Supreme Court when faced with materially indistinguishable facts." Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (internal quotations and citation omitted); Mitchell v. Esparza, 540 U.S. 12, 16 (2003). A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown, 544 U.S. at 134;Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000); or, "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not...
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