Schwab v. Crosby, No. 05-14253.

• Decision Date: 15 June 2006
• Docket Number: No. 05-14253.
• Citation: 451 F.3d 1308
• Parties: Mark Dean SCHWAB, Petitioner-Appellant, v. James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Charlie Crist, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

451 F.3d 1308

Mark Dean SCHWAB, Petitioner-Appellant, v. James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Charlie Crist, Attorney General, Respondents-Appellees.

No. 05-14253.

United States Court of Appeals, Eleventh Circuit.

June 15, 2006.

Mark S. Gruber, Daphney Elaine Gaylord and Eric Pinkard (Court-Appointed), Capital Collateral Regional Counsel-Middle Region, Tampa, FL, for Schwab.

Kenneth Sloan Nunnelley, Dept. of Legal Affairs, Daytona Beach, FL, for Respondents-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, CARNES and HULL, Circuit Judges.

CARNES, Circuit Judge:

So far as we know, the first time that Mark Dean Schwab sexually assaulted a young male was in the fall of 1986, when Schwab was seventeen years old. His victim was a younger, slightly built (4'10" tall, 85 lbs.), high school sophomore whose first name, which is all we will use, was Warren. On his way to school in Brevard County, Florida one morning, Warren walked by Schwab's truck in the parking lot of a bank near the school. Schwab asked Warren to help him start the truck, which he did, although the truck started easily. Warren then made the mistake of accepting Schwab's offer of a ride to school. As soon as Schwab drove the truck out of the parking lot, he grabbed Warren's hair, pulled Warren's head into his lap, and put a knife against his throat. Schwab drove the truck down some winding dirt roads and eventually parked it so that a tree blocked the passenger door.

With Warren trapped inside the truck, Schwab ordered him to remove his shorts. He then began to masturbate Warren. After a few minutes he ordered Warren to masturbate himself and he performed oral sex on Warren. Schwab's assault on Warren lasted 30 to 45 minutes. Afterwards, he drove Warren to the high school and threatened to kill him if he told anyone what had happened. Two days later, as Warren was again walking to school, Schwab pulled up alongside him, gave him a $20 bill, and thanked him for not telling anyone. Warren did not see Schwab after that and did not come forward about the crime until he heard about the disappearance of the young boy in this case, which happened five years later.

In the meantime, Schwab's next known sexual assault occurred during the summer of 1987. This time his victim, first name Than, was a thirteen-year-old boy (between 5'3" and 5'6" tall). In order to get his hands on Than, Schwab called the boy and his family, telling them he had adopted a dog that they had given to a local pet shelter. He said that he needed their advice about how to care for the dog. Using that ruse, over the next few weeks Schwab visited Than's home in Brevard County several times, ingratiating himself with the family.

About three weeks after first meeting Than, Schwab called him one morning and told him that he had a house painting job on which he could use some help. Schwab promised to give Than half of the $400 that he expected to be paid for the work. Than agreed, and a little while later Schwab picked him up. Instead of driving Than to the painting job, Schwab took him to his house. Immediately after the two walked inside Schwab's house, he stuck a knife to Than's throat. Schwab then forced Than to take off his clothes, bound his hands behind his back with a cord, and blindfolded him. Schwab touched Than's penis and orally molested him. Schwab then forced the thirteen-year-old boy to lie on his stomach on a couch and anally raped him. The entire ordeal lasted several hours, all morning and into the afternoon. Than blacked out during part of it.

Afterwards, Schwab untied Than, allowed him to dress, and drove him home. Schwab told Than not to tell anyone and promised that he would put $200 in Than's mailbox the next day if he would keep quiet. Than had a small cut on his throat from the knife and had bruises on his arms from being tied up. He reported what had happened to him, and Schwab was charged with sexual battery under Florida law. He confessed and pleaded guilty to the sexual battery charge, Fla. Stat. § 794.011(3) ("A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon is guilty of a life felony."). That crime was punishable by "a term of imprisonment for life or by a term of imprisonment not exceeding 40 years." Id. §§ 775.082(3)(a), 794.011(3). He did not receive nearly that much punishment. Instead, on March 18, 1988, Schwab was sentenced to only eight years in prison. Unfortunately, and tragically, he did not serve his full sentence or even half of it.

In early March of 1991 Schwab was released from prison in Florida. See Schwab v. State, 636 So.2d 3, 4 (Fla.1994). His early release was not because he had received any type of treatment. He hadn't. Although he had been tentatively accepted into a sex offender program for inmates, before Schwab could complete the screening process that program was ended because of budget cuts. Still, even without treatment, Schwab was released from prison on probation only three years after he was given an eight-year sentence. He was required to participate in a sexual offender therapy program as a condition of his probation. In less than a month after his release, and during the time he was participating in the program, Schwab had found another victim.

Junny Rios-Martinez was an eleven-year-old boy, who was 5' tall and weighed 76 pounds. He won a kite-flying contest which led to his picture being published in the March 21, 1991 edition of Florida Today, a local newspaper in Brevard County, Florida. Children are often excited to see their pictures in the newspaper, and Junny could not have suspected that it would ultimately cost him his life.

The day after Junny's photograph ran in the paper his mother received a phone call from a man identifying himself as Malcolm Denemark and saying that he was from the newspaper. The man told Mrs. Rios-Martinez that he had seen Junny's picture in the paper and wanted to interview Junny for another article. He called back later that day while Junny was at home and was allowed to speak with him. Junny agreed to be interviewed, and his mother and the man arranged for it to take place at the Rios-Martinez home before Junny's baseball game the following day.

That next day, which was Saturday, March 23, Schwab went to Junny's home for the interview and introduced himself as "Mark Dean." Schwab explained that Denemark, his associate from Florida Today, could not make the interview because of a conflict but that he was prepared to conduct it for Denemark. Schwab carried a spiral notebook with handwriting on several pages, which he said were questions that Denemark had prepared for the interview. Schwab did not work for any publication (he had a construction job), and he was not an associate of anyone named Malcolm Denemark. But neither Junny nor his mother knew that, and they certainly did not know the person they had let into their home was a child molester who had just gotten out of prison.

During the interview, Schwab sat on a couch in the living room, Junny sat across from him in a rocking chair, and Mrs. Rios-Martinez sat on the couch just a few feet away. Schwab asked Junny about the things he liked to do, his favorite subject in school, his grades, whether there were drugs in school or peer pressure, and about cars. Junny showed Schwab his baseball and surfing trophies, and Schwab told Mrs. Rios-Martinez: "You must be very proud of him." He gave Junny a gift certificate to McDonald's on which was written "To: Junny. From: Florida Today (Mark)."

After the interview was over, Schwab told Mrs. Rios-Martinez that he would like to interview Junny again for another, potentially national, story and that Junny should attend a photo shoot for the story at Florida Today's offices the next Monday. Mrs. Rios-Martinez agreed and told Schwab that he could also take photos of Junny playing drums at a club where his father worked on Sundays. Schwab asked Mrs. Rios-Martinez if he could go with them to Junny's baseball game that evening, telling her that he wanted to see Junny playing and get to know him and his family better. Mrs. Rios-Martinez consented to that, and Schwab spent a half hour at Junny's baseball game that night.

Schwab did not show up at the club to take photographs of Junny on the next Sunday. He called Mrs. Rios-Martinez that night and told her his deadline on the story had been extended and the photo shoot canceled. The next day, Schwab called again. This time he told Mrs. Rios-Martinez that he would no longer be involved with the article for Florida Today, because he had taken a new position with a surfing magazine. In this way, Schwab began to exploit the information he had gained about Junny's interest in surfing during his visit to their home.

Two days later Mrs. Rios-Martinez and her husband received a letter from Schwab. In it he told them that their family was a special one, unlike any other he had ever met, and that he could tell all of the family members (there were two other children) loved each other very much. The following Sunday, which was Easter, Schwab personally delivered an Easter card to the Rios-Martinez family. Mrs. Rios-Martinez was at home alone. She and Schwab discussed the letter he had sent her and her husband. She told Schwab "that it had affected [her] deeply, emotionally and that [she] was very affected by and very moved by what he had written about [her] family."

They also discussed the new job Schwab claimed to have. He told Mrs. Rios-Martinez that he had gained a lot of contacts with surfing companies and that he would like to help Junny get sponsored by one of them. He asked her to write up a resume for Junny and to get together some pictures of him that Schwab could take to his contacts. She did.

Three days later Schwab told Mrs....