Sera v. Norris

• Decision Date: 21 January 2004
• Docket Number: No. 5:01 CV 00381 JWC.,5:01 CV 00381 JWC.
• Citation: 312 F.Supp.2d 1100
• Parties: Steven Anthony SERA Petitioner v. Larry NORRIS, Director, Arkansas Department of Correction Respondent
• Court: U.S. District Court — Eastern District of Arkansas

312 F.Supp.2d 1100

Steven Anthony SERA Petitioner v. Larry NORRIS, Director, Arkansas Department of Correction Respondent

No. 5:01 CV 00381 JWC.

United States District Court, E.D. Arkansas, Pine Bluff Division.

January 21, 2004.

COPYRIGHT MATERIAL OMITTED

Teena L. Watkins, Arkansas Attorney General's Office, Little Rock, AR, for Larry Norris.

John Wesley Hall, Jr., Little Rock, AR, for Steven Anthony Sera.

MEMORANDUM OPINION AND ORDER

CAVANEAU, United States Magistrate Judge.

Steven Sera, an Arkansas Department of Correction inmate, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for raping a Bradley County woman while she was under the influence of Rohypnol, the so-called "date rape" drug. For the following reasons, the Court¹ finds that the petition should be GRANTED.

I. Background

In January 1997, Nancy Sera discovered that her husband, Petitioner, was having an extramarital affair. Some time later, she discovered a videotape depicting three sexual encounters between Petitioner and three different women who appeared to be unconscious. One of the women was Nancy Sera's sister, a college student in Missouri. The other women were identified and contacted, and charges were ultimately brought against Petitioner in Texas, Missouri, and Arkansas for drugging, kidnapping and sexually assaulting the three. Other charges involving an attempted rape were brought regarding a fourth victim in Arkansas.

All of the Arkansas charges went to trial in March 1998 in the Circuit Court of Bradley County, Arkansas. Following a six-day jury trial, Petitioner was convicted of three counts of introduction of a controlled substance into the body of another person, two counts of kidnapping, and one count each of first degree sexual abuse, rape and attempted rape. He was sentenced to a total of thirty years of imprisonment.² (Resp't Ex. A.)³

In a direct appeal to the Arkansas Supreme Court, Petitioner raised the following claims: (1) the evidence was insufficient to convict him of the counts arising out of what was referred to as the "Macaroni Grill incident," which included the rape count; (2) the trial court erred in admitting evidence pursuant to Ark. R. Evid. 404(b); (3) the trial court's rape shield ruling excluding a consensual act between Petitioner and one of the victims was erroneous and an abuse of discretion because (a) the evidence was relevant under Ark. R. Evid. 401-403, and (b) the rape shield statute was improperly adopted or is unconstitutional; (4) the trial court abused its discretion in allowing Dr. ElSohly, the state's expert, to testify as to his opinions about the effects of Rohypnol and the urine test results of one of the victims; and (5) the trial court erred in admitting the videotape into evidence because there was evidence of tampering. (Resp't Ex. B-1, B-2.) His convictions were affirmed. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000) (Resp't Ex. C). Petitioner sought rehearing, which was denied on June 29, 2000. (Resp't Ex. D, E.) He then filed a petition for writ of certiorari with the United States Supreme Court, (Resp't Ex. F), which was denied on November 13, 2000. Sera v. Arkansas, 531 U.S. 998, 121 S.Ct. 495, 148 L.Ed.2d 466 (2000).

There is no evidence or allegation that Petitioner sought any post-conviction relief in state court.

Petitioner then filed this federal habeas petition (docket entry # 1), challenging only one conviction: his conviction for the rape of T.D. in Warren, Arkansas, referred to as the "Macaroni Grill incident" in the state court proceedings. He received a 360-month sentence for this conviction, which is the longest sentence he is serving. He advances one claim:

1. His right to due process was violated because the evidence was insufficient to convict him of rape:

a. There was no evidence of the corpus delicti, i.e., sexual contact between Petitioner and the victim in connection with the "Macaroni Grill incident."

b. He was unconstitutionally convicted of rape through the misuse of evidence admitted under Ark. R. Evid. 404(b).

Respondent concedes (docket entry # 5) that Petitioner is in his custody and has exhausted all non-futile state remedies. Respondent has submitted the abstract of the complete trial proceedings, as well as other state court documents. Petitioner has submitted two supplemental pleadings in support of his claims (docket entries # 8, # 9). At the direction of the Court, the record has been expanded to include relevant portions of the actual trial transcript (docket entries # 13, # 14, # 15).⁴

II. Trial Evidence

The extensive evidence at trial⁵ was summarized by the Arkansas Supreme Court as follows, with the evidence regarding the Macaroni Grill count emphasized here:

In late summer of 1996, Sera [Petitioner] lived with his wife and daughter in Dallas, Texas. There, Sera owned and operated Chandler Lumber Company, named after his daughter. After hearing of the closing of a lumber mill in Warren, Arkansas, Sera began visiting Warren to explore purchasing the property. Sera eventually bought the property and started a mill division of his company in Warren.

The first five counts of the criminal information filed against Sera involve [T.D.]. Toward the end of August or early September, during one of Sera's visits to Warren to set up the mill, he and a friend went out one night to a local Warren bar called Spanky's. While there, Sera met [T.D.], and the two spoke for several minutes. The next day Sera sent flowers to [T.D.]. [T.D.] testified that Sera's gift surprised her. She stated that Sera began calling her at work to ask her out. Initially, she did not accept the invitations, but eventually agreed to date, believing that he was divorced. Soon Sera began buying her clothes and jewelry, including lingerie from Victoria's Secret. On one occasion, he sent her flowers with a card attached which read, "Every woman needs to know that someone finds them interesting, intelligent and attractive." On another occasion, he sent her a flower arrangement with a card that read, "I'm leaning more towards one of the best things that ever happened. All my love, Steven."

When Sera was in Warren on business, he usually resided at one of two bed-and-breakfasts, the Burnett House or the Colvin House. Sera testified that he and [T.D.] mainly spent their time together at the bed-and-breakfasts, often just sitting on the porch and talking. [T.D.] testified that they spent very little time together before the first of the two episodes charged in this case. [T.D.] testified that the two did not start a sexual relationship until after her birthday which was just before Thanksgiving. She indicated their consensual encounter took place at the Burnett House. Sera testified that during the course of their relationship he and [T.D.] were intimate on several occasions.

[T.D.] testified that the first occasion she spent any significant time alone with Sera occurred one afternoon in October when her cousin ... offered to watch [T.D.]'s two sons. [T.D.] told Sera about this, and Sera offered to take [T.D.] to Monticello for the afternoon. Throughout the trial, the facts surrounding this trip are referred to as the "Monticello incident." [T.D.] agreed and dropped her children off at her cousin's house. [T.D.] testified that Sera placed a six-pack of beer in a cooler in the trunk of his car. During the trip to Monticello, Sera pulled off the road and asked [T.D.] if she wanted a beer. She agreed, and he stepped to the back of the car to get the drink. [T.D.] testified that he remained at the rear of the car for quite some time which prompted her to ask what was taking him so long. He responded that he was mixing a drink for himself. When he returned, he handed [T.D.] the beer, and they continued driving. The couple pulled over again after [T.D.] finished the first beer, and Sera got her another one. [T.D.] testified that from that point she did not remember much of the remainder of the trip back from Monticello. Sera later told her she consumed two or three more of the beers on the way back. [T.D.] has no memory of this or most of the events of the afternoon. According to [T.D.], the next thing she clearly remembered was going to her cousin's house to pick up her children.

The couple next went on a trip together to a casino in Greenville, Mississippi. [T.D.] testified that they both consumed alcohol, and that she did not remember much about the ride back to Warren. Her next memory was waking up on the couch in the living room the next morning at the Burnett house. Again, [T.D.] testified that Sera insinuated that she had had too much to drink the day before.

The couple's third out-of-town trip involved a trip from Warren to Little Rock for dinner at the Macaroni Grill restaurant. According to [T.D.], Sera bought two individual cans of beer on the way to Little Rock, and that she drank one of them, and took a few drinks from the other. During dinner, [T.D.] recalls drinking a glass of wine and a glass of water. Towards the end of dinner, [T.D.] left the table to go to the bathroom. According to [T.D.]'s testimony, she returned to the table and finished her water, and soon thereafter began to feel ill. Her last recollection of the evening was walking to the car in the restaurant parking lot. She testified that she did not recall any of the 100-mile trip home to Warren, and that the next time she was aware, she was waking up in bed with Sera the next morning at the Burnett House. She continued to feel sick for the rest of the day and evening, with stomach cramps and nausea. During trial, the parties referred to this third trip as the "Macaroni Grill incident."

According to [T.D.], the couple's one and only consensual intimate encounter occurred in November around the time of her birthday. Sera had given [T.D.] several birthday presents, including a pearl necklace and earrings, and the couple met at the Burnett...