United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION AND ORDER
MICHAEL P. MILLS, District Judge.
Petitioner Charles Stacy Rimmer, Mississippi prisoner no. 146176, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging his State court convictions for sexual battery and child neglect. Having considered the submissions of the parties, the State court record, and the law applicable to Petitioner's claims, the Court finds that the petition should be denied.
Background Facts and Procedural History
Petitioner was thirty-six years old in the summer of 2005, when he met P.B. and her twelve-year-old daughter, S.B. They met through H.B., S.B.'s twenty-one-year-old sister. Petitioner became a family friend, and P.B. and S.B. would occasionally clean Petitioner's apartment. At trial, the jury heard testimony that Petitioner sometimes paid P.B. for the housecleaning services with drugs. P.B. and Petitioner often smoked marijuana together, and S.B. was allowed to smoke marijuana, as well. S.B. testified that it was not uncommon for P.B. to "pass out" after consuming the drugs and alcohol she obtained from Petitioner.
Petitioner and S.B. became close, and Petitioner bought S.B. clothes and school supplies. On one occasion, Petitioner took S.B. to a salon and waited with her for five hours while she received hair and nail services. He also paid the $155 fee for the services. S.B. testified that on Valentine's Day in 2007, Petitioner gave her roses and a "basket full of teddy bears and candy." S.B.'s father, who was divorced from P.B., asked Petitioner why he would send such gifts to his fourteen-year-old daughter. Petitioner claimed he bought the gifts because he was like a second father to S.B.
In March 2007, S.B. accused Petitioner of having sexual contact with her on multiple occasions. She also accused him of providing her and two of her younger friends, S.D. and A.M., with drugs, and of encouraging them to dance provocatively while under the influence of the drugs he had given them. On March 23, 2007, S.B. gave a statement to Deputy Dean Poynor of the Calhoun County Sheriff's Department. S.D. and A.M. gave statements shortly thereafter.
At some time between being arrested and indicted, Petitioner filed a petition for writ of habeas corpus, or, alternatively, to set bail. On September 11, 2007, the circuit court conducted a hearing on the petition. S.D. and S.B. testified during the hearing.
On May 16, 2008, in the Circuit Court of Calhoun County, Mississippi, a grand jury returned a twelve-count indictment against Petitioner. The indictment included two counts of sexual battery of a child under the age of fourteen, three counts of sexual battery of a child at least fourteen years old but under sixteen years old, and seven counts of neglect of a child. Two of the neglect counts charged Petitioner with giving S.B. and then eleven-year-old S.D. the drug often referred to as "ecstacy" and encouraging them to "perform sexual conduct by dancing in [their underwear]... and telling them to kiss and touch each other in th[eir] private area[s]." Two other counts charged Petitioner with similar conduct regarding S.B. and A.M., who was then twelve years old. In another charge, Petitioner was accused of giving S.D. a Xanax tablet and encouraging her to engage in explicit behavior with S.B. Petitioner was also charged with giving S.B. ecstasy and encouraging her to dance provocatively in her underwear in exchange for money. Petitioner was also charged with giving A.M. marijuana. Petitioner's trial began on January 13, 2009. Prior to jury selection, the prosecution moved to dismiss counts eight through twelve. The motion was granted, and counts eight through twelve were dismissed with prejudice.
At trial, S.B. testified that S.D. walked in and discovered Petitioner performing oral sex on S.B. in 2005, when she was thirteen years old. S.B. testified that she and Petitioner then had intercourse once in 2005 and several times in 2006, which contradicted her previous statements that the oral sex act occurred in November 2006. She testified that Petitioner gave her drugs before each sex act. She testified that Petitioner would give her and her friends drugs and alcohol and ask them to dance provocatively for him. A.M. and S.D. testified that Petitioner would provide them with drugs and alcohol in the summer of 2006, and that they would dance provocatively for him. S.D. testified that she and S.B. were at Petitioner's home on one occasion in the summer of 2006, and that she walked in a bedroom to find Petitioner performing oral sex on S.B.
The defense presented evidence that Petitioner was a good friend of the victim's family who advised P.B. to stop S.B. from seeing her allegedly abusive boyfriend, and that S.B. became angry and fabricated the charges against Petitioner in retaliation for his interference in her relationship. The defense cross-examined the girls extensively regarding inconsistencies in their statements to law enforcement, their testimonies at the bond hearing, and their testimonies at trial. The defense also presented evidence from two witnesses who testified that they heard S.B. admit that she lied about the charges.
The jury found Petitioner guilty of two of the indicted charges. Petitioner was convicted of sexual battery of a child younger than fourteen years old (Count I) and child neglect (Count VII). Petitioner was sentenced on Count I to thirty years in the custody of the Mississippi Department of Corrections ("MDOC"), with five years suspended. On Count VII, he was sentenced to ten years in MDOC custody, with three years suspended. His sentences were ordered to run concurrently.
Petitioner subsequently filed a motion for a new trial, which was denied. With the assistance of counsel, Petitioner then appealed his convictions and sentences to the Mississippi Supreme Court raising as a sole ground for relief that the evidence was not sufficient to support Petitioner's conviction under Count I. The case was assigned to the Mississippi Court of Appeals, and the court affirmed Petitioner's convictions and sentences on September 14, 2010. Rimmer v. State, 43 So.3d 1187 (Miss. Ct. App. 2010) (Cause No. 2009-KA-01039-COA). Petitioner did not timely seek rehearing of the decision.
Petitioner, proceeding pro se, then filed an application for leave to proceed in the trial court on a motion for post-conviction relief, raising numerous claims of ineffective assistance of trial counsel. The Mississippi Supreme Court denied Petitioner's application, finding that Petitioner's "claims that he received constitutionally ineffective assistance of counsel fail to meet both prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The panel further finds that Rimmer has failed to make a substantial showing of the denial of a state or federal right. Miss. Code Ann. § 99-39-27(5). Accordingly, Rimmer's application for post-conviction collateral relief should be denied." (Answer, Ex. B).
Petitioner filed a petition for writ of habeas corpus in this Court, raising the following grounds for relief, as summarized by the Court:
Ground One. The evidence was insufficient to support a conviction on Count I, and the trial court should have granted Petitioner's motion for a directed verdict.
Ground Two. Ineffective assistance of trial counsel for:
A. Failure to adequately investigate.
B. Failure to call the victim's mother or Sheriff Gore as witnesses.
C. Failure to subpoena or interview Channing Clair.
D. Failure to file a motion to dismiss the charges based on Detective Poynor's actions.
E. Failure to introduce evidence of Detective Poynor's alleged
F. Failure to seek a change of venue.
G. Failure to file a motion to suppress the statements of the victim and
her friend, S.D.
H. Failure to call the victim's sister at trial.
I. Failure to call the victim's mother at trial.
J. Failure to be aware of S.D.'s testimony.
K. Failure to introduce evidence of an alleged recorded phone call between defense counsel and the victim's mother.
L. Failure to file a motion to dismiss charges based on the
"tender years" exception to the hearsay rule.
M. Advising Petitioner to decline the State's plea offer.
N. Cumulative error.