United States District Court, E.D. Missouri, Eastern Division
CHARLES E. ROTHMAN, Petitioner,
JEAN ANN JOHNSON, Respondent.
MEMORANDUM AND ORDER
JOHN A. ROSS, District Judge.
This action is before the Court on Petitioner Charles E. Rothman's Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (Doc. No. 10) Because this Court has determined that Rothman's claims are inadequate on their face and the record affirmatively refutes the factual assertions on which Rothman's claims are based, this Court decides this matter without an evidentiary hearing.
On December 9, 2008, following a bench trial, the Circuit Court of Butler County found Rothman guilty of three counts of first degree statutory rape and sentenced him to three concurrent terms of fifteen years imprisonment. (Doc. 19, Ex. 1 at 19-20) On October 29, 2009, the Missouri Court of Appeals affirmed the judgment on direct appeal in an unpublished opinion. (Id., Ex. 2); State v. Rothman, No. SD29571 (Mo.Ct.App. Oct. 29, 2009). The Missouri Court of Appeals described the facts, viewed in the light most favorable to the verdict, as follows:
[Victim] and her grandmother had met [petitioner], who was sixty-five-years-old at the time, at church. Victim resided with her grandmother, and she and her grandmother began visiting [petitioner] at his apartment. [Petitioner] later moved into the grandmother's basement for a time, then moved to a house in Scott City. Victim classified [petitioner's] relationship with her as "like a grandpa." Victim and [petitioner] would go fishing, play cards, and attend basketball games together.
Beginning in late February or early March of 2007, Victim would go to see [petitioner] at his house in Scott City "once or twice... either a week or every other week" and would sometimes stay the night. Victim was a twelve-year-old when these visits began, then turned thirteen during this time frame. At some point, [petitioner] began coming into the room where Victim was staying overnight and touching her around her chest and on her legs. This touching eventually progressed to sexual intercourse, which occurred as few as six or as many as fifteen times between February 25 and May 25, 2007. [Petitioner] also touched Victim's vagina with his hand three or four times and performed oral sex on her around four times.
Victim did not tell anyone about these events because [petitioner] told her that if she did, he would go to jail and she would go to "jury." [Petitioner] warned Victim that he would "come back" for her when he got out of jail. [Petitioner] also referred to victim as his "wife" and would tell people that he and Victim were married so that he would not get into trouble.
Toward the end of this time period, Gina Cook, a Scott City police officer ("Officer Cook"), received a phone call from a Texas probation officer. The probation officer told Officer Cook that [petitioner's] son had reported to him that [petitioner] was "treating a thirteen-year-old girl like his wife, " there were "probably sexual relations going on, " and that [petitioner] had been "nude in bed with a thirteen-year-old." At trial, Officer Cook was allowed to testify about these statements over [petitioner's] hearsay objection.
Officer Cook testified that, based on these allegations, she went to [petitioner's] house to see if a thirteen-year-old girl was living there. Victim was not present when Officer Cook arrived at [petitioner's] house, but [petitioner] told Officer Cook that Victim did stay with him there on the weekends, "identified her as his granddaughter, " and stated that Victim was with her grandmother at that time.
Officer Cook then went to speak with Victim at her grandmother's house. Officer Cook asked Victim about the allegations and if she had had sexual intercourse with [petitioner]. When Victim said that she had, Officer Cook arranged for Victim to be interviewed at the Network Against Sexual Violence ("NASV"). Tammy Gwaltney, the director of the Southeast Missouri NASV, was the person who interviewed Victim at the center. That interview was videotaped and later received into evidence at trial.
When Victim's grandmother found out about the alleged conduct, she called [petitioner] and talked to him about it. [Petitioner] fled his house after this call and attempted to escape with his truck and fishing boat. [Petitioner] left his truck and fishing boat at a "diversion channel" and hitchhiked to Poplar Bluff. After initiating a multi-jurisdictional search, law enforcement located [petitioner] at a truck stop and arrested him.
Officer Cook was dispatched to pick [petitioner] up from the Butler County Sheriff's Department and bring him back to Scott City. While Officer Cook was transporting [petitioner], [petitioner] initiated a conversation with her about Victim. Officer Cook interrupted [petitioner] and gave him his Miranda warnings. [Petitioner] said he understood his rights but did not stop talking. [Petitioner] kept saying, over and over, "I'm guilty, I'm guilty as sin, I did it."
When they arrived at the Scott City police station, [petitioner] signed a Miranda waiver form. Officer Cook then took [petitioner] into an interview room and interviewed him on videotape. At trial, this videotaped interview was marked as State's Exhibit 2 and received into evidence. In his videotaped interview with Officer Cook, [petitioner] again admitted blame and stated that he was "guilty as sin." He also admitted that he had fondled Victim and placed his penis in Victim's vagina twelve or fifteen times and had had oral sex with Victim ten or fifteen times. [Petitioner] stated that he wanted to tell the truth about what he had done so that Victim and her grandmother would not have to be "involved."
[Petitioner] testified in his own defense at trial. During that testimony, [petitioner] denied ever having engaged in any type of sexual contact with Victim and said that he only confessed to protect Victim and her grandmother from being criminally charged with the same conduct. [Petitioner] testified that his relationship with Victim was as a "fishin' buddy;" that they would go fishing and to basketball games together but that Victim's grandmother was always present.
(Doc. 19, Ex. 2 at 2-5.)
On December 11, 2009, Rothman filed in the circuit court a pro se motion for postconviction relief under Missouri Supreme Court Rule 29.15. (Id., Ex. 3 at 5-21) On March 22, 2010, with the assistance of appointed counsel, Rothman filed an amended motion for postconviction relief. (Id. at 22-29) Following an evidentiary hearing held on June 2, 2010,  the circuit court denied Rothman's motion on August 2, 2010. (Id. at 30-38) On November 14, 2011, the Missouri Court of Appeals affirmed the circuit court's denial of the motion. (Id., Ex. 5); Rothman v. State , 353 S.W.3d 400 (Mo.Ct.App. 2011).
On September 14, 2012, Rothman filed his original writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1) On November 8, 2012, Rothman amended his petition. (Doc. No. 10) He lists only one ground in his petition, i.e., "The lawyer did not bring up nothing." (Doc. No. 10 at 5). As support for this ground, Rothman makes several factual allegations, including: (1) a doctor said the victim was still a virgin; (2) he asked for a lawyer twice; (3) he asked for a witness and his attorney told him it "would do no good;" (4) "they" (it is unclear who Rothman is referring to) did not get his medical report from Jonesboro, Arkansas from 1998 which stated that he could not get an erection. Rothman appears to be arguing that this medical report would have proven that he could not have committed the crime of rape. (Id.; Doc. 19, Ex. 3 at 23)
II. Legal Standards
A. Standard of ...