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Nicely v. Lewis

March 27, 2008

STEPHEN O. NICELY, PETITIONER,
v.
VIRGINIA LEWIS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

(VARLAN/SHIRLEY)

MEMORANDUM

This is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by petitioner Stephen O. Nicely*fn1 ("Nicely"). The matter is before the Court on the respondent's answer to the petition, Nicely's response, and his supplements to the record. For the following reasons, the petition for the writ of habeas corpus will be DENIED and this action DISMISSED WITH PREJUDICE.

I. Standard of Review

A state prisoner is entitled to habeas corpus relief "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. Under Rule 8 of the Rules Governing Section 2254 Cases In The United States District Courts, the court is to determine, after a review of the answer and the records of the case, whether an evidentiary hearing is required. If no hearing is required, the district judge is to dispose of the case as justice dictates. If the record shows conclusively that Nicely is not entitled to relief under § 2254, there is no need for an evidentiary hearing and the petition should be denied. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).

II. Factual Background

The respondent has provided the Court with copies of the relevant documents as to Nicely's direct appeal and post-conviction proceedings. [Doc. 3, Notice of Filing Documents, Addenda 1-14]. Nicely was convicted by a jury, in the Circuit Court of Knox County, Tennessee, of rape of a child and aggravated sexual battery. He was sentenced to concurrent terms of imprisonment of 22 years and 11 years, respectively. The judgments of conviction were affirmed on direct appeal. State v. Nicely, No. 03C01-9805-CR-00174, 1999 WL 826029 (Tenn. Crim. App. Oct. 18, 1999) [Addendum 5].

The Tennessee Court of Criminal Appeals summarized the evidence against Nicely as follows:

In the summer of 1994, N.B., the victim, the victim's mother, Wilma Faye Wynn, and the appellant lived in the Karns community of Knox County. Ms. Wynn and the appellant began their relationship around 1992. In 1994, they began living together. N.B. was eleven years old and entering the sixth grade at that time. Although the thirty-seven year old appellant and the victim's mother were unmarried, N.B. viewed the appellant as a "father figure." In September of 1995, the victim confided in a friend that she and the appellant had been involved in sexual activity. In January of 1996, the appellant was charged in a two count indictment with rape of a child and aggravated sexual battery.

At trial, she testified, providing no specific dates, that the "touchin' happened all the time" in his room, the living room, and the kitchen. She testified that the appellant had touched her vagina with his penis and his mouth. The victim admitted that she would go into the appellant's room because she liked the attention. She stated that during the incidents of abuse, she remained clothed but the appellant was unclothed.

The victim recounted that the first sexual encounter occurred when she and the appellant were watching television in his bedroom. The appellant began rubbing her back and eventually removed her bra and began rubbing her stomach and chest. Frightened, the victim left the room. The appellant followed her outside and told her that if she told they would both be "in trouble."

Another incident occurred in the living room, when the appellant digitally penetrated her vagina. She testified that on another occasion he put her hand on his penis and she masturbated him until he ejaculated. Yet, another offense occurred in the victim's brother's room. The appellant put his hands on her and asked if she had had sex standing up before. This offense ceased when the victim's mother returned home from work.

The victim testified that on or about September 3, 1995, the appellant got out of the shower and had a towel wrapped around him. The victim had entered his room to retrieve a towel for herself. The appellant pulled her onto the bed where they both began touching each other. The appellant then penetrated the victim's vagina with his penis. When she complained that it hurt, he stopped. She stated that she liked the appellant to fondle her; however, the penetration scared and hurt her.

Later that same day, the appellant took the victim and her brother to the lake. The appellant dropped her brother off at the bank with other children while he and the victim went riding in the boat. The appellant gave the victim a Valium for a headache. After entering a cove on the lake, the appellant gave the victim a beer. That evening, when the appellant and her mother were away at a concert, the victim drank some liquor, locked herself in the bathroom, and passed out. Her brother called Debbie, their father's girlfriend, who took the victim to her trailer in Powell. It was on this occasion that the victim related to Debbie her sexual encounters with the appellant. Debbie called the victim's mother and advised what the victim had told her.

A few days later, the victim spoke with the Department of Human Services (DHS). She told the DHS case worker that the appellant had only penetrated her once. However, she did tell DHS that he had touched her before. DHS referred the victim to a psychologist at St. Mary's Hospital. The victim stated that she was very unhappy at the time because "[e]verything came out." The victim remained at the hospital for nine days. After leaving the hospital, the victim was placed in Peninsula Lighthouse for further treatment for two months. Next, the victim was placed in PAASAC where she received continued counseling.

The victim stated that she had never been penetrated before the actions by the appellant. However, during the time that the appellant was abusing her, she was digitally penetrated by another boy while they were kissing.

On cross-examination, the victim stated that her mother drank heavily during the times of these offenses and they were experiencing various conflicts in their relationship. The victim's domicile fluctuated back and forth between living with her father and mother. She admitted telling the psychologist that she had provoked the appellant by grabbing his genitals and removing the covers from the bed in which he was lying. She admitted that her story had changed from the time she talked to DHS and her testimony in court.

The victim also told the psychologist that she smoked marijuana and that she heard voices. However, she denied telling the psychologist of any specific instances of alcohol or marijuana abuse. She stated that the entire time was very confusing for her, however, she "did not hallucinate and [was] not mental."

James Nicely, the appellant's brother, testified that he talked to the appellant on two occasions about his sexual involvement with the victim. The appellant told him that the victim was "comin' on to him." On the second occasion, the appellant asked for his help. The appellant related that the victim had pulled the towel off of him and climbed on top of him while he was asleep. When he awakened, there was a wet spot on the sheets. Further, the appellant related that he had performed oral sex on the victim at the lake.

Also, testifying for the State was Nancy Jackson, an employee of the Blount Memorial Emotional Health and Recovery Center, where the appellant had apparently submitted himself for evaluation and/or counseling. Unfortunately, the testimony of Ms. Jackson is not included in the record. An exhibit to her testimony includes the following interview notations: "she touches/grabs him in an inappropriate way for [sic] past year ... states he allowed her to masturbate him ... I am really worried that I might be a child molester." ...

The defense presented the testimony of Dr. Jeffrey Davis, a clinical psychologist employed at St. Mary's Health System, who treated the victim. From his report, he testified that the victim and her mother had a "tumultuous" relationship and she felt abandoned by her father. The victim had reported using Valium, alcohol, and marijuana and attempts to overdose on drugs. She told the psychologist that she was experiencing auditory hallucinations in which she heard people swimming and laughing when she stared outside her window. At one point, she said that she saw a giant eraser chasing her around her school classroom. Moreover, she reported seeing "mannequin-like Indians" staring at her.

The victim told the psychologist that she felt close to the appellant because he took care of her mother. She acknowledged that she had been provocative toward the appellant and that she enjoyed the attention she received from him. The psychologist opined that possibly the victim had perceived the relationship as a means to strain the relationship between the appellant and her mother. Davis diagnosed the victim with major depression, "severe without psychotic features," alcohol and cannabis abuse, and post-traumatic stress disorder. The psychologist recommended that the victim be placed on medication, in-patient treatment, family intervention, and chemical dependency treatment. Although the psychologist did not feel that her hallucinations were valid in the "true psychotic sense," he felt they were a product of her imagination and fantasy.

Wilma Wynn, the victim's mother, testified that her daughter has a history of lying. Ms. Wynn stated that her daughter expressed much distaste for her new environment in Karns and blamed her mother for her father not being around. She related that she and the victim's father were not on good terms because he did not provide any support for his children. Ms. Wynn testified that her daughter had a habit of opening the shower door on people, removing covers from the bed while people were under them, and entering her bedroom. She stated that the appellant had asked her to lock the bedroom door when she left for work in the mornings. The appellant also began sleeping in blue jean shorts as opposed to the nude. She recounted an incident on Valentine's Day when the appellant had bought her a ruby ring. The victim became extremely jealous and angry until the appellant also bought her a ring.

Ms. Wynn stated that the victim has told her on different occasions that the appellant sexually abused her. Then, on other occasions, the victim denied that the appellant abused her. Although her daughter was given a pregnancy test upon admission to the hospital, no test was performed to determine whether the victim was sexually active.

Tiffany Wallace, a friend of the victim, presently incarcerated at the juvenile detention center, testified that the victim was a chronic liar. She stated that, prior to the victim's admission to Lighthouse, she and the victim were taking Valium, smoking marijuana, and drinking alcohol on a ...


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