Corner v. State

917 So. 2d 975, 2005 WL 3535164
District Court of Appeal of Florida·Decided December 28, 2005·No. 3D05-310·Published·Cited by 1 cases

Opinion

917 So.2d 975 (2005)

Lawrence CORNER, Petitioner,
v.
The STATE of Florida, Respondent.

No. 3D05-310.

District Court of Appeal of Florida, Third District.

December 28, 2005.

*977 Lawrence Corner, in proper person.

Charles J. Crist, Jr., Attorney General, for respondent.

Before LEVY, SHEPHERD, and ROTHENBERG, JJ.

ROTHENBERG, Judge.

The petitioner, Lawrence Corner, seeks issuance of a writ of habeas corpus, raising sixteen claims of ineffective assistance of appellate counsel. As we conclude that all sixteen grounds raised by the petitioner are either procedurally barred and/or without merit, we deny his petition.

The petitioner was convicted of sexual battery and kidnapping, and was sentenced as a prison releasee reoffender to fifteen years and life imprisonment, respectively. A brief summary of the trial evidence is as follows. The victim, who was seventeen years old at the time of trial and fifteen years old when these offenses were committed, testified that she was approached by the petitioner, who she did not know, as she was walking down the street with a friend. The petitioner inquired whether the victim "knew how to do hair." When she indicated that she did, the petitioner claimed that he had an eight year old daughter and asked the victim if she would do his daughter's hair. The victim failed to keep the appointment they ultimately agreed upon.

Several weeks later, the petitioner appeared at the home of Thelma Mobley, where the victim was living at the time, and told Ms. Mobley that he was good friends with the victim's mother and that he was trying to settle a dispute between the victim and her mother. While the victim knew that the petitioner was not a friend of her mother's, she agreed to accompany the petitioner to her mother's house because the petitioner was with her two brothers and her brothers' friend. The victim testified that when they arrived at her mother's house, her brothers and their friend exited the petitioner's vehicle, but he prevented her from doing so and instead drove her to Kelsey Park Elementary School, where he locked the car doors and sexually assaulted her.

*978 The victim's testimony was corroborated by several witnesses. Her mother confirmed that she did not know the petitioner. She testified that the petitioner had attempted to learn where the victim was staying, but that she refused to give him that information. The victim's mother allowed her sons to leave with the petitioner after he claimed that he wanted to help her sons get into a summer camp and offered to take them to a store. The victim's brother testified that when he left with the petitioner, the petitioner asked him where the victim was staying and when he told him she was staying with Ms. Mobley, the petitioner drove to Ms. Mobley's house.

Ms. Mobley confirmed that the petitioner claimed he knew the victim's mother and that the petitioner told her that he was trying to resolve the conflict between the victim and her mother. Ms. Mobley testified that she allowed the victim to leave with the petitioner because he was accompanied by the victim's brothers.

The morning after the assault, the victim told Ms. Mobley what happened. Ms. Mobley contacted the police and took the victim to the hospital. Dr. Rao's examination of the victim at the Rape Treatment Center revealed evidence consistent with the victim's report of vaginal penile penetration.

Two Williams[1] Rule witnesses testified that they had also been sexually assaulted by the petitioner. The first Williams Rule witness testified that the petitioner approached her as she was walking home from school and asked if she would do his "niece's" hair. When he offered her a ride home, she accepted, but instead of taking her home, the petitioner drove her to a park and raped her. The second Williams Rule witness testified that the petitioner approached her as she and a friend were walking to a bus stop and offered them a ride, which they accepted. The petitioner stopped to buy some food, gave her friend some money to pay for the food, and when her friend got out of the car, he drove off, taking her to his apartment where he raped her. The petitioner pled guilty to that offense in 1993.

After being found guilty in the instant case, the petitioner filed an appeal which was affirmed by this court on January 28, 2004. Corner v. State, 868 So.2d 553 (Fla. 3d DCA 2004). On November 17, 2004, the petitioner filed a motion for postconviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure, which was denied by the trial court on January 13, 2005, as was the petitioner's motion for rehearing/clarification (denied on March 10, 2005) and his supplemental motion for rehearing (denied on June 10, 2005). During the pendency of the petitioner's motions for rehearing in the trial court, the petitioner filed the instant petition with this court on February 11, 2005, raising sixteen separate grounds of ineffective assistance of appellate counsel.

GROUND ONE: Ineffective assistance of appellate counsel for failing to raise on appeal the introduction of a rape treatment examination report during the testimony of a substitute medical expert who was testifying from the report. We find that this ground is procedurally barred as the petitioner has previously raised this claim in his November 17, 2004, motion for postconviction relief, wherein he alleged that his trial attorney provided ineffective assistance of counsel by failing to object (file a motion to suppress) to the *979 very same evidence on the same grounds. See Mann v. Moore, 794 So.2d 595, 600 (Fla.2001), cert. denied, 536 U.S. 962, 122 S.Ct. 2669, 153 L.Ed.2d 843 (2002); Jones v. Moore, 794 So.2d 579, 583 (Fla.2001)(finding procedural bar to habeas claim which was variant to claim previously addressed); Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989)("[H]abeas Corpus petitions are not to be used for additional appeals on questions which . . . were raised on appeal or in a rule 3.850 motion. . . ."). Additionally, we find the petitioner's claim to be completely without merit. The report admitted was admissible as a business record. The trial transcript additionally reflects that it was the State who objected to the admission of this report as it contained information prejudicial to the State's case. The trial court, however, ruled that if the substitute medical examiner was testifying from the report, the report must be introduced into evidence. As the petitioner's attorney did not object to its admission at trial and the petitioner benefited from its admission, appellate counsel clearly did not provide ineffective assistance by failing to raise the issue on appeal. See Rodriguez v. State, 919 So.2d 1252, 2005 WL 1243475 (Fla. May 26, 2005)("Appellate counsel is not ineffective for failing to raise issues not preserved for appeal. However, an exception is made where appellate counsel fails to raise a claim which, although not preserved at trial, represents fundamental error.") (citations omitted). As we find no fundamental error, we deny the petition as to this ground.

GROUND TWO: Ineffective assistance of appellate counsel for failing to raise on appeal prosecutor's improper attacks on defense counsel during closing argument. We find no merit to this claim. Trial counsel is not required to provide perfect representation, Mylar v. Alabama,

Corner v. State, 917 So. 2d 975, 2005 WL 3535164 (Fla. Ct. App. 2005).

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