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Olivieri v. Ryker

March 23, 2007

ANTHONY M. OLIVIERI, PETITIONER,
v.
LEE RYKER, WARDEN OF LINCOLN CORRECTIONAL CENTER,*FN1 RESPONDENT.



The opinion of the court was delivered by: Harold A. Baker U.S. District Judge

ORDER

In the early morning hours of November 27, 1999, the petitioner, Anthony Olivieri ("Olivieri"), forced his way into his former girlfriend's home, battered her rather severely, and then committed at least three acts of sexual penetration, including oral, vaginal, and anal penetrations. Olivieri and the woman had been in a long-term sexual relationship, and Olivieri had lived with the victim up until a few days before the assault. At trial, Olivieri claimed that the sex, which came after the beating, was consensual. The victim testified that the sex was not consensual; Olivieri had threatened to kill her, and she feared for her life.*fn2

A jury convicted Olivieri of three counts of aggravated criminal sexual assault and two counts of home invasion. Based on the State's recommendation,the trial court merged the two counts of home invasion. Olivieri argued that the three aggravated criminal sexual assault counts should also be merged because the counts were charged in the alternative and the charging document did not afford him notice that the State was prosecuting each act of penetration as a separate offense. The trial court merged the home invasion into the remaining counts and sentenced Olivieri on three counts of aggravated criminal sexual assault counts. Olivieri was sentenced to ten years on each count, to be served consecutively.

Olivieri appealed his conviction and sentencing to the Illinois Appellate Court, Fourth District, on two grounds. He argued that he did not receive a fair trial because he was charged with a single offense under three different theories of criminal culpability, yet was convicted and sentenced on three separate counts of aggravated criminal sexual assault. He also argued that he was not proven guilty beyond a reasonable doubt because there was no independent evidence to corroborate the complainant's testimony. The appellate court affirmed the convictions and consecutive sentences. Olivieri sought leave to appeal to the Illinois Supreme Court, which was denied.

Olivieri has filed a petition for a writ of habeas corpus as to his convictions and sentences. For the reasons discussed below, Olivieri's petition is denied.

ANALYSIS

Because this petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), AEDPA law governs this court's review of Olivieri's petition. Under 28 U.S.C. § 2254(d), an application for habeas corpus relief will be granted if State adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

In this analysis, "[a] state court decision is 'contrary to' clearly established Supreme Court precedent when the state applies a rule different from governing Supreme Court cases or confronts a set of facts that is materially indistinguishable from those of a Supreme Court decision and arrives at a different conclusion." Lambert v. McBride, 365 F.3d 557, 561 (7th Cir. 2004). However, a state court need not reference, or even be aware of, Supreme Court cases in order to avoid its decision being "contrary to" Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the reasoning nor the result of the State court decision contradicts [Supreme Court cases]," a State court decision will satisfy this element upon Federal review. Early, 537 U.S. at 8.

Also under § 2254(d)(1), the court should determine whether the State court unreasonably applied the appropriate Supreme Court rule to Olivieri's case. The Seventh Circuit has stated that "[a] state court decision results in an 'unreasonable application of clearly established federal law' when that court 'identifies the correct governing legal rule from [Supreme Court precedent] but unreasonably applies it to the facts of the particular state prisoner's case.'" Harris v. Cotton, 365 F.3d 552, 555 (7th Cir. 2004) (citing Williams v. Taylor, 529 U.S. 362, 407 (2000)). Unreasonable application of Supreme Court precedent to the facts of the case only occurs if the State court's decision "l[ies] well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002).

Habeas relief is warranted under ยง 2254(d)(2) only if the State court decision was based on an unreasonable determination of the facts in light of the ...


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