Dicaprio–cuozzo v. Johnson

• Decision Date: 12 October 2010
• Docket Number: Case No. 2:10cv157.
• Citation: 744 F.Supp.2d 548
• Court: U.S. District Court — Eastern District of Virginia
• Parties: William DiCAPRIO–CUOZZO, # 1121972, Petitioner,v.Gene M. JOHNSON, Director of the Virginia Department of Corrections, Respondent.

744 F.Supp.2d 548

William DiCAPRIO–CUOZZO, # 1121972, Petitioner,
v.
Gene M. JOHNSON, Director of the Virginia Department of Corrections, Respondent.

Case No. 2:10cv157.

United States District Court, E.D. Virginia,Norfolk Division.

Oct. 12, 2010.

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William Jay DiCaprio–Cuozzo, Burkeville, VA, pro se.Kathleen Beatty Martin, Office of the Attorney General, Richmond, VA, for Respondent.

OPINION AND FINAL ORDER REBECCA BEACH SMITH, District Judge.

This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition alleges violations of federal rights pertaining to Petitioner's conviction on July 2, 2002, in the Henrico County Circuit Court, Virginia, of three (3) counts of forcible sodomy, as a result of which he was sentenced to serve a total active sentence of fifty-one (51) years, in the Virginia penal system.

The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. The report of the magistrate judge was filed on August 13, 2010, recommending dismissal of the petition. (Document No. 29.) By copy of the report, each party was advised of his right to file written objections to the findings and recommendations made by the magistrate judge. On August 20, 2010, the court received Petitioner's objections. (Document No. 30.) On August 27, 2010, the court received Respondent's objections. (Document No. 32.)

Equitable Tolling for Actual Innocence

Petitioner's primary objection ¹ is to the magistrate judge's finding that Petitioner

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is not entitled to a period of equitable tolling because he failed to demonstrate that he is actually innocent of the charges that were dropped by the government as part of the plea bargain, as well as the three (3) charges to which he pleaded guilty. (Pet'r's Objections at 2–5.) Petitioner also challenges the magistrate judge's finding that “only the three (3) charges of forcible sodomy are implicated by Rossi's recantation.” Id. at 2. Petitioner alleges that all thirteen (13) of the indictments originally brought against him “stemmed from and related solely to the direct alleged sexual abuse of Rossi and photographs of which were also involved in the evidence presented.” Id. at 3.

The court carefully reviewed the charges in all thirteen (13) indictments, as well as Rossi's affidavit. Rossi's affidavit specifically mentions only the three (3) charges to which Petitioner pleaded guilty.² Rossi states that he “learned that [Petitioner] was convicted of forcible sodomy for having ‘[Rossi] penetrate [Petitioner's] anus.’ Above all of this, not only was there no such photograph depicting such an act by [Rossi] upon [Petitioner], but no such thing EVER took place.” (Rossi Aff. ¶ 12.) Rossi also declares that Petitioner “became victim to a 51 year sentence for crimes he did not commit upon [Rossi].” (Rossi Aff. ¶ 13.) Accordingly, this new evidence suggests that Petitioner is actually innocent of the three (3) charges to which he pleaded guilty.

As the magistrate judge correctly stated, in order to take advantage of equitable tolling based upon a potential actual innocence exception, Petitioner must demonstrate that he is actually innocent of the crimes for which he was convicted as well as “any other charge dropped by the government as part of a plea bargain.” United States v. Green, No. 7:99cr32, 2009 WL 2840491, at *2 (W.D.Va. Aug. 31, 2009) (citing Bousley v. United States, 523 U.S. 614, 624, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)); see also United States v. Jackson–Bey, 302 F.Supp.2d 621, 633–34 (E.D.Va.2004). In addition to the specific statements discussed above, Rossi's affidavit also contains general statements about Petitioner's conduct. Rossi states that Petitioner “never molested [Rossi] nor forced [Rossi] to engage in any sexual act.” (Rossi Aff. ¶ 10(A)). Rossi further states that Petitioner “did not take the photographs of [Rossi] nude, in sexual positions, nor did he ever sexually abuse [Rossi].” (Rossi Aff. ¶ 10(F).) Petitioner argues that these statements demonstrate that he is actually innocent of the eight (8) indictments ³ charging Petitioner with engaging

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in various sexual acts with Rossi that were nolle prossed. (Pet'r's Objections at 4.)

A careful analysis of the language in Rossi's affidavit casts doubt on Petitioner's assertion. Rossi claims that Petitioner never “ forced [Rossi] to engage in any sexual act.” (Rossi Aff. ¶ 10(A)) (emphasis added). The court notes that none of the eight (8) nolled prossed charges discussed here require proof of force, threats, or intimidation where the victim is under the age of thirteen (13),⁴ or fifteen (15),⁵ for

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the indecent liberties charges. Thus, even if Rossi consented to engage in the alleged sexual acts, the conduct would still be unlawful.

Rossi also states that Petitioner never “molested” or “sexually abused” him. (Rossi Aff. ¶ 10(A), (F).) These statements have multiple plausible interpretations. To the extent that these phrases indicate that Petitioner never made Rossi engage in sexual acts against his will, Petitioner's argument suffers from the same flaw as the statement about force. If the court construes Rossi's affidavit to state that Petitioner and Rossi never had any sexual contact, consensual or otherwise, then the new evidence could be used in an attempt to demonstrate that Petitioner is actually innocent of the eight (8) nolle prossed charges that expressly allege that Petitioner engaged in sexual acts with Rossi.

Nonetheless, even if the court construes the affidavit to implicate all of the charges mentioning Rossi, the petition must still be dismissed because Petitioner failed to establish actual innocence with respect to the two (2) remaining charges that were nolle prossed. The two (2) remaining indictments charged Petitioner with producing sexually explicit material involving a person under the age of eighteen (18).⁶ Rossi's affidavit states that Petitioner “ did not take the photographs of [Rossi] nude, in sexual positions, nor did he ever sexually abuse me. The photographs with [Petitioner] in them were the ones [Petitioner] went to Randy's to take back, and were with another subject within. That subject was not [Rossi].” (Rossi Aff. ¶ 10(F).) Petitioner argues that this statement demonstrates that he is actually innocent of the two (2) indictments charging Petitioner with production of child pornography. (Pet'r's Objections at 4.) The court disagrees. Neither of these indictments alleges that the minor involved was Rossi. Furthermore, Rossi's own statement suggests that there are in fact pictures of Petitioner and another individual, although it says nothing about the identity or age of the other individual, or the nature of the images. At best, the new evidence Petitioner offers indicates that Petitioner is actually innocent of producing any pornographic material utilizing Rossi, but it fails to demonstrate that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt” of producing pornographic material depicting a person, other than Rossi, who is under the age of eighteen (18). House v. Bell, 547 U.S. 518, 536–37, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)).

Because Petitioner failed to demonstrate that he is actually innocent of all of the “charge[s] dropped by the government as part of a plea bargain,” Green, 2009 WL 2840491, at *2, he is not entitled to a period of equitable tolling under a potential actual innocence exception. Accordingly, Petitioner's objection is OVERRULED.

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Certificate of Appealability

Petitioner also objects to the magistrate judge's finding that the Petitioner “failed to demonstrate ‘a substantial showing of the denial of a Constitutional right.’ ” (Pet'r's Objections at 5.) The magistrate judge made this finding in the context of recommending that the court decline to issue a certificate of appealability, and was not a finding made on the merits of the petition. In order to obtain a certificate of appealability, a habeas petitioner must demonstrate “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this requirement, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right.” Brown v. Johnson, No. 09–8150, slip op. at 2, ––– Fed.Appx. ––––, –––– (4th Cir. Aug. 19, 2010) (unpublished) (citing Slack, 529 U.S. at 484–85, 120 S.Ct. 1595). The court FINDS that the magistrate judge's conclusion that the petition is barred by the statute of limitations is correct, and that Petitioner failed to establish that the ruling is debatable. Accordingly, Petitioner's objection is OVERRULED.

Respondent's Objection

Respondent objects to a recitation in the conclusion of the magistrate judge's report which states that: “The statute of limitations was statutorily tolled for twenty-one (21) days while DiCaprio–Cuozzo's motion for a new trial was pending before the state court.” (Rpt. at 15.) As noted by the Respondent, the magistrate judge's actual finding, as presented in the Findings of Facts and Conclusions of Law section of the report, was conditional, stating that: “If the Court determined that this motion was a properly filed...