Rodgers v. Angelone

• Decision Date: 12 September 2000
• Docket Number: No. Civ.A. 99-1309-AM.,Civ.A. 99-1309-AM.
• Citation: 113 F.Supp.2d 922
• Parties: Troy Wayne RODGERS, Petitioner, v. Ron ANGELONE, Director, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

113 F.Supp.2d 922

Troy Wayne RODGERS, Petitioner, v. Ron ANGELONE, Director, Respondent.

No. Civ.A. 99-1309-AM.

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

September 12, 2000.

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Troy Wayne Rodgers, Mitchells, VA, petitioner pro se.

Linwood Theodore Wells, Jr., Office of Attorney General, Criminal Litigation Section, Richmond, VA, for respondent.

MEMORANDUM OPINION

ELLIS, District Judge.

This pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 raises several issues, including the questions, unresolved in this circuit, of whether (1) a timely filed notice of appeal, by itself, is a properly filed application for the purposes of § 2244(d)(2) when the required subsequent petition is never timely filed; and, (2) if not, under which circumstances may equitable tolling resurrect a petition that has not been timely filed under the statute.

I.

Petitioner Troy Wayne Rodgers ("Rodgers") is attacking the validity of a final judgment of a bench trial in the Circuit Court of Spotsylvania County on April 9, 1997. The record reflects that Rodgers was charged with assault and battery of the two victims, Cornelia Frazer Lopez ("Lopez"), and her daughter, Julia Newell ("Newell") on June 1, 1996. He also was charged with breaking and entering and the subsequent malicious wounding of Lopez and Newell on September 14, 1996.

The evidence presented at trial included the testimony of both victims and the medical records from the victims' emergency room treatment. From the record, it appears that Newell and Rodgers had engaged in a volatile romantic relationship since March 1996. When not at odds with each other, the couple lived together in the house that Newell owned, which she shared with her two minor children and Lopez. Lopez lived in the separate apartment on the lower level, but had free access to the upper portion of the house. Newell and Rodgers fought frequently, and on these occasions, Rodgers would sometimes move out, staying with a cousin, who lived on the same block.

Lopez testified that on June 1, 1996, she entered the kitchen and discovered Rodgers assaulting Newell. She intervened, and Rodgers turned on her, striking her with his fists. Lopez did not file charges against Rodgers at this time because Newell asked her not to do so. In September 1996, Newell and Rodgers again fought, and on this occasion, Rodgers moved out. Lopez testified that on September 14, 1996, she was awakened at about 5:00 in the morning by the sound of a disturbance upstairs and called 911. Newell's son came downstairs to Lopez's room and said, "Troy is killing Mommy." Lopez seized a lamp and went upstairs to Newell's bedroom, where she saw her daughter lying on the floor, bloody and unconscious. She testified that when Rodgers saw her, he came at her, and she attempted to defend herself with the lamp, but Rodgers overpowered her, threw her across the room, and then punched, hit, and kicked her, stating, "I'm going to kill you." On cross-examination, she stated that she hit Rodgers with the lamp before he hit her.

Newell testified reluctantly that she was assaulted and injured by Rodgers on September 14, 1996. She also testified that she and her mother had prepared a statement on September 29, 1996, which they typed, signed, and gave to the police. Newell explained that Lopez directed her to write the statement and told her what had occurred between Lopez and Rodgers, as she, Newell, had not been present during the entire episode. Newell then testified that at the time of the incident, Rodgers was not living in her house, owing to an earlier argument between them. And, she further testified that, at the time of the incident, she had not invited him back.

Newell further testified that on the morning of September 14, she was awakened in her bedroom by Rodgers, who told her he wanted to reconcile with her. This conversation escalated first into an argument, and then to violence with Rodgers striking Newell. Newell testified Rodgers hit her more than once, and pushed her to the floor as well. At this point, according to Newell, she was experiencing difficulty in breathing and her nose was bleeding, as Rodgers began choking her while they both struggled on the floor. Newell testified she then lost consciousness briefly, and when she awoke, she heard her children and mother yelling, and then ran out of the house.

From the record, it appears that Rodgers left the scene before the sheriff's deputies came, and a deputy testified that Newell and Lopez both were outside of the house when they arrived. The deputies proceeded to search for Rodgers, finding him ultimately in the back yard of a residence two houses away from Newell's. At first, Rodgers attempted to flee, but soon abandoned the attempt and surrendered to the police. Thereafter, the deputies escorted Newell and Lopez to the hospital, where they were treated for their injuries in the emergency room and released. Photographs of the victims' injuries were taken within a few hours of the incident and made a part of the trial record together with their medical records.

After hearing all the evidence, the trial court found Rodgers guilty of one count of malicious wounding of Lopez and one count of trespassing stemming from the September 14, 1996 incident, and two counts of assault and battery stemming from the June 1, 1996 incident. (Virginia Code §§ 18.2-51, 18.2-57 & 18.2-119). Thereafter, Rodgers was sentenced to a term of imprisonment totaling 10 years. His counsel appealed the conviction to the Court of Appeals of Virginia, alleging two grounds for relief: (1) that there was insufficient evidence to sustain a malicious wounding conviction, and (2) that the trial court erred in the weight and credibility it gave to the victims' testimony. The Court of Appeals rejected these arguments and affirmed Rodgers' conviction and sentence. See Rodgers v. Commonwealth of Virginia, No. 1036-97-2 (Va.Ct.App. Sept. 24, 1997). Rodgers' petition for appeal to the Supreme Court of Virginia was denied summarily. See Rodgers v. Commonwealth, No. 980062 (Va. April 28, 1998) (unpublished opinion). Rodgers then filed a pro se petition for a writ of habeas corpus with the Circuit Court of Spotsylvania County, which was denied. See Rodgers v. Director, Dep't of Corrections, No. CL-98-332 (order entered Aug. 14, 1998). On or before September 14, 1998, Rodgers filed a timely Notice of Appeal in the trial court, although he thereafter failed to file the requisite petition for appeal in the Supreme Court of Virginia. See Va.Sup. Ct.R. 5:17.

In the instant petition, Rodgers seeks to explain this failure. Specifically, he alleges that immediately after submitting his notice of appeal, the correctional institution where he was housed went on twenty-four hour lockdown. Next, he was transferred to another institution and was therefore unable to file his petition for appeal in a timely manner. According to Rodgers, he wrote to the Clerk of the Supreme Court of Virginia, explaining the reason for the delay, but the Clerk informed him that no out-of-time petitions would be accepted.

On August 23, 1999, Rodgers filed the instant petition pro se, raising the same claims as those raised in his habeas petition before the Circuit Court of Spotsylvania County. Specifically, he alleges that:

1. The evidence was insufficient to support a conviction of malicious wounding;

2. The prosecution engaged in misconduct at trial;

3. The trial court erred in accepting perjured testimony of the victims; and,

4. A prosecution witness gave perjured trial testimony.

As evidence of the truth of his allegations of perjury, Rodgers has referenced two letters from Newell which were apparently mailed to the Court of Appeals of Virginia and the Supreme Court of Virginia. The first is dated December 2, 1997, and the second April 3, 1998. In these letters, Newell states that she has hired counsel to assist Rodgers with his appeal because she believes a great miscarriage of justice occurred. She states that she did not tell the truth "about several matters," and that "[A]ll the facts were either distorted, exaggerated, or falsified." She felt that her mother and the prosecutor forced her to testify. The prosecutor, she claims, threatened to put her in jail and take away her children if she did not testify. According to these letters, Rodgers had been living with Newell for the six months prior to September 14, 1996, but she had asked him to leave shortly before the September 14 incident because she was angry with him. In addition, her mother did not like Rodgers and often interfered in her relationship with him. She states in the December 2, 1997 letter that Rodgers did not break into the house on September 14; rather she allowed him to enter. She also denies that he tried to choke her, but says instead that her bronchitis made it difficult for her to breathe. Newell asserts that Rodgers "had no premeditated intention of harming anyone," and that she provoked him into the fight.¹ Additionally, in the April 3, 1998 letter, Newell accuses her mother of lying in court and states that her mother has severe personality disorders, psychosis, and manic depressive disorder. Rodgers' claims are based on the statements made in the two letters, neither of which is under oath and neither of which was presented to the Supreme Court of Virginia on direct appeal.

After preliminary consideration of the instant petition pursuant to Rule 4 of the Rules Governing § 2254 Cases, the Court directed respondent to show cause why this writ should not issue. Respondent filed a Rule 5 Answer and Motion to Dismiss. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), the Court notified petitioner of the potentially dispositive nature of the motion and accorded him the opportunity to file responsive materials. Petitioner has done so and thus this matter is now...