Rogers v. Wong
| Decision Date | 26 March 2009 |
| Docket Number | Case No. 2:03-cv-02638 JKS. |
| Court | U.S. District Court — Eastern District of California |
| Parties | Wilbert ROGERS, Jr., Petitioner, v. Robert K. WONG, Warden,<SMALL><SUP>*</SUP></SMALL> et al., Respondents. |
Wilbert Rogers, Jr., San Quentin, CA, pro se.
Michael David Dolida, California Department of Justice, Sacramento, CA, for Respondents.
Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2001 judgment of conviction entered in the Superior Court of California, Sacramento County, on one count of burglary, four counts of assault with a deadly weapon with an additional allegation that Petitioner inflicted great bodily injury, one count of kidnapping, four counts of criminal threats, one count of elder abuse, one count of false imprisonment, one count of obstructing a telephone, and one count of being a felon in possession of a firearm. In his Second Amended Petition, Petitioner alleges relief is warranted on the following grounds: (1) ineffective assistance of trial counsel; (2) cumulative effect of trial court error; (3) ineffective assistance of appellate counsel; (4) prosecutorial misconduct; and (5) cruel and unusual punishment. Docket No. 55. Respondent asserts that some of Petitioner's arguments are procedurally barred and that all of the claims fail on the merits. Docket No. 72. Petitioner has filed a Traverse. Docket No. 84 (Trav.). The petition will be denied for the reasons set forth below.
In an unpublished opinion filed on September 16, 2002, the California Court of Appeal, Third Appellate District, summarized the factual background of the offense and trial:
We start by identifying the victims of defendant's violent rampage: Elsa Haro is the 78-year-old mother of Rachael Ramirez and the grandmother of Lisa Lindeman. [Footnote 2] Lindeman is married to Jason Pribyl.
[Footnote 2: Lindeman and Ramirez have a number of felony convictions.]
On August 27, 2000, Lindeman and Pribyl were staying with Ramirez in apartment 505 of an apartment complex. Lindeman had been staying there for four days and was helping her mother move out. Lindeman's two children, Amanda M. (12 years old) and Sara (11 months old), were staying there too. Lindeman's nephew Justin J. (13 years old) and her niece Lena A. (seven years old) also lived with their grandmother in apartment 505.
DeLena Robinson lived two doors down in apartment 507. Robinson's 14-year-old daughter, Jodee L., and her 22-year-old nephew, Kenji Taylor, also lived with her in apartment 507.
According to Robinson, defendant was her boyfriend [Footnote 3] between 1995 and February 2000. During defendant's incarceration, Robinson visited him in jail almost every week. In early January 2001, Robinson told the prosecutor she and defendant were still dating and in fact had recently become engaged. Robinson approached the district attorney a short time later to tell him she had actually broken up with defendant in February 2000. Robinson claimed defendant lived with her in apartment 507 from 1997 to February 2000. A DMV registration with defendant's name, however, suggested he lived at apartment 507 after February 2000. Even as late as the trial date, defendant continued to receive mail at apartment 507.
In August 2000, tension was high between the residents of apartments 505 and 507. The parties stipulated that on August 21, 2000, Jodee L. reported to the police that the night before, she had been the victim of unlawful sexual intercourse perpetuated by Justin J. and two other male juveniles. In addition, two weeks prior to the incident at issue in this case, defendant told Lindeman's mother, Ramirez, that Justin J. had stolen $ 2,000 worth of stereo equipment from defendant's car.
We now turn to the events of August 27, 2000. Late that evening Lindeman noticed defendant standing outside of apartment 507. Lindeman had seen defendant five or six times prior to this night. Defendant and Robinson gave Lindeman a dirty look. Lindeman hurried into her apartment.
A couple of minutes later, defendant knocked on the door of apartment 505. Amanda M. opened the door and defendant pushed his way in. Lindeman returned from the kitchen and saw defendant in the threshold with the door shut behind him. Defendant was angry and yelled where "the fuck" was Justin J. and Justin J.'s uncle. Lindeman told defendant she "wasn't fucking" going to tell him.
Defendant pulled out a gun and grabbed Lindeman by the throat and stuck the gun in her face. For about 15 to 20 seconds, defendant squeezed Lindeman's throat tight enough to cut off her air supply.
At this point, Amanda M. grabbed baby Sara and ran up the stairs. Defendant pointed his gun at Amanda M. and ordered her to come back down. Amanda M. continued up the stairs. Lindeman started pushing defendant and defendant hit Lindeman in the face six to eight times with his gun until she fell down. He was calling Lindeman a "fucking bitch" and demanding to know where Justin J. was. Lindeman screamed for her-husband, Pribyl, and her mother, Ramirez. During his tirade, defendant referred to himself as their neighbor and the "shit [that] lives two doors down from you."
Haro tried to push defendant away from Lindeman. Defendant, however, kept hitting Lindeman and moving her toward the stairs. Defendant said he told the victims "about that little bastard, I fucking told you about that little bastard."
As Lindeman's husband Pribyl, came running down the stairs defendant hit him in the face with the gun. Next, Lindeman's mother, Ramirez, came down stairs, and defendant hit her in the head too. Defendant repeatedly shouted he was going to kill all of them.
At this point, Lindeman went into the kitchen, grabbed the phone and called 911. Before the 911 operator could answer, defendant ordered Pribyl to get Lindeman "fucking" in here and "bring me the fucking phone." Lindeman watched defendant hold the gun to her mother's face.
Pribyl grabbed the phone from Lindeman, unplugged it and brought it back to the living room to defendant. Defendant took the phone and put it in a wardrobe box. [Footnote 4] Defendant continued to point the gun at the victims in the living room.
[Footnote 4: Ramirez claimed Pribyl put the phone in the box.]
Defendant ordered the victims to get down on their knees and defendant hit Pribyl and Lindeman's mother, Ramirez, in the face and head with the gun as they were going down. Lindeman estimated defendant hit Ramirez 8 to 15 times. Defendant struck Haro twice.
While defendant was beating his victims, he was telling them "that little bastard Justin [J.], he took my daughter's virginity." Defendant also claimed his stereo was stolen out of his truck. As he beat Ramirez, defendant said,
Haro tried to stop defendant, and he hit her and ordered her to get into "this fucking closet"—referring to a bathroom. Dazed, Haro walked around in a circle for a minute, and defendant hit her again. Then, as ordered, Haro went into the bathroom. Defendant kept yelling he was going to kill everybody and claimed Justin J. had raped his little girl.
Defendant ordered Lindeman to come over to him. She did. Defendant grabbed her and ordered her to the front door. Defendant then told her "I want you to go down there and get them," pointing toward apartment 507. While defendant was distracted, Haro, Ramirez, and Pribyl ran out the back door to a neighbor's to call the police. Haro told the 911 operator the perpetrator of the crime lived in apartment 507.
While defendant remained outside of apartment 505, Lindeman went down to apartment 507 and knocked on the door. Lindeman begged the girl who opened the door to come down to see what defendant was doing so defendant would stop beating Lindeman's family. Lindeman saw defendant's "wife," daughter and son in the apartment. The daughter said defendant was not her dad and ran back up the stairs. Defendant's "wife" shut the door in Lindeman's face. Lindeman knocked again and begged the wife to come out.
Next, defendant told Lindeman to "get the fuck down here." Lindeman refused, and defendant went up to her hit her with his gun about six times and then dragged her by her hair back to apartment 505—a distance of about 40 feet. When they got back into the apartment, all of the adults in Lindeman's family were gone. Defendant put the gun to the back of Lindeman's head and ordered Lindeman to get her family back.
At this point, defendant backed out of the apartment and left. As he left, defendant told Lindeman, Lindeman agreed not to call the cops, shut the door, and locked it. Lindeman found the children upstairs crying.
Defendant nonchalantly walked back toward his apartment. When the police arrived, Lindeman shouted to them where defendant was. The police, however, did not capture him that night.
Defendant was arrested about two weeks after the assault at the home of Anita Lofton—defendant's sister. Defendant ran out the back door when the police arrived and the police found him hiding behind garbage cans around the side of the house. The officers noticed a luggage bag on the floor and a pile of clothing on the couch. Lofton told the officers the bag belonged to defendant.
At trial,...
To continue reading
Request your trial
-
Uhuru v. Burton
...mitigating evidence was suppressed during his criminal proceedings. He is not entitled to relief for this conclusory allegation. Rogers, 637 F.Supp.2d at 826 Jones, 66 F.3d at 204). 5. Ground Four In ground four, Uhuru makes reference to the MDO law and Brown v. Plata, 563 U.S. 493 (2011), ......