State v. Rodgers

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
)
v. ) Cr. A. No. 0409003152
)
)
EMMANUEL RODGERS, )
)
Defendant. )
Submitted: February 22, 2024
Decided: May 16, 2024
COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE SUMMARILY DISMISSED
Diana Dunn, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.
Emmanuel L. Rodgers, James T. Vaughn Correctional Center, Smyrna, Delaware,
pro se.
O’CONNOR, M. Commissioner.
1
This 16th day of May, 2024, upon consideration of Defendant’s Motion for
the Appointment of Counsel and to Expand the Record; Defendant’s Motion for
Postconviction Relief; the State’s Response to Defendant’s Motion for
Postconviction Relief; and the record in this matter, the following is my Report and
Recommendation.
I. BACKGROUND FACTS
In September 2004, a New Castle County Grand Jury indicted Emmanuel
Rodgers (hereinafter “Defendant”) on eight counts of Rape Second Degree.1 The
State alleged Defendant, who was twenty-eight years of age at the time of the alleged
offenses, engaged in sexual intercourse with a fourteen-year-old victim without her
consent.2 In May 2005, a New Castle County jury convicted Defendant of three
counts of Rape Second Degree.3 Subsequently, and without opposition from
Defendant, the State successfully moved to modify the convicted offenses of Rape
Second Degree to reduced charges of Rape Fourth Degree, and it petitioned to have
Defendant sentenced as a habitual criminal pursuant to 11 Del. C. § 4214(a).4 On
August 2, 2005, this Court declared Defendant a habitual offender and sentenced
1
Docket Item (“D.I.”) 3 Indictment.
2
Id.
3
D.I. 10; D.I. 14.
4
Id.
2
him to forty-six years incarceration, suspended after serving forty-five years,
followed by probation.5
On direct appeal, Defendant’s appellate counsel moved to withdraw pursuant
to Supreme Court Rule 26(c).6 Appellate counsel also informed Defendant he could
submit arguable issues for the Delaware Supreme Court to review, but Defendant
did not submit any claims for consideration.7 On March 7, 2006, the Delaware
Supreme Court affirmed Defendant’s convictions on direct appeal, concluding
Defendant’s appeal was “wholly without merit and devoid of any arguably
appealable issue.”8
On April 23, 2008, Defendant filed his first pro se Motion for Postconviction
Relief, raising three ineffective assistance of counsel claims: (1) counsel was
ineffective in permitting his convictions to be amended to Rape Fourth Degree; (2)
counsel provided ineffective representation by failing to object to the State’s
argument that the minor victim could not consent to sexual intercourse due to her
age and the applicable law; and (3) counsel was ineffective for failing to investigate
Defendant’s prior convictions which led to his habitual status.9 A Superior Court
Commissioner recommended that this Court summarily dismiss Defendant’s
5
D.I. 15.
6
Emmanuel Rodgers v. State of Delaware, 2006 WL 568572, at *1 (Del. Mar. 7, 2006).
7
Id.8
Id.9
D.I. 49, State v. Rodgers, Case No. 0409003152, Commissioner’s Report and Recommendation
at 2-3, (Del. Super. Aug. 27, 2009).
3
postconviction motion, concluding: (1) it was procedurally barred because
Defendant failed to raise the three postconviction claims leading to the entry of the
judgment of conviction, (2) the motion was procedurally barred as untimely filed,
and (3) the motion was meritless.10 On October 5, 2010, this Court adopted the
Commissioner’s Report and Recommendation, and denied Defendant’s Motion for
Postconviction Relief.11
On October 26, 2010, Defendant appealed this Court’s denial of the Motion
for Postconviction Relief,12 and on May 3, 2011, the Delaware Supreme Court
affirmed the judgment of this Court.13
On May 23, 2011, Defendant filed an application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of
Delaware.14 Therein, Defendant claimed (1) the Delaware state courts erred in
denying the first postconviction motion as time-barred; and (2) defense counsel
provided ineffective assistance of counsel during trial and on direct appeal.15 After
consideration of the arguments of Defendant and the State, the District Court
dismissed Defendant’s application as time-barred.16
10
Id. at 3-4.
11
D.I. 56.
12
D.I. 57.
13
Rodgers v. State, 2011 WL 1716371 (Del. May 3, 2011).
14
Emmanuel Rodgers v. David Pierce, Warden, and the Attorney General of the State of
Delaware, Civ. A. No. 11-472-SLR (May 23, 2011).
15
Rodgers v. Pierce, 38 F.Supp.3d 466, 469 (D.Del. 2014).
16
Id. at 472.
4
On May 23, 2012, Defendant filed a second Motion for Postconviction
Relief.17 Noting that Defendant’s second postconviction motion was “heavily laden
with generalities about the Sixth Amendment and procedural bars,” this Court
liberally interpreted Defendant’s postconviction claims as follows: (1) trial counsel
was ineffective because Defendant was “illegally charged” with eight counts in the
Indictment; (2) trial counsel was ineffective because the maximum sentence for
Rape Fourth Degree is ten years Level V, and he was sentenced to fifteen years; (3)
trial counsel failed to take certain unspecified actions and, as a result, “the
prosecution’s case was [not subjected] to a meaningful adversarial testing; and (4)
trial counsel was ineffective because “the amendment of the charges from second
degree rape to fourth degree rape after the jury verdict are [sic] illegal.”18
After consideration of Defendant’s claims, this Court held that Defendant’s
claims were procedurally barred as untimely and repetitive.19 The Court found
Defendant’s fourth claim to be procedurally barred as it had been previously
adjudicated.20 Finally, this Court concluded Defendant’s claims were substantively
meritless.21
17
D.I. 60.
18
State v. Emmanuel Rodgers, Case No. 0409003152, Order at 2-3 (Del. Super. Aug. 30, 2012).
19
Id.at 3-4. See Super. Ct. Crim. R. 61(i)(1)–(2).
20
Id. at 3-4.
21
Id. at 4-5.
5
On November 3, 2023, this Court received (1) Defendant’s Motion for
Appointment of Postconviction Counsel;22 and (2) Defendant’s (third) Motion for
Postconviction Relief (the “Motion”).23 In Defendant’s Motion, he claims (1) the
current version of Superior Court Criminal Rule 61(i) (effective June 4, 2014) is
inapplicable to the Motion, and the version of Rule 61(i) in effect at the time of his
sentencing controls; and (2) trial counsel provided ineffective representation in
failing to identify and pursue an alibi defense as to two counts of Rape Second
Degree.24
II. DEFENDANT’S MOTION FOR APPOINTMENT OF
POSTCONVICTION COUNSEL
Defendant seeks the appointment of postconviction counsel.25 He asserts he
raises “substantial issues of non-retroactivity, ex-post facto and lack of fair notice as
related to the application of the 2014 amended version of Rule 61 being contrary to
well established State and Federal law.”26 He also requests this Court appoint
postconviction counsel.27
Superior Court Criminal Rule 61 (“Rule 61”) provides that when a defendant
has filed a second or subsequent postconviction motion, the Court “may appoint
22
D.I. 76.
23
D.I. 75.
24
D.I. 75 at 5.
25
D.I. 76.
26
Id. at 1.
27
Id. at 2.
6
counsel for an indigent defendant only if the judge determines that the second or
subsequent motions satisfies the pleading requirements of subparagraphs (2)(i) or
(2)(ii) of subdivision (d) of this rule.”28 Rule 61(d)(2)(i)-(ii) provides, in pertinent
part:
(2) Second or subsequent postconviction motions. A second or
subsequent motion under this rule shall be summarily dismissed, unless
the movant was convicted after a trial and the motion either:
(i) pleads with particularity that new evidence exists that creates a
strong inference that the movant is actually innocent in fact of the acts
underlying the charges of which he was convicted; or
(ii) pleads with particularity a claim that a new rule of constitutional
law, made retroactive to cases on collateral review by the United States
Supreme Court or the Delaware Supreme Court, applies to the movant's
case and renders the conviction or death sentence invalid.29
Defendant has not met the exacting pleading standards of Rule 61(d)(2)(i)-(ii),
therefore, consistent with Rule 61(e)(5), I recommend his request for the
appointment of postconviction counsel be denied.
III. PROCEDURAL BARS
In any motion for postconviction relief, this Court must first determine
whether a defendant has satisfied the procedural requirements of Superior Court
Criminal Rule 61 before giving consideration to the merits of the underlying
claims.30 Rule 61(i)(1) prohibits the Court from considering a motion for
28
Super. Ct. Crim R. 61(e)(5).
29
Super. Ct. Crim. R. 61(d)(2).
30
Taylor v. State, 32 A.3d 374, 388 (Del. 2011) (quoting Shelton v. State, 744 A.2d 465, 474 (Del.
1999)).
7
postconviction relief unless it is filed within one year after the judgment of
conviction is final.31 Rule 61(i)(2) prohibits the filing of repetitive motions for
postconviction relief, unless: under Rule 61(d)(2)(i), the movant “pleads with
particularity that new evidence exists that creates a strong inference” of actual
innocence; or, under Rule 61(d)(2)(ii),“that a new rule of constitutional law, made
retroactive to cases on collateral review,” applies to the movant’s case.32 Rule
61(i)(3) provides that “any ground for relief that was not asserted in the proceedings
leading to the judgment of conviction, as required by the rules of this Court, is
thereafter barred, unless the movant shows (a) cause for relief from the procedural
default and (b) prejudice from the violation of movant’s rights.”33 Rule 61(i)(4)
provides that “[a]ny ground for relief that was formerly adjudicated, whether in the
proceedings leading to the judgment of conviction, in an appeal, in a postconviction
proceeding, or in a federal habeas corpus proceeding, is thereafter barred.”34 Finally,
Rule 61(i)(5) provides that any claim barred by Rule 61(i)(1)-(4) may nonetheless
31
Super. Ct. Crim. R. 61(i)(1). A judgment of conviction is final “when the Supreme Court issues
a mandate or order finally determining the case on direct review.” State v. Drake, 2008 WL
5264880, at *1 (Del. Super. Dec. 15, 2008).
32
Super. Ct. Crim. R. 61(i)(2).
33
Super. Ct. Crim. R. 61(i)(3). Here, to the extent Defendant’s argument is that this Court should
apply a prior version of Rule 61, that claim was not previously asserted in the proceedings leading
to the judgment of conviction, and it is therefore procedurally barred pursuant to Rule 61(i)(3).
34
Super. Ct. Crim. R. 61(i)(4).
8
be considered if the claim is jurisdictional or otherwise satisfies the pleading
requirements of Rule 61(d)(2)(i) or (d)(2)(ii).35
Defendant’s Motion was filed on November 3, 2023. Defendant’s judgment
of conviction became final on March 23, 2006, when the Supreme Court issued its
mandate.36 Therefore, Defendant’s Motion is procedurally barred as it was untimely
filed. Moreover, Defendant has failed to allege any facts implicating the exception
to the Rule 61(i)(1) procedural bar.37 Defendant’s claim is procedurally barred as
untimely.
The Motion is also repetitive pursuant to Rule 61(i)(2), as this is Defendant’s
third postconviction motion. Defendant could potentially overcome this procedural
bar by demonstrating this Motion satisfies the pleading requirements of Rule
61(d)(2)(i) or Rule 61(d)(2)(ii), but he has failed to plead with particularity “that new
evidence exists which creates a strong inference that [he] is actually innocent in fact
of the acts underlying the charges for which he was convicted,”38 or plead with
particularity a claim that a new rule of constitutional law, made retroactive to cases
on collateral review by the Delaware Supreme Court or the U.S. Supreme Court,
35
Super. Ct. Crim. R. 61(i)(5).
36
D.I. 26.
37
Super. Ct. Crim. R. 61(i)(1). To avoid the procedural bar, Defendant must “allege facts
supporting a claim that there exists a retroactively applicable right that is newly recognized after
the judgment of conviction was final, more than one year after the right was first recognized by
the Delaware Supreme Court or the U.S. Supreme Court.” Id.38
Id.9
applies to his case and renders his conviction invalid.39 Defendant has not met the
exacting pleading standards of Rule 61(d)(2)(i) or Rule 61(d)(2)(ii), and therefore
the Motion is procedurally barred as repetitive.
As to the procedural bars applicable to Defendant’s individual claims, neither
of Defendant’s claims were raised in the proceedings leading up to the judgment of
conviction as required by Rule 61(i)(3), and therefore they are procedurally barred.
Finally, the Defendant cannot avail himself of the potential relief offered by
Rule 61(i)(5), as he has not asserted that this Court lacks jurisdiction or otherwise
satisfy the pleading requirements of Rule 61(d)(2)(i) or Rule 61(d)(2)(ii).
THE MERITS OF DEFENDANT’S CLAIMS
Assuming, for argument’s sake, that Defendant’s Motion was not subject to
the aforementioned procedural bars, his claims remain substantively meritless.
Defendant’s first “claim” is not a claim at all – Defendant simply asserts this
Court should apply a prior version of Rule 61 when evaluating his postconviction
motion. Prior to June 4, 2014, Rule 61(i)(5) allowed defendants relief from the
procedural bars noted in Rule 61(i)(1)-(4) if they could show this Court lacked
jurisdiction or that the defendant made a “colorable claim that there was a
miscarriage of justice because of a constitutional violation.” But, on June 4, 2014,
39
See Super. Ct. Crim. R. 61(i)(2); Super. Ct. Crim. R. 61(d)(2)(i)-(ii).
10
Rule 61(i)(5) was amended. The amended Rule removed the “miscarriage of
justice” requirement and substituted the following:
“The bars to relief in paragraphs (1), (2), (3), and (4) of this subdivision
shall not apply either to a claim that the court lacked jurisdiction or to
a claim that satisfies the pleading requirements of subparagraphs (2)(i)
or (2)(ii) of subdivision (d) of this rule.”40
This Court is required to apply the version of Rule 61(i)(5) in effect at the
time Defendant filed the Motion.41 And, in the application of the amended Rule,
Rules 61(d)(2)(i) and (d)(2)(ii) do not help Defendant’s cause. Defendant is required
to (1) claim this Court lacked jurisdiction, or (2) plead with particularity a claim that
a new rule of constitutional law was made retroactive to cases on collateral review
by the Delaware Supreme Court or the U.S. Supreme Court.42 Defendant has failed
to do either.
Defendant’s second claim generally asserts trial and appellate counsel failed
to assert in his defense an alibi to his charged offenses – that Defendant was
incarcerated at the time of all offenses as alleged in the Indictment and therefore he
could not have committed the offenses as charged. Defendant also claims he
“continually made defense counsel aware that he was indeed . . . beyond a doubt . .
. incarcerated during the alleged crimes and was unequivocally beyond any
40
Super. Ct. Crim. R. 61(i)(5).
41
Jones v. State, 2015 WL 6746873, at *1, n.4 (Del. Nov. 14, 2015) (citing Order Amending
Rule 61 of the Superior Court Rules of Criminal Procedure (Del. Super. June 4, 2014)).
42
Super. Ct. Crim. R. 61(d)(2)(i)-(ii).
11
reasoning innocent and the State’s own prison records corroborate[] his alibi
defense.”43
Unfortunately for Defendant, the Department of Corrections (“DOC”) records
do not support his alibi. As the State noted in its Response to Defendant’s Motion
for Postconviction Relief:44
Records from the Department of Correction Central Offender Records
were obtained and indicate that Rodgers was housed at the Central
Violation of Probation Center from June 5, 2003, until July 2, 2003.
Rodgers was thereafter released into the community and was not
incarcerated again until March 23, 2004, when he entered Howard R.
Young Correctional Institution. . .. Based on these records, Rodgers
was not incarcerated as alleged in the [M]otion, during the entirety of
the time period January 1, 2004 – March 31, 2004, and therefore could
have committed the offenses as alleged and admitted to. This is the first
time Rodgers has raised this information even though he would have
had this information available to him at the time of trial and thereafter.
Based upon his admission to the conduct for which he was convicted
coupled with the information from the Department of Corrections
Rodgers does not and cannot show any new evidence which
demonstrates that he is factually innocent, nor does he point to a new
rule of constitutional law, made retroactive which would render his
conviction invalid.45
The DOC’s records do not support Defendant’s claim that he was incarcerated at the
time of the offenses as alleged in the indictment. In fact, the records demonstrate he
43
D.I. 75, Motion for Postconviction Relief at 5.
44
D.I. 80.
45
Id. at 5-6; also see D.I. 80, Ex. A – February 13, 2024 letter from State of Delaware
Department of Corrections Central Offender Records regarding incarceration periods for
Emmanuel Rodgers, SBI # 00268170.
12
was in the community from January 1, 2004 until March 23, 2004. Defendant’s
claim is meritless and unsupported by the record.
CONCLUSION
Defendant’s postconviction motion is procedurally barred pursuant to Rules
61(i)(1) and 61(i)(2), and his postconviction claims are procedurally barred pursuant
to Rule 61(i)(3). Moreover, Defendant’s claims are substantively meritless.
For all of the aforestated reasons, I recommend the Motion for Postconviction
Relief should be SUMMARILY DISMISSED.
IT IS SO RECOMMENDED.
/s/ Martin B. O’Connor
Commissioner Martin B. O’Connor
oc: Prothonotary
Diana Dunn, Deputy Attorney General
Emmanuel L. Rodgers, Defendant
13