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Rogers v. Johnson

United States District Court, D. Delaware

September 26, 2017

D'ANDRE ROGERS, Petitioner,

          D'Andre Rogers. Pro Se Petitioner.

          Elizabeth R. McFarlan, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.




         Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 and an Amended Application (hereinafter referred to collectively as "Petition") filed by Petitioner D'Andre Rogers ("Petitioner"). (D.I. 1; D.I. 5) The State has filed an Answer in Opposition. (D.I. 14) For the reasons discussed, the Court will dismiss the Petition.


[O]n the night of January 3-4, 2009, [Petitioner] drove his friend, Kenneth Miller, to the Wilmington residence of Miller's ex-girlfriend, Tonya Backus. Backus' new boyfriend, Derek Hoey, was present. Miller and Hoey became involved in a confrontation. [Petitioner] decided to become involved. [Petitioner] entered the residence and shot Hoey at least four times with a handgun, killing hm. [Petitioner] and Miller fled. [Petitioner] was arrested four months later in North Carolina, where he was staying with Miller's relatives.

State v. Rogers, 2013 WL 285735, at *1 (Del. Super. Ct. Jan. 17, 2013).

         On May 19, 2010, a Delaware Superior Court jury convicted Petitioner of second degree murder (as a lesser included offense of first degree murder) and possession of a firearm during the commission of a felony ("PFDCF"). See State v. Rogers, 2013 WL 285735, at *1 (Del. Super. Ct. Jan. 17, 2013). Following a bench trial on a third charge, the Superior Court found Petitioner guilty of possession of a deadly weapon by a person prohibited ("PDWBPP"). Id. at *1 n.l. The Superior Court sentenced Petitioner on September 24, 2010 to a total of forty years at Level V incarceration, suspended after thirty-five years, followed by decreasing levels of probation. (D.I. 14 at 3; see also Rogers, 2013 WL 285735, at *1. Petitioner appealed, and the Delaware Supreme Court affirmed his conviction and sentence on March 20, 2102. See Rogers v. State, 41 A.3d 430 (Table), 2012 WL 983198, at *1 (Del. Mar. 20, 2012).

         On April 3, 2012, Petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). See Rogers, 2013 WL 285735, at *1. The Superior Court denied the motion on February 22, 2013. See State v. Rogers, 2013 WL 1450928, at *1 (Del. Super. Ct. Feb. 22, 2013). Petitioner filed a notice of appeal from that decision on April 1, 2013, which the Delaware Supreme Court dismissed as untimely on April 10, 2013. See Rogers v. State, 2013 WL 1489472 (Del. Apr. 10, 2013). The Delaware Supreme Court denied Petitioner's motion for reargument on April 30, 2013. (D.I. 14 at 4)

         In a letter dated March 14, 2014, Petitioner asked the Court to grant habeas relief from his state court conviction. (D.I. 1) Liberally construing the letter as a request for habeas relief, the Court issued an order informing Petitioner of his rights under United Sates v. Miller, 197 F.3d 644 (3d Cir. 1999), provided a form habeas petition for him to fill out, and also provided an AEDPA election form for him to indicate how he wished to proceed. (D.I. 4) In July 2104, Petitioner filed the completed form habeas petition. (D.I. 5) This Petition asserts four claims: (1) while instructing the jury about the elements for second degree murder, the Superior Court erred when explaining the phrase "cruel, wicked and depraved indifference to human life"; (2) defense counsel provided ineffective assistance by failing to suppress a recorded statement Petitioner made to police; (3) juror bias prejudiced Petitioner's trial; and (4) defense counsel provided ineffective assistance by withholding helpful evidence. (D.I. 5 at 5, 7, 8, 10) The State filed an Answer, asserting that the Petition should be dismissed as time-barred or, alternatively, because the claims are procedurally barred or meritless. (D.I. 14)

         On February 2, 2016, Petitioner filed a second Rule 61 motion, which the Superior Court denied on March 9, 2016. See State v. Rogers, 2016 WL 908915 (Del. Super. Ct. Mar. 9, 2016). The record does not indicate whether Petitioner appealed that decision.


         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law on April 23, 1996. 28 U.S.C. § 2244(d)(1). AEDPA prescribes a one-year period of limitations for the filing of habeas petitions by state prisoners, which begins to run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). AEDPA's limitations period is subject to statutory and equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010) (equitable tolling); 28 U.S.C. § 2244(d)(2) (statutory tolling).

         Focusing on the form petition filed in July 2014, the State contends that the Petition should be dismissed as time-barred. However, the Court views the letter and papers Petitioner filed in March 2014 (D.I. 1) as the relevant document for determining the timeliness of this proceeding. For the reasons set forth below, the Court concludes that the instant proceeding is not time-barred.

         Petitioner's § 2254 Petition, filed in 2014, is subject to the one-year limitations period contained in § 2244(d)(1). See Lindh v. Murphy,521 U.S. 320, 336 (1997). Petitioner does not allege, and the Court cannot discern, any facts triggering the application of ยง 2244(d)(1)(B), (C), or (D). Given these circumstances, the one-year period ...

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