State v. Rodgers

• Court: Superior Court of Delaware
• Decided: May 16, 2024
• Docket: 0409003152
• Status: Published

Opinion

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