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Rodgers v. Diguglielmo

March 17, 2009

DENNIS RODGERS
v.
DAVID DIGUGLIELMO, ET AL.



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

Petitioner Dennis Rodgers ("Rodgers") has filed the instant Petition for Writ of Habeas Corpus, attacking several Pennsylvania state criminal convictions imposed in June 1993. Magistrate Judge Lynne A. Sitarski issued a Report and Recommendation on October 31, 2008, recommending that the Petition be granted in part and denied in part. Presently before the Court are Rodgers' Objections to the Report and Recommendation. For the following reasons, we overrule Rodgers' Objections and approve and adopt the Report and Recommendation in a manner consistent with this Opinion.

I. BACKGROUND

On June 4, 1993, following a jury trial in the Court of Common Pleas of Philadelphia County, a jury convicted Rodgers of first-degree murder, robbery, conspiracy, possession of an instrument of crime, possession of a controlled substance with intent to deliver, and a violation of the Pennsylvania Corrupt Organizations Act ("Pa. C.O.A."). See Commonwealth v. Rodgers, No. S.P. 2237 PHL 1994 (C.C.P. Phila. June 15, 1995), at 1 (hereinafter "Trial Court Opinion"). Rodgers had a capital penalty hearing, at which the jury sentenced him to a term of life imprisonment without parole for the first degree murder conviction. Id. The trial court also sentenced Rodgers to concurrent terms of imprisonment for the Pa. C.O.A. conviction (10 to 20 years), the conspiracy conviction (5 to 10 years), and the weapons offense conviction (21/2 to 5 years). Id. at 2. The trial court suspended sentence as to the robbery and drug convictions. Id.

Following his sentencing, Rodgers filed post-verdict motions with the trial court, challenging the sufficiency of the evidence and the trial court's rulings on various evidentiary issues, all of which the trial court denied. See id. at 3-11. Thereafter, Rodgers' filed a direct appeal to the Superior Court raising two claims,*fn1 both of which the Superior Court rejected. See Rodgers v. Commonwealth, 669 A.2d 412 (Pa. Super. Ct. Sept. 18, 1995) (Table). The Supreme Court of Pennsylvania denied allowance of appeal. See Commonwealth v. Rodgers, 674 A.2d 1070 (Pa. Mar. 12, 1996) (Table).

On February 27, 1997, Rodgers filed a pro sePCRA petition, in which he alleged 12 errors, including several at issue in the instant Petition. On September 22, 2000-following the appointment of counsel-an amended PCRA petition was filed that raised only three arguments:

(1) Whether the Appellate [sic] was ineffective for failing to allege trial counsel's ineffectiveness for failing to object to evidence of Appellant's bad character, specifically alleged prior crimes of violence as this evidence deprived Appellant of a fair trial?

(2) Whether the appellate counsel was ineffective for failing to allege trial counsel's ineffectiveness for permitting inadmissible [sic] hearsay evidence to be introduced?

(3) Whether the appellate counsel was ineffective for failing to allege trial counsel's ineffectiveness for failing to request a "corrupt source" charge with respect to the testimony of an accomplice, Vanessa Scott Jones?

Commonwealth v. Rodgers, No. 173 EDA 2002 (Pa. Super. Ct. Dec. 6, 2002), at 2 (hereinafter "PCRA Appeal Opinion"). The PCRA court denied Rodgers' petition on October 31, 2001, and Rodgers appealed to the Superior Court. See id. at 1. With his PCRA appeal still pending, Rogers filed a Petition for Writ of Mandamus with the Superior Court seeking the appointment of new PCRA counsel because his attorney would not assert certain claims Rodgers had raised in his original pro se Petition. The Superior Court denied the Petition for Writ of Mandamus on March 27, 2002, but suggested that counsel seek remand to the trial court to address the allegations of his ineffectiveness. See Commonwealth v. Rodgers, No. 173 EDA 2002 (Pa. Super. Ct. Mar. 27, 2002) (per curiam), at 1 (citing Commonwealth v. Lawrence, 596 A.2d 165, 168 (Pa. Super. Ct. 1991)). On December 6, 2002, the Superior Court affirmed the PCRA court's ruling. (See PCRA Appeal Opinion at 1.) The Supreme Court of Pennsylvania denied allowance of appeal on June 23, 2004. See Commonwealth v. Rodgers, 853 A.2d 361 (Pa. June 23, 2004) (Table).

On August 24, 2004, Rodgers filed the instant Petition pursuant to 28 U.S.C. § 2254, to which he attached two pro se Memoranda in Support. (Docket No. 1.) On December 23, 2004, we suspended the case pending a decision by the Supreme Court of Pennsylvania in Kendrick v. District Attorney, 916 A.2d 529 (Pa. 2007), that would determine the validity of Rodgers' Pa. C.O.A. conviction. On October 27, 2005, counsel entered an appearance on Rodgers' behalf. On March 1, 2007, we removed the case from civil suspense,*fn2 and counsel filed a third Memorandum in Support on June 28, 2007, which elaborated on the claims asserted in Rodgers' two pro se Memoranda, raised new claims not appearing in either the original petition or the pro se submissions, and dropped some of Rodgers' pro se claims.

On October 31, 2008, Magistrate Judge Sitarski filed a Report and Recommendation ("R & R"), recommending that the Petition be granted with respect to Rodgers' Pa. C.O.A. conviction but be denied in all other respects.*fn3 Magistrate Judge Sitarski further found no probable cause to issue a certificate of appealability. Rodgers filed the following counseled objections to the R & R:

(1) Objection to incomplete findings of fact.

(2) Objection to conclusion that relief should be limited to Petitioner's conviction for corrupt organizations.

(3) Objection to the magistrate judge's conclusion that trial counsel was not ineffective for failing to sufficiently object to, or for actively eliciting, evidence and argument as to other crimes, alleged abuse, irrelevant drug dealing, possession of firearms, demonstration firearms and references to hearsay statements by Jones' children.

(4) Objection to the magistrate judge's conclusion that trial and direct appeal counsel were not ineffective for failing to make an argument for petitioner based on the rationale which was ...


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