United States District Court, Western District of Virginia, Roanoke Division
Hon. Michael F. Urbanski United States District Judge
Petitioner Jamie Lee Towler ("Petitioner" or "Towler"), through counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1. Respondent filed a motion to dismiss, Dkt. No. 3, and Petitioner has filed a response. Dkt. No. 7. Accordingly, the matter is now ripe for decision.
Respondent contends that the sole claim in the petition is procedurally defaulted because Towler did not include it in his petition for appeal to the Court of Appeals of Virginia and that, as a result, this court may not consider it. The court concludes that Towler has asserted a gateway claim of actual innocence sufficient to overcome his procedural default and that his claim is properly before the court. For this reason, discussed in more detail below, Respondent's motion to dismiss is DENIED.
I. Factual and Procedural Background
A. Factual Background
Towler was charged with eight felonies arising from the robbery of the CVS Drug Store in the Town of Altavista on December 1, 2008. He waived his right to a jury and was tried before Judge John T. Cook of the Circuit Court of Campbell County. Judge Cook found him guilty on a number of counts, including the sole conviction he challenges in his federal habeas petition—use of a firearm in the commission of a burglary. See Dkt. No. 1. On that conviction, he was sentenced to the five-year mandatory minimum sentence on April 16, 2010. Dkt. 5, Ex. A, at 1-2.
In his petition before this court, he argues that his conviction was for conduct that—based on an intervening legal decision—no longer suffices to establish his guilt. At the time of his trial and the filing of his petition for appeal, die controlling law pursuant to Creasy v. Commonwealth. 9 Va.App. 470, 389 S.E.2d 316 (1990) was that a conviction for use or display of a firearm during commission of a burglary could be based on any use or display while in the burglarized premises. Creasy was abrogated by the Supreme Court of Virginia's decision in Rowland v. Commonwealth. 281 Va. 396, 400, 707 S.E.2d 331, 333 (2011), issued on March 4, 2011, while Towler's direct appeal was pending. In Rowland, die Supreme Court of Virginia held that a conviction for use or display of a firearm during commission of a burglary required that the firearm be used or displayed during entry to die premises.
Petitioner argues that die evidence in his case establishes that he walked into me drug store, which was open to the public at the time, and only displayed his firearm once he was inside. He thus claims that his current incarceration for this conviction violates his due process rights because die evidence establishes that an essential element of die crime—use or display of a weapon to make entry—did not occur.
It is not necessary to delve deeply into die facts of die offense or the testimony at trial for purposes of ruling on Respondent's motion to dismiss. The pertinent facts are that a man (who Judge Cook determined was Towler) entered die CVS in Altavista, Virginia shortly before 9:00 p.m. on December 1, 2008. Towler v. Commonwealth. 59 Va.App. 284, 288, 718 S.E.2d 463, 465-66 (2011), also at Dkt. No. 5-6 at 1. His face was partially concealed, but his eyes were exposed. Dkt. No. 5-6 at 1. He walked up to the pharmacy counter where a clerk was working and handed her a note demanding money and threatening to kill her if she did not give him the money. Id. The clerk testified at trial that, after reading the note, she looked back at the man. At that point, he pushed up his shirt and revealed what appeared to be the handle and trigger of a gun that was otherwise concealed in the front of his waistband. Id. at 2; see also Trial Tr. at 85-87.
As the clerk was gathering the money, the man screamed and demanded "all the money and the Oxycontin" from the pharmacist. Dkt. No. 5-6 at 2. When the pharmacist told the man that he could not access the safe, and that it would take a long time to examine the already-filled prescriptions to determine which ones were for Oxycontin, the man left without any Oxycontin, but with approximately $230.00 from the cash registers at the pharmacy counter. Id.
B. Procedural Background
Towler was sentenced on April 16, 2010. Towler timely appealed his convictions to the Court of Appeals of Virginia. In his petition for appeal, which was filed on August 24, 2010, he raised five assignments of error. See Dkt. No. 5-2 at 5-7. He did not include the claim raised in his federal habeas petition to this court, which is based on the Supreme Court of Virginia's decision in Rowland.
Approximately five weeks after Rowland was decided, on April 12, 2011, the Court of Appeals issued a per curiam opinion denying Towler's petition for appeal. See Dkt. No. 1-1 at 1. Three days later, Towler filed a demand for three-judge review of that decision and for the first time specifically cited Rowland for the proposition that the evidence was insufficient to convict him. Towler was granted an appeal on June 15, 2011, and in his July 2011 brief, included an argument based on Rowland. He admitted that the argument had not been preserved, but requested an "ends of justice" exception under Virginia Supreme Court Rule 5A:18. Dkt. No. 5-4 at 12-15. The Court of Appeals issued an opinion on December 20, 2011, affirming his convictions. Dkt. No. 5-6 at 1-12. That court refused to address any argument based on Rowland because it was not raised in Towler's petition for appeal and Virginia Supreme Court Rule 5A:12 provides that "[o]nly assignments of error assigned in the petition for appeal will be noticed by" the Court of Appeals. See Dkt. No. 5-6 at 4. That court further noted that Rule 5A:12, unlike Rule 5A:18, contains no "good cause" or "ends of justice" exception to excuse the procedural default. Id. at 4 n.7.
Towler then appealed to the Supreme Court of Virginia, which also refused his petition for appeal on April 17, 2012. Dkt. No. 5-7. His petition for rehearing was also denied, on June ...