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Agee v. Barksdale

United States District Court, W.D. Virginia, Roanoke Division

June 14, 2016

JONATHAN ASHLEY AGEE, Petitioner,
v.
EARL BARKSDALE, Respondent.

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski United States District Judge

         Jonathan Ashley Agee, a Virginia prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge the sentences imposed by the Circuit Court for Roanoke City. Respondent filed a motion to dismiss, and Petitioner responded, making the matter ripe for disposition. After reviewing the record, the court grants the motion to dismiss and dismisses the habeas petition.

         I.

         A.

         While a deputy of the Franklin County Sherriff but not in uniform, Petitioner drove his police car from Franklin County, Virginia, into a gas station's parking lot in Roanoke City, Virginia, at approximately 11:28 a.m. on May 30, 2011. Petitioner turned the car's police lights on, which activated the car's dashcam, and parked near Jenny Agee, his ex-wife. Jenny's last words were, "He's going to shoot me, " as she watched Petitioner exit the car and carry an M4 Carbine semi-automatic assault rifle toward her. Jenny had no chance to escape, surrounded by parked cars and a high concrete wall and with Petitioner and his assault rifle fifteen feet away.

         Petitioner shot Jenny eight times. The most likely fatal shot was in her back. Bystanders at the gas station watched Petitioner walk back to his police car and drive away before rushing to aid Jenny. Despite their best efforts, Jenny was pronounced dead before noon that Saturday of Memorial Day weekend in 2011.

         Also by noon, Virginia State Police Sergeant Matthew Brannock was returning home from his shift to celebrate his thirty-sixth birthday with his parents, wife, and two children when he saw Petitioner driving toward him in the opposite direction along route 460. Sgt. Brannock immediately turned around and pursued him, bumper to bumper, as Petitioner weaved through dense holiday traffic on Interstate 81 in Montgomery County, Virginia, at speeds up to 120 miles per hour.

         Sgt. Brannock pulled alongside Petitioner when traffic briefly cleared. Petitioner's car sideswiped Sgt. Brannock's car, but Petitioner regained control and stopped the car quickly. Sgt. Brannock's car, however, slid further down the interstate, stopping across the right lane with its trunk toward the guard rail and its hood toward the median, giving Petitioner full sight of the driver-side door.

         As soon as his car stopped, Sgt. Brannock reported to dispatch, grabbed his pistol, and opened the driver's door in full view of Petitioner. Sgt. Brannock explained:

I see Mr. Agee already posted up, picture perfect.... You are trained to stand when you're shooting at an object. I mean perfect formation .... with a rifle. I saw that it was an M-16 or M-4 type rifle, and he was already stationed at the driver's side left corner portion of his police car. [The rifle] was pointed at me. I knew when ... I saw Mr. Agee standing there .... at that moment that his intentions were to kill me ....
As soon as I made the turn to get out of my car, I saw Mr. Agee standing there and the shots rang out. And I immediately ducked back into the car. And I remember hearing the round hit the windshield and come right through the door .... And my initial thought was, "I got to get the heck out of here, " because the shots were still coming, "They are not stopping." It's not like one shot and then time lapses. It's one right after the other.... There's plenty of law enforcement officials that can testify that it's the worst possible position. Mr. Agee had the upper hand and the advantage from the word go.
So I fell back in the car and tried to start the car and for some reason it wouldn't start.... And in the meantime, I could still hear the rounds hitting the car and hearing the gunshots. . . . [It] was instant - death if I stepped outside the car, so my only other option was to go out the passenger side door....
There's a laptop computer there, there's usually an armrest, all the radar mounting and radios, and all that stuff. It's a confined area even for a normal size person, and I'm not a normal sized person obviously, so I knew that my ability to negotiate getting out of this car was going to be a task in and of itself....
As the shots were ringing out and I could hear them hitting the car ... . It kind of felt like time was slowing down for me. And although all this stuff transpired in just a matter of seconds, to me it felt like that time was going very slow. And I was able to think about how I could prolong my life and what the effects were going to be. But I'd already surmised the fact that, based on the number of rounds that were coming in the car, that I was probably going to die in the car. I just figured I was .... And I was just waiting for everything to go black. I figured that I didn't know what it would be like, but I envisioned you wouldn't have another thought, like it would just go black. And so I figured that in just a matter of time it would go black and I wouldn't have to be worried or scared or anything else ....
As I continued my exit out of the passenger's side door, I could see the fabric and fibers in slow motion as the bullets are coming into the car as I try to start going out the passenger's side door. It was terrifying. I don't know that terrifying is a good enough word to describe it. But I figured I would die in the car, and I had honestly already given in to that fact. But nevertheless, I was in that fight or flight element where I was trying to preserve life the best I could.
As I crossed the passenger's side seat and reached over to the passenger side door handle and threw that door open, ... it felt like somebody had hit me in the thigh with a ball peen hammer as hard as they could .... The pain was unbelievable .... It was just a God awful pain .... I didn't stop to look because rounds were still coming in the car, but I put two and two together and figured I'd been shot.
Nevertheless, I continued out the passenger side door.... As I did, I put my hands on the ground to brace myself and at the same time I was able to look over my shoulder and try to figure out what Mr. Agee was doing at that particular time because the rounds were still coming in. And - as luck would have it or fate would have it, or thank God it worked out the way it did - ... it looked like Mr. Agee may have been messing with his gun or doing something. I seized that opportunity and gathered myself up on my hands and got on my feet and immediately just ran towards the guardrail.... I've been in law enforcement long enough to know if a man has got a rifle and I've got a pistol, I'm not going to win that fight. You know just by the sheer nature of the performance of a pistol and the distance that was covered, I mean it's just common sense that rifle is a whole lot better weapon and well equipped to handle the situation as spread out as this one.
.... So I was sprinting down the embankment towards the tree line, and there at the bottom I lost my footing and fell on a piece of wood and my arm, so it knocked the breath out of me .... I figured Mr. Agee .. . would come up and finish me off because I'm lying right there helpless .... I was able to catch my breath. I re-holstered my weapon ... and decided that it would be my best interest to try to get to higher ground where I was camouflaged somewhat and so he wouldn't be able to pick me out as easily if I'm standing right there in the wide open.
At this particular point the pain is really kicking in. And I look at this hillside and understand that that's really the only chance that I have to get away or to camouflage myself or get in a position where I can fire. So the best as I could on my hands and knees, I just start grabbing on to these trees and pulling myself up into the tree line as far as I could. At the same time, I'm hearing the shots come in the trees behind me, and I wasn't sure what was going on .... I thought I'd get shot in the back up on there. And so I just continued up in there and got all the way to one of those highway marker fences that run along the interstate ....
Once I reached that fence line I knew at that particular point I was helpless, that I was pinned because based on the pain and being out of breath and just completely exhausted, I knew that I couldn't get over that fence. And I figured just hearing the rounds coming through the trees that I felt like Mr. Agee was probably coming up in the woods behind me. So I just found the biggest tree that I could and I just turned around and sat down ....
I figured I would see what the pain was actually coming from, and when I looked down, I could see that my pants were soiled on the side with blood. And I didn't realize at that time that I had actually been shot twice ....
That whole movie thing about how your life flashes before your eyes didn't really happen to me. However, I thought about my kids and thought the totality of the event.... I thought about my kids and my wife and how they looked forward to me coming home every day and they would ask me before I left to go to work, "Daddy, when are coming home? Are you going to come for lunch? Are you going to stop by the house?" They were always interested in when I'd be home. And I'm thinking of all days, this is the day that I never thought would come. I envisioned that there was a possibility I could be shot at some particular time in my career but not under these circumstances ....
The only thing I could do was surmise enough energy to take my gun back out and unbutton my ammo pouches. I figured if he was going to come up in the woods after me then we would just have a shoot out at the OK Corral, we could just shoot until there weren't any more rounds, and that is just the way it was going to have to be.
After a few minutes passed, I couldn't see anything moving that would be synonymous with somebody trying to sneak up on you.... I knew I was bleeding and that I was really exhausted. And I knew that I had to do something to put myself in a position to try and get some help .... And that's what I proceeded to do, just work my way back down the mountain to just run it in reverse. I came to the tree lines were I had fallen initially coming down. I'm looking at that embankment and it looks like Mount Everest at this particular point....

(Sent. H'rg Tr. at 56-80.)

         Sgt. Brannock crawled back up that embankment and survived his thirty-sixth birthday. Shrapnel from the first bullet stopped too closely to an artery to remove, and the second bullet lodged into his pelvic bone.

         After Sgt. Brannock had survived by jumping over the guardrail, Petitioner had briefly walked toward Sgt. Brannock's car, saw nothing moving, and then returned to his car. Petitioner drove his damaged car a short distance down the interstate before parking at the top of the next exit ramp.

         Sgt. Becky Curl was driving past Sgt. Brannock's shot-up, abandoned car when she came upon a red car that had its back window shot out from one of Petitioner's bullets. The driver told her that a deputy's police car drove past, and after driving a little farther up the interstate, Sgt. Curl and another trooper found Petitioner standing outside his car parked at the top of the exit ramp. Sgt. Curl recounted:

My immediate encounter with Agee was that he was yelling at me to shoot him and he couldn't live with what he did .... I talked to him as long as I could possibly talk to him to have him surrender his weapon and surrender himself. His posture didn't give. His body language, his posture, and his behavior, his voice even - there was absolutely nothing in my being that believed one thing that he was saying. The way that he held that weapon and the way that he kept readjusting his grip, there is no doubt in my mind what his plan was ....
I was trying to get myself in a better position tactically, one to make the shot. I was at a significant distance when I exited my car, and the whole time that we were talking, I was attempting to close that distance. And he was closing the distance as well. He's a trained police offer. I'm a trained police officer. You ...

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