United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
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.
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.
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.
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.
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 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
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
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
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.)
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.
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.
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
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 ...