Rogers v. Lilley
| Decision Date | 28 March 2022 |
| Docket Number | 19-CV-0166 (EK) |
| Court | U.S. District Court — Eastern District of New York |
| Parties | KENNETH ROGERS, Petitioner, v. LYNN J. LILLEY, Superintendent of Woodbourne Correctional Facility, Respondent. |
Kenneth Rogers, proceeding pro se, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Rogers challenges his 2015 conviction in the Supreme Court of the State of New York, Queens County on charges of burglary in the second degree, possession of burglar's tools, petit larceny, and criminal possession of stolen property in the fifth degree.
The charges arose out of the burglary of an apartment building in Maspeth. A retired police officer who lived across the street observed Rogers emerging from the building carrying the stolen items at issue and detained him until NYPD officers arrived. After the jury convicted Rogers, the trial judge found that he qualified as a “persistent violent felony offender” under New York law. The judge sentenced Rogers to eighteen years to life on the burglary conviction and one year, to run concurrently, for each remaining count.
Rogers raises three arguments in his petition. First, he contends that the state presented insufficient evidence to prove his guilt beyond a reasonable doubt. Second, he contends that he received constitutionally ineffective representation. Third he contends that the court unlawfully adjudicated him a persistent violent felony offender and that his sentence was excessive. See Pet., ECF No. 1. For the reasons that follow Rogers' application is denied.
I. Background
The prosecution relied on eyewitness testimony from the retired police officer, Marion Papka, and testimony from police officers and residents of the burglarized premises.
Papka testified that on April 30, 2004, he was gardening in front of his house. Papka 564:20. He noticed a male (later identified as Rogers) about 150 feet away, pushing a bicycle up the street toward him. Papka 565:9-566:15, 619:13-15. Papka observed Rogers “enter the walkway” of the building across the street from Papka's house. Rogers was empty-handed at the time, according to Papka, and acting furtively: he “turn[ed] his head to the left and to the right and backwards again” before proceeding up the building steps. Papka 579:25-580:3, 581:7-9.
When Rogers entered the building, Papka went to see “what's up.” Papka 583:1-3. He heard “loud noises” from inside the building. Papka 585:13-14. Rogers emerged from the building holding what looked like a green laundry bag. Papka 585:14-25. Papka asked Rogers who he was looking for; Rogers replied “Carlos.” Papka 586:8-13. Papka asked Rogers what was in the bag; Rogers replied “some money and a drill.” Papka 587:3. Papka looked in the bag and saw a drill and a water bottle containing “paper money” and “empty change.” Papka 587:511. Papka wanted to stop Rogers from fleeing the scene, so he pulled out his retired police shield and told him “[l]isten, you don't want no more trouble.” Papka 590:17-20. Rogers objected: “You can't stop me.” Papka 590:24. Rogers then gave Papka a “good push, ” causing Papka to lose his balance. Papka 591:2-3. Rogers started to run away, but Papka grabbed his shirt, and they both fell to the ground. Papka 591:18-22. They “tussled, ” and Papka ended up on top of Rogers. Papka 592:13-17. While “straddl[ing]” Rogers, Papka called the police. Papka 592:23-24.
A few minutes later, officers arrived. Papka 593:2-4. Papka gave a statement. He then “went with [an] officer into the building” and up to the second floor. Papka 593:9-10, 595:3-4. Papka stated that the door to an apartment there Papka 595:9-11. The apartment was “ransacked.” Papka 596:3. Upon exiting the building, he saw police officers “searching the defendant and I seen him remove from the defendant pieces of jewelry and I think there was a watch, a ring, couple rings, some jewelry and some cards, some other stuff.” Papka 597:1-4.
Several officers responded to Papka's 911 call. Separ 702:6-8. Officer Separ observed Rogers sitting on the ground, with Papka standing above him. He spoke with Papka before arresting and searching Rogers; he found a screwdriver, four rings, and a watch on Rogers' person. Separ 693:25, 694:14-16, 703:18-25. Separ also noticed that a green laundry bag was lying about ten feet from Rogers; he opened the bag and found money and a drill inside. Separ 695:9-14. Separ also testified - importantly, in Rogers' view - that Papka told him that Rogers had “forcibly open[ed] the front door” of the building. Separ 705:23-25.
Sergeant Kraft, who arrived later, prepared the arrest report. Kraft 746:7-12, 760:4-5.
The tenants of the burglarized apartment, Brian Collins and Jason O'Grady, returned shortly after the officers arrived. They had left for work that morning, locking the door to their apartment on their way out. Collins 672:12-14; O'Grady 728:2-3. Collins testified that the street-level door to their building was normally unlocked at the time of the burglary. Collins 672:3-11. O'Grady testified that the apartment had been “tossed around.” O'Grady 723:14-16. Collins kept cash in a water bottle in the apartment; that bottle had gone missing, as had his watch and “some rings.” Collins 674:5-675:24. O'Grady was missing a drill and a laundry bag. Collins: 674:24-675:1; O'Grady 723:14.
Rogers testified on his own behalf. In his version of events, he observed a burglary in progress; when the burglar noticed Rogers, he dropped the stolen items he was holding and ran away. Rogers had simply picked them up and was left holding the proverbial bag when he was arrested.
Rogers recounted the events of the day as follows. He borrowed a friend's bicycle. Rogers 813:1. The bicycle suffered a flat tire, so he pushed it home. Rogers 814:7-13. He was also carrying a screwdriver, glue, and some patches. Rogers 826:16-20. On his walk home, he noticed the subject building because someone he carpooled with at his previous job lived there. Rogers 848:19-22. As he was passing the building, he heard a “commotion” coming from inside. Rogers 848:19-22.
Rogers testified that he saw a man standing in the doorway with something in his hand. They locked eyes; the man dropped what was in his hand and ran away. Rogers 816:15-24. Rogers approached the house and noticed two bags. Rogers 818:11-20. He picked one up and saw “a watch and a couple of rings” inside, which he held onto. Rogers 818:19-20, 821:8-15. Seeing that the front door to the house was open, he entered the house. Rogers 819:5-14. He knocked on two doors, but no one responded, so he left. Rogers 820:1-11.
As Rogers exited the house, Papka approached him. Rogers asked Papka if he lived there; Papka said he did not. Rogers 821:1-4. Rogers testified that he showed Papka the watch and rings, explaining: Rogers 821:4-7. Papka took out a phone to call the police, but when Rogers turned away and began walking back to the house, Papka tackled him. Rogers 822:19-21. Rogers smelled alcohol on Papka's breath. Rogers 822:22. According to Rogers, another individual came over to ask what was going on, but left before police arrived. Rogers 823:10-13.
Following a trial, the jury found Rogers guilty on all counts. Tr. 970:3-16. II. Procedural History
Rogers appealed his conviction, raising three claims before the Appellate Division. First, he claimed that the state failed to prove his guilt beyond a reasonable doubt. Second, he asserted that the prosecutor engaged in misconduct during cross-examination and summation, and that he was denied effective assistance of counsel because his attorney failed to preserve the issue of prosecutorial misconduct for appellate review. Third, Rogers asserted that the persistent violent felony offender finding violated his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), and that his sentence was excessive.
The Second Department affirmed the conviction on all counts. People v. Rogers, 77 N.Y.S.3d 431 (App. Div. 2018). The court held that the evidence “was legally sufficient to establish [Rogers'] guilt.” Id. at 433. The court determined that Rogers' claim regarding the prosecutor's alleged misconduct was unpreserved for appellate review. Id. The court also concluded, in the alternative, that the challenged remarks were either “fair” or “harmless.” Id. Moreover, the court added that Rogers' ineffective-assistance and sentencing-related claims were each “without merit.” Id. at 1015.
The New York Court of Appeals denied Rogers' application for leave to appeal. People v. Rogers, 109 N.E.3d 1167 (N.Y. 2018) (unpublished table decision). Rogers then filed this instant lawsuit.
III. Legal Analysis
A federal district court has jurisdiction to entertain an application for a writ of habeas corpus from a person asserting that he is in custody pursuant to a state court judgment rendered in violation of the U.S. Constitution or federal law. 28 U.S.C. § 2254.
Because the state courts adjudicated each of the claims Rogers raises in his petition on the merits, deference under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) is appropriate. Id. § 2254(d); see Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009). Under AEDPA, the district court may issue the writ only if the state court's “adjudication of the claim” either “resulted in a decision that was...
To continue reading
Request your trial