United States v. Rogers

• Court: U.S. District Court — Northern District of Ohio
• Writing for the Court: SARA LIOI, UNITED STATES DISTRICT JUDGE
• Decision Date: 15 April 2022
• Docket Number: 1:18-cr-281
• Citation: United States v. Rogers (N.D. Ohio 2022)
• Parties: UNITED STATES OF AMERICA, PLAINTIFF, v. CHARLES ROGERS, DEFENDANT.

UNITED STATES OF AMERICA, PLAINTIFF, v. CHARLES ROGERS, DEFENDANT.

No. 1:18-cr-281

United States District Court, N.D. Ohio, Eastern Division

April 15, 2022

MEMORANDUM OPINION AND ORDER

SARA LIOI, UNITED STATES DISTRICT JUDGE

Before the Court are two motions filed by pro se defendant Charles Rogers (“Rogers”). First, Rogers has filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Doc. No. 148.) Plaintiff United States of America (the “government”) opposes the § 2255 motion. (Doc. No. 150 (Opposition).) Though Rogers was afforded an opportunity in which to file a reply in support of his motion to vacate, he failed to do so.^[1] (See Doc. No. 149 (Scheduling Order).) Second Rogers has filed a motion to compel his trial counsel to produce the contents of his client file. (Doc. No. 152.) For the reasons that follow, both motions are DENIED.

I. Background

On June 5, 2018, an indictment was returned charging Rogers and a second individual, defendant Shawn Ford (“Ford”) with one count of conspiracy to commit interference with commerce by robbery (Hobbs Act Conspiracy), in violation of 18 U.S.C. § 1951(a); and four counts of interference with commerce by robbery (Substantive Hobbs Act), in violation of 18 U.S.C. § 1951(a). (Doc. No. 8.) The indictment also separately charged Ford with three counts of using, carrying and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and charged Rogers with two counts of violating § 924(c)(1)(A)(ii) and one count of adding and abetting a crime under § 924(c)(1)(A)(ii). (Id.)

The charges stem from “a series of four robberies that took place within a week at MetroPCS stores in Cleveland, Ohio.” United States v. Rogers, 861 Fed.Appx. 8, 11 (6th Cir. 2021). As the Sixth Circuit observed,

Each robbery had the same pattern: two men with masks, guns, and blue latex gloves would enter the store, demand money, and then drive away. However, the fourth and final robbery did not go as planned. An off-duty police officer happened to be inside the store at the time and chased the robbers after they ran out of the store. Instead of stopping, the robbers shot at the police officer, who fired back and hit their vehicle.

Id. Shortly after the fourth robbery, officers located Rogers, Ford, and a third individual, Gloria Rosario (“Rosario”), near the Chevy Equinox that had been fired upon by the off-duty officer. After an inventory search of the vehicle revealed latex gloves, spent shell casings, and suspected narcotics, Rogers and Ford were arrested.^[2] Id. at 12.

Prior to trial, defense counsel filed a motion to suppress the evidence obtained from the Chevy Equinox and a separate search of Ford's residence. (Doc. No. 28.) The Court conducted an evidentiary hearing on the motion-over the course of several days-and, at the conclusion of the hearing, the Court took the motion under advisement. In a decision dated May 13, 2019, the Court denied the motion in its entirety. (Doc. No. 69.)

The case proceeded to trial. During the course of the seven-day jury trial, the jury heard “substantial” evidence linking Rogers to the robberies. Rogers, 861 Fed.Appx. at 21. “It included GPS tracking information showing Rogers at the scene of the first robbery^[3], social medial posts showing Rogers wearing a distinctive sweatshirt that a witness saw one of the robbers wearing, and testimony from Rosario indicating that she lent the Equinox to Rogers and that he came back a few hours later with a lot of cash in small bills[.]” Id. The jury also saw video recordings of the robberies from the MetroPCS stores and heard Rosario's testimony that the pants and distinctive shoes of one of the robbers in the recordings belonged to Rogers. Id. Additionally, the jury was able to view photographs of the bullet holes in the Equinox, as well as physical evidence taken from the vehicle and forensic evidence from a search defendants' cellular phones. Id.

At the conclusion of the government's case-in-chief, both defendants moved for a directed verdict under Fed. R. Crim. P. 29(a). After entertaining argument from counsel, the Court denied the Rule 29(a) motions and the trial continued. Following the conclusion of the trial and the jury's deliberations, the jury returned guilty verdicts against Ford and Rogers on all counts in the indictment. (Doc. No. 90 (Ford Jury Verdicts); Doc. No. 91 (Rogers Jury Verdicts).) The jury also returned special verdicts against each defendant finding that they brandished weapons during the robberies. (See id.) On November 11, 2019, the Court sentenced each man to an aggregated term of imprisonment of 403 months. (Doc. No. 110 (Ford Judgment); Doc. No. 111 (Rogers Judgment).)

Both men appealed the Court's judgments, challenging the Court's ruling on the motion to suppress evidence from the search of the Equinox. Ford also appealed the Court's denial of his motion to suppress the search of his residence, and Rogers separately challenged the sufficiency of the evidence. The Sixth Circuit rejected these challenges, and affirmed the Court's judgments. See generally Rogers, supra. With respect to his sufficiency argument, Rogers complained that the “the government failed to present any direct eyewitnesses that could identify him and that his DNA was not found on the evidence recovered from the Equinox or at the stores.” Rogers, 861 Fed.Appx. at 21. The Sixth Circuit rejected this argument, noting that direct eyewitness testimony is not required to support a conviction and further underscoring the fact that “Rogers simply fails to grapple with the substantial circumstantial evidence against him.” Id.^[4]

On August 19, 2021, Rogers filed the present motion to vacate. While it is not entirely clear, Rogers appears to advance three arguments. First, he complains that this Court and the Sixth Circuit “ignor[ed] direct evidence” that was offered at trial and failed to take notice of inconsistencies in the testimony of Rosario. (Doc. No. 148 at 1^[5].) Second, he suggests that this Court should recuse itself from considering the § 2255 motion. (Id.) Third, he argues that trial counsel was ineffective for failing to take an interlocutory appeal. (Id. at 1-2.) Rogers also requests an evidentiary hearing. (Id. at 2-3.) The government insists that the first argument is barred by the doctrine of the case, that there is no basis for this Court to recuse, and that the record does not support Rogers' ineffective assistance claim.

II. Recusal

The entirety of Rogers' recusal argument is brief and provides, in full, that Rogers “requests respectfully that the sentencing judge recuse herself from this habeas challenge to ensure fairness[.]” (Doc. No. 148 at 1 (underlining, punctuation, and capitalization omitted).) Section 144 of Title 28, United States Code, provides that “[whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein[.]” The affidavit must state “the facts and the reasons for the belief that bias or prejudice exits.” 28 U.S.C. § 144. The affidavit must also “be accompanied by a certificate of counsel of record stating that it is made in good faith.” Id. Rogers has failed to file an affidavit or certificate in conjunction with his motion, and has otherwise failed to set forth a factual predicate demonstrating a personal bias or prejudice, and therefore does not meet the requirements of § 144.

Additionally, 28 U.S.C. § 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” “The law with regard to recusal under section 455 is straightforward and well-established in the Sixth Circuit. A district court is required to recuse himself ‘only if a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.'” Wheeler v. Southerland Corp., 875 F.2d 1246, 1251 (6th Cir.1989) (quoting United States v. Story, 716 F.2d 1088, 1091 (6th Cir. 1983) (internal citation omitted)). “This standard is objective and is not based ‘on the subjective view of a party.'” Id. (quoting Browning v. Foltz, 837 F.2d 276, 279 (6th Cir. 1988) (emphasis in original)); see United States v. Nelson, 922 F.2d 311, 319 (6th Cir. 1990) (citation omitted).

Bias requiring recusal under § 455(a) must amount to more than a favorable or unfavorable disposition toward an individual. Fharmacy Records v. Nassar, 572 F.Supp.2d 869, 876 (E.D. Mich. 2008) (citing Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)). As such, the alleged bias must emanate from an extrajudicial source. United States v. Grinnel Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). “Although a judge is obligated to disqualify himself where there is a close question concerning his impartiality, United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993), he has an equally strong duty to sit where disqualification is not required[.]” United States v. Angelus, 258 Fed.Appx. 840, 842 (6th Cir. 2007) (citation omitted).

Here Rogers' bald assertion that recusal is necessary to “ensure fairness” falls woefully short of demonstrating a personal bias or prejudice emanating from an extrajudicial source. Moreover, to the extent that Rogers is unhappy with the Court's previous ruling on his Rule 29(a) motion (see Doc. No. 148 at 3 [complaining that the Court permitted the case to go forward on the basis of circumstantial evidence and...