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May 13, 2005.

ERNEST ROGERS, Petitioner,
GLENN S. GOORD, Respondent.

The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge



Ernest Rogers ("Rogers") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Niagara County Court on one count of second degree (felony) murder and one count of first degree robbery. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).


  On the morning of July 23, 1992, Rogers' step-father-in-law Roy Belmont ("Belmont") was found dead in his home, bludgeoned to death with a tire iron. According to Belmont's step-grandson, who had been at Belmont's house earlier that evening, the victim had a wallet full of cash. No wallet was found on the body, however.

  Later that afternoon, the police went to Rogers' home where they found him on his way to work for a cab company. The officers asked him to come down to the station to answer some questions, and Rogers agreed. Once there, Rogers initially denied being present at the victim's house on the night of July 22. When confronted with witnesses' statements placing him at Belmont's house, Rogers did not respond at first. When the officers asked him again, he stated that he had last seen Belmont three months ago at Belmont's wife's funeral. After being confronted with the witnesses' statements for a third time, Rogers changed his story again, stating that he and his wife had argued that night, that she left the house, and that he went looking for her.

  During the interview, the police noticed blood-stains on Rogers' sneakers, the soles of which appeared to be freshly washed and discolored as if they had been bleached. The officers confiscated his shoes and asked permission to search his vehicle and his house. No tire iron was found in Rogers' vehicle, nor was the victim's wallet ever was located. However, the police recovered blood-stained clothes from their search of Rogers' house. The police subsequently obtained a warrant to collect fingernail scraping from Rogers; laboratory testing revealed traces of human blood.

  On the night of July 23, the police arrested Rogers and charged him with three counts of second degree murder (intentional murder, felony murder and depraved indifference murder), one count of first degree robbery, and one count of fourth degree criminal possession of a weapon.

  Following a suppression hearing, the trial court found that the police officers' initial confrontation with Rogers in the driveway of his home did not exceed the scope of a permissible stop under the Fourth Amendment. The court also found that Rogers voluntarily surrendered his shoes to the police and consented to the search of his vehicle and home. All of Rogers's statements to the police and the physical evidence seized, including the blood-stained sneakers, were held to be admissible.

  Rogers's first trial ended in a mistrial, the circumstances and legal implications of which will be discussed below. At the second trial, Rogers was tried before a jury in Niagara County Court (Hannigan, J.). At trial, Edmund Davey ("Davey"), Belmont's step-grandson, testified that he had seen Rogers at Belmont's house on the evening of July 22. Belmont introduced Rogers to Davey as "Davey's Uncle Ernie." According to Davey, the two men were discussing future plans to take Belmont, who was going away on vacation at some point, to the airport.

  Two of Davey's friends, Anthony Bennett ("Bennett") and Charles Congi ("Congi"), also were at Belmont's residence that evening. Davey testified that they had ordered a pizza, and Belmont had paid for it. According to Davey, Belmont had a "wad" of cash in his wallet. After watching a rented movie, Davey, Bennett and Congi left the house at about 9:00 p.m. Rogers was still there when they left.

  On the morning of July 23, Davey went over to Belmont's house to mow the lawn. When his step-grandfather would not answer the door, Davey became concerned and contacted the authorities. Lorne Lally, a firefighter, responded to the scene and discovered Belmont's body lying on the floor blocking the front door. A tire iron covered with blood was found at the scene, along with an envelope bearing a bloody footprint. The police found two bottles of bleach in the victim's second-story bathroom even though the washing machine was located in the basement.

  The forensics evidence revealed that Belmont had suffered multiple, severe blunt trauma wounds to his head, neck, shoulders and hands. The pathologist opined that an object such as a tire iron could have caused the injuries sustained. The blood-stained sneakers confiscated from Rogers were found to have Belmont's blood on the soles as well as the uppers and the laces. The sneakers also bore a tread pattern similar to that on the blood-stained envelope found at the victim's house. Finally, Rogers's shoes were discolored as if they had been bleached. The bloody clothes found at Rogers's house were found to have type-O bloodstains. Testing revealed that Belmont had type-O blood, but Rogers's blood was type-A. Scrapings taken from underneath Rogers's fingernails yielded human blood.

  At trial, Rogers admitted that he had been at Belmont's house early in the evening of July 22. He stated that he left for a while and then returned later that night to check on Belmont. When he arrived the second time, he noticed that the front door was slightly ajar. He recounted that as he entered the house, he stumbled over Belmont's body and nearly lost his balance. He felt Belmont's back and, upon looking down, noticed that Belmont's head had been crushed. Rogers testified that, panicked and in a state of shock, he stumbled back out the door, got into his car and drove home. He claimed that he sat in his car, in a stunned daze, until his wife came out and found him.

  Ricky Rogers, the petitioner's son, admitted that he gave a statement to the police on July 23. When shown the statement by the prosecutor at trial, Ricky denied that it helped to refresh his recollection about what he had said to the police. The statement was not admitted into evidence, although the jury, through the prosecutor's questions, heard that Rogers's wife had been trying to reach him by phone that evening and that she and Ricky left the house at 1 a.m. to look for Rogers. Ricky ultimately admitted on direct that Rogers was not home on the night of July 22 and that he and his mother went looking for him. Defense counsel elicited testimony from Ricky that Rogers did not have a tire iron in his car. Ricky also stated that Belmont had complained to him about a man who had come over to his house on several occasions and bothered Belmont about a missing check.

  The defense called a mechanic named David Kneeple who related that he had been with Rogers when Rogers originally purchased his taxicab. Accoring to Kneeple, there was no tire iron in the trunk when Rogers bought the car. Mary Jane Willimott, one of Rogers' acquaintances, testified that several months prior to the murder she had gotten a flat tire and asked Rogers for help. She recounted that Rogers had told her that he needed to use her equipment to change the tire because he did not have a tire iron.

  At the close of the proofs, the court, sua sponte and over the prosecutor's objection, dismissed the count of the indictment charging depraved indifference murder on the basis that it was inappropriate given the overwhelming evidence of intent. The court also dismissed the fifth count of the indictment charging criminal possession of a weapon on the ground that it was redundant. The jury returned a verdict convicting Rogers of felony murder ...

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