United States District Court, W.D. New York
May 13, 2005.
ERNEST ROGERS, Petitioner,
GLENN S. GOORD, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
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).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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
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 and first degree robbery. Rogers was sentenced to
an indeterminate term of twenty-five years to life imprisonment.
Represented by different counsel, Rogers appealed his
conviction to the Appellate Division, Fourth Department, of New
York State Supreme Court. Rogers submitted a pro se
supplemental appellate brief. The Fourth Department unanimously
affirmed his conviction on November 13, 2000. People v. Rogers,
277 A.D.2d 876 (App.Div. 4th Dept. 2000). The New York Court
of Appeals denied leave to appeal on May 4, 2001. People v.
Rogers, 96 N.Y.2d 834 (N.Y. 2001). Rogers collaterally attacked
his conviction in a motion to vacate the judgment pursuant to New
York Criminal Procedure Law § 440.10; that application was
pending from September 18, 2001, until March 27, 2002.
Rogers filed the instant federal habeas petition on December 9,
2002. Respondent concedes that all of the claims raised herein
are fully exhausted, see 28 U.S.C. § 2254(b)(1). For the reasons that follow, the petition is denied.
I. Standard of Review
To prevail under 28 U.S.C. § 2254, as amended by the
Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996,
a petitioner seeking federal review of his conviction must
demonstrate that the state court's adjudication of his federal
constitutional claim resulted in a decision that was contrary to
or involved an unreasonable application of clearly established
Supreme Court precedent, or resulted in a decision that was based
on an unreasonable factual determination in light of the evidence
presented in state court. See 28 U.S.C. § 2254(d)(1), (2);
Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
II. Merits of the Petition
A. Violation of the Double Jeopardy Clause
Rogers argues that his second trial for his
step-father-in-law's murder was barred by the Double Jeopardy
clause of the Fifth Amendment to the Constitution. At his first
trial, which ended in a mistrial, the prosecutor had asked one of
the arresting officers whether the officer's contact with Rogers
"involve[d] any type of interview or anything at that point?" The
officer stated, "There was [sic] five photos taken of his body
and he [Rogers] requested then to talk to a lawyer." Before
defense counsel could object, the court immediately told the jury
to disregard the comment about Rogers' request for counsel. The
officer's answer prompted defense counsel to move for a mistrial,
but the court denied the application.
Later, the prosecutor asked Rogers' daughter the following
question: "Has that subject matter [Rogers being charged with the
murder of the witness' step-grandfather] been the subject matter of any family discussions regarding what happened to [the
step-grandfather]?" Upon defense counsel's prompt objection, the
witness was directed not to answer and the jury was removed from
the courtroom. The prosecutor explained to the judge that he
asked the question because the witness had denied at the grand
jury that the family had engaged in any discussions about Rogers'
arrest. Defense counsel argued that the question and the
prospective answer would allow the jury "to somehow infer . . .
that something's wrong when a family doesn't talk about it." The
court agreed, observing that the question appealed to something
other than the jury's logic and was unfair and prejudicial.
Accordingly, defense counsel's motion for a mistrial was granted.
Rogers contends that the conduct of the prosecutor at his first
trial was so egregious as to bar his retrial under the Double
Jeopardy clause of the Constitution. The Appellate Division
rejected this claim on direct appeal.
"Analysis of double jeopardy begins with the language of the
Fifth Amendment and the rights it aims to safeguard." United
States v. Pavloyianis, 996 F.2d 1467, 1472 (2d Cir. 1993). The
Fifth Amendment states that "nor shall any person be subject for
the same offence to be twice put in jeopardy of life or limb."
U.S. Const. amend. V. One of the rights to which a defendant
typically is entitled under the Double Jeopardy clause "is to
have his trial completed in and by the particular tribunal where
he is presently on trial, except where in the trial court's
discretion, the right must give way to the public interest in
having `fair trials designed to end in just judgments.'" Id.
(quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). Thus,
double jeopardy also protects against prosecutorial misconduct
and judicial overreaching. See id.
As the Second Circuit has explained, "[t]he key double jeopardy
policy aimed to be protected where there has been prosecutorial or judicial error is
to retain for the defendant primary control over whether he wants
to continue on trial where he is, thereby avoiding the expense
and anxiety of a lengthy appeal and possible retrial, or whether
he wants to end that trial in light of the taint in the
proceedings." Id. at 1473 (citing United States v. Dinitz,
424 U.S. 600, 608-09 (1976)). In determining whether double
jeopardy bars re-prosecution, the "crucial question" is whether
the prosecutor engaged in the misconduct in order to prejudice
the defendant's chance of obtaining an acquittal or to "goad" him
into moving for a mistrial. Dinitz, 424 U.S. at 611 ("[The
Double Jeopardy Clause] bars retrials where `bad-faith conduct by
judge or prosecutor,' threatens the `[h]arassment of an accused
by successive prosecutions or declaration of a mistrial so as to
afford the prosecution a more favorable opportunity to convict'
the defendant.") (citation omitted). If such deliberate
misconduct is found, the Double Jeopardy Clause has been
The Supreme Court circumscribed the Dinitz rule regarding the
effect of a defendant-initiated mistrial on a claim of double
jeopardy in Oregon v. Kennedy, 456 U.S. 667 (1982). Under the
rule set forth in Kennedy, a defendant who has moved for and
been granted a mistrial may successfully invoke the Double
Jeopardy Clause to prevent a second prosecution only when the
prosecutor's misconduct that precipitated the mistrial was
intended to "goad" or provoke the defendant into moving for the
mistrial. Id. at 673; see also id. at 675-76 ("Prosecutorial
conduct that might be viewed as harassment or overreaching, even
if sufficient to justify a mistrial on defendant's motion,
therefore, does not bar retrial absent intent on the part of
the prosecutor to subvert the protections afforded by the Double
Jeopardy Clause.") (emphasis supplied). Thus, the critical
inquiry under this standard is whether the prosecutorial
misconduct was undertaken with the specific intent "to subvert the
protections afforded by the Double Jeopardy Clause." Id. at
The Supreme Court has made clear that mere "bad faith conduct"
or "harassment" on the part of the prosecution is insufficient to
preclude re-trial. See Kennedy, 456 U.S. at 679. Rather, the
state court must determine whether prosecutor actually intended
to provoke a mistrial. Id.; accord United States v.
Pavloyianis, 996 F.2d at 1474 (requiring "deliberate"
prosecutorial misconduct); see also United States v. Huang,
960 F.2d 1128, 1133 (2d Cir. 1992) ("Negligence, even if gross, is
insufficient."). This standard "calls for the court to make a
finding of fact." Kennedy, 456 U.S. at 675.
At the first trial, the judge explained to Rogers,
Do you understand that you're not going to be able to
claim double jeopardy? This is not I'm not seeing
this as an intentional violation of your rights by
the government, at most accidental, I'm telling you
that going in, I'm not you're not going to win any
claim on double jeopardy so you shouldn't have that
in the back of your mind, saying, well, I'm going to
keep that, that's a trump card.
On direct appeal, the state court similarly found that the
prosecutor's misconduct prompting the motions for a mistrial did
not constitute that type of prosecutorial overreaching that would
bar re-prosecution. People v. Rogers, 277 A.D.2d at 876
(citations omitted). These factual findings by the state courts
are entitled to a presumption of correctness under
28 U.S.C. § 2254(e) that only may be overcome upon a showing of clear and
convincing evidence. This Rogers is unable to do on the record
In his brief on direct appeal, defense counsel pointed to some
of the comments by the judge showing disapprobation for the
police officer who, despite the fact that he had twenty-five
years of experience, nevertheless gave the unsolicited comment
that Rogers asked for an attorney. It is evident from the trial transcript, however, that
the judge's disapproval was reserved for the police officer, not
the prosecutor. Nevertheless, defense counsel suggested that the
police officer's behavior should be imputed to the state by
arguing that the prosecutor was attempting to have his witnesses
"do the dirty work" for him and that such a maneuver should not
be tolerated. There is no basis in the record for making such an
inference. Although the prosecutor's open-ended question was
carelessly crafted, it did not call for an improper response by
the officer. Moreover, even if the prosecutor neglected in his
pre-trial preparation of the officer to warn that it was
impermissible to refer to Rogers' exercise of his privilege
against self-incrimination, the record provides no reason to
suspect that the omission was deliberate. Accordingly, Rogers'
double jeopardy claim provides no basis for habeas relief.
B. Failure to suppress statements to police and evidence
seized at time of interrogation
Rogers contends that the initial stop by police of him in his
driveway and the subsequent questioning that occurred was
impermissible. He further argues that the officers' seizure of
his blood-stained sneakers and other physical evidence was
invalid. These arguments allege violations of the Fourth
Amendment's proscription against unreasonable searches and
seizures and, as such, are not cognizable on habeas review. See
Stone v. Powell, 428 U.S. 465, 494 (1976) (footnotes omitted)
("Where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may not
be granted habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced
at his trial.").
Rogers may not raise his Fourth Amendment claims on habeas
review because he was provided with, and indeed took full
advantage of, the opportunity to fully adjudicate these matters in state court. At the trial court level, defense counsel
filed a motion contesting the validity of the police officers'
detention. Following a hearing, the court denied the motion to
suppress in a written opinion on the record setting forth its
findings of fact and conclusions of law. Defense counsel pressed
Rogers' Fourth Amendment claims on direct appeal. The Appellate
Division rejected the claims, and the New York Court of Appeals
found that there was no question of law meriting further review.
Rogers' various applications at the trial court and appellate
levels challenging his arrest clearly show that he was given an
opportunity for a "full and fair" litigation of his Fourth
Amendment claims. Accordingly, these claims are not cognizable on
C. Insufficiency of the evidence
Rogers argues that the circumstantial evidence against him did
not exclude to a moral certainty every other reasonable
hypothesis besides guilt and therefore was insufficient to
support a guilty verdict. On direct appeal, the state court held
that the circumstantial evidence was "legally sufficient" to
establish Rogers's guilt.
As an initial matter, I note that the "moral certainty"
standard is "available only to a trier of fact." People v.
Williams, 84 N.Y.2d 925, 926 (1994) ("A court reviewing legal
sufficiency of the trial evidence must instead determine whether
any valid line of reasoning and permissible inferences could lead
a rational person to the conclusion reached by the fact finder on
the basis of the evidence at trial, viewed in the light most
favorable to the People[.]"). The relevant question for this
Court on federal habeas review is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979); accord Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002). Thus, a habeas
petitioner "bears a very heavy burden" when challenging the legal
sufficiency of the evidence in a state criminal conviction.
Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997).
On habeas review, the court is not permitted to "`make its own
subjective determination of guilt or innocence.'" Quartararo v.
Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999) (quoting Herrera v.
Collins, 506 U.S. 390, 402 (1993)).
In the instant case, there was a fair amount of physical
evidence found at the crime scene that linked Rogers to the
murder. A tire iron covered in the victim's blood was found next
to the body; when the police searched Rogers's vehicle, they
found a tire jack but no tire iron. Also discovered near the body
was an envelope with a bloody footprint on it; the tread on the
footprint was similar to the pattern on Rogers's sneakers and the
blood on the paper matched that of the victim. The police found
two bottles of bleach in an upstairs bathroom even though the
washing machine was downstairs; the soles of Rogers's sneakers
appeared to have been scrubbed clean and were discolored, as if
they had been bleached. In addition, his sneakers were spattered
with the victim's blood. Clothes found at Rogers's house bore
bloodstains of the same type as the victim; Rogers has a
different type of blood. Finally, scrapings taken from underneath
Rogers's fingernails yielded human blood.
Furthermore, a rational jury, presented with Rogers's three
inconsistent accounts of his whereabouts on the night of the
murder, could have found that Rogers was unable to satisfactorily
explain his actions. The jury heard Rogers's initial statement to
the police in which he stated that he was at home all evening and
fell asleep watching television. However, there were three
witnesses who placed Rogers at Belmont's house on the night of
the murder at about 9 p.m. Rogers' employer testified that Rogers was out in his cab on
the night of July 22. Rogers's son Ricky admitted that his mother
placed several calls to the cab company looking for Rogers. Ricky
testified that he and his mother went out looking for Rogers that
night but were unable to find him.
Confronted with the witnesses placing him at the victim's
house, Rogers then told the police that he and his wife had
argued that evening; she left and he went out looking for her. At
trial, Rogers contradicted this statement, admitting that he had
been at the victim's house while the three boys were there. He
claimed that he returned to the house later that evening and
found the victim already dead. Rogers could not explain why he
left the house and never called the authorities, stating, "I had
no idea what to say to anybody."
As to the robbery charge, Davey, Belmont's step-grandson,
testified that Belmont had a "wad" of cash in his wallet.
However, when Belmont's body was found, there was no wallet on
Viewed in the light most favorable to the prosecution, there
was sufficient evidence upon which a rational jury validly could
reason that the elements of felony murder and robbery had been
proven beyond a reasonable doubt. The Appellate Division's
conclusion that legally sufficient evidence supported the verdict
against Rogers was neither contrary to, nor an unreasonable
application, of clearly established Supreme Court precedent.
D. Ineffective assistance of counsel
Rogers contends that trial counsel was ineffective for failing
to utilize allegedly exculpatory evidence; failing to move to
dismiss the second indictment on the grounds that principles of
Double Jeopardy barred re-prosecution; and failing "to utilize
the record of the first trial to properly prepare for trial." Petition at 4 (Docket #1).
In order to prevail on a claim of ineffective assistance of
counsel within the framework established by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), a habeas
petitioner must satisfy a two-part test. First, he must show that
his attorney's performance "fell below an objective standard of
reasonableness," id. at 688, and second, he must show that he
was prejudiced by counsel's deficient representation, see id.
at 694. In other words, a petitioner must demonstrate that there
is a "reasonable probability" that but for counsel's error, the
outcome would have been different, id. at 694. The issue of
prejudice need not be addressed, however, if a petitioner is
unable to demonstrate first that his counsel's performance was
inadequate. "[T]here is no reason for a court deciding an
ineffective assistance claim to . . . address both components of
the inquiry if the defendant makes an insufficient showing on
one." Id. at 697.
1. Failure to introduce exculpatory evidence
At Rogers's first trial, defense counsel elicited testimony
that a palm print was found in the victim's bathroom but did not
raise this issue at Rogers's second trial. Rogers claims that
defense counsel erred in failing to introduce this allegedly
When the police performed their investigation of the crime
scene, they noted that the sink in the upstairs bathroom was
spattered with what appeared to be blood, as if someone had
washed at the sink. A latent palm print was recovered from the
upstairs bathroom; the police report does not indicate that it
was a bloody palm print.*fn1 Testing revealed that the print
did not match Rogers's inked hand prints; unfortunately, the victim's
inked palm prints were not available for comparison. See Police
Reports, attached as part of Exhibit A to Respondent's Notice of
Motion (Docket #5).
There is no indication in the record as to why defense counsel
chose not to introduce this piece of evidence at Rogers's second
trial. Even if it was error on the part of Rogers's attorney, it
did not prejudice Rogers. In other words, there is no reasonable
likelihood that the palm print, had it been introduced, would
have raised a reasonable doubt in the jury's mind that did not
otherwise exist. As discussed above, the prosecution had a strong
case against Rogers: First, the murder weapon was a blood-stained
tire iron; when the police searched Rogers' vehicle, they found a
tire jack but no tire iron. An envelope marked with a footprint
in the victim's blood on it was found near the victim's body, and
the tread on the footprint was similar to the pattern on Rogers's
sneakers. Two bottles of bleach were found in the upstairs
bathroom; an unlikely place for them since the washing machine
was downstairs. The police noticed that the soles of Rogers's
sneakers appeared to have been scrubbed clean and were
discolored, as if they had been bleached. In addition, both
Rogers's sneakers and clothes found at Rogers's house were
spattered with blood of the same type as the victim's; Rogers has
a different blood-type. Finally, scrapings taken from underneath
Rogers's fingernails yielded human blood.
Granted, the latent palm print was potentially exculpatory.
However, it was of limited value since the print could have
belonged to the victim. Furthermore, the physical evidence in the
case, coupled with Rogers's inexplicable actions on the night of
the murder and three inconsistent statements to the police,
strongly linked Rogers to the murder. In the face the evidence
against Rogers, the palm print was not of compelling weight.
Because Rogers did not suffer constitutional prejudice as a result of counsel's failure
to introduce evidence of the latent palm print, the Court cannot
grant habeas relief on Rogers's ineffective assistance of counsel
2. Failure to file Double Jeopardy motion
As discussed above, a motion to bar a second trial on double
jeopardy grounds would not have been successful; the trial court
specifically informed Rogers that he would be unable to prevail
on a double jeopardy application, and, indeed, there is no legal
basis for such a motion. Therefore, Rogers was not prejudiced by
defense counsel's failure to make such an application. See,
e.g., Erdheim v. Greiner, 22 F. Supp.2d 291 (S.D.N.Y. 1998)
("Since petitioner has not proved that he had a meritorious
speedy trial claim, there is no reasonable probability that his
counsel's failure to raise the motion affected the outcome of the
case."); Walker v. Bennett, 262 F. Supp.2d 26, 36 (W.D.N.Y.
3. Failure to utilize record from first trial properly
Rogers' final contention is that counsel was deficient in
failing "to utilize the record of the first trial to properly
prepare for trial." That statement is the whole of his argument;
Rogers provides no particulars as to what counsel should have
gleaned from the first trial and used at the re-trial. Even
construing Rogers' pro se papers liberally, this claim is too
vague to state a proper claim for habeas relief and must be
dismissed. In any event, I have reviewed the transcript and it is
apparent that Rogers received competent representation from his
attorney at trial.
For the reasons stated above, Ernest Rogers' petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Rogers has failed to make a
substantial showing of a denial of a constitutional right, I
decline to issue a certificate of appealability. See 28 U.S.C. § 2253.
IT IS SO ORDERED.