Rogers v. Lilley

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KENNETH ROGERS,

Petitioner, MEMORANDUM & ORDER

19-CV-0166(EK)

-against-

LYNN J. LILLEY, Superintendent of

Woodbourne Correctional Facility,

Respondent.

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ERIC KOMITEE, United States District Judge:

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.

Background

A. The State’s Case

The prosecution relied on eyewitness testimony from

the retired police officer, Marion Papka, and testimony from

police officers and residents of the burglarized premises.

1. Papka’s Testimony

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

“appeared to be kicked in. The frame was cracked and it looked

like there was a smudge mark on the outside of the door of a

shoe or something like that.” 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.

2. Police Officers’ Testimony

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.

3. Tenants’ Testimony

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.

B. The Defense Case

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: “I think somebody just broke in

here . . . . If you gotta phone[,] call the cops.” 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.

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. Standards of Review

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 contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States”; or (2) “resulted in a decision that

was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d).

A state court’s decision is “contrary to” Supreme

Court precedent “if the state court applies a rule that

contradicts the governing law set forth in [the Supreme Court’s]

cases,” or “if the state court confronts facts that are

materially indistinguishable from a relevant Supreme Court

precedent and arrives at a result opposite to” the Supreme

Court’s result. Bell v. Cone, 543 U.S. 447, 452-53 (2005)

(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state

court’s decision “involved an unreasonable application of”

Supreme Court precedent if there is “no possibility fair-minded

jurists could disagree that the state court’s decision conflicts

with [Supreme Court] precedents.” Harrington v. Richter, 562

U.S. 86, 102 (2011).

B. Exhaustion

A habeas petitioner must exhaust his available

remedies in state court before presenting the claim to the

district court. Id. § 2254(b)(1). To exhaust a federal claim,

a petitioner must have “fairly present[ed] his claim in each

appropriate state court (including a state supreme court with

powers of discretionary review), thereby alerting that court to

the federal nature of the claim,” and thus “giving the State the

opportunity to pass upon and correct alleged violations of its

prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29

(2004) (internal quotation marks and citations omitted). In New

York, this means the Petitioner must have raised the issues in

question on direct appeal to the Appellate Division of the

Supreme Court and again in seeking leave to appeal from the New

York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d

Cir. 2005).1

With these standards in mind, I turn now to Rogers’

various claims.

C. Sufficiency of the Evidence

Rogers argues that the evidence at trial was

insufficient because of certain alleged inconsistencies in the

testimony of the state’s witnesses. Although he does not invoke

any constitutional right by name, I construe this claim as

arising under Due Process Clause of the Fourteenth Amendment (as

Rogers did on direct appeal). Rogers exhausted the claim by

raising the sufficiency / due-process question on direct appeal

to the Appellate Division and in his subsequent application for

leave to appeal in the New York Court of Appeals. See Appellate

Brs. 28, 132, ECF No. 8. I therefore turn to the merits of his

claim.

The Due Process Clause of the U.S. Constitution

prohibits conviction “except upon proof beyond a reasonable

1 Once the prisoner has fairly presented his federal claims to each

level of state court on direct review, he is not required to seek state

collateral review — even if state postconviction procedures would permit

reconsideration (as New York does via a motion to vacate a conviction). See

Castille v. Peoples, 489 U.S. 346, 350–51 (1989) (Section 2254’s exhaustion

requirement does not require state collateral attack, provided federal claims

have been fairly presented at every level of direct review); United States ex

rel. Cardaio v. Casscles, 446 F.2d 632, 634 (2d Cir. 1974) (not necessary to

seek a writ of error coram nobis to exhaust claim); see also N.Y. Crim. Proc.

Law § 440.10 (New York provision for motion to vacate a criminal conviction).

doubt of every fact necessary to constitute the crime with which

[the defendant] is charged.” In re Winship, 397 U.S. 358, 364

(1970). Consequently, a state prisoner “is entitled to habeas

corpus relief if it is found that upon the record evidence

adduced at the trial no rational trier of fact could have found

proof of guilt beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 324 (1979) (footnote omitted). This inquiry “is a

mixed question of law and fact, and therefore analyzed under §

2254(d)(1), not § 2254(d)(2).” Torres v. Greene, 290 F. Supp.

2d 396, 400 n.3 (S.D.N.Y. 2003). Reviewing courts “defer to the

jury’s assessment of witness credibility and the jury’s

resolution of conflicting testimony.” United States v. Bala,

236 F.3d 87, 93–94 (2d Cir. 2000). When reviewing a conviction

for sufficiency of the evidence, “federal courts must look to

state law for ‘the substantive elements of the criminal

offense.’” Coleman v. Johnson, 566 U.S. 650, 655 (2012)

(quoting Jackson, 443 U.S. at 324 n.16).

Rogers predicates his insufficient-evidence argument

on the following alleged inconsistencies:



Papka testified that he was in the garden in front

of his house when he saw Rogers approach and enter

the subject building, Papka 564:20-566:15, whereas

Officer Kraft wrote in the arrest report that Papka

made his observations through the window of his

house. Kraft 768:22-769:1.



Papka described the suspect as having hair, Papka

565:19-23, even though Rogers was bald (with only

some hair on the sides of his head) and was wearing

a baseball cap at the time. Rogers 815:12-16,

838:3-13.



According to Officer Separ’s trial testimony, Papka

told the police at the scene that Rogers opened the

front door of the building by force, Separ 705:23-

25, but Papka testified at trial that the front door

was unlocked. Papka 629:23-630:1.



Papka testified that he entered the burglarized

apartment with the police, Papka 593:9-10, 595:3-4,

but Sergeant Kraft testified that Papka did not

accompany them. Kraft 75:21-24.

Rogers contends that these inconsistencies cast

significant doubt on Papka’s reliability. Given that the

state’s case depended heavily on Papka’s testimony, as the sole

eyewitness, Rogers claims that the verdict was therefore not

supported by sufficient evidence.

The Appellate Division concluded that the evidence

“was legally sufficient to establish [Rogers’] guilt” for each

crime of conviction. Rogers, 77 N.Y.S.2d at 433. It

“review[ed] the record” and was “satisfied that the verdict of

guilt was not against the weight of the evidence.” Id. It also

“accord[ed] great deference to the jury’s opportunity to view

the witnesses, hear the testimony, and observe demeanor.” Id.

This conclusion did not reflect an unreasonable application of

clearly established Supreme Court precedent because the jurors

could rationally have concluded, based on the evidence at trial,

that Rogers was guilty of the offenses of which he was

convicted.

The inconsistencies that Rogers invokes do not

establish that his conviction violated the Due Process Clause.

Generally speaking, “assessments of . . . the credibility of

witnesses [are] for the jury and not grounds for reversal on

appeal.” Munn v. Hotchkiss Sch., 795 F.3d 324, 330 (2d Cir.

2015) (quoting Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir.

1996)). Indeed, where juries choose to believe witnesses’

testimony “despite any inconsistencies,” courts “defer” to those

assessments. United States v. Vasquez, 267 F.3d 79, 91 (2d Cir.

2001); see also Jackson, 443 U.S. at 326 (“[A] federal habeas

corpus court faced with a record of historical facts that

supports conflicting inferences must presume — even if it does

not affirmatively appear in the record — that the trier of fact

resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.”). Petitioner points to no

Supreme Court case holding clearly to the contrary.

Accordingly, the Appellate Division’s conclusion was not

“contrary to” or “an unreasonable application of” federal law.

Indeed, the alleged inconsistencies that Rogers

marshals are fairly minor. At least one might not have been an

inconsistency at all: Rogers did have hair, as Papka observed,

even if it did not cover his entire head. Likewise, the alleged

inconsistency regarding forcible entry might be chalked up to

confusion on the officer’s part about whether Papka was

describing Rogers’ entry into the building or the apartment.

(Papka did testify to having seen indications of forcible entry

into the latter. See Papka 594:25–596:3.) These are the types

of alleged inconsistencies that are for juries to resolve and

are not a basis for habeas relief. Accordingly, this claim is

denied.

D. Ineffective Assistance of Counsel

Rogers next argues that the Appellate Division

erroneously denied his Sixth Amendment claim that he was denied

the effective assistance of counsel. Rogers, 77 N.Y.S.3d at 434

(finding this claim to be “without merit”). Rogers’ ineffective

assistance claim is predicated on his trial counsel’s failure to

object to certain alleged prosecutorial misconduct during cross-

examination and summation. This issue, too, is a mixed question

of fact and law. See United States v. Arteca, 411 F.3d 315, 320

(2d Cir. 2005).

Rogers exhausted this claim; he argued on direct

appeal that his conviction should be reversed because “defense

counsel was ineffective for failing to object to most of the

prosecutor’s numerous cross-examination and summation

improprieties.” Appellate Brs. 49. He also sought leave to

appeal to the state Court of Appeals on this ground. Id. at

133. Again, therefore, I turn to the merits.

Rogers has failed to show that the Appellate Division

unreasonably applied the Strickland standard to his trial

attorney’s performance. Under Strickland v. Washington, 466

U.S. 668 (1984), a defendant is deprived of his Sixth Amendment

right when (1) counsel’s performance “fell below an objective

standard of reasonableness” in light of prevailing professional

norms; and (2) “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. A court may reject an

ineffective assistance claim for failure to satisfy either

prong, without reaching the other. See id. at 697.

On habeas review, the bar is even higher: “The pivotal

question is whether the state court’s application of the

Strickland standard was unreasonable. This is different from

asking whether defense counsel’s performance fell below

Strickland’s standard.” Harrington, 562 U.S. at 101. The

reviewing court “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Dunham v. Travis, 313 F.3d 724, 732

(2d Cir. 2002) (quoting United States v. Aguirre, 912 F.2d 555,

560 (2d Cir. 1990)). “[A]s a result of the interaction between

AEDPA and Strickland,” the relevant question “becomes ‘whether

there is any reasonable argument that [Rogers’] counsel

satisfied Strickland’s deferential standard,” and if so, his

claim should be denied. Chrysler v. Guiney, 806 F.3d 104, 118

(2d Cir. 2015) (quoting Harrington, 562 U.S. at 105).

Rogers argues that his counsel was constitutionally

ineffective for failing to object to certain prosecutorial

misconduct on cross-examination and in summation. I analyze

each in turn.

1. Cross-Examination

Rogers contends that his trial counsel was ineffective

for failing to object to the prosecutor’s allegedly improper

questions on cross-examination. He argues that the prosecutor

forced him to testify to the accuracy of the testimony of

certain prosecution witnesses, and that trial counsel was

deficient for failing to object to that line of questions.

Rogers does not say here precisely what cross-

examination his counsel should have objected to, and why counsel

was ineffective for the omission. On direct appeal, however, he

argued that by making Rogers’ opinion of the veracity of the

prosecution witnesses a dominant theme of the cross-examination,

the prosecutor improperly suggested that the defense bore the

burden of proving that the witnesses were lying. He cited the

following questions:



“[I]t would be accurate to say . . . that when Papka

testified in this courtroom and described what you

were wearing he got it right, correct?” Tr. 838:10-

12.



“And when [Papka] described your hair that day, that

you had more hair on the sides, he got that right

also, correct?” Tr. 838:14-16.



“[W]hen the police testified in this courtroom that

they removed from you four rings and a watch they

were, also, accurate, correct?” Tr. 857:22-24.



“[W]hen Detective Separ testified he recovered things

from you he was, also, being truthful and accurate,

correct?” Tr. 859:24-25.

Challenging these questions on direct appeal, Rogers

relied on United States v. Richter, 826 F.2d 206, 208 (2d Cir.

1987). Richter is not a basis for habeas relief, however,

because its holding is not “clearly established” precedent at

the Supreme Court level. 28 U.S.C. § 2254(d)(1); Leslie v.

Artuz, 230 F.3d 25, 32 (2d Cir. 2000) (“The phrase ‘clearly

established Federal law, as determined by the Supreme Court of

the United States,’ refers only to cases decided by the Supreme

Court, as opposed to other courts . . . .”). Moreover, the

Second Circuit’s Richter holding was predicated on a long litany

of key facts, not all (or even most) of which were replicated

here.

For starters, the Richter court’s reasoning depended

fairly heavily on the fact that the prosecutor asked the

defendant whether law enforcement witnesses were lying. 826

F.2d at 208 (“Pointing to the discrepancies between [FBI Special

Agent] Lazzara’s testimony concerning Richter’s statements to

him and Richter's testimony on the stand, the prosecutor asked

Richter in a series of questions to testify that Lazzara was

either mistaken or lying.”). Even so, the Second Circuit said,

it “might be inclined to overlook the impropriety [on cross] if

that were the defendant’s sole claim of error.” The court noted

that after cross-examining Richter, the prosecution called

another FBI agent in rebuttal “for the purpose of corroborating

Lazzara’s testimony, which the prosecutor already had forced the

defendant to label as false.” Id. Then, in summation, “the

prosecutor, by deliberately misquoting Richter’s testimony,

emphasized the improper nature of the questions he had forced

Richter to answer: ‘Over and over again, the agents are lying to

get me. That’s what Mr. Richter wants you to believe.’” Id.

The state emphasized this point, telling the jurors that to find

the defendant not guilty, they would have to conclude that two

law enforcement officers had lied under oath. Id. at 208-210.

The Court of Appeals held that these actions, taken as a whole,

had the effect of “compel[ling] [the] defendant to state that

law enforcement officers lied in their testimony” and

constituted “plain and prejudicial error.” Id. at 207–08.

In the years since 1987, the Second Circuit has

distinguished Richter on multiple occasions. Among other

things, the court has recognized a “significant difference”

between asking the defendant whether a witness was lying, on the

one hand, and whether the witness was simply mistaken, on the

other. United States v. Gaind, 31 F.3d 73, 77 (2d Cir. 1994).

The court also has accorded weight to the distinction that

witnesses whose testimony were at issue were not law enforcement

agents. Id. The Gaind court observed that “defendants invoking

Richter have not succeeded in obtaining reversal of their

convictions when the starkly offensive prosecutorial

delinquencies in Richter were not replicated.” Id.; see also

United States v. Weiss, 930 F.2d 185, 195 (2d Cir. 1991)

(finding no Richter violation where, inter alia, “[w]hile [the

defendant] was questioned as to his recollection of the

testimony of other witnesses, he was not consistently given the

limited option of stating those witnesses were incorrect or

lying about the substance of their testimony”).

Rogers’ counsel’s failure to object to these and other

similar questions did not constitute constitutionally

ineffective representation. Unlike in Richter, the questions at

issue here did not require Rogers to accuse another witness of

lying. On the contrary, the prosecutor here appears to have

carefully phrased his questions differently, asking Rogers to

confirm that the state’s witnesses had testified “accurately.”

And Rogers does not suggest that the prosecutor deliberately

misquoted his testimony or called a rebuttal witness solely to

bolster an already improper line of questioning. In the end,

Rogers cites to no authority — Supreme Court or other — clearly

establishing that the prosecutor’s questions are per se

improper, and neither did his appellate counsel on direct

appeal. Appellate Brs. 133.

Moreover, even if trial counsel erred in failing to

object to these questions, Rogers has not shown that he was

prejudiced by those errors, as required by Strickland. This is

because he has not demonstrated that the questions deprived him

a fair trial such that his conviction would have been overturned

on appeal. A criminal conviction should not be overturned “on

the basis of a prosecutor’s comments standing alone in an

otherwise fair proceeding.” Gonzalez v. Sullivan, 934 F.2d 419,

424 (2d Cir. 1991) (internal quotation marks omitted). To cause

a constitutional violation, a prosecutor’s remarks must “so

infect[] the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v. DeChristoforo,

416 U.S. 637, 642 (1974). No such egregious unfairness occurred

here. Indeed, the court’s jury charge, which properly

instructed the jury as to the prosecution’s burden of proof,

ensured that Rogers was not prejudiced by this alleged

prosecutorial misconduct. Tr. 941:7-11 (jury instructions on

burden of proof); see also, e.g., Garofolo v. Coomb, 804 F.2d

201, 206 & n.3 (2d Cir. 1986) (jury instructions relating to

attorney summations cured improper prosecutorial remarks).

2. Summation

Next, Rogers contends that his defense counsel was

constitutionally ineffective for failing to object during the

prosecutor’s summation. He points to instances where the

prosecutor allegedly placed on Rogers the burden of explaining

why the police officers would lie, vouched for Papka’s

credibility, denigrated the defense, and improperly appealed to

the jurors’ emotions. Here again, however, he has not

established that the prosecutor’s comments were improper or that

his counsel was constitutionally deficient for declining to

object.

a. Burden Shifting

First, Rogers contends that his attorney should have

objected when the prosecutor suggested that Rogers had to

provide reasons for the jury to reject the officers’ testimony,

thus effectively shifting (according to Rogers) the burden of

proof. He cites the following passage, among others, from

summation: “By [Rogers’] own admission he had . . . never had

any interaction with any of the officers who testified at this

trial and could think of no reason why they would either have a

vendetta against him or accuse him of a crime he was innocent

of.” Tr. 903:17-22.

This is not burden-shifting; the state’s argument

merely commented on the officers’ lack of a motive to lie. That

kind of commentary has been held “perfectly reasonable.”

Everett v. Fischer, No. 00-CV-6300, 2002 WL 1447487, at *3

(E.D.N.Y. July 3, 2002); People v. Rodriguez, 552 N.Y.S.2d 634,

636 (App. Div. 1990) (mem.) (comment that complainant and

arresting officer had no motive to lie did not shift burden of

proof to defendant). Defense attorneys must have “wide

latitude . . . in making tactical decisions,” Strickland, 466

U.S. at 689; that latitude surely encompasses the decision not

to interrupt a summation with an objection likely to fail (and

perhaps likely to call additional attention to a strong argument

for the other side). See United States v. Saad, 512 F. Supp. 3d

297, 310 (D.R.I. 2021) (finding no Strickland violation in

attorney’s “strategic choice” not to object to prosecutor’s

reference to his client as an “unmitigated liar”).2

Moreover, any alleged burden-shifting was ameliorated

(as above) by the trial judge’s instructions to the jury

regarding the burden of proof. And in any event, Rogers was not

prejudiced because given that the comments were acceptable,

2 In Saad, defense counsel explained that he based the decision to stay

silent in part on the recognition that objecting to opposing counsel’s

arguments “only further calls the jury’s attention to them.” Id. That

justification could reasonably be deemed to have applied here, as well. See

also Taylor v. Fischer, No. 05-CV-3034, 2006 WL 416372, at *5 (S.D.N.Y. Feb.

21, 2006) (“It is a perfectly reasonable choice not to object to every

possibly improper argument; counsel would surely prefer to seen by the jury

to be on the right side of the majority of the objections.”).

Rogers’ argument, even if preserved for appeal, would not have

resulted in his convictions being overturned.

b. Vouching

Rogers also argues that the prosecutor improperly

vouched for Papka’s credibility by opining that he was being

truthful. The prosecutor stated that Papka’s “testimony in this

courtroom after taking an oath to tell the truth was truthful,”

that he was also “truthful when he spoke to the police” and

“when he testified before the grand jury,” Tr. 913:22-25, and

that Papka had “absolutely no reason to lie.” Tr: 915:13.

Prosecutors generally may not convey their personal

view that a witness was telling the truth. See Berger v. United

States, 295 U.S. 78, 88 (1935). “But the government may respond

to a defense argument that attacks the credibility of government

witnesses.” Hernandez v. Green, No. 05-CV-5291, 2007 WL 433396,

at *9 (E.D.N.Y. Feb. 8, 2007); see also United States v. Rivera,

22 F.3d 430, 438 (2d Cir. 1994) (government may rebut defense

testimony impugning integrity of its witnesses).

Defense counsel argued in closing that Papka’s

testimony was inconsistent and incredible — that he did not have

a “clear memory of the events,” Tr. 874:22-24, and that he had

been “possibly drinking” before witnessing the events in

question. Tr. 876:6-7. Counsel stated that Papka had “issues”

and lied to the district attorney. Tr. 878:8-11. In light of

these forceful contentions, the prosecutor’s assertions in

response were permissible. Once again, Rogers cannot meet the

high bar to show (on habeas review) that his trial counsel was

constitutionally ineffective.

c. Denigrating the Defense

Rogers next contends that his trial counsel was

deficient for failing to object to the prosecution’s allegedly

improper criticism of defense arguments. For example, the

prosecutor opened her summation by stating: “If you don’t get

distracted by all of the word games that were played during this

trial,” you would find Rogers guilty. Tr. 898:15-22. The

phrase “word games” is not especially inflammatory, and Rogers

cites no case to clearly establish that this line of argument —

relatively common in summations from prosecutors and defense

lawyers — would constitute reversible error. See generally

United States v. Biasucci, 786 F.2d 504, 513 (2d Cir. 1986)

(“The government is not barred from using rhetorical devices

during the trial.”).

d. Appeals to the Jurors’ Emotions

Rogers next contends that the prosecutor improperly

appealed to the jury’s sympathies by aligning the jury with the

victims of crime as fellow “homeowners” or “renters,” and that

Rogers’ counsel was deficient for failing to object. The

prosecutor referred to the burglarized premises as the place

“where [the tenant-victims] layed [sic] their head down to rest

each and every single night [and] where they were supposed to be

safe.” Tr 911:3-10.

As a general matter, a prosecutor has wide latitude to

use rhetorical devices during closing argument. See Biasucci,

786 F.2d at 513. The charged crimes here did occur in the

alleged victims’ home. Under New York State’s caselaw, an

objection to this comment might well have been overruled; merely

“suggesting that the jury put themselves in a [victim’s] shoes”

does not constitute an improper appeal to sympathy. Rodriguez,

552 N.Y.S.2d at 636.

In sum, whether Rogers’ claimed improprieties on the

part of the prosecution are considered separately or together, I

cannot say that the Appellate Division unreasonably applied

Supreme Court precedent in concluding that trial counsel was not

constitutionally ineffective for failing to object at the

various points Rogers identifies. Waiters v. Lee, No. 13-CV-

3636, 2020 WL 3432638, at *13 (E.D.N.Y. June 23, 2020) (Where

“Trial Counsel did not commit reversible error as to any of the

challenges raised in the petition, . . . the accumulation of

non-errors does not amount to a successful claim.”) , aff’d, No.

20-2190, 2021 WL 5183539 (2d Cir. Nov. 9, 2021). Accordingly,

the Appellate Division’s denial of this claims was neither

contrary to, nor an unreasonable application of, Strickland, and

this claim is denied.

E. Sentencing Claims

Finally, Rogers argues that his sentencing was

improper. As he did on direct appeal, Rogers asserts that New

York’s persistent violent felony offender statute, N.Y. Penal

Law § 70.08, is unconstitutional under Apprendi v. New Jersey,

530 U.S. 466 (2000). I construe his instant petition to raise

the same argument as he did on direct appeal; that is, that the

statute is unconstitutional because “a defendant’s status as a

persistent violent offender . . . is resolved by the court

following the defendant’s conviction.” Appellate Brs. 51. In

Rogers’ case, the persistent violent felony offender designation

meant that Rogers became eligible for a maximum sentence of life

imprisonment, while burglary in the second degree normally

carries a maximum possible sentence of fifteen years. Compare

N.Y. Penal Law § 70.00(2)(c) (maximum term of sentence for a

class C felony), with id. § 70.08(2) (maximum term of sentence

for a persistent violent felony offender).

The Appellate Division determined that this argument

was “without merit,” Rogers, 77 N.Y.S. 3d at 454, and it was:

courts in the Second Circuit have “unanimously” determined that

the persistent violent felony offender statute is

constitutional. Hernandez v. Williams, No. 10-CV-03073, 2013 WL

5405472, at *8 (S.D.N.Y. Sept. 26, 2013) (collecting cases).

Thus, the Appellate Division’s conclusion was reasonable.

Rogers also argues, as he did on direct appeal, see

Appellate Brs. 54–56, that his sentence “was unduly harsh and

severe” and that a “sentence reduction is warranted” because “he

did not employ actual violence in the offense despite being

confronted by eyewitness.” Pet. at 18. The Appellate Division

concluded that “the sentence imposed was not excessive.”

Rogers, 77 N.Y.S.3d at 434. Rogers does not advance any basis

for finding a violation of federal law in this conclusion. And

in any event, this claim does not raise a cognizable

constitutional question, because “[n]o federal constitutional

issue is presented where, as here, the sentence is within the

range prescribed by state law.” White v. Keane, 969 F.2d 1381,

1383 (2d Cir. 1992). That requirement is satisfied here.

Burglary in the second degree is a Class C felony. N.Y. Penal

Law § 140.25. As a persistent violent felony offender, Rogers

was subject to an indeterminate sentence with a maximum term of

life imprisonment and a minimum term of between 16 years and 25

years. Id. § 70.08. Rogers’ actual sentence of 18 years to

life did not exceed these bounds, and thus he has shown no

constitutional violation.3

3 I also note that on direct appeal, Rogers did not frame this argument

as based on federal law. See Appellate Brs. 54–56. Accordingly, he may not

IV. Conclusion

For the foregoing reasons, the petition is denied. No

certificate of appealability shall issue because Rogers has not

made a substantial showing that he was deprived of any

constitutional right. See 28 U.S.C. § 2253(c)(2). The Court

certifies that any appeal of this order would not be taken in

good faith, and thus in forma pauperis status is denied for the

purposes of any appeal. See Coppedge v. United States, 369 U.S.

438, 444–45 (1962).

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: March 28, 2022

Brooklyn, New York

have put the New York state courts on proper notice that he was making a

federal constitutional claim (e.g., under the Eighth Amendment), as opposed

to a purely state-law claim. See generally Duncan v. Henry, 513 U.S. 364,

365 (1995) (per curiam) (“If state courts are to be given the opportunity to

correct alleged violations of prisoners’ federal rights, they must surely be

alerted to the fact that the prisoners are asserting claims under the United

States Constitution.”).