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Third Circuit: Defense Counsel Ineffective Under Strickland Where Counsel Sat Silent After Judge Threatened to Charge Witness With Perjury Unless Testimony Changed

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit ruled that Ronald Rogers was denied effective assistance of counsel when his attorney sat silent after the trial judge admonished a prosecution witness that if he did not change his testimony to implicate Rogers, then the witness would be charged with perjury and sentenced to the maximum term of imprisonment.

Rogers was on a street corner in Philadelphia when Demetrius Hayes pulled up in a vehicle. The two men had an argument that resulted in both men pulling guns and shooting at each other. In the end, a bystander and friend of Roger’s—William Green—lay dead, killed by a stray bullet from Roger’s gun.

Witness Myra Summers immediately found a nearby police officer and told him that the driver (Hayes) “pulled a gun and started shooting at the guy on the corner (Rogers),” who then “started shooting back at the car.” Over two years after the incident, Andre Holiday—who was purportedly standing on the corner with Rogers—also told police that Hayes fired first as he reached across passenger Tyrone Singleton and that Rogers then returned fire. Singleton initially denied being at the scene but eventually changed his mind. He told police he was there but said it was Rogers who fired first at Hayes and that Hayes fired in self-defense.

Both Hayes and Rogers were charged with Green’s murder. Hayes was tried first. Singleton’s testimony matched his statement to police. But Summers changed her story. She testified that she was looking down when she “heard pops.” Looking up, she saw the two men shooting at each other, but she didn’t really know who fired first. Hayes was acquitted of all charges.

The following week, Summers and Singleton testified at Rogers’ trial (Holiday couldn’t be found). Summers gave the same testimony as she did at Hayes’ trial. But Singleton changed his testimony, testifying that it was Hayes—not Rogers—who fired first. The trial judge then ended the proceedings early for the day. After the jury was excused, the judge warned Singleton that he had “committed perjury on the record” and that the judge would see to it that Singleton “receive[d] the maximum consecutive sentence” for perjury. The judge then advised Singleton to “[d]o some long hard thinking” before resuming his testimony, because if he “sa[id] that [Hayes shot first] again, it is [p]erjury.]” Roger’s counsel remained silent, offering no objection.

The next day, through leading questions, the prosecutor elicited from Singleton that he had “made a mistake” the day before due to nervousness and then testified that Rogers—not Hayes—had fired first. Defense counsel again raised no objections, nor did he cross-examine Singleton concerning his changed testimony. Rogers was convicted of third-degree murder and sentenced to 16 to 32 years in prison. His judgment was affirmed on appeal.

Rogers subsequently petitioned for relief under the Pennsylvania Post-Conviction Relief Act (“PCRA”). The PCRA court denied relief, and the denial was affirmed on appeal. Rogers then petitioned for a writ of habeas corpus under 28 U.S.C. § 2254(a) in the U.S. District Court for the Eastern District of Pennsylvania, arguing, among other things, that his trial counsel was ineffective for failing to object to the trial judge’s admonishment or cross-examine Singleton about his changed testimony. A Magistrate Judge recommended granting Rogers relief on this claim, but the District Judge disagreed and denied Roger’s habeas petition. Rogers timely appealed.

The Third Circuit observed to “prevail, Rogers must show that (1) his ‘counsel’s representation fell below an objective standard of reasonableness’ and (2) ‘the deficient performance prejudiced the defense.’” Strickland v. Washington, 466 U.S. 668 (1984). But acts or omissions taken by counsel for strategic purposes will not be second-guessed by a reviewing court to support a finding of deficient performance. Rolan v. Vaughn, 445 F.3d 671 (3d Cir. 2006). That is, appellate review of counsel’s performance is “highly deferential.” United States v. McCoy, 410 F.3d 124 (3d Cir. 2005).

In addition, the Court cautioned that the standard for relief under § 2254 is “difficult to meet” because the statute imposes “several limits” on federal courts’ ability to consider § 2254 petitions. Cullen v. Pinholster, 563 U.S. 170 (2011). First, courts must presume that the state court’s factual findings are correct. § 2254(e)(1). Next, courts are required to defer to state court rulings for claims adjudicated on the merits unless they (1) are “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, § 2254(d)(1), or (2) were “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d)(2).

The Court summed up the state court’s review of what occurred at trial with respect to the deficient performance prong of Strickland as follows: “The Superior Court found counsel’s performance reasonable. It credited counsel’s testimony at the evidentiary hearing that ‘he had no basis for objecting to the admonishment because regardless of how Singleton testified, his testimony would not have been determinative because he lacked credibility. And it acknowledged counsel’s preferred strategy to rely on the more credible witness, Summers. Taken together, the Superior Court concluded ‘counsel had a reasonable basis’ for failing to object to the trial judge’s admonishment and for failing to cross-examine Singleton.”

However, the Court stated that Pennsylvania courts have warned against the type of judicial conduct exhibited in this case for decades. Commonwealth v. Laws, 378 A.2d 812 (Pa. 1977). And Rogers’ counsel “failed to explain why continued reliance on Summers was appropriate given her equivocation at Hayes’ trial” a week earlier. Indeed, Rogers’ counsel testified that he did not recall reviewing Summers’ testimony at Hayes’ trial. Because Rogers’ counsel had failed to reasonably investigate, the Superior Court had unreasonably applied Strickland by finding Rogers’ counsel’s performance sufficient. See Gov’t of V.I. v. Vanterpool, 767 F.3d 157 (3d Cir. 2014). Therefore, the Court afforded the decision no deference. Cullen.

On de novo review, the Court concluded defense counsel’s performance was deficient in failing to object because Pennsylvania case law was clear that reversible error was found in similar cases where judges threatened witnesses with perjury charges unless they changed their testimony. See Commonwealth v. Laws, 378 A.2d 812 (Pa. 1977); Commonwealth v. Fornicoia, 650 A.2d 891 (Pa. Super. Ct. 1994). In fact, Laws expressly prohibits questioning by the trial judge that clearly indicates the judge does not believe a witness’ testimony or exerts pressure on a witness to testify in a specific way. Thus, counsel’s belief that the trial judge’s conduct was permissible was unreasonable, according to the Court. See Hinton v. Alabama, 571 U.S. 263 (2014) (“An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.”).

The Court also determined that counsel’s failure to cross-examine Singleton about his changed testimony constituted deficient performance. Singleton was the only witness to ever testify that Rogers fired first, so failing to question him on cross-examination was unreasonable “under prevailing professional norms.” Strickland.

Having concluded that Rogers’ trial counsel’s performance was deficient under Strikland, it turned to the prejudice prong of Strikland. To demonstrate prejudice, a defendant must show that his attorney’s “errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable.” Strickland. That is, a defendant must show that “if not for the attorney’s errors, there was a reasonable probability the outcome of the proceedings would have been different.” Id. The court must “consider the strength of the evidence” against the defendant, Buehl v. Vaughn, 166 F.3d 163 (3d Cir. 1999), because a verdict “only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Strikland.

The Court weighed the evidence against Rogers and noted that without Singleton’s testimony, “the prosecution’s remaining evidence was negligible.” It added that the shell casings found at the scene and the fact that Hayes’ vehicle was not struck from behind—all of which were consistent with Rogers’ defense that he returned fire while fleeing from Hayes’ vehicle. The Court concluded that had the jury been informed that Singleton changed his testimony only in response to the admonishment from the judge, there was a reasonable probability the outcome of the proceedings would have been different. Thus, the Court held that Rogers carried his burden under Strikland.

Accordingly, the Court reversed the District Court’s order denying habeas relief and remanded for proceedings consistent with its opinion. See: Rogers v. Superintendent Greene SCI, 80 F.4th 458 (3d Cir. 2023).  

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Rogers v. Superintendent Greene SCI



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