Ronald Rogers v. Superintendent Greene Sci

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2601
_____________
RONALD ROGERS,
Appellant
v.
SUPERINTENDENT GREENE SCI; DISTRICT
ATTORNEY PHILADELPHIA; ATTORNEY GENERAL
PENNSYLVANIA
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-19-cv-05663)
District Judge: Honorable Joel H. Slomsky
_______________
Argued
June 20, 2023
Before: KRAUSE, BIBAS, and MATEY, Circuit Judges.
(Filed: September 7, 2023)
_______________

-- 1 of 16 --

2
Hayden Nelson-Major [ARGUED]
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Katherine C. Thompson
Federal Community Defender Office for the Eastern District
of Pennsylvania
Capital Habeas Unit
601 Walnut Street
The Curtis Center, Suite 545 West
Philadelphia, PA 19106
Counsel for Appellant
Shoshana D. Silverstein [ARGUED]
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
Counsel for Appellees
David J. Park [ARGUED]
Williams & Connolly LLP
680 Maine Avenue SW
Washington, DC 20024
Court Appointed Amicus Curiae

-- 2 of 16 --

3
_______________
OPINION OF THE COURT
_______________
MATEY, Circuit Judge.
Three men joined in a shootout, but only one was
convicted of murdering a bystander caught in their crossfire. A
conviction obtained in violation of the Sixth Amendment,
Ronald Rogers argues, because his attorney sat silently while
his trial judge admonished a trial witness and offered no
arguments when that witness changed his testimony. Inaction,
Rogers says, that cannot square with the guarantee of effective
attorney assistance. We agree and will reverse the District
Court’s order denying a writ of habeas corpus.
I.
Driving down a Philadelphia street, Demetrius Hayes
saw Ronald Rogers, his acquaintance of ten years, standing on
a corner. Hayes pulled over near the curb and “had words” with
Rogers, an argument that resulted in both men drawing guns
and shooting at each other. App. 38. A third man across the
street joined the gunfight, firing at Hayes’s vehicle as it sped
away. By the time the dust settled, a bystander—Rogers’s
friend William Green—was dead, killed by a stray bullet from
Rogers’s gun.
Three witnesses told police officers what they saw.
Myra Summers immediately found a nearby officer and
explained the driver (Hayes) “pulled a gun and started shooting
at the guy on the corner” (Rogers), who then “started shooting
back at the car.” App. 345. More than two years after the

-- 3 of 16 --

4
shooting, Andre Holliday—a man purportedly standing on the
street corner with Rogers—also told police that Hayes fired
first, reaching across his passenger and friend Tyrone
Singleton to shoot at Rogers, who “jump[ed] back, away from
the car.” App. 39. Rogers, Holliday said, then fired back at
Hayes before the car drove off.
The final witness, Singleton, initially refused to
cooperate with authorities. But he changed his mind and
admitted he was at the scene, while denying that Hayes ever
fired. Only after Hayes was arrested and charged in the
shooting—almost three years after it occurred—did Singleton
say that Hayes shot at Rogers. Still, Singleton defended his
friend and said Rogers fired first, with Hayes returning fire
only in self-defense.
Both Hayes and Rogers were charged with Green’s
murder, and each proceeded to trial separately. Hayes went
first, and both Singleton and Summers were called as
witnesses. Singleton’s testimony matched his most recent
statement to police, affirming that Rogers shot first and Hayes
returned fire in self-defense. But Summers changed her story,
now claiming she was looking down when she “heard pops,”
“look[ed] up,” and saw Rogers and Hayes “shooting at each
other.” App. 74. Though Summers acknowledged that she told
police “the person in the Mercedes shot first,” Summers said at
trial she “really d[idn’t] remember” who did so. App. 74.
Hayes was acquitted of all charges.
A week later, Summers and Singleton testified at
Rogers’s trial.1 Consistent with her prior testimony, Summers
said she was “look[ing] down” when the shooting began and
1 Holliday could not be located to testify at trial.

-- 4 of 16 --

5
could not identify which man fired first. App. 215. Singleton’s
testimony, however, took an abrupt turn naming Hayes—not
Rogers—as the first shooter. Without pointing out the reversal,
the prosecutor briefly continued questioning Singleton before
the trial judge ended proceedings early for the day. After
excusing the jury, the judge admonished Singleton for his
inconsistent testimony, saying he committed “[p]erjury on the
record.” App. 187. The judge warned Singleton that if he was
“playing some little game here,” the judge would ensure he
“receive[d] a maximum consecutive sentence” for perjury.
App. 187. Before dismissing Singleton, the judge advised him
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.” App. 187. Rogers’s counsel sat silent, raising no
objections to the judge’s reprimand.
The next day, the prosecutor led Singleton to testify that
his claim that Hayes fired first was incorrect. Singleton
explained he “made a mistake” the day before, chalking the
error up to nervousness.2 App. 190. Rogers’s counsel again
raised no objections. Nor did he cross-examine Singleton about
the changed testimony. At the close of evidence, the trial judge
instructed the jury on both self-defense and unreasonable belief
voluntary manslaughter. Among other charges, Rogers was
convicted of third-degree murder and sentenced to 16 to 32
years in prison.
2 The prosecution later offered a different explanation
for Singleton’s about-face: the presence of “Rogers partisans”
in the courtroom and Singleton’s “desire not to be publicly
perceived as actively assisting the prosecution at Rogers’s
trial.” App. 682.

-- 5 of 16 --

6
Rogers’s convictions were affirmed on direct appeal, so
he sought relief under the Pennsylvania Post-Conviction Relief
Act (“PCRA”). The PCRA court dismissed his petition, but the
Superior Court remanded for an evidentiary hearing.
Following the hearing, the PCRA court again denied relief and
was affirmed on appeal. Rogers then petitioned for a writ of
habeas corpus, lodging two claims of ineffective assistance of
counsel: 1) failing to object to the trial judge’s admonishment
or cross-examine Singleton about his changed testimony, and
2) declining to seek a heat-of-passion voluntary manslaughter
instruction. A Magistrate Judge recommended granting relief
on Rogers’s first claim, finding Rogers carried his burden
under Strickland v. Washington. 466 U.S. 668 (1984). The
District Judge disagreed and denied Rogers’s petition,
concluding the Superior Court’s disposition “should not be
disturbed.” App. 32. Rogers appeals.3
II.
The Supreme Court has explained the Constitution
“envisions counsel[] playing a role that is critical to the ability
3 The District Court had jurisdiction under 28 U.S.C.
§ 2254(a). We have jurisdiction under 28 U.S.C. §§ 1291 and
2253(a). Because the District Court did not conduct an
evidentiary hearing, this Court exercises plenary review over
its denial of Rogers’s petition. Dennis v. Sec’y, Pa. Dep’t of
Corr., 834 F.3d 263, 280 (3d Cir. 2016) (en banc).
On appeal, Pennsylvania declines to defend Rogers’s
conviction, arguing the District Court’s ruling on the first claim
“was in error and should be reversed.” Response Br. 2. This
Court appointed counsel as amicus to defend the District
Court’s decision. We thank amicus for his able briefing and
argument.

-- 6 of 16 --

7
of the adversarial system to produce just results.” Strickland,
466 U.S. at 685. A demand that assures every defendant “the
guiding hand of counsel” with “the skill and knowledge
adequate[] to prepare his defense.” Powell v. Alabama, 287
U.S. 45, 69 (1932).
When a state prisoner’s representation falls below that
standard, a federal court has the power to grant relief. 28 U.S.C.
§ 2254(a). But that authority is cabined by Congress, which
“sets several limits on” our ability to consider petitions. Cullen
v. Pinholster, 563 U.S. 170, 181 (2011). Among them, we must
presume that the state court’s factual findings were correct. 28
U.S.C. § 2254(e)(1). And we must defer to the state court’s
rulings for claims adjudicated on the merits unless they 1) were
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court,” id. § 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,” id. § 2254(d)(2). In short, § 2254
imposes a standard that is “‘difficult to meet.’” Cullen, 563
U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102
(2011)).
Rogers argues that habeas relief is warranted because
his attorney was ineffective for failing to object to the trial
judge’s admonishment of Singleton and for failing to cross-
examine Singleton after he changed his testimony.4 To prevail,
4 At the start, amicus says Rogers’s habeas petition fails
procedurally because he failed to provide his trial transcript to
the Pennsylvania Superior Court for review. Not so. The
Superior Court fully considered the merits of Rogers’s appeal.
And trial records were previously ordered and transcribed.
Under Pennsylvania rules, “the clerk of the lower court must

-- 7 of 16 --

8
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, 466
U.S. at 687–88. Rogers must “make[] both showings” to prove
his conviction “resulted from a breakdown in the adversary
process that renders the result unreliable.” Id. at 687. He
succeeds, and for the reasons below, we will grant relief on this
claim.
A. Deficient Performance
Strickland’s first prong demands proof that “counsel
made errors so serious that [he] was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. A standard requiring “reasonably effective assistance.” Id.
We consult no checklist, as no catalog can “satisfactorily take
[into] account . . . the range of legitimate decisions regarding
how best to represent a criminal defendant.” Id. at 688–89.
That is why our review of counsel’s performance is “highly
deferential,” United States v. McCoy, 410 F.3d 124, 135 (3d
Cir. 2005), for “it is all too easy for a court” to find a certain
act or omission unreasonable after the defense ultimately
proves unsuccessful, Strickland, 466 U.S. at 689; see also
Rolan v. Vaughn, 445 F.3d 671, 681–82 (3d Cir. 2006)
(“[C]ounsel’s strategic choices will not be second-guessed by
post-hoc determinations that a different trial strategy would
have fared better.”).
transmit ‘the record on appeal, including the transcript and
exhibits necessary for the determination of the appeal,’ to the
Superior Court.” Commonwealth v. Almodorar, 20 A.3d 466,
467 (Pa. 2011) (per curiam) (quoting Pa. R.A.P. 1931(a)(1)).

-- 8 of 16 --

9
1. 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.” App. 609. 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. App. 609. We disagree.
First, while counsel did not view the judge’s comments
as “outside the purview of her responsibility,” App. 502,
Pennsylvania courts have warned against such judicial conduct
for decades. See Commonwealth v. Laws, 378 A.2d 812, 816
(Pa. 1977); Commonwealth v. Fornicoia, 650 A.2d 891, 893–
94 (Pa. Super. Ct. 1994). Second, Rogers’s counsel did not
explain why continued reliance on Summers was appropriate
given her equivocation at Hayes’s trial one week prior on the
pivotal question of who shot first. Indeed, counsel could not
remember watching the testimony at Hayes’s trial or reviewing
the trial testimony later. See Gov’t of V.I. v. Vanterpool, 767
F.3d 157, 168 (3d Cir. 2014) (stating the adversarial “testing
process generally will not function properly unless defense
counsel has done some investigation into the prosecution’s
case and into various defense strategies”). So the Superior
Court unreasonably applied Strickland when it found counsel’s
performance adequate, having failed to properly “consider
prevailing professional standards.” Medina v. Diguglielmo,
461 F.3d 417, 429 (3d Cir. 2006). As a result, we afford its
decision no deference.

-- 9 of 16 --

10
2. On de novo review, we conclude that counsel’s
performance was deficient. Counsel’s failure to object to the
trial judge’s admonishment, conduct he “did not think” was
problematic, App. 502, “fell below an objective standard of
reasonableness,” Strickland, 466 U.S. at 688. A conclusion
supported by Pennsylvania decisions finding reversible error in
similar situations. See Laws, 378 A.2d at 816, 818 (granting
new trial when trial judge, after excusing jury, repeatedly
questioned witness about his testimony and warned him of
perjury); Fornicoia, 650 A.2d at 893, 895 (remanding for new
trial after judge recessed the jury, told witness that continuing
to testify the way he did may result in perjury charge, and
warned that “[t]he last time someone committed perjury in my
courtroom I gave them five to ten [years]”).
Indeed, the Pennsylvania Supreme Court has proscribed
questioning from the bench that “clearly convey[s] the
impression that the trial court d[oes] not believe [a witness’]
trial testimony” or puts “pressure [on] a witness to testify in a
particular way.” Laws, 378 A.2d at 816. Meaning Rogers’s
counsel maintained an unreasonable belief that the trial judge’s
threats against Singleton were permissible. See Hinton v.
Alabama, 571 U.S. 263, 274 (2014) (per curiam) (“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.”).5
5 We acknowledge that Rogers’s counsel need not
“have knowledge of all helpful laws in every situation.”
Amicus Br. 51. But counsel has a “duty to investigate” the
applicable law when formulating his strategy, and counsel
could have corrected his mistaken beliefs through basic

-- 10 of 16 --

11
So too with counsel’s later failure to cross-examine
Singleton regarding his changed testimony. Counsel
characterized Singleton as “a liar, trying to help his buddy out,”
App. 500, whose testimony would not be “determinative of the
outcome of this case,” App. 503. Not so. Singleton was the
only witness to ever claim Rogers shot first—the ultimate issue
in the case. And Singleton’s pre-admonishment testimony to
the contrary, which aligned with Summers’s and Holliday’s
original eyewitness statements, would benefit the defense by
casting doubt on Singleton’s earlier implication of Rogers. See
Workman v. Superintendent Albion SCI, 915 F.3d 928, 942 (3d
Cir. 2019) (finding counsel’s performance deficient when he,
among other failures, neglected to “adapt his argument to the
testimony in evidence”).
The significance of Singleton’s testimony increased
when Summers—the only other eyewitness at trial—
disclaimed seeing who shot first. A key retreat for which
Rogers’s counsel should have been prepared, given Summers’s
equivocation the week prior at Hayes’s trial. See Wiggins v.
Smith, 539 U.S. 510, 526 (2003) (finding counsel’s conduct
unreasonable for failing to investigate client’s background due
to “inattention, not reasoned strategic judgment”). Rather than
gamble the defense on Summers, a reasonable defense attorney
would, at the very least, cross-examine the prosecution’s
central witness regarding why he changed his initially
favorable testimony. See Berryman v. Morton, 100 F.3d 1089,
1098–99 (3d Cir. 1996) (finding counsel’s failure to cross-
examine victim using inconsistent statements deficient when
the reliability of the victim’s identification “cut[] directly to the
research. Gov’t of V.I. v. Weatherwax, 77 F.3d 1425, 1431 (3d
Cir. 1996).

-- 11 of 16 --

12
heart of the only evidence against [defendant]”). Failing to do
so was unreasonable “under prevailing professional norms.”
Strickland, 466 U.S. at 688.
B. Prejudice
We cannot set aside the judgment against Rogers
without finding prejudice, “that counsel’s errors were so
serious as to deprive [him] of a fair trial, a trial whose result is
reliable.” Id. at 687. Simply “show[ing] that the errors had
some conceivable effect on the outcome of the proceeding” is
not enough, as “[v]irtually every act or omission of counsel
would meet that test.” Id. at 693. So our constitutional standard
demands “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. In conducting that inquiry, we
“consider the strength of the evidence” against Rogers, Buehl
v. Vaughn, 166 F.3d 163, 172 (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,” Strickland, 466 U.S. at 696.
The Superior Court found Rogers had not shown “that
but for the act or omission in question, the outcome of the
proceedings would have been different.” App. 610 (emphasis
added) (quoting Commonwealth v. Washington, 927 A.2d 586,
594 (Pa. 2007)). And in doing so, it found insufficient Rogers’s
argument that if the jury believed Singleton’s pre-
admonishment testimony, “there was a reasonable probability
[of] a different outcome.” App. 610. An argument, the court
said, that “falls far short” of proving “that but for trial counsel’s
failure to object and place the [trial judge’s] admonishment in
front of the jury, the outcome would have been different.” App.
610.

-- 12 of 16 --

13
That decision was “contrary to . . . clearly established
Federal law, as determined by the Supreme Court.” 28 U.S.C.
§ 2254(d)(1). The Superior Court held Rogers to a higher
standard than what Strickland requires, which is only “a
reasonable probability that . . . the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694
(emphasis added). In applying an outcome determinative
standard, the Superior Court imposed a burden “‘diametrically
different,’ ‘opposite in character or nature,’ and ‘mutually
opposed’ to [the Supreme Court’s] clearly established
precedent” in Strickland. Williams v. Taylor, 529 U.S. 362,
405–06 (2000) (citation omitted) (declaring as contrary to
Strickland a state court’s rejection of a prisoner’s ineffective
assistance claim “on the grounds that the prisoner had not
established by a preponderance of the evidence that the result
of his criminal proceeding would have been different”). See
also Hummel v. Rosemeyer, 564 F.3d 290, 304–05 (3d Cir.
2009) (holding as contrary to federal law the state court’s “use
of the more stringent requirement of ‘show’” instead of the
“reasonable probability” standard). So we accord the Superior
Court’s determination no deference.6
6 Amicus concedes that, “[a]t first glance, [the] Superior
Court appears to have contradicted Strickland’s reasonable-
probability standard to assess prejudice.” Amicus Br. 56. But
he asks us to give “the Superior Court [the] benefit of the
doubt” because it “adopted the PCRA court’s decision and its
factual findings,” including the correct Strickland standard.
Amicus Br. 56–57. We decline that invitation because the
Superior Court quoted only the evidence on which the PCRA
court relied, not the prejudice standard it applied. And the
Superior Court was clear that it rejected Rogers’s prejudice

-- 13 of 16 --

14
Analyzing the prejudice claim de novo, we conclude
that Rogers has carried his burden. Had Rogers’s counsel
objected to the trial judge’s admonishment of Singleton and
cross-examined Singleton about his changed testimony, “a
reasonable probability” exists that “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. Had
the jury learned of the admonishment, it might have concluded
that the trial judge’s threats of perjury persuaded Singleton to
change course. A logical inference under the circumstances,
considering that Hayes had been acquitted for the murder and
Singleton admitted that his “initial purpose” in cooperating
with authorities “was to help [Hayes], to make a statement for
[Hayes].” App. 197. Or the jury might have discredited
Singleton’s testimony altogether, undermining a key part of the
prosecution’s case against Rogers. Either way, counsel’s
failures surrounding the admonishment are “sufficient to
undermine confidence in the outcome” of the trial. Strickland,
466 U.S. at 694.
And without Singleton’s testimony against Rogers, the
prosecution’s remaining evidence was negligible. Contrary to
the Superior Court’s conclusion, no witnesses testified that
Rogers “continued to fire” at Hayes’s vehicle after it sped
away. App. 610. In fact, Summers affirmed that when Hayes’s
“vehicle t[ook] off,” “someone on the other side of the street
started firing at” it. App. 215 (emphasis added). On that point,
Singleton’s testimony was not inconsistent. Like Summers,
Singleton never claimed that Rogers fired at Hayes’s vehicle
after it fled, instead stating that he heard gunshots but “couldn’t
argument for failing to meet its outcome determinative
standard.

-- 14 of 16 --

15
really tell” where they originated. App. 184 (“[L]ike I told you,
we had our heads down, driving up the street, at a fast speed.”).
Nor did ballistics undermine their accounts. The
prosecution’s expert testified that casings from Hayes’s gun
were discovered a “great [] distance” (25 feet) apart, signaling
that Hayes kept firing his gun after he started driving away.
App. 246. Casing patterns from Rogers’s gun similarly
suggested movement, but in Rogers’s case, pointed to him
backing away from Hayes’s car as he fired. All of which
accords with, or at least fails to contradict, Rogers’s claim that
he shot at Hayes only in self-defense.
As does the expert’s analysis of the bullet that killed
Green. During trial, the expert opined only that the bullet was
deformed and had glass attached to it, indicating that the bullet
passed through or struck a glass object. But the expert never
specified the exact angle at which the bullet struck glass or
which glass the bullet struck, whether on Hayes’s vehicle or
elsewhere. Nor did any other evidence show that Hayes’s
vehicle was struck from behind. Facts consistent, or at least not
inconsistent, with Rogers’s self-defense argument. All
showing the verdict against Rogers was “only weakly
supported by the record,” Strickland, 466 U.S. at 696, such that
we are persuaded “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different,” id. at 694.7
7 Because we grant relief on this claim, we need not
address Rogers’s alternate argument about counsel’s failure to
request a heat-of-passion voluntary manslaughter instruction.
See Monachelli v. Warden, SCI Graterford, 884 F.2d 749, 755
n.5 (3d Cir. 1989).

-- 15 of 16 --

16
III.
For these reasons, we will reverse the District Court’s
order denying habeas relief and remand the case for
proceedings consistent with this opinion.

-- 16 of 16 --