Petition for Writ of Certiorari — William Glenn Rogers, Petitioner v. Zac Pounds, Warden

Supreme Court briefNov 2, 2023

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***CAPITAL CASE***

No.

IN THE

Supreme Court of the United States

________________

WILLIAM GLENN ROGERS,

Petitioner,

ZACH POUNDS, WARDEN,

________________

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

_______________

KELLEY J. HENRY*

Supervisory Asst. Federal Public

Defender

ASHLEY WEST THOMPSON

Research & Writing Attorney

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax:

(615) 736-5265

Email: kelley_henry@fd.org

KIMBERLY S. HODDE*

HODDE & ASSOCIATES

40 Music Square East

Nashville, TN 37203

Phone: (615) 242-4200

*Counsel for Petitioner

TABLE OF APPENDICES

Page

APPENDIX A: Rogers v. Mays, 69 F.4th 381 (6th Cir. 2023)....................A-001

APPENDIX B: Rogers v. Mays, 43 F.4th 530 (6th Cir. 2022)....................A-026

APPENDIX C: Rogers v. Westbrooks, No. 3:13-cv-00141, 2019 WL 1331035

(M.D. Tenn. Mar. 25, 2019).........................................................................A-059

APPENDIX D: Rogers v. State, No. M2010-01987-CCA-R3-PC, 2012 WL

3776675 (Tenn. Crim. App. Aug. 30, 2012) ................................................A-164

APPENDIX E: State v. Rogers, 188 S.W.3d 593 (Tenn. 2006) .................A-209

APPENDIX F: E. Kafarowski, A.M. Lyon, and M.M. Sloan: The Retention and

Transfer of Spermatozoa in Clothing by Machine Washing (1996) ..........A-241

Rogers v. Mays, 69 F.4th 381 (2023)

A-001

69 F.4th 381

United States Court of Appeals, Sixth Circuit.

[5] determination that exclusion of victim's brother's

comment that he had had sex with victim at least five years

before she disappeared did not violate petitioner's due process

rights was reasonable;

William Glenn ROGERS, Petitioner-Appellant,

Tony MAYS, Warden, Respondent-Appellee.

[6] counsel's alleged ineffectiveness in failing to develop

mitigating evidence did not excuse procedural default;

No. 19-5427

Argued En Banc: March 8, 2023

Decided and Filed: June 5, 2023

Synopsis

Background: After affirmance of his convictions for

kidnapping, rape, and first degree murder and of his death

sentence, 188 S.W.3d 593, petitioner sought federal writ of

habeas corpus. United States District Court for the Middle

District of Tennessee, Waverly D. Crenshaw, Jr., Chief

Judge,

APPENDIX A

[7] counsel's alleged ineffectiveness in failing to develop

evidence that victim's brother was source of sperm in her

shorts did not excuse procedural default;

[8] petitioner's claim that counsel was ineffective for

presenting expert testimony that he would not be danger in

prison was not substantial, and thus did not excuse procedural

default; and

[9] counsel's alleged ineffectiveness in failing to contest

venue and juror bias in his motion for new trial did not excuse

procedural default.

2019 WL 1331035, denied petition, and petitioner

43 F.4th 530, affirmed

appealed. The Court of Appeals,

in part, reversed in part, vacated in part, and remanded.

Rehearing en banc was granted.

Affirmed.

Mathis, Circuit Judge, concurred in part, dissented in part, and

filed opinion.

Holdings: The Court of Appeals, Thapar, Circuit Judge, held

that:

Moore, Circuit Judge, dissented and filed opinion in which

Clay and Stranch, Circuit Judges, joined and Mathis, Circuit

Judge, joined in part.

[1] state court adjudicated on merits petitioner's claim

that counsel was ineffective for failing to investigate and

challenge sperm evidence;

Procedural Posture(s): Appellate Review; Post-Conviction

Review.

[2] determination that petitioner was not denied effective

assistance due to counsel's failure to investigate and challenge

West Headnotes (21)

sperm evidence was not contrary to

[1]

Strickland;

Purpose and Use of Writ

Habeas is extraordinary remedy, reserved for

only extreme malfunctions in state criminal

justice system.

[3] determination that petitioner was not denied effective

assistance due to counsel's failure to investigate and

challenge sperm evidence was not unreasonable application

Habeas Corpus

Strickland;

[4] determination that there was sufficient evidence to support

petitioner's convictions was not contrary to, or unreasonable

application of, clearly established federal law;

[2]

Habeas Corpus

Presumptive accuracy of

state determination, and rebuttal of presumption

Federal habeas courts presume that every claim

presented to state court has been adjudicated

on merits, and to rebut that presumption,

Rogers v. Mays, 69 F.4th 381 (2023)

[3]

A-002

petitioner must show very clearly that state court

overlooked his claim.

Supreme Court or (2) confronts case with

materially identical facts to Supreme Court

2 Cases that cite this headnote

decision and decides case differently.

U.S.C.A. § 2254(d).

Habeas Corpus

1 Case that cites this headnote

Counsel

State court adjudicated on merits petitioner's

claim that his trial counsel was ineffective

in his capital murder trial for failing to

investigate and challenge sperm evidence found

in crotch of victim's shorts, and thus state

court's ruling was subject to deference on federal

habeas review; in his state post-conviction

petition, petitioner claimed that counsel failed

to adequately investigate and challenge rape

evidence, state post-conviction court concluded

that trial counsel performed deficiently but

that petitioner had not suffered prejudice, and

petitioner listed it as adjudicated claim in his

federal habeas petition. U.S. Const. Amend. 6;

[6]

28 U.S.C.A. § 2254(d)(1).

[7]

federal law in

Strickland, and thus did

not warrant federal habeas relief; state court

Strickland did not involve materially identical

or even similar facts. U.S. Const. Amend. 6;

could accept.

[8]

Federal or constitutional

State-court decision is “contrary to” clearly

established federal law, as may warrant federal

habeas relief, only if it (1) applies rule

that directly conflicts with rule prescribed by

28 U.S.C.A. § 2254(d)(1).

2 Cases that cite this headnote

28 U.S.C.A. § 2254(d).

Habeas Corpus

questions

Habeas Corpus

Federal Review of State

or Territorial Cases

State-court decision “unreasonably applies”

clearly established federal law, thus warranting

federal habeas relief, only if it applies Supreme

Court precedent in way that no fair-minded judge

accurately quoted

Strickland’s rules at length

as it recited ineffective-assistance standard, and

[5]

Habeas Corpus

Evidence; procurement,

presentation, and objection

Strickland, and thus did not warrant federal

habeas relief; government scientist concluded

that semen was present on at least three samples

and labeled fourth sample inconclusive, another

forensic scientist testified that she could not

obtain DNA profile from samples, evidence did

not support petitioner's theory that sperm ended

up in shorts in washing machine, and jury already

knew that testing did not conclusively show that

sperm came from petitioner and that he had

admitted killing victim. U.S. Const. Amend. 6;

Evidence; procurement,

Habeas Corpus

presentation, and objection

State court's determination that petitioner was

not denied effective assistance of counsel

during his capital murder trial due to trial

counsel's failure to investigate and challenge

sperm evidence found in crotch of victim's

shorts was not contrary to clearly established

State court's determination that petitioner was

not denied effective assistance of counsel during

his capital murder trial due to counsel's failure to

investigate and challenge sperm evidence found

in crotch of victim's shorts was not unreasonable

application of clearly established federal law in

28 U.S.C.A. § 2254(d).

[4]

APPENDIX A

Criminal Law

Prejudice in general

Benchmark for ineffective assistance claim is

whether counsel's actions so undermined trial

that it could not have produced just result. U.S.

Const. Amend. 6.

Rogers v. Mays, 69 F.4th 381 (2023)

[9]

Criminal Law

A-003

Prejudice in general

Strickland’s prejudice component requires

defendant to show reasonable probability that

trial would have gone differently but for

counsel's errors; reasonable probability is

probability sufficient to undermine confidence in

outcome. U.S. Const. Amend. 6.

[10]

[13]

Reasonable doubt

Habeas Corpus

problems

federal law in

Jackson v. Virginia, and thus

did not warrant federal habeas relief, even though

court did not discuss penetration; there was

sperm in victim's shorts, petitioner was last

person to see her alive, which would allow jury

to infer that he was source of sperm, and her shirt

was inside out, which jury could have reasonably

inferred was because petitioner pulled it off.

28 U.S.C.A. § 2254(d)(1);

Ann. § 39-13-522(a).

Constitutional Law

general

[14]

28 U.S.C.A. § 2254(d)(1).

Habeas Corpus

general

Cause and prejudice in

Federal habeas court may excuse petitioner's

procedural default of claim when he shows cause

and prejudice.

1 Case that cites this headnote

[15]

Habeas Corpus

Cause or Excuse

To demonstrate cause for procedural default,

habeas petitioner must show that some objective

factor external to defense impeded counsel's

efforts to comply with state's procedural rule.

Tenn. Code

1 Case that cites this headnote

[12]

14;

Particular issues and

State court's determination that there was

sufficient evidence to support petitioner's

convictions for child rape and felony murder

in perpetration of rape was not contrary to, or

unreasonable application of, clearly established

Exclusion of evidence

clearly established federal law in

Chambers

v. Mississippi, 93 S.Ct. 1038, and thus did not

warrant federal habeas relief; brother had history

of mental health issues, he would have been, at

most seven years old, and victim three years old

at time of alleged sex, evidence would not have

established petitioner's innocence, and petitioner

declined to ask brother whether he had had sex

with victim more recently. U.S. Const. Amend.

Sufficient evidence supports conviction if,

viewing evidence in light most favorable to

prosecution, any rational trier of fact could

have found essential elements of crime beyond

reasonable doubt.

[11]

Habeas Corpus

State court's determination that trial court's

exclusion of victim's brother's comment that he

had had sex with victim at least five years before

she disappeared did not violate petitioner's due

process rights in his prosecution for child rape

and felony murder in perpetration of rape was

not contrary to, or unreasonable application of,

Criminal Law

Construction in favor of

government, state, or prosecution

Criminal Law

APPENDIX A

Admissibility in

Multiple erroneous evidentiary rulings excluding

reliable, direct evidence of actual innocence in

criminal case can, in combination, violate due

process. U.S. Const. Amend. 14.

[16]

Habeas Corpus

counsel

Ineffectiveness or want of

Ineffective assistance of post-conviction counsel

can qualify as objective factor to excuse

habeas petitioner's procedural default of claim

of ineffective assistance at trial when: (1) state

either prohibits or makes it virtually impossible

to raise ineffective-assistance-of-trial-counsel

claims on direct appeal; (2) petitioner received

ineffective assistance of counsel in initial state

Rogers v. Mays, 69 F.4th 381 (2023)

post-conviction proceedings; and (3) petitioner

has substantial claim that counsel rendered

ineffective assistance at trial. U.S. Const.

Amend. 6.

[17]

A-004

[20]

Habeas Corpus

Availability of Remedy

Despite Procedural Default or Want of

Exhaustion

Habeas Corpus

counsel

Ineffectiveness or want of

Counsel's alleged ineffectiveness during

sentencing phase of capital murder trial

in failing to develop mitigating evidence

about habeas petitioner's personal background,

difficult childhood, and possible brain damage

did not excuse petitioner's procedural default

in failing to raise claim during his initial state

post-conviction proceeding, where there was

no proposed mitigation evidence in state court

record. U.S. Const. Amend. 6;

28 U.S.C.A. §

2254(d); Tenn. Code Ann. § 40-30-106(g).

[19]

Habeas Corpus

counsel

Ineffectiveness or want of

Counsel's alleged ineffectiveness in habeas

petitioner's prosecution for child rape and felony

murder in perpetration of rape in failing to

develop evidence that victim's brother was

source of sperm in her shorts did not excuse

petitioner's procedural default in failing to raise

claim during his initial state post-conviction

proceeding; evidence in state court record

indicated that they allegedly had sex several

years before victim's disappearance. U.S. Const.

Amend. 6;

28 U.S.C.A. § 2254(d); Tenn.

Code Ann. § 40-30-106(g).

Habeas Corpus

counsel

Ineffectiveness or want of

Habeas petitioner's claim that trial counsel

was ineffective in his capital murder trial for

presenting expert testimony that he would not be

danger in prison was not substantial, and thus

did not excuse procedural default in failing to

raise claim during his initial state post-conviction

proceeding, even though expert admitted on

cross that petitioner had escaped before from

prison and would pose “significant risk” to

community if he escaped again; testimony that

petitioner would not be danger in prison was

important piece of defense's case that jury

should spare his life. U.S. Const. Amend. 6;

Generally, petitioners may not rely on new

evidence introduced in federal court to overcome

procedural default of claim raised in federal

habeas petition.

[18]

APPENDIX A

28 U.S.C.A. § 2254(d); Tenn. Code Ann. §

40-30-106(g).

[21]

Habeas Corpus

counsel

Ineffectiveness or want of

Counsel's alleged ineffectiveness in failing to

contest venue and juror bias in his motion

for new trial in capital murder prosecution did

not excuse petitioner's procedural default in

failing to raise claim during his initial state

post-conviction proceeding, absent evidence in

state-court record supporting claim. U.S. Const.

Amend. 6;

28 U.S.C.A. § 2254(d); Tenn.

Code Ann. § 40-30-106(g).

*385 On Petition for Rehearing En Banc, United States

District Court for the Middle District of Tennessee at

Nashville. No. 3:13-cv-00141—Waverly D. Crenshaw, Jr.,

Chief District Judge.

Attorneys and Law Firms

ARGUED EN BANC: Kelley J. Henry, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for

Appellant. J. Matthew Rice, OFFICE OF THE TENNESSEE

ATTORNEY GENERAL, Nashville, Tennessee, for

Appellee. ON SUPPLEMENTAL BRIEF: Kelley J. Henry,

OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Nashville, Tennessee, Kimberly S. Hodde, HODDE &

Rogers v. Mays, 69 F.4th 381 (2023)

A-005

ASSOCIATES, Nashville, Tennessee, David R. Esquivel,

Angel Lasley, BASS, BERRY & SIMS PLC, Nashville,

Tennessee, for Appellant. J. Matthew Rice, Richard D.

Douglas, OFFICE OF THE TENNESSEE ATTORNEY

GENERAL, Nashville, Tennessee, for Appellee. ON

AMICUS BRIEF: Michael R. Wajda, OFFICE OF

THE KENTUCKY ATTORNEY GENERAL, Frankfort,

Kentucky, for Amicus Curiae.

Before: SUTTON, Chief Judge; MOORE, CLAY,

GIBBONS, GRIFFIN, KETHLEDGE, STRANCH,

THAPAR, BUSH, LARSEN, NALBANDIAN, READLER,

MURPHY, DAVIS, and MATHIS, Circuit Judges.

THAPAR, J., delivered the opinion of the court in

which SUTTON, C.J., GIBBONS, GRIFFIN, KETHLEDGE,

BUSH, LARSEN, NALBANDIAN, READLER, MURPHY

and DAVIS, JJ., joined, and MATHIS, J., joined in part.

MATHIS, J. (p. 399), delivered a separate opinion concurring

in part and dissenting in part. MOORE, J. (pp. 399–410),

delivered a separate dissenting opinion in which CLAY and

STRANCH, JJ., joined, and MATHIS, J. joined in part.

OPINION

THAPAR, Circuit Judge.

In 1996, nine-year-old Jacqueline Beard left her mother's

watchful gaze to pick blackberries. William Glenn Rogers

made sure she never returned. After stalking Jackie for days,

he kidnapped, raped, and murdered her. Then he disposed of

her body in the woods, where hunters found her remains four

months later.

At trial, a jury found Rogers guilty and sentenced him to

death. Since then, Rogers has spent more than two decades

challenging his conviction and sentence. In a thoughtful and

exhaustive opinion, Chief Judge Waverly Crenshaw denied

Rogers's federal habeas petition. We affirm.

*386 I.

Jackie was a “friendly, happy, and well-liked child.” Rogers

v. State, 2012 WL 3776675, at *9 (Tenn. Crim. App. Aug.

30, 2012) (quoting State v. Rogers, 2004 WL 1462649, at *10

APPENDIX A

(Tenn. Crim. App. June 30, 2004)). Even though she was just

nine years old, she played three instruments: guitar, organ, and

drums. And she put her musical talents to good use—every

year, she sang a solo in church.

But that all changed on July 3, 1996. Jackie, her brother,

and a friend were playing at a local mudhole when Rogers

approached. From the beginning, Rogers preyed on the

children's innocence. To earn the children's trust, he claimed

to be an undercover police officer and offered to take them

swimming. He also told the children that he would bring

them fireworks. But the children did not go with him. Instead,

Jackie ran home to get her mom.

In the meantime, Rogers made good on his promise

by bringing fireworks to the children at the mudhole.

When Jackie returned with her mom, Rogers continued

to impersonate an undercover police officer. During their

conversation, Rogers warned Jackie's mom about all the

“sickos in the world.” Id. at *1. But Jackie's mom rejected

Rogers's offer to take the children swimming and brought the

children home.

Unfortunately, that was not the last time that Jackie saw

Rogers. Only a few days later, Rogers showed up at Jackie's

home, claiming to be looking for lost keys. After a brief

discussion, Jackie's mom sent Rogers away. But Rogers

would not be deterred.

That afternoon, Jackie went outside to pick berries. Her mom

told her to be back in fifteen minutes. When fifteen minutes

passed, her mom went outside to get her, but Jackie was

nowhere to be found. That led Jackie's mom to organize a

small search party to look for her missing daughter. Sadly, the

group did not find Jackie either. So Jackie's mom called 911

to report her daughter missing.

Rogers arrived at his house later that evening. According to

his wife, Rogers's shirt had blood on it. His pants were also

streaked with mud, as if he had tried to wipe them off. Later,

when Rogers's wife got in their car, she saw small fingerprints

dragging down the passenger-side windshield.

The police investigation immediately focused on Rogers.

Eventually, Rogers confessed to vehicular homicide. In a

series of inconsistent statements, Rogers claimed that he

accidentally ran over Jackie, drove to a bridge, and tossed

her body into the river below. But that turned out to be a lie.

Jackie's body did not end up in the river.

Rogers v. Mays, 69 F.4th 381 (2023)

A-006

Four months after Jackie disappeared, hunters discovered her

remains in a park. It happened to be the same park Rogers

visited with his wife just days before Jackie went missing. On

their way home, Rogers and his wife stopped for a picnic, and

Rogers told his wife that he had just discovered an area so

remote “you could bury a body back here and nobody would

ever find it.” Id. at *2.

Along with Jackie's remains, the police found some of her

clothes, including her shorts and an inside-out shirt. In the

crotch of Jackie's shorts, investigators identified what turned

out to be sperm, but they could not obtain a DNA profile from

it.

APPENDIX A

if allowed back into society. Rogers, 2012 WL 3776675, at

*15 (quoting Rogers, 2004 WL 1462649, at *15).

Ultimately, the jury sentenced Rogers to death. The jury found

four aggravating factors beyond a reasonable doubt:

1. Jackie was under twelve years old when she was killed,

and Rogers was over eighteen;

2. Rogers had previously been convicted of one or more

violent felonies;

3. Rogers killed Jackie to avoid, interfere with, or prevent

his arrest; and

4. Rogers knowingly killed Jackie while he had a

substantial role in committing or attempting to commit

a rape or kidnapping.

The State of Tennessee charged Rogers with multiple crimes,

including first-degree murder. A jury convicted him on all

*387 counts, and the case proceeded to the penalty phase.

State v. Rogers, 188 S.W.3d 593, 601 (Tenn. 2006).

Tenn. Code Ann. § 39-13-204(i)(1)–(2), (6)–(7).

See

Weighing those factors against Rogers's mitigating evidence,

During the penalty phase, Tennessee introduced evidence

of Rogers's prior convictions for two counts of aggravated

assault. And Jackie's family members told the court how

Jackie's murder had devastated their family. Wracked by

nightmares and guilt, Jackie's mom could not sleep. She

lost her job. Jackie's brothers—Joshua and Jeremy—were in

pain too. Jeremy was hospitalized for post-traumatic stress

disorder and placed in juvenile homes.

After losing his appeals, Rogers filed for state post-conviction

relief. But the Tennessee trial and appellate courts rejected

all of his claims. Rogers, 2012 WL 3776675, at *32, *60.

Rogers then petitioned for a federal writ of habeas corpus,

Next, Rogers presented mitigation evidence about his difficult

and abusive upbringing. Rogers's stepfather beat him—in at

least one instance, he used a baseball bat. He also rubbed

Rogers's face in urine and excrement when Rogers wet the bed

or soiled his pants. When Rogers tried to run away, his mother

and stepfather chained him to his bed. They also prevented

Rogers from seeing his biological father and deprived Rogers

of food. In addition, Rogers claimed that several adults,

including his stepfather's brother, sexually abused him.

Id. at *118; Rogers v. Mays, 814 F. App'x 984,

expanded.

988 (6th Cir. 2020) (order). Relevant here, that same panel

then granted habeas relief on one ineffective-assistance-of-

Seeking to avoid the death penalty, Rogers also presented

psychological and psychiatric evidence. One of his expert

witnesses, Dr. Mark Cunningham, testified that a lengthy

sentence would likely prevent Rogers from committing any

more violence. On cross, though, he admitted that Rogers had

escaped before from prison and would be a “significant risk”

the jury imposed the death penalty. See

(1).

id. § 39-13-204(g)

which Chief Judge Waverly Crenshaw denied.

Rogers

v. Westbrooks, 2019 WL 1331035, at *117 (M.D. Tenn.

Mar. 25, 2019). Nonetheless, Chief Judge Crenshaw granted

a certificate of appealability, which a panel of this court

counsel claim and reversed and remanded another. Rogers

v. Mays, 43 F.4th 530, 567–68 (6th Cir. 2022). Judge

Helene White dissented in part.

Id. at 568–69 (White,

J., concurring in part and dissenting in part). We granted

rehearing en banc. Rogers v. Mays, 54 F.4th 443 (6th Cir.

2022) (order).

II.

[1] Federal habeas review “intrudes on state sovereignty

to a degree matched by few exercises of federal judicial

Rogers v. Mays, 69 F.4th 381 (2023)

A-007

authority.”

Harrington v. Richter, 562 U.S. 86, 103, 131

S.Ct. 770, 178 L.Ed.2d 624 (2011) (citation omitted). As

a result, habeas is “an extraordinary remedy, reserved for

only *388 extreme malfunctions in the state criminal justice

Brown v. Davenport, ––– U.S. ––––, 142 S. Ct.

system.”

1510, 1524, 212 L.Ed.2d 463 (2022) (cleaned up).

To receive relief, habeas petitioners must clear several

hurdles, two of which are relevant here: the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA) and the

procedural-default doctrine. We begin with the claims that fail

under AEDPA.

Rogers first claims that his trial counsel was ineffective for

failing to investigate and challenge the sperm evidence found

in the crotch of Jackie's shorts.

Before the state court, Rogers had to show that counsel

performed deficiently and that he suffered prejudice as a

Strickland v. Washington, 466 U.S. 668, 687, 104

result.

S.Ct. 2052, 80 L.Ed.2d 674 (1984). But before this court, he

must clear a higher bar if the claim “was adjudicated on the

merits in State court proceedings.”

28 U.S.C. § 2254(d).

So to determine the proper standard of review, we must first

decide whether the state court adjudicated this claim on the

merits.

[2] Federal courts presume that every claim presented to a

state court has been adjudicated on the merits.

Richter,

562 U.S. at 99, 131 S.Ct. 770. To rebut that presumption,

the petitioner must show “very clearly” that the state court

overlooked his claim.

Johnson v. Williams, 568 U.S. 289,

303, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013). Rogers has not

done that. Instead, he litigated this case all along as if the state

court had adjudicated this claim.

First, in his state post-conviction petition, Rogers claimed

that counsel failed to adequately investigate and challenge the

rape evidence. He noted that expert testimony about sperm in

Jackie's shorts affected both his convictions in the guilt phase

APPENDIX A

and “the finding of the felony murder/rape aggravator in the

penalty phase.” R. 26-14, Pg. ID 9764. In other words, Rogers

presented one ineffective-assistance claim that applied to both

of the jury's decisions: first, to convict Rogers, and second, to

impose the death penalty.

[3] Indeed, that is exactly how the Tennessee Court of

Criminal Appeals adjudicated this claim. It concluded that

trial counsel performed deficiently but that Rogers had not

suffered prejudice because he had not “established that

the jury's verdicts [we]re unreliable.” Rogers, 2012 WL

3776675, at *47. By using the word “verdicts,” the court

was referring to the jury's guilt and penalty determinations.

But even assuming one could read the state court's opinion

differently, our conclusion would not change. Why? Because

under

Richter and

Johnson we presume Rogers's claim

has been adjudicated on the merits unless the state-court

decision “very clearly” overlooked Rogers's penalty-phase

claim.

Johnson, 568 U.S. at 303, 133 S.Ct. 1088; see

Richter, 562 U.S. at 99, 131 S.Ct. 770. And Rogers

certainly has not overcome that strong presumption.

Instead, even on federal habeas review, Rogers has continued

to concede that the state court adjudicated this claim. First, in

his federal habeas petition, he listed it as an adjudicated claim.

Then, in both his original and supplemental briefs before our

court, he admitted that “the state court addressed this claim

on the merits.” Appellant Br. 142; see Appellant Supp. Reply

Br. 1 (“The parties agree that it is reasonable to conclude that

the state court resolved the issue.”).

The dissent sees it differently. It claims that the state court

did not address the *389 sentencing portion of Rogers's

ineffective-assistance claim. But the dissent does not give the

state court due respect under AEDPA. Nor does it accord

with the Supreme Court's instruction that litigants, not judges,

know their cases best.

Johnson, 568 U.S. at 306, 133

S.Ct. 1088. If a habeas petitioner believes a state court

overlooked his claim, he should move for reconsideration

on those grounds. Otherwise, federal courts should treat it

as adjudicated. See

id. (stating that the petitioner “knows

her case better than anyone else, and the fact that she does

not appear to have thought that there was an oversight

makes such a mistake most improbable”). Like the petitioner

Johnson, Rogers neither moved the state court for

reconsideration nor argued in subsequent proceedings that the

state court had overlooked the claim.

Rogers v. Mays, 69 F.4th 381 (2023)

A-008

Thus, Rogers's claim was “adjudicated on the merits.”

U.S.C. § 2254(d).

APPENDIX A

state courts get to apply it.

Because Rogers's claim was adjudicated on the merits,

AEDPA permits relief only if the state court's decision (1)

“was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court” or (2) “was based on an unreasonable determination

of the facts.” Id. Rogers argues both legal and factual error.

We address each argument in turn.

Contrary to, or Unreasonable Application of, Clearly

Established Federal Law. Rogers argues that the state court's

decision was both “contrary to” and an “unreasonable

application of” clearly established law from the Supreme

Court. Id. § 2254(d)(1). He is mistaken on both counts.

[4]

Id. at 101, 131 S.Ct. 770

(quoting

Yarborough v. Alvarado, 541 U.S. 652, 664,

124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). And when we

apply the highly deferential AEDPA standard to the already

deferential

Strickland standard, we give the state-court

decision double deference.

Cullen v. Pinholster, 563 U.S.

170, 190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). Under that

doubly deferential standard, the state-court decision passes

muster.

[8]

[9] The “benchmark” for an ineffective-assistance

claim is whether counsel's actions “so undermined” the

trial that it *390 could not have produced a just result.

Strickland, 466 U.S. at 686, 104 S.Ct. 2052. So

Strickland’s prejudice component requires the petitioner to

show a reasonable probability that the trial would have gone

differently but for counsel's errors.

Id. at 694, 104 S.Ct.

2052. “A reasonable probability is a probability sufficient to

[5] First, the state court's decision was not contrary to undermine confidence in the outcome.”

Strickland. A state-court decision is “contrary to” clearly

established federal law only if it (1) applies a rule that directly

conflicts with a rule prescribed by the Supreme Court or (2)

confronts a case with materially identical facts to a Supreme

Court decision and decides the case differently.

Williams

v. Taylor, 529 U.S. 362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d

389 (2000) (O'Connor, J., delivering the opinion of the Court

in relevant part) (

Terry Williams). But the state court did

neither here. The state court accurately quoted Strickland’s

rules at length as it recited the ineffective-assistance standard.

Rogers, 2012 WL 3776675, at *32–34. And

Strickland

did not involve materially identical or even similar facts.

That case did not involve a failure to investigate forensic

evidence of rape—in fact, it was not a rape case at all. See

Strickland, 466 U.S. at 671–72, 675–76, 104 S.Ct. 2052.

Id.

Here, the state court faithfully applied the

Strickland

prejudice standard. The court carefully recounted the

evidence presented at trial along with the evidence Rogers

claimed should have been presented and concluded that the

new evidence would not have made a difference. Rogers,

2012 WL 3776675, at *44–47.

First, the court considered the testimony of Mark Squibb, a

government scientist who tested Jackie's shorts for semen.

Squibb performed an acid phosphatase test, which returned

positive results in four areas, indicating “semen stains or

possible semen stains.” R. 25-8, Pg. ID 4560. Next, he cut

a sample from each of those four areas for confirmatory

tests. Those confirmatory tests came back positive on three

samples. Thus, Squibb concluded that semen was present on

at least three samples and labeled the fourth inconclusive.

[7] Second, the state court did not unreasonably apply During the trial, the jury also heard the limitations of

this evidence. For example, Squibb thought the semen was

Strickland. See

28 U.S.C. § 2254(d)(1). A state-court

human, but he was not certain. Likewise, Meghan Clement,

decision satisfies this standard only if it applies Supreme

another forensic scientist, testified at trial that she could not

Court precedent in a way that no fair-minded judge could

obtain a DNA profile from the samples cut out of Jackie's

shorts. She offered four explanations: (1) the DNA had

accept.

Richter, 562 U.S. at 102–03, 131 S.Ct. 770. This

degraded over time, (2) there was not enough DNA, (3) there

inquiry turns in part on how general the clearly established

[6]

federal rule is. “The more general the rule, the more leeway”

Rogers v. Mays, 69 F.4th 381 (2023)

A-009

was more than one person's DNA, or (4) something like dirt

had contaminated the DNA.

At the post-conviction proceeding, Clement gave more

information about her unsuccessful DNA testing. And both

Squibb and Clement testified in more detail about how to

interpret the results of an acid phosphatase semen test. Squibb

clarified that he obtained “weak positive” results from the

acid phosphatase tests on Jackie's shorts. Rogers, 2012 WL

3776675, at *46 (quotation marks omitted); R. 26-10, Pg. ID

8362. Plus, Squibb tested the samples for P30—an antigen

found only in semen—but came up empty.

In addition, when Squibb looked at the samples under a

microscope, he confirmed only a few sperm heads. This was

important because sperm and semen are not the same thing

—rather, sperm (a cell) is one component of semen (a fluid).

And Rogers has a theory that purports to explain the presence

of a few sperm heads, but not semen.

Rogers believes that sperm could have ended up in Jackie's

shorts by a means other than rape: the laundry. He bases

his theory on a 1996 Canadian study, which he claims his

counsel should have presented. Basically, Rogers theorizes

that the washing-machine study and his other evidence about

the experts’ testing are so persuasive that, if the jury had heard

the evidence, it would not have sentenced him to death. But

the state court properly found this theory too speculative to

prove prejudice. Indeed, the washing-machine study would

not have made any difference unless the jury accepted the

following chain of inferences: (1) Jackie's mom used the

same or similar detergent and wash cycle as in the Canadian

study, (2) someone in Jackie's house was sexually active and

deposited semen onto his own clothing, (3) that clothing was

washed with Jackie's, (4) sperm jumped from that person's

clothing to Jackie's in the washing machine, (5) that same

sperm happened to land in the crotch of the shorts Jackie wore

the day she was murdered, and (6) an identifiable amount

*391 of that sperm remained in Jackie's shorts for months

while they sat out in the woods.

Even Rogers's own trial counsel testified that he was not

sure he “could have gotten a jury to swallow” the washingmachine theory. Rogers, 2012 WL 3776675, at *24. That gave

him good reason not to present it. As any good trial lawyer

knows, presenting far-fetched theories risks your credibility

with the jury, not just on one issue but on the entire case.

One wonders why a good lawyer would take such a risk

to challenge evidence that was already inconclusive. See R.

APPENDIX A

26-9, Pg. ID 8154–55 (Rogers's counsel testifying that he

“wasn't as concerned” once he heard that the DNA testing was

inconclusive). Indeed, our caselaw recognizes an attorney

may actually be deficient for pursuing a “far-fetched” theory.

McFarland v. Yukins, 356 F.3d 688, 709 (6th Cir. 2004)

(citing

Griffin v. McVicar, 84 F.3d 880, 890 (6th Cir.

1996)). 1

To be sure, Clement testified that she had presented the

washing-machine study in a previous child-rape case where

the defendant was found not guilty. But that case further

demonstrates why presenting the washing-machine study

here would have had pitfalls. There, investigators were able

to develop a DNA profile from sperm they found in six pairs

of the girl's underwear. An acid phosphatase test came back

negative, yet investigators found sperm not just in the crotch

but “all over.” R. 26-10, Pg. ID 8325. If sperm truly does

transfer between clothes in the washing machine, it would be

all over, not concentrated in one area of one item. But here,

Squibb identified sperm only in the crotch of Jackie's shorts

where an acid phosphatase test identified “semen stains or

possible semen stains.” R. 25-8, Pg. ID 4559–60. And he did

not find any sperm on Jackie's shirt. Nor could investigators

develop a DNA profile from the sperm. So, as the state

court reasonably concluded, the evidence did not support the

washing-machine theory. Rogers, 2012 WL 3776675, at *47.

Indeed, the evidence cut against it.

After thoroughly cataloguing all this evidence, the state

court concluded that Rogers's counsel should have challenged

the state's forensic evidence more forcefully. Id. But it

also concluded that Rogers had not suffered prejudice from

counsel's deficiency. Id. According to the state court, the

additional evidence would not have made any difference

because it only emphasized what the jury already knew:

testing did not conclusively show the sperm came from

Rogers. Id. That was a reasonable application of the factbound

Strickland prejudice standard.

Rogers next faults the state court for saying that he could not

“eliminate or completely discredit the State's proof that sperm

heads were found in the crotch area of [Jackie's] shorts.”

Id. He claims that four words in that sentence—“eliminate

or completely discredit”—were contrary to

Strickland.

But, as the Supreme Court has repeatedly held, we may not

flyspeck state-court opinions. See

Johnson, 568 U.S. at

300, 133 S.Ct. 1088 (“[F]ederal courts have no authority

Rogers v. Mays, 69 F.4th 381 (2023)

A-010

APPENDIX A

to impose mandatory *392 opinion-writing standards on

of her body. These “highly inflammatory and disturbing” facts

Coleman v. Thompson, 501 U.S. 722, 739,

state courts.”);

111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (similar). This

makes sense. After all, AEDPA instructs us to look for

“a decision”—not a few words or a stray thought—“that

was contrary to, or involved an unreasonable application of,

would have most likely resulted in the same sentence.

28 U.S.C. § 2254(d)(1)

clearly established Federal law.”

(emphasis added). The goal is to protect against “extreme

malfunctions in the state criminal justice system,” not to

create a grading system for state-court opinion writing.

Davenport, 142 S. Ct. at 1524 (citation omitted).

Taking the state court's 75-page opinion as a whole and

reading those words in context, the state court's decision

closely tracks the legal standard prescribed by the Supreme

Court. To show prejudice, Rogers would have had to

“undermine confidence in the jury's sentence of death.”

Pinholster, 563 U.S. at 190, 131 S.Ct. 1388. That is

difficult when the State presented uncontroverted evidence

that Rogers was the last person to see Jackie alive and that

sperm was found concentrated in the crotch area of her shorts.

The jury already knew that DNA testing did not conclusively

identify Rogers as the source of the sperm. So the state court

properly concluded that neither the additional details about

the testing nor the washing-machine theory would have made

any difference to Rogers's sentence.

The dissent disagrees. Applying de novo review, the dissent

faults us for not discussing the history and details of the death

penalty in Tennessee and far-afield Supreme Court precedent.

But we need not discuss those materials because AEDPA

narrowly focuses us on whether the state court contradicted

or unreasonably applied clearly established federal law. See

28 U.S.C. § 2254(d)(1).

Even on its own terms, the dissent falters. As Judge White

thoughtfully pointed out, if the jury discounted the rape

altogether, it “would still have been confronted with the

premeditated and calculat[ed] kidnapping and murder of

a 9-year-old whose shirt had been removed and whose

shorts contained sperm in the inside crotch—albeit from an

unknown source.”

Rogers, 43 F.4th at 568 (White, J.,

concurring in part and dissenting in part). The jury listened to

Rogers's own wife testify that she saw small fingerprints drag

down the passenger side windshield of the car. It listened to

testimony that Rogers admitted to killing Jackie and disposing

Id.

Thus, the state court's conclusion that Rogers could not

undermine the jury's sentence was not an unreasonable

application of

Strickland.

Unreasonable Determination of Fact. Rogers argues that the

state court's discussion of the rape evidence was based on

several unreasonable determinations of fact. Specifically, he

claims that the state appellate court omitted or misdescribed

facts that would have helped demonstrate prejudice. But this

challenge largely repackages a legal argument as a factual

one. See Bergman v. Howard, 54 F.4th 950, 961 (6th Cir.

2022), cert. denied, ––– U.S. ––––, ––– S.Ct. ––––, –––

L.Ed.2d ––––, 2023 WL 3158441 (May 1, 2023).

Appellate courts seldom make factual findings—rather, they

decide whether “historical facts” satisfy a “legal test.” Id.

(citation omitted).

Strickland is the classic example of

this. The

Strickland inquiry requires the appellate court

to apply the legal standard—undermining confidence in the

jury's verdict—to the facts found by the trial court. See

Strickland, 466 U.S. at 694, 104 S.Ct. 2052; *393

Bergman, 54 F.4th at 962. So when a habeas petitioner

challenges a state-court decision that applies the law to given

facts, he makes a legal challenge that we review under

U.S.C. § 2254(d)(1). Bergman, 54 F.4th at 962.

That is exactly what Rogers does. Most of his purported

factual arguments are claims that the state court omitted

or misdescribed subsidiary details in making its legal

determination. See, e.g., Appellant Br. 151 (arguing that

habeas relief is appropriate “[b]ecause the [state] court's

determination of the merits of this issue was based upon

inaccurate facts and inferences”). But judgments about which

facts satisfy the

Strickland standard are legal questions.

Thus, Rogers must show that the state court's decision was

either “contrary to” or an “unreasonable application of”

clearly established law from the Supreme Court.

§ 2254(d)(1). He has not done so.

28 U.S.C.

First, Rogers claims that the court omitted important

information about the peer-review process that showed that

Squibb's testing was unreliable. But the peer-review process

actually bolsters Squibb's testing. Squibb testified that his

Rogers v. Mays, 69 F.4th 381 (2023)

A-011

colleagues spot-checked his work. True, they did not check

every single sperm head Squibb identified, but they verified

at least some of the sperm heads on two samples. If anything,

that increases the confidence in Squibb's analysis.

Second, Rogers claims that the state court should have

recounted Clement's unsuccessful attempts to identify semen

in Jackie's shorts years after trial. But the state court did note

that in its detailed statement of the facts. See Rogers, 2012

WL 3776675, at *29 (“In addition to trying to extract DNA

from the cloth samples in 2009, Clement also performed a

‘presumptive test for acid phosphatase as well as a test for

the presence of P30, which is an antigen found in seminal

fluid and those revealed negative results.’ The laboratory also

examined the cloth samples microscopically, but did not find

spermatazoa [sic] present.”). And in its analysis, the court

referred to “the scientific and technical evidence produced

at the [post-conviction] hearing.” Id. at *46 (alteration in

original).

The state court did not act unreasonably by describing that

evidence more generally than Rogers would have liked. At

some point, the state court must decide what details from

the voluminous record are important enough to include in its

discussion. We review that decision for reasonableness—we

are not permitted to nitpick the opinion-writing practices of

busy state courts. See

Johnson, 568 U.S. at 300, 133 S.Ct.

1088; Coleman, 501 U.S. at 739, 111 S.Ct. 2546. And here,

the state court reasonably decided not to repeat details about

Clement's testing. It was also not an unreasonable application

of Strickland to conclude that that testing's negative results

did not show prejudice.

Third, Rogers argues that the state court unreasonably

portrayed Clement as agreeing with Squibb's finding of

semen. But Rogers is incorrect. The state court wrote that

“Clement agreed at the post-conviction hearing with Squibb's

finding of sperm heads.” Rogers, 2012 WL 3776675, at *47.

And that accurately represents her testimony, in which she

stated, “Oh yes, there were definitely sperm heads present.”

R. 26-10, Pg. ID 8347. Far from being unreasonable, the state

court's opinion was accurate.

In sum, the state court's decision was not contrary to, or an

unreasonable application of, clearly established federal law.

28 U.S.C. § 2254(d)(1). Therefore, Rogers is entitled to no

relief on this claim.

APPENDIX A

Rogers brings two other claims subject to AEDPA's

deferential standard. First, he *394 claims the Tennessee

Supreme Court unreasonably concluded there was sufficient

evidence to convict him of rape and felony murder in

perpetration of a rape. Second, he claims that the court

unreasonably excluded exculpatory evidence. The district

court and a panel of our court both rejected these claims. We

do too.

[10] Sufficiency of Evidence of Rape. Sufficient evidence

supports a conviction if, “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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In Rogers's direct appeal, the Tennessee Supreme Court

concluded that sufficient evidence supported Rogers's childrape conviction. Rogers, 188 S.W.3d at 617. Now, Rogers

claims the court unreasonably applied

Jackson by failing

to discuss penetration, one element of child rape under

Tennessee law. See

Tenn. Code Ann. § 39-13-522(a).

[11] Rogers presented this claim to the Tennessee Supreme

Court on direct review. Thus, we consider only the evidence

before that court at the time it decided the claim—the trial

evidence. See

Pinholster, 563 U.S. at 180–81, 131 S.Ct.

Jackson prism,

1388. Viewing this evidence through the

the Tennessee Supreme Court reasonably concluded there was

sufficient evidence to convict Rogers of raping Jackie. First,

there was the sperm in Jackie's shorts. Second, Rogers was

the last one to see Jackie alive, which would allow the jury

to infer that he was the source of the sperm. Finally, her shirt

was inside out, which the jury could have reasonably inferred

was because Rogers pulled it off. 2 See Rogers, 188 S.W.3d at

617. In short, the Tennessee Supreme Court's conclusion was

not only reasonable but correct.

[12] Exclusion of Evidence. The Constitution gives states

“broad latitude” to exclude evidence in criminal trials.

Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct.

1727, 164 L.Ed.2d 503 (2006) (citation omitted). But the

Supreme Court carved out a narrow, fact-specific exception

to this principle in

Chambers v. Mississippi, 410 U.S.

Rogers v. Mays, 69 F.4th 381 (2023)

A-012

284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In

Chambers,

the defendant was accused of shooting a police officer

Id. at 287, 93 S.Ct. 1038.

but consistently denied it.

Another man, Gable McDonald, confessed to shooting the

Id. at 287–

officer and then recanted his confession.

88, 93 S.Ct. 1038. The defendant called McDonald as a

witness at trial, but the court refused to let the defendant

treat McDonald as an adverse witness.

Id. at 291–92, 93

S.Ct. 1038. The court also excluded the testimony of three

other witnesses who would have corroborated McDonald's

Id. at 292–93, 93 S.Ct. 1038. The Supreme

confession.

Court held that these two evidentiary decisions—the refusal

to deem McDonald an adverse witness and the exclusion

of the three witnesses’ testimony—together violated the

defendant's due-process rights.

sum, “the holding of

Id. at 302, 93 S.Ct. 1038. In

Chambers—if one can be discerned

Montana v.

from such a fact-intensive case”—is narrow.

Egelhoff, 518 U.S. 37, 53, 116 S.Ct. 2013, 135 L.Ed.2d 361

(1996) (plurality op.). Multiple erroneous evidentiary rulings

excluding reliable, direct evidence of actual innocence in a

criminal case can, in combination, violate due process.

Id.

*395 [13] Here, the Tennessee Supreme Court did not

contradict or unreasonably apply the narrow holding of

Chambers. Rogers attempted to introduce evidence that

Jeremy allegedly had sex with his sister at least five years

before she disappeared (when Jeremy was, at most, seven

years old and Jackie was, at most, three years old). That

theory was based solely on comments Jeremy—who suffered

from mental illness—could not remember making. Rogers,

188 S.W.3d at 611–12. The state court excluded that evidence

because, if the incident even happened, it was “remote in

time and irrelevant and possibly confusing to the jury.” Id.

at 612. Even assuming the state court should have admitted

that evidence, that is a single evidentiary error, not the kind

of cumulative error at issue in

Chambers.

In addition, that evidence would not establish Rogers's

innocence. Rogers's theory was that someone else (most likely

Jeremy) had sex with Jackie. But, even if Jeremy had sex with

his sister years before she disappeared, Rogers gives us no

reason to believe sperm stays in clothing for that long. So this

evidence does not show that the sperm in Jackie's shorts came

from Jeremy. Rogers might have attempted to connect this

evidence to the sperm in Jackie's shorts by asking Jeremy if he

APPENDIX A

had sex with his sister shortly before her abduction. But when

Rogers had the opportunity to ask that question, he declined.

Finally, the evidence here is much weaker than the evidence

Chambers because Jeremy could not remember telling

anyone that he had sex with his sister.

Because this case does not implicate the narrow holding

Chambers, the state court did not contradict or

unreasonably apply clearly established federal law in

excluding evidence about Jeremy and Jackie's alleged sexual

history. So Rogers is not entitled to relief on this claim either.

III.

Rogers brings four other ineffective-assistance-of-trialcounsel claims that he concedes he did not raise before the

state courts. Because he could have brought these claims

during his initial post-conviction proceedings, Tennessee law

prohibits him from raising them in a subsequent petition.

See Tenn. Code Ann. § 40-30-106(g). Thus, these claims are

procedurally defaulted, and Rogers has not shown why we

should excuse his default.

[14]

[15] We may excuse a prisoner's procedural default

when he shows cause and prejudice.

Murray v. Carrier,

477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). To

demonstrate cause, a “prisoner must show that some objective

factor external to the defense impeded counsel's efforts to

comply with the State's procedural rule.” Shinn v. Ramirez,

––– U.S. ––––, 142 S. Ct. 1718, 1733, 212 L.Ed.2d 713 (2022)

(cleaned up).

[16] Ineffective assistance of post-conviction counsel can

qualify as an objective factor to excuse the procedural

default of a claim of ineffective assistance at trial in

narrow circumstances. See

Martinez v. Ryan, 566 U.S.

1, 17, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). But the

habeas petitioner must make three showings. First, that the

state either prohibits or makes it “virtually impossible” to

raise ineffective-assistance-of-trial-counsel claims on direct

appeal.

Trevino v. Thaler, 569 U.S. 413, 417, 133

S.Ct. 1911, 185 L.Ed.2d 1044 (2013) (citation omitted). 3

Second, that the petitioner received ineffective assistance of

counsel in the initial state post-conviction *396 proceedings.

Martinez, 566 U.S. at 17, 132 S.Ct. 1309. Third, that

Rogers v. Mays, 69 F.4th 381 (2023)

A-013

APPENDIX A

the petitioner has a substantial claim that counsel rendered

F.4th 939, 946 (6th Cir. 2022). Moreover, it is not clear what

Id. at 13–14, 132 S.Ct. 1309;

those other reasons could be.

Martinez requires Rogers

to argue that his state post-conviction counsel negligently

ineffective assistance at trial.

see also

Davila v. Davis, 582 U.S. 521, 530, 137 S.Ct.

2058, 198 L.Ed.2d 603 (2017) (“[T]he Court in

Martinez

was principally concerned about trial errors—in particular,

claims of ineffective assistance of trial counsel.”).

Rogers's claims all rise and fall on the third requirement:

substantiality. To be substantial, an ineffective-assistance-oftrial-counsel claim must, among other things, be supported by

evidence.

Martinez, 566 U.S. at 15–16, 132 S.Ct. 1309.

Rogers's claims are not substantial because (1) the statecourt record is undeveloped and (2) we cannot consider the

evidence he developed in federal court.

failed to develop the state-court record. See

U.S. at 12–14, 132 S.Ct. 1309. And

Martinez, 566

Shinn holds Rogers

responsible for that undeveloped record.

Shinn, 142 S. Ct.

at 1735. Since Rogers's claim finds no support in the statecourt record, he can support this claim only through a federal

evidentiary hearing.

AEDPA prohibits the federal court from holding an

evidentiary hearing unless Rogers's claim relies on (1) a new

rule of retroactive constitutional law or (2) “a factual predicate

that could not have been previously discovered through the

28 U.S.C. § 2254(e)(2)(A). In

exercise of due diligence.”

addition, he must provide clear and convincing evidence of

At the outset, we must identify what evidence Rogers can use

innocence.

Id. § 2254(e)(2)(B). Finally, he must persuade

the habeas court to exercise its discretion to permit an

to support his claims subject to

evidentiary hearing.

Martinez.

[17] Generally, petitioners using

Martinez may not rely

on new evidence introduced in federal court.

Shinn, 142

S. Ct. at 1728. That is because petitioners should bring and

Id. at 1731–32. If

develop their claims in state court first.

they do not, they bear the consequences, including strict limits

on their ability to introduce new evidence in federal court.

Id. at 1734.

Rogers argues that he should not be held responsible

for the undeveloped state-court record. See

Williams v.

Taylor, 529 U.S. 420, 433, 120 S.Ct. 1479, 146 L.Ed.2d

435 (2000) ( Michael Williams). We disagree. If postconviction counsel negligently fails to develop the state-court

record, that failure is attributed to the petitioner—in this case,

Rogers. Shinn, 142 S. Ct. at 1734–35; see also Michael

Williams, 529 U.S. at 439–40, 120 S.Ct. 1479 (attributing

counsel's negligent failure to develop the state-court record to

the petitioner).

Recognizing this, Rogers suggested at oral argument that the

state-court record is not developed for other reasons. But

he has not explained what those reasons are, so any such

argument is forfeited. Buetenmiller v. Macomb Cnty. Jail, 53

Shinn, 142 S. Ct. at 1734.

Rogers has forfeited any argument that he is entitled to

an evidentiary hearing under

§ 2254(e)(2)’s demanding

Shinn), Rogers

standard. In his opening brief (filed before

admitted that his procedurally defaulted claims rely on

evidence outside of the state-court record. Appellant Br.

162–63 (“Mr. Rogers will rely upon, and urges the Court

to consider, evidence outside the state court record.”).

Nevertheless, he did not argue that he satisfied

§ 2254(e)

(2). Nor did he make that argument in his supplemental briefs,

both of which were *397 filed after

Shinn. Accordingly,

any argument that he satisfies § 2254(e)(2) is forfeited. See

Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th

Cir. 2018).

In sum, a petitioner who has procedurally defaulted his claims

of ineffective assistance by trial counsel may in some limited

circumstances rely on

Martinez to excuse his procedural

default. But he must provide evidence to show his claims

are substantial. And that evidence must come from the statecourt record unless the petitioner can satisfy the stringent

requirements of

28 U.S.C. § 2254(e)(2).

Rogers v. Mays, 69 F.4th 381 (2023)

A-014

These high barriers doom Rogers's four ineffectiveassistance-of-trial-counsel claims. Because the state-court

record is undeveloped and Rogers has not satisfied

2254(e)(2), he has not produced any facts we can consider.

Thus, he has not met Martinez’s substantiality requirement

for any of those claims and cannot overcome his procedural

default.

[18] First, Rogers argues that trial counsel was ineffective

for failing to develop mitigating evidence about his personal

background, difficult childhood, and possible brain damage. 4

But to prove this claim, he must point to evidence in the statecourt record, which he has not done. See R. 26-8, Pg. ID

8022 (state post-conviction court observing that “no proposed

mitigation evidence was presented during the evidentiary

hearing”). Thus, his only alternative is to meet

§ 2254(e)

(2). See

Shinn, 142 S. Ct. at 1734. He has not done

that either. As a result, this claim does not excuse Rogers's

procedural default.

[19] Second, Rogers argues that trial counsel was ineffective

for failing to develop evidence that Jackie's brother, Jeremy,

was the source of the sperm in her shorts. But the state-court

record does not support this claim. As discussed, the evidence

that Jeremy and Jackie allegedly had sex years before her

disappearance neither was reliable nor did it show that Jeremy

was the likely source of sperm. As a result, the state-court

record does not support Rogers's claim of prejudice. And

that is all the evidence we can consider—we cannot look at

the additional evidence Rogers produced in federal court—

because he has not satisfied

claim also fails.

Third, Rogers argues that trial counsel was ineffective

for presenting Dr. Mark Cunningham's testimony. Dr.

Cunningham testified that Rogers probably would not pose

a threat in prison. Rogers, 2012 WL 3776675, at *15. But

on cross-examination, Dr. Cunningham admitted that Rogers

had escaped before from prison and would pose a “significant

risk” to the community if he escaped again. Id. (citation

omitted). According to Rogers, counsel's decision to present

that testimony was objectively unreasonable because the

evidence of his previous *398 escape and risk to the public

was so damaging. The district court and a panel of this court

rejected that argument. So do we.

Under

APPENDIX A

Strickland, we “strongly” presume counsel

Strickland, 466 U.S. at 690, 104

performed effectively.

S.Ct. 2052. To rebut this presumption, Rogers must show that

counsel's actions fell outside the “wide range” of competent

assistance.

Id. But the evidence shows that counsel made

a reasonable, strategic decision to call Dr. Cunningham.

For starters, Dr. Cunningham's testimony that Rogers would

not be a danger in prison was an important piece of the

defense's case that the jury should spare Rogers's life.

Though important, that testimony was also risky because of

Rogers's previous escape from prison and Dr. Cunningham's

assessment that Rogers would be a “significant risk” if he

were allowed back into society. Rogers, 2012 WL 3776675, at

*15 (quoting Rogers, 2004 WL 1462649, at *15). And the trial

court explicitly warned counsel that he was pursuing a risky

strategy, but counsel decided to present Dr. Cunningham's

testimony anyway.

[20] Because of the potential upside of Dr. Cunningham's

testimony and counsel's knowing acceptance of the risks,

Rogers has failed to overcome the “strong presumption”

that counsel exercised reasonable judgment.

Strickland,

466 U.S. at 689, 104 S.Ct. 2052. Because this claim is

not substantial,

default. See

Martinez will not excuse his procedural

566 U.S. at 14, 132 S.Ct. 1309.

§ 2254(e)(2). See id. Thus, this

Finally, Rogers argues that counsel was ineffective for failing

to contest venue and juror bias in his motion for a new trial.

At the outset, it is not even clear that a petitioner may rely

Martinez to overcome a procedural default of claims

Rogers v. Mays, 69 F.4th 381 (2023)

A-015

APPENDIX A

that counsel ineffectively prepared or presented a motion for

Richardson v. Superintendent Coal

a new trial. Compare

Twp. SCI, 905 F.3d 750, 761–62 (3d Cir. 2018) (holding

that

Martinez applies to claims of ineffective assistance

Milam

of counsel at the motion-for-new-trial stage), with

v. Davis, 733 F. App'x 781, 784, 786 (5th Cir. 2018) (per

curiam) (holding that Martinez does not apply to claims of

ineffective assistance of appellate counsel at the motion-fornew-trial stage).

[21] Nevertheless, we need not decide that question today

because, even if

Martinez applies at the motion-for-newtrial stage, we cannot excuse Rogers's procedural default.

Like two of his other procedurally defaulted ineffectiveassistance claims, this claim is “wholly without factual

Martinez, 566 U.S. at 16, 132 S.Ct. 1309.

support.” See

Rogers failed to present his only evidence supporting this

claim to the state court. See R. 111, Pg. ID 12941–42 (relying

on a declaration given five years after state proceedings

ended). So we cannot consider it. See

1734.

Shinn, 142 S. Ct. at

Rogers also failed to adequately present this claim in his

habeas petition. Rule 2(c) of the Rules Governing

Section

2254 Cases requires that the petition “specify all the grounds

for relief available to the petitioner” and “state the facts

supporting each ground.” Rogers violated this rule by

devoting just one sentence to this claim in his amended habeas

petition. See R. 14, Pg. ID 93 (“In violation of the Sixth,

Eighth, and Fourteenth Amendments to the Constitution,

counsel rendered ineffective assistance of counsel during

the Motion for New Trial proceedings.”). This provides

yet another reason we cannot excuse his *399 procedural

default. 5

CONCURRENCE/DISSENT

I concur in Parts I, II (except footnote 1), III(A), and III(B)

(1–3) of the majority opinion. Because I agree with Judge

Moore that the

Martinez- Trevino exception applies to

ineffective-assistance-of-counsel claims at the motion-fornew-trial phase in Tennessee, I dissent from Part III(B)(4)

of the majority opinion for the reasons stated in Part II of

Judge Moore's dissent. Therefore, I would remand the case

to the district court for further consideration, including a

determination of whether Rogers's claim that his counsel was

ineffective at the motion-for-new-trial phase is substantial in

light of

Shinn v. Ramirez, ––– U.S. ––––, 142 S. Ct. 1718,

212 L.Ed.2d 713 (2022).

I do not believe Habeas Rule 2(c) bars Rogers's claim for

ineffective assistance of counsel at the motion-for-new-trial

phase. “A prime purpose of Rule 2(c)’s demand that habeas

petitioners plead with particularity is to assist the district court

in determining whether the State should be ordered to ‘show

cause why the writ should not be granted.’ ” Mayle v. Felix,

545 U.S. 644, 656, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005)

(quoting 28 U.S.C. § 2243). “Rule 2(c) therefore helps put

a state on notice of what claims a petitioner brings so it can

properly respond to them.” Kelley v. Burton, 792 F. App'x 396,

397 (2020). The warden was on notice of this claim, having

addressed it both before the district court and before this court.

In fact, the warden did not raise Rule 2(c) as a potential bar

to the claim before this court until he filed his supplemental

brief.

MOORE, Circuit Judge, dissenting.

DISSENT

***

Jackie's mom has been waiting almost 27 years for closure. To

justify further delay, Rogers would have had to carry a heavy

burden. He has not. We affirm.

MATHIS, Circuit Judge, concurring in part and dissenting in

part.

A Tennessee jury sentenced William Glenn Rogers to death

believing that he had raped nine-year-old Jackie Beard

when, in fact, his trial counsel had deficiently failed to

challenge the sole evidence that allowed the jury to reach that

conclusion. Since then, every court to consider Rogers's claim

has concluded that his trial counsel performed deficiently

in failing to challenge the semen evidence that was the

only evidence of sexual penetration presented to Rogers's

sentencing jury. Because penetration is a necessary element of

Rogers v. Mays, 69 F.4th 381 (2023)

A-016

rape under Tennessee law, the jury could not have concluded

that Rogers raped Beard absent that evidence.

The majority decides that it was not an unreasonable

application of clearly established federal law for the state

court to *400 find that Rogers was not prejudiced by his

counsel's failure to challenge the semen evidence. Because it

is beyond question that child rape is a particularly heinous

crime, and because the Supreme Court has held that such

a uniquely aggravating crime will inevitably distort the

judgment of a jury, I cannot agree regarding the sentencing

phase. I would therefore reverse the district court's denial of

habeas relief as to Rogers's claim that his trial counsel was

constitutionally ineffective in failing adequately to challenge

the semen evidence and would remand to the district court

with instructions to conditionally grant a writ of habeas

corpus vacating Rogers's death sentence on that ground.

Martinez- Trevino

Likewise, because I believe that the

exception can excuse the procedural default of a claim of

ineffective assistance of counsel at the motion-for-a-new-trial

stage, I would reverse the district court's findings on that issue

and remand with instructions to determine whether Rogers

can overcome his procedural default of that claim. I therefore

respectfully dissent.

I. INEFFECTIVE ASSISTANCE OF

COUNSEL FOR FAILING ADEQUATELY

TO CHALLENGE THE SEMEN EVIDENCE

Rogers argues that his trial counsel rendered ineffective

assistance of counsel by failing to investigate the

serological evidence and conduct an adequate crossexamination regarding this evidence. To demonstrate

ineffective assistance of counsel, a petitioner must show

“that counsel's performance was deficient” and “that the

deficient performance prejudiced the defense.”

Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). Deficient performance requires a showing

“that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.”

Id. To show prejudice, Rogers must

demonstrate “a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would

have been different.”

Id. at 694, 104 S.Ct. 2052. This

probability must be “sufficient to undermine confidence in

APPENDIX A

the outcome.”

and

Id. “The combined effect of

Strickland

§ 2254(d) is ‘doubly deferential’ review.”

Foust v.

Houk, 655 F.3d 524, 533 (6th Cir. 2011) (quoting Cullen v.

Pinholster, 563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d

557 (2011)).

A. Deficient Performance

The majority quickly brushes aside the fact that every

court that has considered this issue has found that Rogers's

Rogers v. Westbrooks

counsel performed deficiently.

(“Rogers IV”), No. 3:13-cv-00141, 2019 WL 1331035, at

*30 (M.D. Tenn. Mar. 25, 2019); Rogers v. State (“Rogers

III”), M2010-01987-CCA-R3-PD, 2012 WL 3776675, at *47

(Tenn. Crim. App. Aug. 30, 2012); R. 26-8 (Order at 59–60)

(Page ID #7921–22). The deficient performance of Rogers's

counsel is also undisputed before this court. 1 Appellee Br. at

39 n.3. In finding *401 that Rogers's counsel's performance

was deficient, the state postconviction court explained:

The testimony of Ms. Clement and

Mr. Squibb at the [postconviction]

hearing reveals certain deficiencies

in Mr. Warner's cross-examination of

those witnesses at trial. Mr. Squibb's

testing produced evidence favorable

to the petitioner, but counsel did not

present some of this evidence to the

jury. For instance, the jury did not hear

there were very few (or “rare,” the

term used by the TBI lab to denote

fewer than ten) sperm heads found on

the microscopic slides developed from

the victim's shorts. Mr. Squibb was

also not asked about his testing for

semen in great detail; the jury heard no

information about the mechanics of the

acid phosphatase test (color changes,

timing, etc.) or that Mr. Squibb's acid

phosphatase test yielded a “weak”

positive result. The jury heard nothing

about the P30 antigen as it related

to seminal fluid or that Mr. Squibb's

testing yielded negative results for

P30. The jury also did not hear that

very little DNA was derived from the

Rogers v. Mays, 69 F.4th 381 (2023)

A-017

stains taken from the victim's shorts.

Perhaps most relevant, counsel for the

petitioner did not present evidence

attacking Mr. Squibb's conclusion that

the presence of sperm cells necessarily

indicated the presence of semen. Given

Ms. Clement's testimony and the

publication of the washing machine

study in the Canadian forensic journal

—an article published some four years

before the trial in the instant case

—such evidence was available to

counsel.

R. 26-8 (Order at 59–60) (Page ID #7921–22). This court

“give[s] due deference to the conclusions of the trial judge

on the effectiveness of counsel, because ‘[t]he judge, having

observed the earlier trial, should have an advantageous

perspective for determining the effectiveness of counsel's

conduct and whether any deficiencies were prejudicial.’ ”

Foster v. Wolfenbarger, 687 F.3d 702, 708 (6th Cir. 2012)

(quoting

Massaro v. United States, 538 U.S. 500, 506,

123 S.Ct. 1690, 155 L.Ed.2d 714 (2003)). For the reasons

articulated by the postconviction court, I believe that Rogers's

counsel's performance was deficient.

The majority rejects this position, arguing that the state court

did address the sentencing-phase portion of Rogers's claim

because it referred in passing to “the jury's verdicts.” Maj.

Op. at 388 (quoting Rogers III, 2012 WL 3776675, at *47).

But in the very next sentence of its opinion, the state court

explained that the semen evidence combined with evidence

that Rogers was the last person to see Beard alive “leaves us

confident in the jury's verdict.” Rogers III, 2012 WL 3776675,

at *47 (emphasis added). And the rest of the state court's

analysis focuses on the culpability phase of Rogers's trial,

largely relying on the reasoning of the lower court, which

emphasized the jury's decision “to convict the petitioner.” Id.

at *46 (emphasis added). The state court opinion does not

contain even a single sentence analyzing the impact of trial

counsel's deficient performance on the sentencing phase of

Rogers's trial. Rogers has therefore met his burden of showing

that the state court “very clearly” overlooked the sentencingphase portion of his claim.

Johnson v. Williams, 568 U.S.

289, 303, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013).

But even if the majority's theory that a passing reference to

“verdicts” is sufficient to transform paragraphs of analysis

regarding the culpability phase of Rogers's trial into a

decision on the merits regarding the sentencing phase of

that trial, Rogers can still overcome the relitigation bar

imposed by

28 U.S.C. § 2254(d). That is because the state

court unreasonably applied

Strickland in concluding that

Rogers was not prejudiced by his trial counsel's deficient

performance. In so holding, the Tennessee Court of Criminal

Appeals explained:

B. Prejudice

1. AEDPA Deference

As an initial matter, the Tennessee Court of Criminal Appeals

failed to address whether trial counsel's deficient performance

prejudiced Rogers at the sentencing phase of his trial. See

*402 Rogers III, 2012 WL 3776675, at *47. AEDPA

deference does not apply to exhausted claims that were

not adjudicated on the merits in state court.

28 U.S.C.

§ 2254(d). “This rule extends to portions of a claim not

addressed by the state courts.”

APPENDIX A

Williams v. Anderson, 460

F.3d 789, 796–97 (6th Cir. 2006) (citing

Wiggins v. Smith,

539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)).

Because the sentencing-phase portion of Rogers's claim was

not adjudicated on the merits in state court, this court ought

to review de novo whether Rogers was prejudiced by his trial

counsel's deficient performance.

[T]he fact remains that Squibb found sperm heads on

the fabric samples taken from the crotch area of the

victim's shorts. Clement agreed at the post-conviction

hearing with Squibb's finding of sperm heads. The victim's

mother testified at trial that the victim had put the

shorts on right before leaving her house and disappearing.

While Clement's testimony at the post-conviction hearing

established that it is possible for sperm heads to arrive

on clothing while being laundered in a washing machine,

she also testified that the experiments in which such

transfer occurred involved washing new clothing with “a

pair of underwear worn by someone who had consensual

relations.” Thus, proof of these experiments would not

have been relevant at trial unless the defense had also been

able to establish at least some probability that the victim's

shorts had been washed with an item containing semen.

No such probability was established at the postconviction

Rogers v. Mays, 69 F.4th 381 (2023)

A-018

hearing. Therefore, we cannot conclude that Trial Counsel's

performance in his cross-examination of Squibb prejudiced

the Petitioner.

In sum, Trial Counsel should have attacked the State's

proof regarding the semen/sperm issue with more vigor.

The Petitioner, however, has not established that the jury's

verdicts are unreliable as a result of this failure because

there has been no showing that the defense would *403

have been able to eliminate or completely discredit the

State's proof that sperm heads were found in the crotch

area of the victim's shorts. That proof, together with the

substantial proof at trial that the Petitioner was the last

person to see the victim alive, leaves us confident in the

jury's verdict. Accordingly, the Petitioner is not entitled to

relief on this basis.

Rogers III, 2012 WL 3776675, at *47.

In determining prejudice, courts look at “the totality of the

evidence before the judge or jury.”

Strickland, 466 U.S. at

695, 104 S.Ct. 2052. “[A] verdict or conclusion only weakly

supported by the record is more likely to have been affected

by errors than one with overwhelming record support.”

Id.

at 696, 104 S.Ct. 2052; see

Foster, 687 F.3d at 710.

To establish felony murder in perpetration of a rape, the

state was required to prove that Rogers killed Beard “in the

perpetration of or attempt to perpetrate ... rape.”

Tenn.

Code Ann. § 39-13-202(a)(2) (1996). And to establish rape,

the state was required to prove that there was “unlawful sexual

penetration.” Id.

§ 39-13-522(a). Sexual penetration is

defined by Tennessee law as “sexual intercourse ... or any

other intrusion, however slight, of any part of a person's body

or of any object into the genital or anal openings of the

victim's ... body.” Id. § 39-13-501(7).

The only evidence of penetration was the sperm heads on

Beard's shorts, and Rogers's counsel's undisputed deficiencies

directly relate to this evidence. As the Tennessee courts

acknowledged, if counsel had not been deficient, the jury

would have been able to hear that there were very few

(fewer than ten) sperm heads on the slides developed from

the shorts, that the acid phosphatase test yielded only a

weak positive result, that the P30 antigen test was negative,

that very little DNA could be taken from the sperm, that

sperm does not necessarily indicate the presence of semen,

and that sperm can be transferred between different items

of clothing in the washing machine. Rogers III, 2012 WL

APPENDIX A

3776675, at *46. Together this evidence calls into question

whether there was semen on the shorts—which, again, was

the only evidence of penetration presented by the prosecution.

The Tennessee Court of Criminal Appeals thus unreasonably

applied

Strickland when it found that this deficiency did

not prejudice Rogers.

The state court reasoned that there was no prejudice because

the defense could not have “eliminate[d] or completely

discredit[ed] the State's proof that sperm heads were found in

the crotch area.” Rogers III, 2012 WL 3776675, at *47. This is

plainly an unreasonable application of

Strickland because

Rogers did not need to “eliminate or completely discredit”

the semen evidence to undermine confidence in the jury

verdict. The majority criticizes this as “flyspeck[ing]” a statecourt opinion. Maj. Op. at 391–92. But there is a difference

between requiring a state court to recite magic words in an

opinion and requiring that a state court reasonably apply

federal constitutional standards as announced by the Supreme

Court. By insisting that Rogers “eliminate or completely

discredit” the semen evidence, the state court held Rogers's

ineffective assistance claim to a higher standard than required

by the Supreme Court, which has repeatedly announced that

a petitioner need only demonstrate “a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.”

U.S. at 694, 104 S.Ct. 2052; see also

534, 123 S.Ct. 2527.

Strickland, 466

Wiggins, 539 U.S. at

The state court's misapplication of the

Strickland standard

matters because Rogers can demonstrate a reasonable

probability *404 that the result of his sentencing proceeding

would have been different absent his counsel's errors without

having to “eliminate or completely discredit” the semen

evidence. This is not a case in which there was substantial

other evidence pointing to rape. Compare

Higgins v.

Renico, 470 F.3d 624, 634 (6th Cir. 2006) (holding that

the failure to cross-examine key witness was prejudicial

because without this testimony, the state's case was “far from

overwhelming”), with

Poindexter v. Mitchell, 454 F.3d

564, 572 (6th Cir. 2006) (holding that the failure to crossexamine witness about inconsistencies in testimony was not

prejudicial because multiple eyewitnesses testified that they

saw the defendant commit the crime). Because penetration—a

necessary element of the rape conviction—was “only weakly

supported by the record,” it was “more likely to have been

Rogers v. Mays, 69 F.4th 381 (2023)

A-019

affected by errors than [a conclusion] with overwhelming

record support.”

2052.

Strickland, 466 U.S. at 696, 104 S.Ct.

Indeed, the state trial court itself acknowledged that whether

there was sufficient evidence to support a rape conviction was

a “close call.” R. 24-5 (Order at 6) (Page #1173). Therefore,

because counsel's performance was undisputedly deficient

by failing to undermine the only evidence of penetration,

and because penetration is a necessary element of a rape

conviction under Tennessee law, I believe that it was an

unreasonable application of

Strickland for the state court

to hold that counsel's deficient performance did not render the

rape conviction unreliable.

2. Sentencing-Phase Prejudice Analysis

Once a petitioner's claim overcomes the relitigation bar

28 U.S.C. § 2254(d), federal courts apply

imposed by

de novo review, because no deference is owed to a statecourt decision premised upon an unreasonable application

of clearly established federal law. See

Rice v. White, 660

F.3d 242, 252 (6th Cir. 2011). De novo review compels

the conclusion that Rogers was prejudiced by his counsel's

deficient performance at the sentencing phase of his trial. That

is because the rape of a nine-year-old child is so grievous

that in the absence of a rape conviction, there is a reasonable

probability that at least one juror would have weighed the

aggravating and mitigating factors differently when deciding

whether to impose the death penalty.

The Tennessee Code authorizes the death penalty only if

the aggravating factors “have been proven by the state

beyond a reasonable doubt” and “have been proven by the

state to outweigh any mitigating circumstances beyond a

reasonable doubt.”

Tenn. Code Ann. § 39-13-204(g)(1)

(A)–(B)). If, after deliberations, “the jury still cannot agree

as to sentence, the trial judge shall dismiss the jury and

such judge shall impose a sentence of imprisonment for

life.”

Id. § 39-13-204(h)(1) (1996). Thus, if there is a

reasonable probability that the rape-related aspect of the

offense impacted the way that at least one juror weighed the

aggravating and mitigating factors, the error was prejudicial.

The majority is silent as to the impact of § 39-13-204(g)(1)

(B) on this court's analysis of the prejudice question, but the

APPENDIX A

requirement that the state prove that the aggravating factors

outweigh any mitigating circumstances beyond a reasonable

doubt is central to understanding why Rogers was prejudiced

by his counsel's errors. The rape of a child is a particularly

significant aggravating factor—much more so than many of

the other aggravators. An aggravating factor that is accorded

such significant weight will thus have a significant impact

on this weighing calculus. Because child rape is viewed by

our society as *405 uniquely heinous, there is a reasonable

probability that at least one juror would have weighed the

aggravating and mitigating factors differently absent trial

counsel's errors.

The majority further ignores that the Supreme Court has

made clear that a child-rape conviction completely distorts

the weighing of aggravating and mitigating factors in a way

that cannot readily be rectified. See

Kennedy v. Louisiana,

554 U.S. 407, 439, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008).

Child rape is “a crime that in many cases will overwhelm

a decent person's judgment” in a way that makes it difficult

for a jury to balance the other aggravating and mitigating

factors.

Id. The majority contends that even absent the

rape conviction, the underlying facts of the offense are

“inflammatory and disturbing” enough to “result[ ] in the

same sentence.” Majority Op. at 392. Of course, the murder

of a child is alone disturbing. But the combination of the rape

and murder of a nine-year-old child is so disturbing that it

is significantly likely that the child rape conviction would

have “overwhelm[ed]” at least one juror's judgment in a way

that affected their weighing of the aggravating and mitigating

circumstances.

Kennedy, 554 U.S. at 439, 128 S.Ct. 2641.

Although there were multiple aggravating factors in this case,

the rape of a child is by far the most significant one. Both

crimes are heinous. But raping and murdering a child is far

worse than murder alone.

The uniquely aggravating nature of child rape is heightened

by the fact that at the time of Rogers's trial, the Supreme

Court had not yet prohibited the imposition of the death

penalty for cases of child rape that did not result in the

death of the victim—a fact also unacknowledged by the

majority. See Kennedy, 554 U.S. 407, 128 S.Ct. 2641. The

rape of a child was the last non-homicide crime against a

person for which the death penalty was authorized.

Id.

Indeed, child rape continued to be a permissible capital

offense for more than thirty years after the Supreme Court

held the death penalty could not be imposed in cases of

Rogers v. Mays, 69 F.4th 381 (2023)

A-020

rape of adults. See

Coker v. Georgia, 433 U.S. 584,

97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). This fact plainly

demonstrates the extent to which society at the time of

Rogers's sentencing hearing reviled the act of child rape. It

is true that Tennessee did not, at that time, have the death

penalty for child rape, in large part because such a law

had previously been invalidated by the Tennessee Supreme

Court for imposing a mandatory—and thus constitutionally

Collins

impermissible—death penalty for child rape. See

v. State, 550 S.W.2d 643, 646 (Tenn. 1977). But the efforts—

spanning decades—of elected Tennessee legislators to impose

the death penalty for perpetrators of child rape confirm that

at least some Tennesseans at the time of Rogers's sentencing

proceedings believed that child rape provided independent

grounds to impose the death penalty. This further compels my

conclusion that there is a reasonable probability that during

the sentencing phase at least one juror would have weighed

the aggravating and mitigating factors differently absent the

child-rape conviction.

The prosecution's sentencing phase strategy also

demonstrates how critical the rape aggravator was in

securing Rogers's death sentence. During closing argument,

the prosecution repeatedly focused on the rape conviction,

emphasizing that Rogers killed Beard:

because he intended to rape this child,

which he did. Because he raped the

child, he had to remove her from

this county, and take her some place

where he would hope that she would

never, ever be found .... And the reason

for *406 that, ladies and gentlemen,

because of this aggravator, which is

so powerful in and of itself that will

convince you—convict this man and

sentence him to death, because he did

not want to see her come through that

door back here, walk up that aisle right

here, wearing her Minnie Mouse shirt

and those teal shorts and those little

sandals that she had on, walk up here,

take the oath and get in that chair

and point the finger of guilt to this

man. That's why, that's why he killed

her. And ladies and gentlemen, that is

APPENDIX A

enough in of itself to sentence him to

death.

R. 25-17 (Tr. at 7–8) (Page ID #5952–53). The prosecution's

repeated emphasis on the rape of a child and Rogers's efforts

to conceal that rape, and the prosecutor's statements that this

alone warrants the death sentence, confirm that, in this case,

the rape conviction was prejudicial.

The strength of the mitigating evidence also strengthens

my conclusion that, absent the rape aggravator, there is a

reasonable probability that at least one juror would have

weighed the aggravating and mitigating factors differently.

During the sentencing phase of Rogers's trial, several

witnesses testified about the horrific physical abuse that

Rogers experienced as a child. Rogers III, 2012 WL 3776675,

at *10–14. The most significant mitigation witness was

Rogers's sibling Sam, 2 who testified that their stepfather

“often” “slapp[ed],” “hit[ ]” and “punch[ed]” them, starting

from the time that Rogers was four or five years old. R.

25-13 (Tr. at 112–13, 138–39) (Page ID #5383–84, 5409–

10). Sam explained that Rogers was often chained to the

bed, for up to days on end. Id. at 119–22 (Page ID #5390–

93). If Rogers soiled the bed or his pants, their stepfather

would rub Rogers's face in the soiled pants or mattress. Id.

at 124–25, 130 (Page ID #5395–96, 5401). Their stepfather

would also lock himself and Rogers in the bathroom, and

Sam believed that he was forcibly giving Rogers enemas.

Id. at 133–36 (Page ID #5404–07). Other witnesses testified

about the emotional and sexual abuse that Rogers endured.

Rogers III, 2012 WL 3776675, at *11–13. Two experts also

testified that Rogers's psychological disorders stemmed from

the abuse and trauma he endured. Id. at *13–14. Because of

the substantial weight of the mitigating factors, removing the

rape aggravator from the jury's consideration reasonably may

have changed the sentencing calculus for at least one juror.

To the extent that the majority implies that the facts may

have led the jury to suspect rape from the existence of sperm

heads on Beard's shorts, this implication does not affect our

analysis. The Tennessee death-penalty scheme directs jurors

to weigh only statutory aggravating circumstances against all

mitigating factors. See Tenn. Code Ann. § 34-12-204(g). And

these aggravating circumstances must be proven “beyond a

reasonable doubt.” Id.

As explained above, even under AEDPA's deferential

standard, I am not confident that, in the absence of his

Rogers v. Mays, 69 F.4th 381 (2023)

A-021

counsel's errors, Rogers would have been convicted of rape.

Eliminating the statutory aggravator for rape would have

removed the most powerful aggravating factor and would

have likely caused the jury to weigh the aggravating and

mitigating factors differently at sentencing. Murdering a child

is an unspeakably tragic crime. But raping and then murdering

a child is altogether *407 more heinous. This compels my

conclusion that there is a reasonable probability that, to at

least one juror, this difference mattered. I would therefore

reverse the district court's decision with respect to this claim

and remand to the district court with instructions to grant

Rogers's habeas petition on this claim with respect to the

sentencing phase.

II. APPLICATION OF THE MARTINEZTREVINO EXCEPTION TO CLAIMS OF

INEFFECTIVE ASSISTANCE OF COUNSEL

AT THE MOTION-FOR-A-NEW-TRIAL STAGE

Rogers also argues that the Martinez- Trevino exception

applies to his procedurally defaulted claim that his counsel

was ineffective by failing to raise certain arguments in the

motion for a new trial. The principal question before this court

is whether the

Martinez- Trevino exception can apply

to claims of ineffective assistance of counsel at the motionfor-a-new-trial stage. 3 The majority declines to answer this

question, contending that Rogers's “claim is ‘wholly without

factual support’ ” and thus holding that we need not decide

Martinez

that question. Majority Op. at 398–99 (quoting

v. Ryan, 566 U.S. 1, 16, 132 S.Ct. 1309, 182 L.Ed.2d

272 (2012)). Because I believe that we ought to conclude

that the

Martinez- Trevino exception applies to claims

of ineffective assistance of counsel at the motion-for-anew-trial stage and remand to the district court for further

consideration, I cannot agree.

In the district court, Rogers's habeas counsel presented

extensive and compelling evidence related to the application

of the

Martinez- Trevino exception to his procedurally

defaulted claims. However, after the parties in this case had

completed initial briefing and oral argument, the Supreme

Court decided

Shinn v. Ramirez, ––– U.S. ––––, 142

S. Ct. 1718, 212 L.Ed.2d 713 (2022), which held that

“a federal habeas court may not conduct an evidentiary

hearing or otherwise consider evidence beyond the state-court

APPENDIX A

record based on ineffective assistance of state postconviction

142 S. Ct. at 1734. Because of the limited

counsel.”

briefing at the en banc stage, this court has not had the benefit

of complete briefing from the parties regarding the effects

Shinn on the proper disposition of this case. Rogers's

supplemental brief, for example, does not address this issue.

Given the dearth of guidance from the parties on this issue, I

believe it is imprudent for this court to determine the extent

to which Shinn may or may not foreclose the evidence that

was presented to the district court related to the application

of the

Martinez-

Trevino exception. I would therefore

Martinez- Trevino exception

instead decide that the

applies to claims of ineffective assistance of counsel at the

motion-for-a-new-trial stage and remand to the district court

for further consideration in light of the Supreme Court's

decision in

Shinn.

Turning to the issue of whether the

Martinez- Trevino

exception can apply to Rogers's claim of ineffective assistance

of counsel at the motion-for-a-new-trial stage, I first

briefly review the existing framework of the exception.

Federal habeas courts are barred from considering federal

constitutional claims that were defaulted in state court unless

the prisoner can demonstrate cause for the default and

actual prejudice that resulted or a fundamental miscarriage of

justice.

*408 Coleman v. Thompson, 501 U.S. 722, 750,

111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Although ineffective

assistance of counsel on direct appeal may constitute cause

to excuse the default, ineffective assistance of postconviction

counsel typically “cannot constitute cause to excuse the

default in federal habeas.”

Id. at 757, 111 S.Ct. 2546. In

Martinez, the Court established a “narrow exception” to

this rule: “[i]nadequate assistance of counsel at initial-review

collateral proceedings may establish cause for a prisoner's

procedural default of a claim of ineffective assistance at trial.”

566 U.S. at 9, 132 S.Ct. 1309. The Court has subsequently

extended

Martinez to states in which the “state procedural

framework, by reason of its design and operation, makes

it highly unlikely in a typical case that a defendant will

have a meaningful opportunity to raise a claim of ineffective

assistance of trial counsel on direct appeal.”

Trevino v.

Thaler, 569 U.S. 413, 429, 133 S.Ct. 1911, 185 L.Ed.2d 1044

(2013).

Rogers v. Mays, 69 F.4th 381 (2023)

A-022

The Martinez- Trevino exception can excuse procedural

default when a petitioner claims that trial counsel was

Martinez, 566 U.S. at 17, 132 S.Ct. 1309.

ineffective.

But it does not apply when a petitioner claims that appellate

counsel was ineffective.

Davila v. Davis, 582 U.S. 521,

137 S. Ct. 2058, 2064, 198 L.Ed.2d 603 (2017). Neither

this court nor the Supreme Court has addressed whether

Martinez- Trevino exception can apply when the

the

underlying ineffective assistance occurred in a motion for a

new trial.

Several

courts

have

addressed

whether

the

Martinez- Trevino exception applies to ineffectiveassistance-of-post-sentencing-counsel claims, but these

courts have arrived at different answers. The Third Circuit has

held that, on federal habeas review, a court may consider a

defaulted claim that a post-sentencing lawyer was ineffective.

Richardson v. Superintendent Coal Twp. SCI, 905 F.3d

750, 756 (3d Cir. 2018). The Third Circuit reasoned that

“the line dividing trial from appeal falls naturally at the

notice of appeal” and because “[p]ost-sentencing motions

precede the notice of appeal, ... they fall on the trial side

of the line.”

Id. The Third Circuit further explained

that “[s]entencing and post-sentencing proceedings also

differ categorically from appeals” because “[c]ounsel direct

sentencing and post-sentencing arguments to the same trial

court,” and post-sentencing counsel “may also develop the

record by proffering new evidence, which the trial court

may hear at an evidentiary hearing.”

Id. at 761. It also

APPENDIX A

for new trial or on direct appeal,”

Supreme Court has held that

id. at 782, because “the

Martinez does not extend to

ineffective assistance of appellate counsel claims,”

786 (citing

id. at

Davila, 137 S. Ct. at 2065).

I find the Third Circuit's thorough analysis to be persuasive.

As the Third Circuit explained was true in Pennsylvania,

motions for a new trial in Tennessee courts “differ

categorically from appeals.”

*409 Richardson, 905 F.3d

at 761. Motions for a new trial are heard before the same

court that presided over the trial, and the court may allow

new testimony from witnesses. Tenn. R. Crim. P. 33(a), (c)

(1). These similarities suggest that claims stemming from a

motion for a new trial are more similar to claims that trial

counsel was ineffective than claims that appellate counsel was

ineffective.

As the Third Circuit explained, the notice of appeal is the

appropriate transition point between trial and appeal. In

Tennessee, the filing of a notice of appeal is addressed jointly

by the Rules of Criminal Procedure and the Rules of Appellate

Procedure. See Tenn. R. Crim. P. 37(d)(1) (instructing the

defendant to “file a timely notice of appeal with the clerk

in accordance with Rule 4(a), Tennessee Rules of Appellate

Procedure”); Tenn. R. App. P. 3–4. But a motion for a new

trial is treated as separate from the appeals process. See Fahey

v. Eldridge, 46 S.W.3d 138, 141 (Tenn. 2001) (“[I]n order to

preserve errors for appeal, the appellant must first bring the

alleged errors to the attention of the trial court in a motion for

a new trial.”).

determined that the equitable principles in

Martinez apply

when the underlying ineffective-assistance claim relates to

a post-sentencing proceeding because “[m]any states do

not entertain ineffective-assistance claims on direct appeal.”

Additionally, the equitable considerations that guided the

Id. at 762. Declining to apply the

Martinez- Trevino

exception to these claims would thus “prevent state and

federal courts from ever looking at meritorious ineffective-

for a new trial. In

Martinez, the Supreme Court

acknowledged that an exception was necessary so that

the underlying ineffective-assistance claim “will have been

assistance-of-post-sentencing-counsel claims.”

addressed by one court.”

Id.

The Fifth Circuit has reached the opposite conclusion, albeit

in a nonprecedential opinion.

Milam v. Davis, 733 F.

App'x 781, 786 (5th Cir. 2018) (per curiam). Without further

analysis, the Fifth Circuit held that a federal court could

not hear a petitioner's claim that “appellate counsel was

ineffective for failing to raise [certain claims], in a motion

decisions in

Martinez and

Trevino apply with equal

force to ineffective-assistance claims related to a motion

566 U.S. at 11, 132 S.Ct. 1309.

Davila thus differentiated ineffective-assistance-of-trialcounsel claims from ineffective-assistance-of-appellatecounsel claims, because when a claim relates to ineffective

assistance of appellate counsel, “at least ‘one court’ will

have considered the [underlying trial error] on the merits.”

Davila, 137 S. Ct. at 2067 (quoting

Martinez, 566 U.S.

at 11, 132 S.Ct. 1309). This is because “[i]f trial counsel

Rogers v. Mays, 69 F.4th 381 (2023)

A-023

preserved the error by properly objecting,” but appellate

counsel dropped the ball, then “that claim of trial error ‘will

have been addressed by ... the trial court.”

Id. (quoting

Martinez, 566 U.S. at 11, 132 S.Ct. 1309). But “[i]f an

unpreserved trial error was so obvious that appellate counsel

was constitutionally required to raise it on appeal, then trial

counsel likely provided ineffective assistance by failing to

object to it in the first instance,” and “the prisoner likely could

invoke

Martinez or

Coleman to obtain review of trial

counsel's failure to object.”

Id. at 2067–68.

If the

Martinez exception does not apply to claims

that counsel was ineffective on a motion for a new

trial in Tennessee, certain claims may never be heard.

In Tennessee, motions for a new trial are the preferred

procedural mechanism for bringing trial errors to the attention

of the trial court. Indeed, trial counsel 4 must renew their

objections in a motion for a new trial within thirty days

of sentencing in order to properly preserve those issues for

appellate review. Tenn. R. App. P. 3(e); Tenn. R. Crim.

P. 33(b); State v. Harbison, 539 S.W.3d 149, 164 (Tenn.

2018) (“Grounds not raised in a motion for new trial are

waived for the purposes of appeal.”). Motions for a new

trial in Tennessee preserve the trial objections and are the

mechanism by which trial counsel are expected to allow

the “trial court” to address claims of “trial error.” See

*410 Davila, 137 S. Ct. at 2067. Thus, if counsel is

ineffective at this stage, all trial issues will be waived.

Tenn. R. App. P. 3(e); see also Harbison, 539 S.W.3d at

164. Accordingly, application of the

Martinez- Trevino

exception to ineffective-assistance claims at the Tennessee

motion-fora-new-trial stage is necessary to ensure that all of

a defendant's trial claims can be heard in at least one court.

APPENDIX A

Reaching

this

conclusion

would

not

expand

the

Martinez- Trevino exception to a new category of

cases. Rather, I would simply clarify that claims of

ineffective assistance at the Tennessee motion-for-a-new-trial

phase fit neatly within the larger bucket of trial claims,

which are already recognized as within the scope of the

Martinez-

Trevino exception. I would therefore hold

that, in a state such as Tennessee, the Martinez- Trevino

exception applies to claims that counsel was constitutionally

ineffective on a motion for a new trial, and remand to the

district court for further consideration.

III. Conclusion

For the foregoing reasons, I would reverse the district court's

denial of habeas relief as to Rogers's claim that his trial

counsel was constitutionally ineffective in failing adequately

to challenge the semen evidence and remand to the district

court with instructions to grant conditionally a writ of habeas

corpus vacating Rogers's death sentence on that ground. I

would also hold that the

Martinez- Trevino exception

can excuse the procedural default of a claim of ineffective

assistance of counsel at the motion-for-a-new-trial stage

and would remand to the district court with instructions

to determine whether Rogers can overcome his procedural

default of that claim. Accordingly, I respectfully dissent.

All Citations

69 F.4th 381

Footnotes

The dissent argues that we “patently contradict[ ] the state court opinion.” Dissent at 400 n.1. But the dissent

misunderstands both AEDPA and our opinion. AEDPA does not require us to defer to state-court decisions

when we deny relief. In contrast, we may grant relief only if the petitioner overcomes AEDPA deference. See

28 U.S.C. § 2254(d). And even if the dissent's interpretation of AEDPA were proper, it would not change

anything because the state court did not conclude that Rogers's counsel was deficient for failing to pursue a

far-fetched theory. Rather, the state court reasoned that “Trial Counsel should have done a more thorough

Rogers v. Mays, 69 F.4th 381 (2023)

A-024

APPENDIX A

job attacking Squibb's testimony.” Rogers, 2012 WL 3776675, at *47. Our only point is that the washingmachine theory is far-fetched.

Rogers argues that animals or other nonsexual causes could explain why Jackie's shirt was inside out. But

we must draw all reasonable inferences in favor of the jury's verdict.

Jackson, 443 U.S. at 319, 99 S.Ct.

2781. Here, that means inferring that Jackie's shirt was inside out because Rogers pulled it off her.

Our court has held that

here. See

Trevino applies in Tennessee, and we have no occasion to reconsider that holding

Sutton v. Carpenter, 745 F.3d 787, 790 (6th Cir. 2014).

The district court denied relief on this claim because Rogers procedurally defaulted it on appeal in

postconviction proceedings.

Rogers, 2019 WL 1331035, at *108–09; see

693, 694 (6th Cir. 2015) (holding that

West v. Carpenter, 790 F.3d

Martinez does not excuse claims defaulted on appeal in post-

conviction proceedings). A panel of our court disagreed.

Rogers, 43 F.4th at 555 & n.10. But we need

not decide when it was procedurally defaulted because, even if the claim was procedurally defaulted during

his initial post-conviction proceedings (in which case

supporting facts we can consider. See

Martinez could apply), he has not identified any

Martinez, 566 U.S. at 16, 132 S.Ct. 1309.

Rogers complains that the warden invoked Rule 2(c) too late in the day. Although he never uses the word

“forfeiture,” he seems to be making a forfeiture argument. But the warden has not forfeited this argument.

Indeed, he presented this argument in his en banc briefing, which acts as a supplement to his briefing

before the panel. See

United States v. Campbell, 26 F.4th 860, 888 (11th Cir. 2022) (en banc) (Pryor,

C.J., concurring) (noting that the appellee may “raise alternative arguments in support of the district court's

judgment before the en banc court that it failed to raise before the panel ... [because] we review the issues

anew after granting en banc rehearing as if we were hearing the appeal directly from the district court”); see

also 6th Cir. R. 35(b) (“A decision to grant rehearing en banc vacates the previous opinion and judgment of

the court, stays the mandate, and restores the case on the docket as a pending appeal.”).

Curiously, the majority suggests that, had Rogers's counsel robustly cross-examined the state's witnesses

regarding the serological evidence, Rogers's counsel might have performed deficiently “for pursuing a ‘farfetched’ theory.” Majority Op. at 391 (quoting McFarland v. Yukins, 356 F.3d 688, 709 (6th Cir. 2004)). This

patently contradicts the state court opinion, which explained that Rogers's trial counsel performed deficiently

in failing to “present evidence attacking Mr. Squibb's conclusion that the presence of sperm cells necessarily

indicated the presence of semen,” including “the washing machine study.” Rogers III, 2012 WL 3776675,

at *46 (quoting R. 26-8 (Order at 60) (Page ID #7922)). Indeed, the state court specifically indicated that

trial counsel's failure in that regard was “most relevant” to its finding of deficient performance. Id. (quoting

R. 26-8 (Order at 60) (Page ID #7922)). The majority posits that this argument misunderstands AEDPA.

Maj. Op. at 391 n.1. But it is the majority that has misunderstood. My point is not that the majority ought

to defer to the state court under AEDPA, but instead that the Supreme Court has long held that—whether

deference under

§ 2254(d) applies or not—the court of conviction is best-placed to assess trial counsel's

performance.

Massaro v. United States, 538 U.S. 500, 506, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). The

Kentucky Supreme Court's opinion on this point deferred to the findings of the trial court. See Rogers III,

2012 WL 3776675, at *46 (quoting R. 26-8 (Order at 60) (Page ID #7922)). And the Supreme Court has

explained that the court of conviction “ha[s] an advantageous perspective for determining the effectiveness

of counsel's conduct and whether any deficiencies were prejudicial.”

Massaro, 538 U.S. at 506, 123 S.Ct.

Rogers v. Mays, 69 F.4th 381 (2023)

A-025

APPENDIX A

1690. This court has previously held that a state trial court's determination that counsel performed deficiently

is entitled to “due deference” because that court is best positioned to understand counsel's deficiencies in

light of the evidence and arguments presented at trial.

Foster v. Wolfenbarger, 687 F.3d 702, 708 (6th Cir.

2012). I would therefore not second-guess the state trial court's assessment of Rogers's counsel's deficient

performance.

The warden's brief, the state-court decisions, and the district-court decision all refer to Sam as Mildred Rogers,

which was Sam's prior name. Sam has since changed their name to Samuale Danielle Roger (no “s”). R.

25-13 (Tr. at 90) (Page ID #5361); R. 112-6 (Roger Decl. at 1) (Page ID #13577).

For the reasons thoughtfully explained in Judge Mathis's opinion, I agree that Habeas Rule 2(c) does not

bar Rogers's claim of ineffective assistance of counsel at the motion-for-a-new-trial phase, contrary to the

majority's assertion.

As this court explained in Sutton v. Carpenter, “[i]n a typical Tennessee case, it is likely that trial counsel will

file the motion for new trial because Tennessee requires appointed trial counsel to continue representation

throughout a defendant's direct appeal, and permits withdrawal only on a showing of good cause.”

745

F.3d 787, 793 (6th Cir. 2014) (footnote omitted) (citing TENN. SUP. CT. R. 13(e)(5); TENN. CODE ANN.

§ 40-14-205(a)).

End of Document

Rogers v. Mays, 43 F.4th 530 (2022)

A-026

KeyCite Red Flag - Severe Negative Treatment

On Rehearing en Banc Rogers v. Mays, 6th Cir.(Tenn.), June 5, 2023

43 F.4th 530

United States Court of Appeals, Sixth Circuit.

William Glenn ROGERS, Petitioner-Appellant,

Tony MAYS, Warden, Respondent-Appellee.

No. 19-5427

Argued: October 26, 2021

Decided and Filed: August 3, 2022

Synopsis

Background: After affirmance, 188 S.W.3d 593, of his

conviction by jury of kidnapping, rape, and murder of nineyear-old child, for which he was sentenced to death, and

affirmance, 2012 WL 3776675, of denial of his state court

petition for post-conviction relief, petitioner sought federal

writ of habeas corpus. The United States District Court for

the Middle District of Tennessee, Waverly D. Crenshaw,

Jr., Chief Judge,

2019 WL 1331035, denied petition and

subsequently, 2019 WL 2327520, denied petitioner's motion

to alter or amend judgment. The Court of Appeals, 814

Fed.Appx. 984, granted petitioner's request for certificate of

appealability.

Holdings: The Court of Appeals, Moore, Circuit Judge, held

that:

[6] vacatur was warranted of determinations that procedural

default was not excused for other ineffective assistance

claims; and

[7] in matter of first impression, procedural default, for

federal habeas review, of claim that counsel was ineffective

on motion for new trial in Tennessee can be excused under

exception allowing ineffective assistance at initial-review

collateral proceedings to establish cause for procedural

default of claim of ineffective assistance at trial; abrogating

Johnson v. Genovese, 2021 WL 3269954, and

Hampton, 2020 WL 3964207.

White, Circuit Judge, filed opinion concurring in part and

dissenting in part.

Procedural Posture(s): Appellate Review; Post-Conviction

Review.

West Headnotes (58)

[1]

[5] counsel's deficiency was prejudicial at penalty phase;

Habeas Corpus

Review de novo

Court of Appeals reviews de novo a district

court's decision to grant or deny a writ of habeas

corpus.

[2]

28 U.S.C.A. § 2254(d).

Habeas Corpus

Adequacy or effectiveness

of state proceeding; full and fair litigation

Where the state court fails to adjudicate a claim

on the merits, Antiterrorism and Effective Death

Penalty Act's (AEDPA) deferential standard of

[2] cross-examination and evidence of prior sexual acts

between child and her brother was appropriately excluded;

[4] counsel's deficiency was not prejudicial at guilt/innocence

phase of trial;

Petty v.

Affirmed in part, reversed in part, vacated in part, and

remanded.

[1] evidence was sufficient to support rape conviction;

[3] defense counsel provided ineffective assistance by failing

to adequately challenge semen evidence;

APPENDIX B

review does not apply.

[3]

Habeas Corpus

questions

28 U.S.C.A. § 2254(d).

Federal or constitutional

Under the Antiterrorism and Effective Death

Penalty Act (AEDPA), a state-court decision

is contrary to clearly established federal law,

warranting federal habeas relief, if the state court

applies a rule that contradicts governing law

Rogers v. Mays, 43 F.4th 530 (2022)

A-027

Criminal Law

set forth in the Supreme Court's cases or if

a state court confronts a set of facts that are

materially indistinguishable from a decision of

the Supreme Court and nevertheless arrives at a

result different from Supreme Court precedent.

Habeas Corpus

Federal Review of State

or Territorial Cases

Under the Antiterrorism and Effective Death

Penalty Act (AEDPA), a state-court decision

unreasonably applies clearly established federal

law, warranting federal habeas relief, if it

correctly identifies the governing legal rule but

applies it unreasonably to the facts of a particular

prisoner's case.

[5]

[8]

[9]

Under the Antiterrorism and Effective Death

Penalty Act (AEDPA), clearly established

federal law, with respect to federal habeas

review, refers to the holdings, as opposed to

the dicta of Supreme Court decisions, as of the

time of the relevant state-court decision.

U.S.C.A. § 2254(d).

[6]

was objectively unreasonable.

2254(d).

Federal or constitutional

Although courts of appeals' decisions do not

establish new rules, a federal habeas court

may look to such decisions to inform its

analysis of whether a legal principle had been

clearly established by the Supreme Court.

U.S.C.A. § 2254(d).

[7]

Criminal Law

Construction in favor of

government, state, or prosecution

Habeas Corpus

Federal review of state

proceedings, in general

Because Antiterrorism and Effective Death

Penalty Act (AEDPA) deference applies, a

federal habeas court may not overturn a state

court decision rejecting a sufficiency of the

evidence challenge simply because the federal

court disagrees with the state court and instead

may do so only if the state court decision

Habeas Corpus

Federal Review of State

or Territorial Cases

Habeas Corpus

questions

Criminal liability;

Federal courts must look to state law for the

substantive elements of the criminal offense, but

the minimum amount of evidence that the Due

Process Clause requires to prove the offense

is purely a matter of federal law. U.S. Const.

Amend. 14.

28 U.S.C.A. § 2254(d).

Federal or constitutional

Habeas Corpus

innocence

Habeas Corpus

Federal review of state

proceedings, in general

Federal Review of State

Habeas Corpus

or Territorial Cases

Habeas Corpus

questions

Reasonable doubt

When determining whether there is sufficient

evidence to support a conviction, the relevant

question 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.

28 U.S.C.A. § 2254(d).

[4]

APPENDIX B

[10]

28 U.S.C.A. §

Habeas Corpus

Federal review of state

proceedings, in general

When reviewing whether the state court's

determination was objectively unreasonable, as

required for a federal habeas court to overturn

a state court decision rejecting a sufficiency

of the evidence challenge, the federal habeas

court necessarily engages in a two-step analysis:

(1) the court determines whether the evidence

itself was sufficient to convict, and if not, (2)

the court must then apply Antiterrorism and

Effective Death Penalty Act (AEDPA) deference

Rogers v. Mays, 43 F.4th 530 (2022)

A-028

and ask whether the state court was objectively

unreasonable in concluding that a rational trier

of fact could have found the defendant guilty

beyond a reasonable doubt.

2254(d).

[11]

evidence leads to only reasonable speculation

about those ultimate facts, the evidence is

insufficient to support a conviction.

28 U.S.C.A. §

[14]

verdict, and one to the state appellate court.

U.S.C.A. § 2254(d).

Habeas Corpus

problems

[15]

Particular issues and

28 U.S.C.A. § 2254(d);

Code Ann. §§ 39-13-202(a)(2),

Tenn.

39-13-522(a),

Criminal Law

prosecutions

Application in criminal

Criminal Law

Inferences from evidence

Jurors may draw reasonable inferences from

basic facts to ultimate facts; if, however, the

28 U.S.C.A. § 2254(d).

Habeas Corpus

Exclusion of evidence

shorts immediately before leaving house.

U.S.C.A. § 2254(d).

[16]

39-13-501(7).

[13]

higher threshold.

Tennessee Supreme Court's affirmance of trial

court's exclusion of cross-examination and

evidence proffered by defendant regarding prior

sexual acts between child, whom defendant

was convicted of kidnapping, raping, and

murdering, and her brother was not contrary

to or unreasonable application of federal law,

under Antiterrorism and Effective Death Penalty

Act (AEDPA), and thus, habeas relief was not

warranted based on exclusion of evidence claim;

brother's past statements lacked persuasive

assurances of trustworthiness, as he could

not remember making statements, he struggled

with significant psychological issues, and his

statements were uncorroborated and remote in

time, and nothing connected him to semen

on his sister's shorts, as she put on new

Tennessee Supreme Court's denial of defendant's

claim that insufficient evidence supported his

conviction for raping child was not contrary to or

unreasonable application of clearly established

federal law, under Antiterrorism and Effective

Death Penalty Act (AEDPA), and thus habeas

relief was not warranted on insufficiency of

evidence claim; state court was not objectively

unreasonable in concluding that sperm heads on

inside of crotch area of child's shorts came from

defendant and were evidence of penetration,

as child's mother testified that child changed

into clean shorts before she left house, and

there was evidence that defendant abducted and

killed her.

Federal Review of State

Habeas Corpus

or Territorial Cases

The question under the Antiterrorism and

Effective Death Penalty Act (AEDPA) is not

whether a federal court believes the state court's

determination was incorrect but whether that

determination was unreasonable, a substantially

Habeas Corpus

Federal review of state

proceedings, in general

When reviewing whether the state court's

determination was objectively unreasonable, as

required for a federal habeas court to overturn

a state court decision rejecting a sufficiency of

the evidence challenge, two layers of deference

apply under the Antiterrorism and Effective

Death Penalty Act (AEDPA), one to the jury

[12]

APPENDIX B

Criminal Law

Deficient representation

and prejudice in general

To demonstrate ineffective assistance of counsel,

defendant must show that counsel's performance

was deficient and that the deficient performance

prejudiced the defense. U.S. Const. Amend. 6.

[17]

Criminal Law

general

Deficient representation in

Rogers v. Mays, 43 F.4th 530 (2022)

To show deficient performance of counsel, a

defendant must show that counsel made errors so

serious that counsel was not functioning as the

counsel guaranteed the defendant by the Sixth

Amendment. U.S. Const. Amend. 6.

[18]

Criminal Law

A-029

[22]

trial in state court, under

Strickland and

Antiterrorism and Effective Death Penalty

Act (AEDPA), in support of granting federal

habeas relief based on counsel's failure to

adequately challenge semen evidence proffered

by prosecution's expert witness to support

defendant's conviction for raping child whom he

kidnapped and murdered, since sperm evidence

was only evidence of penetration, but defense

counsel “wasn't as concerned about” semen

evidence, did not ask expert about his testing for

semen in great detail, and also failed to present

some favorable evidence to jury, including

evidence that called into doubt whether presence

of sperm indicated presence of semen. U.S.

Prejudice in general

1 Case that cites this headnote

Criminal Law

Representation

Adequacy of

Surmounting the high bar of Strickland for an

ineffective assistance of counsel claim is never

an easy task. U.S. Const. Amend. 6.

Const. Amend. 6;

[23]

[20]

Adequacy and

Habeas Corpus

Effectiveness of Counsel

Habeas Corpus

Counsel

28 U.S.C.A. § 2254(d).

Habeas Corpus

Adequacy and

Effectiveness of Counsel

When Antiterrorism and Effective Death Penalty

Act (AEDPA) applies, the question is not

whether counsel's actions were reasonable but

whether there is any reasonable argument that

counsel satisfied the deferential standard of

Strickland for a state prisoner's federal habeas

claim for ineffective assistance of counsel. U.S.

Const. Amend. 6;

28 U.S.C.A. § 2254(d).

Adequacy and

Habeas Corpus

Effectiveness of Counsel

To show prejudice from ineffective assistance

of counsel, a state prisoner asserting a federal

habeas claim must show a reasonable probability

that, but for counsel's unprofessional errors,

the result of the proceeding would have been

different; this probability must be sufficient

to undermine confidence in the outcome, and

it is not enough to show that the errors had

some conceivable effect on the outcome of

The combined effect of

Strickland and the

Antiterrorism and Effective Death Penalty Act

(AEDPA) is doubly deferential review of a state

prisoner's federal habeas claim of ineffective

assistance of counsel. U.S. Const. Amend. 6;

[21]

Evidence; procurement,

Habeas Corpus

presentation, and objection

Defense counsel performed deficiently at

To show prejudice, as required to establish

ineffective assistance of counsel, defendant must

show that counsel's errors were so serious as to

deprive defendant of a fair trial, a trial whose

result is reliable. U.S. Const. Amend. 6.

[19]

APPENDIX B

the proceeding. U.S. Const. Amend. 6;

U.S.C.A. § 2254(d).

[24]

Habeas Corpus

Adequacy and

Effectiveness of Counsel

Because Antiterrorism and Effective Death

Penalty Act (AEDPA) deference applies to a state

prisoner's federal habeas claim for ineffective

assistance of counsel, the prisoner must show

that it would have been unreasonable for the state

court to determine that evidence of prejudice

fell short of the standard requiring the prisoner

to show a reasonable probability that, but for

Rogers v. Mays, 43 F.4th 530 (2022)

A-030

Defendant was prejudiced at penalty phase

imposing death sentence for his convictions of

kidnapping, rape, and murder of nine-year-old

child, by defense counsel's deficient performance

in failing to adequately challenge semen

evidence proffered by prosecution's expert

witness, and thus habeas relief was warranted,

since there was reasonable probability that at

least one juror would have weighed aggravating

and mitigating factors differently in imposing

death sentence, under Tennessee law, in absence

of rape conviction, as rape of nine-year-old

child was so grievous, and child rape was

particularly significant aggravating factor that

was accorded significant weight and would thus

have significant impact on weighing calculus.

counsel's unprofessional errors, the result of

the proceeding would have been different. U.S.

Const. Amend. 6;

[25]

28 U.S.C.A. § 2254(d).

Habeas Corpus

Evidence; procurement,

presentation, and objection

Defendant was not prejudiced at guilt/innocence

phase of his trial for kidnapping, rape, and

murder of child, by defense counsel's deficient

performance in failing to adequately challenge

semen evidence proffered by prosecution's

expert witness, even though Tennessee Court

of Criminal Appeals unreasonably applied

Strickland in determining that counsel's

deficient performance did not render rape

conviction unreliable, since jury convicted

defendant of both felony murder and

premeditated murder, judge merged two felony

murder counts, one for felony murder in

perpetration of kidnapping and one for felony

murder in perpetration of rape, into count for

premeditated murder, so counsel's error could

not undermine defendant's murder conviction as

all three murder convictions were merged. U.S.

[26]

Const. Amend. 6;

28 U.S.C.A. § 2254(d).

Criminal Law

Determination

In determining prejudice from counsel's deficient

performance, a court looks at the totality of

evidence before the judge or jury. U.S. Const.

Amend. 6.

[27]

Criminal Law

U.S. Const. Amend. 6;

2254(d);

(B).

[29]

Tenn. Code Ann. § 39-13-204(g)(1)

Manner and

Sentencing and Punishment

effect of weighing or considering factors

Nature,

Child rape is a crime that in many cases will

overwhelm a decent person's judgment in a way

that makes it difficult for a jury to balance

the other aggravating and mitigating factors in

determining the sentence.

[30]

Habeas Corpus

general

Cause and prejudice in

Federal habeas courts are barred from

considering federal constitutional claims that

were defaulted in state court unless the prisoner

can demonstrate cause for the default and

actual prejudice that resulted or a fundamental

Prejudice in general

miscarriage of justice.

[31]

Habeas Corpus

Post-trial proceedings;

sentencing, appeal, etc

28 U.S.C.A. §

Sentencing and Punishment

degree or seriousness of offense

In determining whether counsel's deficient

performance was prejudicial to the defendant, a

verdict or conclusion only weakly supported by

the record is more likely to have been affected

by counsel's errors than one with overwhelming

record support. U.S. Const. Amend. 6.

[28]

APPENDIX B

Habeas Corpus

counsel

28 U.S.C.A. § 2254(d).

Ineffectiveness or want of

Although ineffective assistance of counsel on

direct appeal may constitute cause to excuse the

procedural default of habeas claims, ineffective

Rogers v. Mays, 43 F.4th 530 (2022)

A-031

assistance of post-conviction counsel typically

cannot constitute cause to excuse the default in

federal habeas. U.S. Const. Amend. 6;

U.S.C.A. § 2254(d).

For a claim of ineffective assistance of trial

counsel to be substantial, as required to excuse

a state prisoner's procedural default of a federal

habeas claim, the claim must have some merit.

U.S. Const. Amend. 6;

2254(d).

1 Case that cites this headnote

[32]

Habeas Corpus

counsel

[36]

U.S. Const. Amend. 6;

2254(d).

Habeas Corpus

counsel

counsel. U.S. Const. Amend. 6;

§ 2254(d).

Ineffectiveness or want of

[37]

Effective assistance

Amend. 6;

[38]

Habeas Corpus

counsel

Ineffectiveness or want of

Habeas Corpus

counsel

28 U.S.C.A.

Ineffectiveness or want of

District court's determination that habeas

petitioner's ineffective assistance claim based on

trial counsel's failure to investigate brother of

child victim of kidnapping, rape, and murder

as source of semen found inside crotch of her

shorts was insubstantial, such that procedural

default of claim was not excused, warranted

vacatur, since court found that no new evidence

conflicted with evidence that child left house

in clean shorts, and court doubted that trial

counsel could have obtained any new evidence,

but evidence before court was inconsistent with

those findings and suggested that child did not

leave house in clean shorts, and counsel's failure

to investigate brother as source of semen resulted

from counsel's ignorance of evidence, not from

informed choice about trial strategy. U.S. Const.

In Tennessee, the state procedural framework,

by reason of its design and operation, makes it

highly unlikely in a typical case that a defendant

will have a meaningful opportunity to raise a

claim of ineffective assistance of trial counsel on

direct appeal. U.S. Const. Amend. 6.

[35]

Discretion and necessity

A federal habeas court may not conduct

an evidentiary hearing or otherwise consider

evidence beyond the state-court record based

on ineffective assistance of state postconviction

28 U.S.C.A. § 2254(d).

Criminal Law

Habeas Corpus

in general

Habeas Corpus

Reception of evidence;

affidavits; matters considered

28 U.S.C.A. §

Procedural default can be excused by a federal

habeas court if: (1) the claim of ineffective

assistance of trial counsel was a substantial

claim, (2) the cause consisted of there being

no counsel or only ineffective counsel during

the state collateral review proceeding, (3) the

state collateral review proceeding was the initial

review proceeding in respect to the ineffective

assistance of trial counsel claim, and (4) state

law requires that an ineffective assistance of

trial counsel claim be raised in an initial review

collateral proceeding. U.S. Const. Amend. 6;

[34]

28 U.S.C.A. §

Ineffectiveness or want of

Inadequate assistance of counsel at initial-review

collateral proceedings may establish cause for a

state prisoner's procedural default of a federal

habeas claim of ineffective assistance at trial.

[33]

APPENDIX B

28 U.S.C.A. § 2254(d).

Criminal Law

general

Deficient representation in

Because the performance prong of an ineffective

assistance of counsel claim is necessarily linked

to the practice and expectations of the legal

Rogers v. Mays, 43 F.4th 530 (2022)

A-032

community, the proper measure of attorney

performance remains simply reasonableness

under prevailing professional norms. U.S. Const.

Amend. 6.

[39]

Criminal Law

[43]

Preparation for trial

1 Case that cites this headnote

Ineffectiveness or want of

28 U.S.C.A. § 2254(d).

1 Case that cites this headnote

[41]

Habeas Corpus

Review de novo

Court of Appeals reviews de novo whether a

state prisoner's federal habeas claim is barred by

procedural default.

Ineffectiveness or want of

defense. U.S. Const. Amend. 6;

§ 2254(d).

28 U.S.C.A.

28 U.S.C.A. § 2254(d).

[45]

[42]

Habeas Corpus

counsel

State prisoner's claims that trial counsel was

ineffective in investigating, developing, and

presenting mitigating evidence for his death

penalty imposed for his state convictions of

kidnapping, rape, and murder of child were

procedurally defaulted at his initial postconviction proceeding and not on appeal, and

thus exception to procedural default applied,

since mitigation claims were so barebones that

they were never fairly presented to state postconviction trial court, which found it could only

speculate as to nature of any proposed mitigation

evidence or manner in which it would have aided

Although an exception can excuse procedural

default of a state prisoner's federal habeas claim

of ineffective assistance of counsel at the initial

post-conviction stage, it does not apply to save

procedural defaults that occur in appeals from

initial-review collateral proceedings. U.S. Const.

Amend. 6;

Ineffectiveness or want of

28 U.S.C.A. § 2254(d).

[44]

Habeas Corpus

counsel

Habeas Corpus

counsel

Post-conviction counsel's failure to take all

possible steps to fully develop a claim cannot

be the cause of a procedural default of the state

prisoner's federal habeas claim as long as counsel

properly raised the claim and made a good-faith

effort in presenting it. U.S. Const. Amend. 6;

In analyzing an ineffective assistance of counsel

claim, counsel has a duty to make reasonable

investigations, and a particular decision not

to investigate must be directly assessed for

reasonableness in all the circumstances, applying

a heavy measure of deference to counsel's

judgments. U.S. Const. Amend. 6.

[40]

APPENDIX B

Habeas Corpus

Remedies

Exhaustion of State

Habeas Corpus

theory

Identity of facts, law, and

To avoid procedural default on a federal habeas

claim, a state prisoner must exhaust all statecourt remedies, which requires fair presentation

of the claim to the state courts; to fairly present

a federal claim, a state prisoner is required to

present the state courts with both the legal and

factual basis for the claim.

2254(d).

28 U.S.C.A. §

Habeas Corpus

Default, etc., precluding

state court consideration

A state prisoner's federal habeas claim is

procedurally defaulted when counsel entirely

failed to develop a claim in a way that would

allow a court to adjudicate an issue. U.S. Const.

Amend. 6;

28 U.S.C.A. § 2254(d).

1 Case that cites this headnote

[46]

Criminal Law

general

Deficient representation in

Rogers v. Mays, 43 F.4th 530 (2022)

A-033

In order to establish prejudice from counsel's

deficient performance, the new evidence that

a state prisoner presents for his federal habeas

claim must differ in a substantial way, in strength

and subject matter, from the evidence actually

presented at sentencing; the failure to present

additional mitigating evidence that is merely

cumulative of that already presented does not rise

to the level of a constitutional violation. U.S.

To establish deficient performance of counsel,

a defendant must demonstrate that counsel's

representation fell below an objective standard of

reasonableness. U.S. Const. Amend. 6.

[47]

Criminal Law

Preparation for trial

In assessing reasonableness of an attorney's

investigation, a court must consider not only the

quantum of evidence already known to counsel,

but also whether the known evidence would lead

a reasonable attorney to investigate further. U.S.

Const. Amend. 6.

[48]

Criminal Law

[52]

Criminal Law

general

Deficient representation in

Although American Bar Association (ABA)

Guidelines are not inexorable commands,

they are valuable measures of the prevailing

professional norms of effective representation of

counsel. U.S. Const. Amend. 6.

[50]

Criminal Law

Death Penalty

Prejudice exists if there is a reasonable

probability that, but for counsel's ineffectiveness,

the jury would have made a different judgment

about whether defendant deserved the death

penalty as opposed to a lesser sentence; this

inquiry will necessarily require a court to

speculate as to the effect of the new evidence,

regardless of how much or how little mitigation

evidence was presented during the initial penalty

phase. U.S. Const. Amend. 6.

[51]

Habeas Corpus

Post-trial proceedings;

sentencing, appeal, etc

Const. Amend. 6;

28 U.S.C.A. § 2254(d).

Habeas Corpus

counsel

Ineffectiveness or want of

Procedural default was not excused for state

prisoner's federal habeas claim that counsel

at initial post-conviction proceeding was

ineffective in presenting evidence from expert at

death penalty phase of trial for kidnapping, rape,

and murder of child, because expert's testimony

opened door to otherwise inadmissible evidence

related to prisoner's prior escape from prison and

potential for future escape, since claim was not

substantial in that counsel made strategic choice

to call expert as witness and ask about risk of

future dangerousness, and counsel's strategy did

not work out as well as hoped, but that did not

mean that counsel was incompetent. U.S. Const.

Preparation for trial

Strategic choices made by counsel after less than

complete investigation are reasonable only to the

extent that reasonable professional judgments

support the limitations on investigation. U.S.

Const. Amend. 6.

[49]

APPENDIX B

Amend. 6;

[53]

28 U.S.C.A. § 2254(d).

Presumptions and burden

Criminal Law

of proof in general

The

Strickland standard for an ineffective

assistance of counsel claim is highly deferential,

and counsel is strongly presumed to have

rendered adequate assistance and made all

significant decisions in the exercise of

reasonable professional judgment. U.S. Const.

Amend. 6.

[54]

Criminal Law

Preparation for trial

Counsel's strategic choices made after thorough

investigation of law and facts relevant to

plausible options are virtually unchallengeable

Rogers v. Mays, 43 F.4th 530 (2022)

A-034

by an ineffective assistance of counsel claim.

U.S. Const. Amend. 6.

[55]

Habeas Corpus

counsel

was ineffective. U.S. Const. Amend. 6;

U.S.C.A. § 2254(d).

Habeas Corpus

counsel

Ineffectiveness or want of

Procedural default of a state prisoner's

underlying claim that relates to ineffective

assistance of counsel at the motion-for-a-newtrial stage in Tennessee can be excused under the

narrow exception that inadequate assistance of

counsel at initial-review collateral proceedings

may establish cause for a prisoner's procedural

default of a claim of ineffective assistance at trial;

abrogating

Johnson v. Genovese, 2021 WL

3269954, and

Petty v. Hampton, 2020 WL

3964207. U.S. Const. Amend. 6;

§ 2254(d).

28 U.S.C.A.

1 Case that cites this headnote

[57]

Criminal Law

Nature and scope of

remedy of new trial in general

In Tennessee, motions for a new trial are the

preferred procedural mechanism for bringing

trial errors to the attention of the trial court. Tenn.

R. App. P. 3(e); Tenn. R. Crim. P. 33(b).

[58]

Criminal Law

has been convicted fairly in the guilt phase of the

trial, the presumption of innocence disappears.

Ineffectiveness or want of

The exception that inadequate assistance of

counsel at initial-review collateral proceedings

may establish cause for a state prisoner's

procedural default of a federal habeas claim

of ineffective assistance at trial can excuse

procedural default when the prisoner claims that

trial counsel was ineffective, but it cannot apply

when the prisoner claims that appellate counsel

[56]

APPENDIX B

Innocence

The presumption of innocence does not apply at

the sentencing phase because once the defendant

*538 Appeal from the United States District Court for the

Middle District of Tennessee at Nashville. No. 3:13-cv-00141

—Waverly D. Crenshaw, Jr., District Judge.

Attorneys and Law Firms

ARGUED: Kelley J. Henry, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Nashville, Tennessee, for Appellant.

Richard D. Douglas, OFFICE OF THE TENNESSEE

ATTORNEY GENERAL, Nashville, Tennessee, for

Appellee. ON BRIEF: Kelley J. Henry, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Nashville, Tennessee,

Kimberly S. Hodde, HODDE & ASSOCIATES, Nashville,

Tennessee, for Appellant. Richard D. Douglas, OFFICE

OF THE TENNESSEE ATTORNEY GENERAL, Nashville,

Tennessee, for Appellee.

Before: MOORE, WHITE, and STRANCH, Circuit Judges.

MOORE, J., delivered the opinion of the court in which

STRANCH, J., joined in full, and WHITE, J., joined in

part. WHITE, J. (pp. 568–69), delivered a separate opinion

dissenting from Sections II.B.3.b.2, II.C.1, and II.C.2.b.

OPINION

KAREN NELSON MOORE, Circuit Judge.

A Tennessee jury convicted William Glenn Rogers of

kidnapping, rape, and murder, and imposed a sentence of

death. Rogers appeals from the denial of his petition for a

writ of habeas corpus by the United States District Court

for the Middle District of Tennessee. On appeal, Rogers

raises claims related to sufficiency of the evidence and

the state's limitation of evidence and cross-examination, as

well as five groups of claims of ineffective assistance of

counsel at the guilt/innocence, sentencing, and motion-for-anew-trial stages. For the reasons that follow, we affirm the

district court's opinion with respect to the guilt/innocence

phase of trial. We conclude, however, that Rogers's counsel

rendered ineffective assistance at the sentencing phase that

makes us doubt whether this phase of trial produced a

fair result. We further hold that, in Tennessee, ineffective

Rogers v. Mays, 43 F.4th 530 (2022)

A-035

assistance of postconviction counsel can establish cause

to excuse a defendant's procedural default of a substantial

claim of ineffective assistance at the motion-for-a-new-trial

stage. Accordingly, we AFFIRM in part, REVERSE in part,

VACATE in part, and REMAND for further proceedings

consistent with this opinion.

I. BACKGROUND

The Tennessee Supreme Court summarized the facts as

follows:

At the guilt phase of the trial, the State presented proof

that on July 3, 1996, nine-year-old Jacqueline (“Jackie”)

*539 Beard was playing with her twelve-year-old brother,

Jeremy Beard, and her eleven-year-old cousin, Michael

Carl Webber, at a mud puddle near her home in the

Cumberland Heights area of Clarksville in Montgomery

County. The defendant, thirty-four-year-old William Glenn

Rogers, approached the children and introduced himself

as “Tommy Robertson.” He said he was an undercover

police officer, offered the children fireworks, and invited

them to go swimming. Jackie went home and told her

mother, Jeannie Meyer, about the man. Mrs. Meyer took

Jackie back to the mud puddle to investigate. While the

children played with the fireworks, Mrs. Meyer talked with

Rogers, who continued to identify himself as undercover

officer Tommy Robertson. After approximately thirty-five

minutes, Rogers left in his car.

At around 1:30 p.m. on July 8, 1996, Rogers appeared at

the Meyer residence asking about a lost key. Jackie was

with her mother when Mrs. Meyer spoke with Rogers.

Rogers was last seen walking down the road toward a

nearby abandoned trailer. A few minutes later, Mrs. Meyer

gave Jackie permission to pick blackberries to take to the

doctor's office where Mrs. Meyer had an appointment that

afternoon. Jackie changed her shorts immediately before

leaving the house. At 1:55 p.m., Mrs. Meyer was ready to

leave and called for Jackie but could not find her. At around

2:00 p.m., a neighbor, Mike Smith, saw a car matching

the description of Rogers’ car leaving the immediate area.

Smith had seen the same car heading in the direction of the

Meyer residence about an hour or two earlier. Mrs. Meyer

searched the area by car and on foot to no avail. Jackie was

never seen alive again.

State v. Rogers (“Rogers II”), 188 S.W.3d 593, 598 (Tenn.

2006).

APPENDIX B

After Beard's disappearance, the police questioned Rogers. Id.

at 599. At first, Rogers denied seeing Beard that day; later, he

said that he accidentally struck her with his car and then threw

her body off a bridge into the river. Id.; R. 25-5 (Tr. at 127–

32) (Page ID #3894–99). After the police asked Rogers about

a child's fingerprints in his car, he said that Beard briefly sat

in his car and spoke with him. Rogers II, 188 S.W.3d at 599.

Throughout police questioning, he denied any sexual abuse.

Id.

On November 8, 1996, two deer hunters found Beard's

remains in a wooded area in Land between the Lakes,

approximately forty-eight miles from her home. Id. at 599–

600. Her shoes, shirt, and shorts were near her remains. Id.

The shirt was inside out. Id. at 600; R. 25-7 (Tr. at 231) (Page

ID #4376). Later tests revealed sperm heads on the inside of

the crotch area of her shorts. Rogers II, 188 S.W.3d at 600.

At the guilt/innocence phase of trial, the jury convicted

Rogers on each of nine counts, including one count of firstdegree premeditated murder, two counts of first-degree felony

murder, two counts of aggravated kidnapping, two counts of

rape of a child, and two counts of criminal impersonation. R.

25-11 (Tr. at 221–22) (Page ID #5132–33).

At the penalty phrase, several mitigation witnesses testified.

The most significant mitigation witness was Rogers's sibling

Sam, 1 who testified that their stepfather *540 “often”

“slapp[ed],” “hit[ ]” and “punch[ed]” them, starting from

the time that Rogers was four or five years old. R. 25-13

(Tr. at 112–13, 138–39) (Page ID #5383–84, 5409–10). Sam

explained that Rogers was often chained to the bed, for up

to days on end. Id. at 119–22 (Page ID #5390–93). If Rogers

soiled the bed or his pants, their stepfather would rub Rogers's

face in the soiled pants or mattress. Id. at 124–25, 130

(Page ID #5395–96, 5401). Their stepfather would also lock

himself and Rogers in the bathroom, and Sam believed that

he was forcibly giving Rogers enemas. Id. at 133–36 (Page

ID #5404–07). Additional family members and other lay

witnesses also briefly testified that Rogers was abused. Three

expert witnesses also testified. Cecille Guin, a social worker,

testified in general terms about the violent and abusive

conditions at the Louisiana Training Institute (LTI), an

institution at which Rogers had been confined. Id. at 119–24

(Page ID #5777–82). Psychologist Tom Neilson testified that

he had diagnosed Rogers with posttraumatic stress disorder,

which resulted from the trauma he experienced, depressive

disorder not otherwise specified, dissociative disorder not

Rogers v. Mays, 43 F.4th 530 (2022)

A-036

otherwise specified, and a personality disorder not otherwise

specified with antisocial and borderline features. R. 25-14 (Tr.

at 287–309) (Page ID #5559–81). Psychiatrist Keith Caruso

testified that Rogers met “diagnostic criteria for anti-social

personality disorder and for border line personality disorder.”

R. 25-16 (Tr. at 149–50) (Page ID #5813–14).

The jury sentenced Rogers to death. R. 25-17 (Tr. at 38)

(Page ID #5983). It found four aggravating circumstances:

(1) the defendant was previously convicted of one or more

felonies that involve the use of violence; (2) the murder was

committed with the purpose of avoiding, interfering with,

or preventing a lawful arrest or prosecution; (3) the murder

was committed against a person younger than twelve and

the defendant was at least eighteen; and (4) the murder was

knowingly committed while the defendant had a substantial

role in committing or attempting to commit, or was fleeing

after having a substantial role in committing, or attempting to

commit, rape or kidnapping. Id. at 36–37 (Page ID #5981–

Tenn. Code Ann. § 39-13-204(i) (1996).

82); see also

The jury unanimously found that these aggravating factors

outweighed any mitigating factors beyond a reasonable doubt.

R. 25-17 (Tr. at 37) (Page ID #5982).

The trial court denied Rogers's motion for a new trial. R.

24-5 (Order) (Page ID #1168–90). Rogers appealed, first to

the Tennessee Court of Criminal Appeals and then to the

Tennessee Supreme Court. Both courts affirmed Rogers's

convictions and sentence. State v. Rogers (“Rogers I”), No.

M2002-01798-CCA-R3-DD, 2004 WL 1462649, at *1 (Tenn.

Ct. Crim. App. June 30, 2004); Rogers II, 188 S.W.3d at 598.

Rogers then filed a petition for post-conviction relief. R.

26-7 (Second Am. Pet. for Post-Conviction Relief) (Page ID

#7755–80). The post-conviction court denied the petition. R.

26-8 (Order) (Page ID #7863–8056). The Tennessee Court

of Criminal Appeals affirmed the denial of post-conviction

relief. Rogers v. State (“Rogers III”), M2010-01987-CCAR3-PD, 2012 WL 3776675, at *1 (Tenn. Crim. App. Aug. 30,

2012). The Tennessee Supreme Court denied review. R. 26-19

(Order) (Page ID #10186).

Rogers filed a habeas petition in federal district court. R.

14 (Am. Pet. for Writ of Habeas Corpus) (Page ID #44–

139). The district court denied the petition.

*541

Rogers v. Westbrooks (“Rogers IV”), No. 3:13-cv-00141,

2019 WL 1331035 (M.D. Tenn. Mar. 25, 2019). Rogers

APPENDIX B

timely appealed. R. 156 (Notice of Appeal) (Page ID #27325–

26).

II. ANALYSIS

A. Standard of Review

[1]

[2] We review de novo a district court's decision to

grant or deny a writ of habeas corpus.

Foust v. Houk,

655 F.3d 524, 533 (6th Cir. 2011). Under the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), a

federal court may grant a writ of habeas corpus “with

respect to any claim that was adjudicated on the merits in

State court proceedings” if the state court decision “was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States” or “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). “Where

the state court fails to adjudicate a claim on the merits,

however, AEDPA's deferential standard of review does not

apply.”

2006).

Williams v. Anderson, 460 F.3d 789, 796 (6th Cir.

[3]

[4] A state-court decision is contrary to clearly

established federal law 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 a set of facts

that are materially indistinguishable from a decision of [the

Supreme Court] and nevertheless arrives at a result different

from [Supreme Court] precedent.” Williams v. Taylor, 529

U.S. 362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A

state-court decision unreasonably applies clearly established

federal law if it “correctly identifies the governing legal

rule but applies it unreasonably to the facts of a particular

prisoner's case.”

Id. at 407–08, 120 S.Ct. 1495.

[5]

[6] “[C]learly established Federal law ... refers to

the holdings, as opposed to the dicta of [Supreme Court]

decisions as of the time of the relevant state-court decision.”

Id. at 412, 120 S.Ct. 1495. “Although courts of appeals’

decisions do not establish new rules, the court may look

to such decisions to inform its analysis of whether a legal

principle had been clearly established by the Supreme Court.”

Avery v. Prelesnik, 548 F.3d 434, 436–37 (6th Cir. 2008).

Rogers v. Mays, 43 F.4th 530 (2022)

A-037

APPENDIX B

one to the jury verdict, and one to the state appellate court.”

B. Exhausted Claims

Tanner v. Yukins, 867 F.3d 661, 672 (6th Cir. 2017).

1. Sufficiency of the Evidence to Support Finding of

Rape (Claims G.39, I.5, I.8–11)

First, Rogers argues that there is insufficient evidence that

he raped Beard, which was a component of his conviction

for felony murder. He further contends that the Tennessee

Supreme Court's rejection of his sufficiency-of-the-evidence

challenge was contrary to or an unreasonable application of

clearly established federal law. We hold that this argument

fails.

To establish felony murder in perpetration of a rape, the state

needed to prove that Rogers killed Beard “in the perpetration

of or attempt to perpetrate ... rape.”

Tenn. Code Ann. §

39-13-202(a)(2) (1996). To establish rape, the state needed

to prove that there was “unlawful sexual penetration.” Id.

§ 39-13-522(a). To establish “sexual penetration,” the state

needed to prove “sexual intercourse ... or any other intrusion,

however slight, of any part of a person's body or of any object

into the genital or anal openings of the victim's ... body.” Id.

[7]

[8] When determining whether there is sufficient

§ 39-13-501(7).

evidence to support a conviction, “the relevant question is

whether, after viewing the evidence in the light most favorable

[12] In rejecting Rogers's sufficiency-of-the-evidence claim,

to the prosecution, any rational trier of fact could have found

the Tennessee Supreme Court relied on only four factors to

the essential elements of the crime beyond a reasonable

support the conviction for rape: (1) the sperm heads found

on the inside crotch of Beard's shorts; (2) Beard's mother's

doubt.”

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). “Under

Jackson, federal

courts must look to state law for ‘the substantive elements of

the criminal offense,’ but the minimum amount of evidence

that the Due Process Clause requires to prove the offense is

purely a matter of federal law.”

Coleman v. Johnson, 566

U.S. 650, 655, 132 S.Ct. 2060, 182 L.Ed.2d 978 (2012) (per

curiam) (quoting *542

S.Ct. 2781).

testimony 2 that Beard changed into clean shorts right before

she disappeared; (3) the investigator's testimony that Beard's

shirt was found inside out; and (4) the inference that Rogers

was the last person to see Beard alive. Rogers II, 188 S.W.3d

at 617. The Tennessee Supreme Court concluded that it was

reasonable to infer that the sperm heads came from Rogers

and that they were evidence of penetration.

Jackson, 443 U.S. at 324 n.16, 99

[13] This is a close case regarding sufficiency. The fact

that Beard's shirt was inside out was of limited relevance

[9]

[10]

[11] Because AEDPA deference applies, “a because (1) it does not provide evidence of penetration; and

(2) Beard's remains and clothing were scattered, which one

federal court may not overturn a state court decision rejecting

of the state's experts explained was due to scavenging by

a sufficiency of the evidence challenge simply because the

animals. R. 25-8 (Tr. at 88) (Page ID #4493). Thus, the only

federal court disagrees with the state court” and “instead

evidence of penetration was the sperm on Beard's shorts, and

may do so only if the state court decision was ‘objectively

the only evidence that Rogers was responsible for the sperm

unreasonable.’ ”

Cavazos v. Smith, 565 U.S. 1, 2, 132

was the testimony that Beard had changed into clean shorts

S.Ct. 2, 181 L.Ed.2d 311 (2011) (per curiam) (quoting

before she left the house, coupled with the evidence that

Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176

Rogers abducted and killed her. Jurors may “draw reasonable

L.Ed.2d 678 (2010)). “When reviewing whether the state

inferences from basic facts to ultimate facts.” Jackson, 443

court's determination was ‘objectively unreasonable,’ this

U.S. at 319, 99 S.Ct. 2781. If, however, the evidence leads

court necessarily engages in a two-step analysis.” Saxton v.

to only “reasonable speculation” about those ultimate facts,

Sheets, 547 F.3d 597, 602 (6th Cir. 2008). First, the court

the evidence is insufficient to support a conviction.

*543

determines “whether the evidence itself was sufficient to

Newman v. Metrish, 543 F.3d 793, 796 (6th Cir. 2008). We

convict under

Jackson.” Id. If not, the court “must then

agree with the trial court's statement that the sufficiency of

apply AEDPA deference and ask whether the state court was

the evidence of penetration was “somewhat of a ‘close call.’

‘objectively unreasonable’ in concluding that a rational trier

” R. 24-5 (Order at 6) (Page ID #1173). On direct review, we

of fact could have found [the defendant] guilty beyond a

might have found such evidence to be insufficient.

reasonable doubt.” Id. “Thus, two layers of deference apply,

Rogers v. Mays, 43 F.4th 530 (2022)

A-038

[14] Nevertheless, AEDPA deference applies. “The question

‘is not whether a federal court believes the state court's

determination ... was incorrect but whether that determination

was unreasonable—a substantially higher threshold.’ ”

Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct.

1411, 173 L.Ed.2d 251 (2009) (quoting

Schriro v.

Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d

836 (2007)). In a case with a similarly small amount of

direct evidence, we have nonetheless denied habeas relief,

Durr v.

pointing to AEDPA's deferential standard. See

Mitchell, 487 F.3d 423, 448 (6th Cir. 2007) (although the

court might be “hard-pressed to conclude” on de novo

review that there was sufficient evidence of rape in a case

with “absolutely no physical evidence of any penetration,”

AEDPA's deferential standard led the court to affirm the

denial of the habeas petition). We therefore affirm the denial

of Rogers's sufficiency claims.

2. Exclusion of Cross-Examination and Evidence

Regarding Prior Sexual Acts Between the Victim and

Her Brother (Claims G.21–24, G.26, G.44)

[15] Next, Rogers argues that the trial court improperly

excluded cross-examination and evidence regarding prior

sexual acts between Beard and her brother, Jeremy Beard. 3

Through questioning of both Jeremy, R. 25-4 (Tr. at 44–46,

49) (Page ID #3569–71, 74), and Meyer, id. at 209 (Page

ID #3734), Rogers sought to admit evidence that Jeremy

Beard had previously made statements that his biological

father taught him to have sex with his sister. The trial court

did not allow this line of questioning on the grounds that it

was “remote in time and irrelevant and possibly confusing

to the jury and inadmissible.” Id. at 70 (Page ID #3595); see

id. at 214–15 (Page ID #3739–40). Rogers argues that the

exclusion of this evidence is an unreasonable application of

Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35

L.Ed.2d 297 (1973). We disagree.

Chambers, the Supreme Court held that the trial court

denied the defendant the right to a fair trial when it did not

allow him to present certain exculpatory evidence. Another

witness, McDonald, had given a sworn confession that he had

committed the crime. Although Chambers was permitted to

call McDonald and introduce the confession, Chambers was

neither permitted to re-examine McDonald after McDonald

recanted the confession nor allowed to call other witnesses to

testify about McDonald's verbal confessions to them.

Id.

APPENDIX B

at 291–94, 93 S.Ct. 1038. In concluding that “the exclusion

of this critical evidence ... denied him a trial in accord with

traditional and fundamental standards of due process,”

id.

at 302, 93 S.Ct. 1038, the Court explained that the excluded

evidence was “critical to Chambers’ defense,” “tended ... to

exculpate Chambers,” and “bore persuasive assurances of

trustworthiness,”

id. at 297, 302, 93 S.Ct. 1038.

The Tennessee Supreme Court did not unreasonably apply

Chambers. First, Jeremy's past statements did not bear

“persuasive assurances of trustworthiness.”

Id. at 302,

93 S.Ct. 1038. Jeremy could not remember making the

statements. R. 25-4 (Tr. at 44–46) (Page ID #3569–

71); see Rogers II, 188 S.W.3d at 613. Jeremy struggled

with significant psychological issues: *544 he lived in a

residential facility at the time of trial, and he had previously

lived in various residential treatment facilities, mentalbehavioral hospitals, group homes, detention centers, and

foster homes. R. 25-4 (Tr. at 40–42) (Page ID #3565–67).

Although his mother told a therapist that Jeremy told her

that his father taught him to have sex with his sister, Meyer

testified that she passed along this information “[t]o see if he

really had or, you know, if he was telling the truth.” R. 25-4

(Tr. at 209) (Page ID #3734). No other evidence indicated

that Jeremy had ever had sex with his sister, meaning that

Jeremy's statements were entirely uncorroborated. Rogers II,

188 S.W.3d at 613.

Additionally, these statements were “not nearly as relevant

Chambers.”

to [the] defense as the confessions in

Washington v. Renico, 455 F.3d 722, 735 (6th Cir. 2006).

First, as the trial court explained, these statements—and any

potential underlying sexual activity—were “remote in time.”

R. 25-4 (Tr. at 70) (Page ID #3595). Jeremy had not lived

with or seen his father since 1991, five years before his sister's

disappearance, R. 25-4 (Tr. at 211–12) (Page ID #3736–37).

No evidence suggested that Jeremy had sex with his sister

after that time. More significantly, unlike

House v. Bell,

547 U.S. 518, 548, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006),

in which key physical evidence could be directly linked to a

different suspect, nothing connected Jeremy to the semen on

Jackie Beard's shorts, especially in light of the testimony that

Jackie Beard put on new shorts immediately before leaving

the house. 4 See Rogers II, 188 S.W.3d at 613. Accordingly,

the Tennessee Supreme Court decision was not contrary to or

an unreasonable application of

Chambers.

Rogers v. Mays, 43 F.4th 530 (2022)

A-039

APPENDIX B

[22] Every court to consider this claim has found that

Rogers's counsel performed deficiently. See

Rogers IV,

3. Ineffective Assistance of Trial Counsel by Not

2019 WL 1331035, at *30; Rogers III, 2012 WL 3776675,

Adequately Challenging Semen Evidence (Claim C.12)

[16]

[17]

[18]

[19] Rogers argues that trial counselat *47; R. 26-8 (Order at 59–60) (Page ID #7921–22). This

issue is also undisputed before this court. See Appellee

rendered ineffective assistance by failing to investigate

Br. at 39 n.3. The prosecution's experts performed various

the serological evidence and conduct an adequate crossscientific analyses to test for semen, and defense counsel

examination regarding this evidence. To demonstrate

failed adequately to challenge this evidence.

ineffective assistance of counsel, Rogers must show “that

counsel's performance was deficient” and “that the deficient

In finding that counsel's performance was deficient, the state

performance prejudiced the defense.”

Strickland v.

post-conviction court explained:

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). To show deficient performance, Rogers must

show “that counsel made errors so serious that counsel was

The testimony of Ms. Clement and

not functioning as the ‘counsel’ guaranteed the defendant by

Mr. Squibb at the [post-conviction]

Id. To show prejudice, Rogers

the Sixth Amendment.”

hearing reveals certain deficiencies

must show “that counsel's errors were so serious as to deprive

in Mr. Warner's cross-examination of

the defendant of a fair trial, a trial whose result is reliable.”

those witnesses at trial. Mr. Squibb's

testing produced evidence favorable

Id. “Surmounting Strickland’s high bar is never an easy

to the petitioner, but counsel did n

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