United States District Court, D. Nevada
capital habeas corpus action, this court ruled on
respondents' motion to dismiss on March 24, 2008,
granting it in part and denying it in part. See
Order entered March 24, 2008 (ECF No. 108). The court
dismissed Grounds 1, 2, 4, 8, 12, 14, 15, 16, 17, 18, 22, 25,
26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37 of Mark
Rogers' second amended petition for writ of habeas corpus
(ECF No. 77). The court found Rogers' Ground 7 to be
unexhausted, and Rogers abandoned that claim on April 24,
2008 (ECF No. 109).
respondents answered, and the parties briefed Rogers'
remaining claims, the court ruled on the merits of those
claims on July 8, 2011, granting Rogers' petition in part
and denying it in part. See Order entered July 8,
2011 (ECF No. 145). The court denied Rogers relief with
respect to Grounds 3, 5, 6, 9, 10, 11, 13, 19, 24, and 38 of
his second amended petition. The court granted Rogers relief
with respect to Grounds 20, 21, and 23, concerning
Rogers' death sentence. Accordingly, the court ordered
that Rogers be granted a new penalty-phase trial, or that his
death sentence be vacated and a non-capital sentence imposed
appealed and Rogers cross-appealed (ECF Nos. 147, 149). The
Ninth Circuit Court of Appeals ruled on July 16, 2015.
See Opinion of Court of Appeals (ECF No. 162). The
court of appeals affirmed the grant of habeas corpus relief
regarding Rogers's death sentence. However, the appellate
court remanded the case to this court for further
consideration of certain of Rogers' claims regarding the
guilt phase of his trial, in light of potentially relevant
cases decided while the case was on appeal. See
Opinion of the Court of Appeals (ECF No. 162), pp. 17-19.
Regarding the remanded claims, the court of appeals stated:
Turning to Rogers's many uncertified guilt-phase claims,
we expand Rogers's COA, vacate the district court's
denials of relief and remand for further proceedings, because
the district court did not have the benefit of many
potentially relevant cases decided while Rogers's appeal
was pending. See Murray v. Schriro, 745 F.3d 984,
1002 (9th Cir. 2014) (holding that we may issue a COA if
jurists of reason could debate the correctness of district
court's procedural ruling or whether petitioner has been
denied a constitutional right). [Footnote: Our grant of
partial habeas corpus relief moots Rogers's numerous
penalty-phase claims, which we do not address.] It is
appropriate that the district court address the significance,
if any, of those new precedents in the first instance.
The district court held that several of Rogers's claims
were procedurally barred, and dismissed them. After that
order, the Supreme Court decided Martinez v. Ryan,
[566 U.S. 1], 132 S.Ct. 1309 (2012), and we have applied
Martinez in several cases, including Ha Van
Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013),
Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en
banc), and Pizzuto v. Ramirez, 783 F.3d 1171,
1176-78 (9th Cir. 2015). We expand the COA as to Claims 12,
14, 15, 16, 17, 18, 26, and 28, vacate the district
court's dismissal of these claims, and remand them for
consideration of Martinez and our decisions
interpreting it. On remand, the district court should
consider whether these claims are claims of ineffective
assistance of trial or direct appeal counsel cognizable under
Martinez, and whether Rogers can show cause and
prejudice to excuse his procedural default. [Footnote: Rogers
also challenges the sufficiency of the state procedural
default rule applied in his case. We decline at this time to
address that sufficiency issue. Rogers may raise this
challenge again in a later appeal, if not rendered moot by
proceedings on remand.]
The district court also denied several claims on the merits,
refusing under Cullen v. Pinholster, 131 S.Ct. 1388
(2011), to consider new evidence Rogers presented in support
of his federal habeas petition. We expand the COA as to
Claims 5, 9, and 10, vacate the district court's denial
of these claims, and remand for the district court to
consider our subsequent decision in Dickens v. Ryan,
740 F.3d 1302 (9th Cir. 2014) (en banc), as well as the
decisions in Martinez, Ha Van Nguyen,
Detrich, and Pizzuto.
Finally, the district court determined that several of
Rogers's claims were barred by AEDPA's one-year
statute of limitations, 28 U.S.C. § 2244(d)(1), and that
Rogers was not entitled to equitable tolling on those claims.
While Rogers's case was pending on appeal, we decided
Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2014). We
expand the COA as to Rogers's Claims 1, 2, and 8, vacate
the district court's dismissal of those claims, and
remand to the district court to consider whether, in light of
Sossa, Rogers is entitled to equitable tolling on
those claims. If the district court concludes that equitable
tolling is appropriate, it should consider in the first
instance whether Rogers can show good cause for a stay and
abeyance procedure under Rhines v. Weber, 544 U.S.
269 (2005). See Blake v. Baker, 745 F.3d 977, 984
(9th Cir.), cert. denied, 135 S.Ct. 128 (2014)
(holding that a petitioner who showed ineffective assistance
of counsel in initial post-conviction review proceedings had
shown “good cause” for a stay and abeyance).
Id. at 17-19.
court then ordered the parties to file briefs stating their
positions with respect to the issues to be resolved on remand
(ECF No. 167). Rogers filed his opening brief (ECF No. 174),
along with a motion for an evidentiary hearing (ECF No. 175),
on April 25, 2016. Respondents filed their responsive brief
(ECF No. 189) and an opposition to the motion for an
evidentiary hearing (ECF No. 190) on September 12, 2016.
Rogers filed a reply brief (ECF No. 198) and a reply in
support of his motion for evidentiary hearing (ECF No. 199)
on January 18, 2017.
order, the court determines that the dismissal of Grounds 1,
2, and 8, as barred by the statute of limitations, is
unaffected by the court of appeals' subsequent decision
in Sossa; those claims are again dismissed. The
court determines that an answer is warranted with respect to
Grounds 12, 14, 15, 16, 17, 18, 26, and 28, and perhaps a
supplemental answer with respect to Grounds 5, 9, and 10. The
court finds that the motion for evidentiary hearing is
premature, and that motion will be denied, without prejudice.
The court will set a schedule set for respondents' answer
and Rogers' reply, and for Rogers to file a new motion
for evidentiary hearing.
1, 2, and 8
Grounds 1, 2, and 8 were dismissed, as barred by the statute
of limitations, in the order entered by this court on March
24, 2008 (ECF No. 108). The following is from that order:
For convictions that became final prior to the enactment of
the AEDPA, a petitioner had until April 24, 1997, to file a
federal habeas corpus petition. Patterson v.
Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001). That is
the case here. Petitioner's conviction became final on
May 19, 1986, when the United States Supreme Court denied
petitioner's petition for a writ of certiorari, with
respect to the ruling of the Nevada Supreme Court affirming
his conviction and sentence. See Rogers v. Nevada,
476 U.S. 1130 (1986). Therefore, without the benefit of any
tolling, the limitations period applicable to
petitioner's federal habeas corpus action would have
expired on April 24, 1997. See Patterson, 251 F.3d
The AEDPA limitations period, however, is tolled while a
“properly filed application” for post conviction
or other collateral relief is pending before a state court.
28 U.S.C. § 2244(d)(2). A “properly filed
application” is one in which the “delivery and
acceptance are in compliance with the applicable laws and
rules governing filings.” Dictado v. Ducharme,
244 F.3d 724, 726-27 (9th Cir. 2001), quoting Artuz v.
Bennett, 531 U.S. 4, 121 S.Ct. 361, 364 (2000). In
Pace v. DeGuglielmo, 544 U.S. 408, 414 (2005), the
Supreme Court held that a state postconviction petition
rejected by the state court as untimely is not
“properly filed” within the meaning of §
2244(d)(2), and, therefore, does not qualify for statutory
tolling under that statute.
Petitioner filed a state-court post-conviction habeas corpus
petition - initiating his third state habeas action - on
March 24, 1997, one month before the limitations period for
his federal petition was to expire. See Second
Amended Petition, p. 10, ¶29; Petitioner's Exhibit
562. That state habeas petition was dismissed by the state
district court on May 1, 2000. See Second Amended
Petition, p. 21, ¶30. The Nevada Supreme Court affirmed
on May 13, 2002. See Second Amended Petition, p. 22,
¶32; see also Petitioner' Exhibit 564.
In its decision affirming the dismissal of petitioner's
third state habeas action, the Nevada Supreme Court ruled
unequivocally that the petition had been untimely filed.
See Petitioner's Exhibit 564, pp. 3-5. Under
Pace, therefore, petitioner's third state habeas
petition did not toll the limitations period under 28 U.S.C.
§ 2244(d)(2). See Pace, 544 U.S. at 414.
The AEDPA limitations period is also subject to equitable
tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). The petitioner bears the burden of showing that
equitable tolling is appropriate. Espinoza-Matthews v.
California, 432 F.3d 1021, 1026 (9th Cir. 2005). The
petitioner must establish: “(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.”
Pace, 544 U.S. at 418. The resolution of the
equitable tolling issue is “highly
fact-dependent.” Espinoza-Matthews, 432 F.3d
at 1026; Whalem/Hunt v. Early, 233 F.3d 1146, 1148
(9th Cir. 2000) (en banc, per curiam).
Here, the Court finds that petitioner has met his burden, and
that equitable tolling is warranted - but only with respect
to certain of petitioner's claims.
In petitioner's second federal habeas action, on January
29, 1997, the Court entered an order addressing the issue
whether petitioner's claims were exhausted in state
court. Rogers v. Angelone, 3:93-cv-0785-ECR, docket
#76. In that order, the Court found several of
petitioner's claims to be unexhausted. Id. at
10. Consequently, the Court required petitioner to make the
either (1) voluntarily dismiss his habeas petition in order
pursue state remedies with respect to the unexhausted claims,
or (2) abandon the unexhausted claims and proceed with only
the exhausted claims. Id. The Court stated in the
We recommend option (1) above whereby Petitioner voluntarily
dismisses the petition now before this Court. Petitioner may
then proceed through the Nevada state court system in order
to exhaust the currently unexhausted claims. Upon properly
exhausting these claims, Petitioner may seek federal habeas
review of all possible grounds for relief. The advantage of
this course of action is that it enables Petitioner to argue
all the claims for relief in a single federal proceeding.
Furthermore, a voluntary dismissal of the instant petition
would not prejudice in any way Petitioner's ability to
seek federal habeas corpus relief through a subsequent
petition. However, Petitioner must understand that, pursuant
to recently enacted federal legislation, there is a one year
deadline between the time the conviction became final and the
time the federal habeas corpus petition must be filed
(excluding the time during which a state post-conviction
petition is ...