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Rogers v. Filson

United States District Court, D. Nevada

November 6, 2017

MARK ROGERS, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

         Introduction and Background

         In this capital habeas corpus action, the 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). In that order, 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). In addition, the Court found Ground 7 to be unexhausted, and Rogers abandoned that claim on April 24, 2008 (ECF No. 109).

         After 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.

         Respondents 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. The appellate court remanded the case 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.

         This 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 an opening brief in that regard (ECF No. 174), along with a motion for evidentiary hearing (ECF No. 175), on April 25, 2016. Respondents filed a responsive brief and response to the motion for evidentiary hearing on September 12, 2016 (ECF Nos. 189, 190). Rogers filed a reply brief and reply regarding his motion for evidentiary hearingon January 18, 2017 (ECF Nos. 198, 199).

         In an order entered on March 2, 2017 (ECF No. 200), the Court determined that the dismissal of Grounds 1, 2 and 8, as barred by the statute of limitations, was unaffected by the Court of Appeals' subsequent decision in Sossa; consequently, the Court again dismissed those claims. The Court determined, further, that an answer or supplemental answer was warranted with respect to Grounds 5, 9, 10, 12, 14, 15, 16, 17, 18, 26, and 28, and the Court set a schedule for such. The Court denied Rogers' motion for evidentiary hearing, without prejudice, finding that it was premature. The Court set a schedule set for respondents' answer and Rogers' reply, and for Rogers to file a new motion for evidentiary hearing.

         Respondents filed their answer, responding to Rogers' remaining claims, on May 18, 2017 (ECF No. 203). On June 7, 2017, Rogers filed a reply (ECF No. 205), along with a new motion for evidentiary hearing (ECF No. 204). On June 20, 2017, respondents filed an opposition to Rogers' motion for evidentiary hearing (ECF No. 207), and, on July 5, 2017, Rogers filed a reply in support of that motion (ECF No. 209). On July 7, 2017, respondents filed a supplement to their answer (ECF No. 212). See Order entered July 11, 2017 (ECF No. 213) (granting respondents leave of court to file supplement to answer). And, on August 9, 2017, respondents filed a response to Rogers' reply to their answer (ECF No. 214).

         Grounds 12, 14, 15, 16, 17, 18, 26 and 28

         In the order entered on March 24, 2008, this Court dismissed Grounds 12, 14, 15, 16, 17, 18, 26 and 28, ruling those claims to be procedurally defaulted. See Order entered March 24, 2008 (ECF No. 108), pp. 31-40, 56. The Court of Appeals reversed that ruling, and remanded, instructing that this Court “should consider whether these claims are claims of ineffective assistance of trial or direct appeal counsel cognizable under [Martinez v. Ryan, 566 U.S. 1 (2012)], and whether Rogers can show cause and prejudice to excuse his procedural default.” Opinion of the Court of Appeals (ECF No. 162), pp. 17-18.

         In Grounds 12, 14, 15, 17, 26 and 28, Rogers claims violations of his constitutional rights by the trial court and ineffective assistance of counsel on his direct appeal to the Nevada Supreme Court and in his state post-conviction proceedings; in those claims, Rogers does not claim ineffective assistance of his trial counsel. See Second Amended Petition (ECF No. 77), pp. 183, 186-88, 190, 217-18, 223-25. In Grounds 16 and 18, Rogers claims ineffective assistance of his trial counsel, as well as violations of his constitutional rights by the trial court ...


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