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Rogers v. Gittere

United States District Court, D. Nevada

September 23, 2019

MARK ROGERS, Petitioner,
v.
WILLIAM GITTERE, et al., Respondents.

          ORDER

          GLORIA M. NAVARRO, UNITED STATES DISTRICT JUDGE.

         Introduction

         This case is a petition for a writ of habeas corpus by Mark Rogers, a Nevada prisoner. The case is before the court with respect to the merits of certain claims remanded by the Court of Appeals for further consideration by this Court. The Court will grant Rogers habeas corpus relief on one of the remanded claims, Rogers’ claim that his trial counsel rendered ineffective assistance of counsel with respect to their investigation and presentation of his defense of not guilty by reason of insanity.

         Background Facts and Procedural History

         In its September 3, 1985, decision affirming Rogers’ convictions and sentence, the Nevada Supreme Court described, as follows, the facts of the case as revealed by the evidence:

On December 3, 1980, Frank and Linda Strode returned from a Thanksgiving trip to their home in an isolated part of Pershing County near Majuba Mountain, where they resided with Frank’s parents, Emery and Mary Strode, and Frank’s sister, Meriam Strode Treadwell. When they entered the parents’ trailer, they found the dead bodies of Emery, Mary and Meriam under a blanket in a bedroom. Emery had been shot three times and stabbed twice with a knife which was left in his chest. A pocket watch discovered in Emery’s shirt pocket had been struck by one of the bullets; the hour hand of the watch was stopped at one o’clock. Mary had been stabbed in the back and shot in the chest. Meriam, whose wrists were bound with an electric cord, died from a single gunshot wound in her back. Emery and Meriam kept daily diaries. The last entry in both diaries was recorded on the morning of December 2, 1980.
On December 1, 1980, between 4:30 and 5 p.m., Robert Schott gave defendant a ride from Winnemucca to Imlay. As soon as Rogers climbed into Schott’s truck, he looked nervously in both the back of the truck and the rear view mirror. Defendant introduced himself as John and claimed that he was a musician going to Reno to look for a job. At one point during the drive, defendant blurted out: “You may not believe it but I am a good American. You may not believe it but I'm on your side. I would fight for my country.”
On December 2, 1980, between approximately 12:15 and 12:45 p.m., David Hartshorn, a geologist working at the Majuba Hill Mine, observed Rogers standing alongside a road near Majuba Canyon and offered him a ride. During the ride, Hartshorn gave defendant a can of Seven-Up to drink. Defendant stated that “[s]omebody is shooting rockets ... and one of these days it will hit my pyramid and blow me up.” Rogers alighted at the Strode residence with the Seven-Up can in hand.
Between 12:30 and 2 p.m. that same day, Ray Horn, a mechanic at a nearby mine, was driving on a county road near Majuba Mountain. As he passed a dark metallic blue truck, a slender young man driving the truck shot at Horn several times. Between 3:30 and 4 p.m., Earl L. Smith, a highway maintenance worker saw Rogers standing on a road between Denio and Winnemucca and provided him a ride because defendant had run out of gasoline. Rogers was later observed traveling at an extremely high rate of speed in a blue truck, which was identified by its license number as the Strodes’ truck.
On December 5, 1980, Rogers was refused entry into Canada. In conversing with a Canadian police officer, Rogers indicated that he was the King of North America. On January 4, 1981, defendant was arrested in Florida when he was seen riding on the bumper of a car, holding on to a luggage rack. After he was arrested, Rogers told police that God knew him and that we were all a part of mother nature. During fingerprinting, defendant refused to speak and wrote on a piece of paper that he belonged to the government. Later at the jail, defendant claimed that he had killed the Strode family in self-defense.
Rogers’ fingerprints were lifted from various items in the Strode residence, including a Seven-Up can and a glass jar found in the bedroom under the blanket with the victims’ bodies. At trial, the defense presented the testimony of several expert witnesses which indicated defendant was a paranoid schizophrenic at the time of evaluation and that defendant’s behavior at the time of the commission of the crimes was consistent with psychotic paranoid delusions, schizophrenia and psychosis and that Rogers could not tell right from wrong or the nature and quality of his acts. One psychologist believed that defendant, who was trained in acting, was faking his symptoms. After finding the defendant guilty of the crimes charged, the jury imposed the death penalty for the three murder convictions, and prison terms for the attempted murder and grand larceny.

Rogers v. State, 101 Nev. 457, 461-62, 705 P.2d 664, 667-68 (1985), cert. Denied, 476 U.S. 1130 (1986).

         Rogers appealed, and the Nevada Supreme Court affirmed his conviction and sentence on September 3, 1985. Rogers, 101 Nev. 457, 705 P.2d 664 (1985). The United States Supreme Court denied Rogers’ petition for a writ of certiorari. Rogers v. Nevada, 476 U.S. 1130 (1986).

         On February 26, 1986, Rogers filed a petition for post-conviction relief in the state district court. That court held an evidentiary hearing, at which Rogers testified, and then, on September 29, 1986, denied the petition. Rogers appealed, and on June 20, 1987, the Nevada Supreme Court dismissed the appeal.

         On October 26, 1987, Rogers filed a petition for a writ of habeas corpus in this Court, initiating the case of Rogers v. Whitley, 3:87-cv-0505-ECR. Counsel was appointed to represent Rogers. On July 27, 1989, the court stayed that action so that Rogers could exhaust certain claims in state court.

         On October 15, 1990, Rogers filed, in state court, a second petition for post-conviction relief, and on December 24, 1991, that petition was denied. Rogers appealed, and the Nevada Supreme Court dismissed the appeal on May 28, 1993.

         On December 1, 1993, Rogers filed a second federal habeas corpus action in this Court: Rogers v. Angelone, 3:93-cv-0785-ECR. Rogers’ first federal habeas action was then dismissed. The petition in Rogers’ second federal habeas action was amended and supplemented, and Respondents answered. On March 6, 1997, the Court ordered the action dismissed, without prejudice, in order to permit Rogers to further exhaust claims in state court.

         On March 24, 1997, Rogers filed, in state district court, a third petition for post-conviction relief. The state district court dismissed that petition, Rogers appealed, and the Nevada Supreme Court affirmed on May 13, 2002.

         On June 25, 2002, Rogers initiated this, his third, federal habeas action, by filing a “renewed” petition for writ of habeas corpus (ECF No. 11).

         On November 24, 2004, Rogers moved for a stay of these proceedings, under Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir.), cert. denied, 540 U.S. 1069 (2003), contending that he was not competent to proceed with this action (ECF No. 39). On September 21 and 22, 2005, the court held an evidentiary hearing on that motion (ECF Nos. 60, 61). The Court denied the motion on October 24, 2005 (ECF No. 58) and denied a motion to reconsider on May 18, 2006 (ECF No. 69).

         On December 14, 2006, Rogers filed a first amended petition (ECF No. 75), and on December 19, 2006, he filed a second amended petition (ECF No. 77), which is the operative petition in the action.

         On August 10, 2007, Respondents filed a motion to dismiss (ECF No. 85). 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 Rogers’ second amended petition. 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 Rogers’ remaining claims, and the parties briefed those claims, the Court ruled on the 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, and 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), published as Rogers v. McDaniel, 793 F.3d 1036 (2015). The Court of Appeals affirmed the grant of habeas corpus relief regarding Rogers’ death sentence. However, 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 Rogers, 793 F.3d at 1044-45. 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, [563 U.S. 170');">563 U.S. 170, ] 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.

         This Court then ordered the parties to file briefs stating their positions regarding the issues to be resolved on remand (ECF No. 167). Following that briefing, on March 2, 2017, the Court determined that the dismissal of Grounds 1, 2 and 8, as barred by the statute of limitations, was unaffected by the subsequent decision in Sossa; consequently, the Court again dismissed those claims (ECF No. 200). 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 Respondents’ answer and Rogers’ reply.

         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 motion for evidentiary hearing (ECF No. 204). 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).

         In an order entered November 6, 2017, the Court dismissed Grounds 9, 10, 12, 14, 15, 17, 26 and 28, and all the claims in Grounds 16 and 18 other than claims of ineffective assistance of trial counsel, on procedural default grounds, determining that Martinez and Dickens do not affect that outcome. See Order entered November 6, 2017 (ECF No. 215).

         In the November 6, 2017, order, the Court granted Rogers an evidentiary hearing on Ground 5. See id. Rogers filed a pre-hearing brief on August 8, 2018 (ECF No. 233), and an amended pre-hearing brief on August 9, 2018 (ECF No. 237). Respondents filed a pre-hearing brief on August 23, 2018 (ECF No. 242). Rogers filed a reply pre-hearing brief on August 30, 2018 (ECF No. 244). The Court granted Rogers leave to conduct certain pre-hearing discovery. See Order entered July 6, 2018 (ECF No. 228); Order entered August 28, 2018 (ECF No. 243). The evidentiary hearing was held on October 22, 23, and 24, 2018. See Minutes of Proceedings (ECF Nos. 269, 270, 272); Transcripts of Evidentiary Hearing (ECF Nos. 275, 276, 277). Following the evidentiary hearing, on December 21, 2018, Rogers filed a post-hearing brief (ECF No. 278). Respondents filed a post-hearing brief on January 30, 2019 (ECF No. 282). Rogers filed a reply post-hearing brief on February 13, 2019 (ECF No. 284).

         Rogers’ claim in Ground 5 and his claims of ineffective assistance of trial counsel in Grounds 16 and 18 are now before the Court for resolution on their merits.

         Ground 5

         In Ground 5, Rogers claims that his federal constitutional rights were violated as a result of ineffective assistance of counsel because his trial counsel failed to adequately investigate his mental health and failed to consult with mental health experts, in order to properly present his defense of not guilty by reason of insanity (NGRI). See Second Amended Petition (ECF No. 77), pp. 105-17.

         In his first state habeas action, Rogers asserted a claim that his trial counsel was ineffective with respect to his NGRI defense. In that claim, Rogers focused on his counsel’s decision to call his mother as a witness and his counsel’s alleged failure to properly prepare expert witnesses but did not cite to or present any evidence from outside the record. Later, in his third state habeas action, Rogers asserted, in state court, a more substantial claim, again similar to that in Ground 5, but that petition was ruled procedurally barred.

         When this Court ruled on the claim in Ground 5 in the July 8, 2011, order, the Court, applying the law as it was at that time, looked only at the evidence presented in support of the claim in Rogers’ first state habeas action, and denied the claim. See Order entered July 8, 2011 (ECF No. 145), pp. 12-14. The Ninth Circuit Court of Appeals reversed that ruling, and remanded the claim for reconsideration in light of Martinez v. Ryan, 566 U.S. 1 (2012), and Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc), both of which were decided after this Court’s ruling. See Rogers, 793 F.3d at 1044-45. In Dickens, the court of appeals held that a claim has not been fairly presented in state court, and may be procedurally defaulted, if new factual allegations asserted in federal court fundamentally alter the claim as compared to the claim as considered by the state courts. Dickens, 740 F.3d at 1318. In Martinez, the Supreme Court held that lack of counsel, or ineffective assistance of counsel, in an initial state postconviction proceeding, may function as cause, to overcome a procedural default of a claim of ineffective assistance of trial counsel. Martinez, 566 U.S. at 18.

         So, the first question to be resolved regarding Ground 5 is whether new allegations and evidence – that is, the allegations and evidence presented now, in this case, but not presented in Rogers’ first state habeas action – fundamentally alter the claim. If so, and if this claim as presented here would now be procedurally barred in state court (see NRS §§ 34.726, 34.800, 34.810; 28 U.S.C. § 2254(b)(1)(B)(i); Woodford v. Ngo, 548 U.S. 81, 92-93 (2006)), and is therefore subject to the procedural default doctrine, the question becomes whether Rogers can overcome the procedural default. See Order entered November 6, 2017 (ECF No. 215), p. 6.

         “A claim has not been fairly presented in state court if new factual allegations either ‘fundamentally alter the legal claim already considered by the state courts, ’ ... or ‘place the case in a significantly different and stronger evidentiary posture than it was when the state courts considered it.’” Dickens, 740 F.3d at 1318 (quoting Vasquez v. Hillery, 474 U.S. 254, 260 (1986); Beaty v. Stewart, 303 F.3d 975, 989-90 (9th Cir. 2002); Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988); and citing Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988)). In this Court’s view, without question, the new allegations and evidence presented by Rogers in this case fundamentally alter the claim as compared to its presentation in Rogers’ first habeas action in state court. The new evidence -- in particular the testimony of Rogers’ expert witnesses at the evidentiary hearing in this Court -- places the claim in a significantly different and stronger evidentiary posture than in state court, where Rogers’ presented no evidence from outside the trial court record to support the claim. Therefore, Ground 5 is subject to the procedural default doctrine, and is barred by that doctrine unless Rogers can overcome the procedural default. See Petitioner’s Closing Brief (ECF No. 278), p. 28 (“The evidence and allegations outlined above are procedurally defaulted. Mr. Rogers can overcome that default....”).

         In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails to comply with the state’s procedural requirements in presenting his claims is barred by the adequate and independent state ground doctrine from obtaining a writ of habeas corpus in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991) (“Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.”). Where such a procedural default constitutes an adequate and independent state ground for denial of habeas corpus, the default may be excused only if “a constitutional violation has probably resulted in the conviction of one who is actually innocent, ” or if the prisoner demonstrates cause for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). To demonstrate cause for a procedural default, the petitioner must “show that some objective factor external to the defense impeded” his efforts to comply with the state procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears “the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170 (1982).

         In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective assistance of post-conviction counsel may serve as cause to overcome the procedural default of a claim of ineffective assistance of trial counsel. The Coleman Court had held that the absence or ineffective assistance of state post-conviction counsel generally could not establish cause to excuse a procedural default because there is no constitutional right to counsel in state post-conviction proceedings. See Coleman, 501 U.S. at 752-54. In Martinez, however, the Supreme Court established an equitable exception to that rule, holding that the absence or ineffective assistance of counsel at an initial-review collateral proceeding may establish cause to excuse a petitioner's procedural default of substantial claims of ineffective assistance of trial counsel. See Martinez, 566 U.S. at 9. The Court described “initial-review collateral proceedings” as “collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial.” Id. at 8. Accordingly, under the equitable rule of Martinez, a habeas petitioner may establish cause for the procedural default of an ineffective assistance of trial counsel claim “where the state ... required the petitioner to raise that claim in collateral proceedings, by demonstrating two things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of [Strickland]’ and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.’” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14); see also Respondents’ Closing Brief (ECF No. 282), pp. 8-10 (agreeing that, if the claim in Ground 5 is fundamentally altered, Martinez applies, and the claim may be adjudicated on its merits if Rogers shows that his initial state post-conviction counsel provided ineffective assistance with respect to the claim).

         In Strickland, the Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel: the petitioner must demonstrate (1) that the attorney’s representation “fell below an objective standard of reasonableness, ” and (2) that the attorney’s deficient performance prejudiced the defendant such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694. A court considering a claim of ineffective assistance of counsel must apply a “strong presumption” that counsel’s representation was within the “wide range” of reasonable professional assistance. Id. at 689. The petitioner’s burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. And, to establish prejudice under Strickland, it is not enough for the habeas petitioner “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

         Rogers’ initial state post-conviction counsel presented, in a pro forma manner, a claim asserting that Rogers’ trial counsel was ineffective with respect to their handling of Rogers’ NGRI defense. After Rogers filed a three-page pro se petition, initiating his first state habeas action, his appointed counsel filed a four-and-a-half-page supplemental petition. See Petition, ECF No. 77-6, pp. 497-500; Supplemental Petition, ECF No. 77-6, pp. 501-06. In the supplemental petition, the claim regarding trial counsel’s presentation of his NGRI defense was presented, in its entirety, as follows:

Trial counsel for Petitioner called Petitioner’s mother as a witness during the guilt phase contrary to Petitioner’s expressed direction to not do so. Her testimony was devastating to Petitioner and counsel’s doing so violated Petitioner’s right to effective assistance of counsel.
Petitioner was denied effective assistance of counsel in presenting an insanity defense in that defense counsel presented the testimony of Dr. Rich who stated that it would be difficult for him to determine the mental status of Petitioner at the time of the offenses as he was not present there and had no facts or history just prior to the testimony of Dr. Pauly, who testified that he could make such a determination. (ROA, pp. 1025; 1050).

         Supplemental Petition, ECF No. 77-6, p. 504. Rogers’ state post-conviction counsel: did not seek to develop evidence to support the claim; failed to do any investigation; failed to meaningfully interview trial counsel; failed to consult experts regarding Rogers’ mental state at the time of the killings; failed to present testimony of experts regarding that issue; failed to interview trial witnesses; failed to obtain records from Lake’s Crossing Center for the Mentally Disordered Offender (Lake’s Crossing), an institution where Rogers was housed and where his competence to stand trial was assessed; failed to interview Rogers’ family or friends; and even failed to obtain and examine the entire trial record. See Deposition of Mary E. Boetsch, ECF No. 77-3, pp. 773-922. The state district court held a hearing on Rogers’ petition, and Rogers’ counsel called one witness: Rogers. See Transcript of Proceedings, September 22, 1986, ECF Nos. 122-2, 122-3. By its nature -- raising the question of Rogers’ mental condition at the time of the crimes -- the claim was one that plainly called for investigation and evidentiary support from outside the trial court record, including expert witness opinions, but Rogers’ counsel wholly failed to competently articulate the claim and develop and present evidence to support it. In contrast, in this federal habeas action, Rogers points out numerous aspects of trial counsel’s deficient performance, not pointed out in Rogers’ first state habeas action. And, in this case, Rogers supports the claim with evidence not presented in state court, including the complete trial court record, Rogers’ daily progress records from Lake’s Crossing, police reports, evaluations of Rogers by mental health experts prior to his trial, declarations from relatives and friends of Rogers, testimony of trial counsel, testimony of mental health experts, and testimony of a Strickland expert. The evidence Rogers presents in this case, that was not presented in state court, places this claim in a completely different light, shows that Rogers’ state post-conviction counsel’s performance was inadequate, and substantiates his claim that his trial counsel were ineffective with respect to their handling of his NGRI defense. The Court determines that Rogers’ initial state post-conviction counsel’s presentation of this claim in state court fell below an objective standard of reasonableness, and Rogers was prejudiced thereby. And, as is discussed below, Rogers’ claim is substantial. Under Martinez, Rogers shows cause and prejudice, such as to overcome the procedural default of Ground 5.

         Because this claim, as now presented, was not adjudicated on its merits in state court, this Court’s review of the claim is de novo. See Cone v. Bell, 556 U.S. 449, 472 (2009); Porter v. McCollum, 558 U.S. 30, 39 (2009). The ...


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