Rogers v. The State of Mississippi et al

Filing 25

ORDER ADOPTING IN PART 17 Report and Recommendations. Remanded to magistrate judge for further consideration of grounds one and three, as set out herein. Signed by District Judge Tom S. Lee on 8/15/11 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
DERWIN ROGERS

PETITIONER

VS.

NO. 3:07CV600TSL-FKB

STATE OF MISSISSIPPI AND
CHRISTOPHER P. EPPS,
COMMISSIONER OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS

RESPONDENT

ORDER
This cause is before the court on the objection of petitioner
Derwin Rogers to the magistrate judge's February 18, 2011 report
and recommendation in which he recommended dismissal with
prejudice of Rogers’ petition for habeas corpus.

Having

considered petitioner’s submission and the State of Mississippi’s
response in support of the report and recommendation, and
recognizing the highly deferential standard of review the
magistrate judge was bound to apply to the state court’s
adjudication “on the merits” of grounds two, four, five, six,
seven, eight, nine and ten of the habeas petition, the court
concludes that as to these grounds, the report and recommendation
should be adopted as the finding of the court.1
1

Each of grounds two, four, five, six, seven, eight and
nine alleged ineffective assistance of counsel. Recently, in
Harrington v. Richter, the Supreme Court emphasized how difficult
it is to meet unreasonableness standard of 28 U.S.C. § 2254(d),
explaining that “[a]s amended by the [AEDPA], § 2254(d) “preserves
authority to issue the writ in cases where there is no possibility

However, the court concludes that remand to the magistrate
judge is warranted for further consideration of grounds one and
three, in light of the arguments and authorities addressed in the
parties’ submissions to the undersigned, which were not fairly
presented to the magistrate judge for his consideration.2
Accordingly, it is ordered that the magistrate judge’s report
and recommendation is adopted, in part, as set forth herein, and
is remanded for further consideration of grounds one and three.
SO ORDERED this 15TH day of August, 2011.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

fairminded jurists could disagree that the state court’s decision
conflicts with this Court’s precedents. It goes no farther.” 131
S. Ct. 770, 786. The Court continued, stating,
Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland and
§ 2254(d) are both “highly deferential,” id., at 689,
104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333,
n.7, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), and when
the two apply in tandem, review is “doubly” so, Knowles,
556 U.S., at ––––, 129 S. Ct. at 1420. The Strickland
standard is a general one, so the range of reasonable
applications is substantial. 556 U.S., at ––––, 129 S.
Ct. at 1420. Federal habeas courts must guard against
the danger of equating unreasonableness under Strickland
with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland's
deferential standard.
131 S. Ct. at 788.
2

Unlike the remaining grounds, grounds one and three were
not adjudicated on the merits, but rather were held procedurally
barred.
2