Rogers v. Colson

Filing 161

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 5/31/2019. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
WILLIAM GLENN ROGERS,
Petitioner,
v.
TONY MAYS, Warden,
Respondent.

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NO. 3:13-cv-00141

DEATH PENALTY CASE

MEMORANDUM OPINION
On March 25, 2019, the Court denied relief to Petitioner on all of his habeas claims and
granted a Certificate of Appealability (COA) for five categories of claims. (Doc. No. 154 at 2.)
Petitioner has filed a Motion to Alter or Amend Judgment under Rule 59(e) of the Federal Rules
of Civil Procedure, in which he asks the Court to reconsider the denial of relief on his ineffectiveassistance-of-trial-counsel claims regarding mitigation evidence (“IATC-mitigation claims”) or to
grant a COA for those claims. (Doc. No. 155.) Respondent opposes the motion (Doc. No. 160),
which is ripe for review.
“A court may grant a Rule 59(e) motion to alter or amend if there is: (1) a clear error of
law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to
prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (citing
GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)). “Rule 59(e) permits
a court to alter or amend a judgment, but it ‘may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised prior to the entry of judgment.’” Exxon
Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (quoting 11 C. WRIGHT & A. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 2810.1, pp. 127–128 (2d ed.1995)).

Petitioner argues that the Court erred in determining that his IATC-mitigation claims were
procedurally defaulted outside the scope of Martinez v. Ryan, 566 U.S. 1 (2012). (Doc. No. 155
at 2–5.) He refers specifically to Claims C.19–23 and E.1–5. (Id. at 1.)
The Court explained in its previous memorandum that it construed Claim C.19 to assert an
exhausted claim about trial counsel’s handling of the testimony presented by defense expert Dr.
Keith Caruso, and it reviewed the claim on its merits. (Doc. No. 153 at 54–61 and n.15.) And
Claim E.1 was not an IATC-mitigation claim at all. Petitioner alleged in E.1 that counsel was
ineffective in connection with jury selection, and the Court analyzed that claim on the merits as an
exhausted claim. (Doc. No. 14 at 44; Doc. No. 153 at 62–78.) Accordingly, Petitioner’s argument
about the scope of Martinez simply does not apply to these claims.
With regard to the rest of the claims at issue, the Court determined that those claims were
defaulted on post-conviction appeal and not subject to further review. (Doc. No. 153 at 185–86.)
The relevant portions of the Court’s analysis were:
The Court has explained above that procedurally defaulted claims are generally
subject to habeas review unless a petitioner establishes cause and prejudice to
overcome the default. In the past it was firmly settled that ineffective assistance in
state post-conviction proceedings could never establish such cause, because there
is no constitutional right to effective assistance of counsel in such collateral
proceedings. Coleman v. Thompson, 501 U.S. 722, 742–54; Ritchie v. Eberhart, 11
F.3d 587, 590 (6th Cir. 1993); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
But in 2012, the Supreme Court found it “necessary to modify the unqualified
statement in Coleman that an attorney’s ignorance or inadvertence in a
postconviction proceeding does not qualify as cause to excuse a procedural
default.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). It held in Martinez that the
ineffective assistance of post-conviction counsel may, under some circumstances,
qualify as cause for the default of claims of ineffective assistance of counsel at trial.
Id. at 9; see also Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014) (holding that
Martinez applies in Tennessee). . . . [T]he Court emphasized the narrowness of its
holding: “This opinion qualifies Coleman by recognizing a narrow exception:
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.” Martinez, 566 U.S. at 9.
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...
Another significant limitation on the scope of Martinez is that it only applies to
claims that were defaulted at the initial review stage of collateral proceedings:
The rule of Coleman governs in all but the limited circumstances
recognized here. The holding in this case does not concern attorney
errors in other kinds of proceedings, including appeals from initialreview collateral proceedings, second or successive collateral
proceedings, and petitions for discretionary review in a State’s
appellate courts. See 501 U.S., at 754; Carrier, 477 U.S., at 488. It
does not extend to attorney errors in any proceeding beyond the first
occasion the State allows a prisoner to raise a claim of ineffective
assistance at trial, even though that initial-review collateral
proceeding may be deficient for other reasons.
Martinez, 566 U.S. at 16. So Martinez does not apply to claims that were raised in
a post-conviction petition but not raised on post-conviction appeal. West v.
Carpenter, 790 F.3d 693, 698 (6th Cir. 2015).
The Court must address one final limitation of Martinez in light of Petitioner’s
argument in his response and surreply that “Martinez and Trevino apply not only
to the failure of post-conviction counsel to raise the claim, but to all situations
where the court denied a petitioner’s opportunity to vindicate an IATC claim
because counsel poorly presented it.” (Doc. No. 111 at 346; Doc. No. 137 at 3–4.)
In support of this position, he relies primarily on Justice Breyer’s 2013 statement
on the denial of certiorari, which acknowledges that no federal appellate court to
that point had found Martinez to apply to a situation where post-conviction counsel
raised a claim but failed to present evidence to support it. Gallow v. Cooper, 570
U.S. 933 (2013) (Breyer, J., statement respecting the denial of certiorari). Such a
statement does not establish precedent in support of Petitioner’s position, but rather
illustrates the lack of it. Teague v. Lane, 489 U.S. 288, 296 (1989) (“[O]pinions
accompanying the denial of certiorari cannot have the same effect as decisions on
the merits.”); Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 853 (6th
Cir. 2017) (“This statement regarding certiorari has no precedential effect, and only
serves to underscore the lack of clearly established Supreme Court law on precisely
this point.”).
Petitioner also cites a Fifth Circuit opinion that applied Martinez to review new
evidence on a claim that was raised and rejected on its merits in state court.
Newbury v. Stephens, 756 F.3d 850, 871 (5th Cir. 2014). But such an application
of Martinez is contrary to AEDPA, to Cullen v. Pinholster, 563 U.S. 170 (2011),
and to Sixth Circuit precedent. A federal habeas court’s review of “any claim that
was adjudicated on the merits in State court proceedings” is limited to the evidence
presented in the state proceeding, 28 U.S.C. § 2254(d); Pinholster, 563 U.S. at 181–
82, and the Martinez exception to enable review of procedurally defaulted claims
simply does not apply when a claim has been exhausted on its merits. Moore v.
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Mitchell, 708 F.3d 760, 785 (6th Cir. 2013) (“Moore is not asking that we afford a
Martinez-like review of a procedurally defaulted claim, but rather that we turn
Martinez into a route to circumvent Pinholster. As explained above, though,
Pinholster plainly bans such an attempt to obtain review of the merits of claims
presented in state court in light of facts that were not presented in state court.
Martinez does not alter that conclusion.”); West v. Carpenter, 790 F.3d 693, 699
(6th Cir. 2015) (“When the state court denies a petitioner’s ineffective-assistance
claim on the merits, Martinez does not apply.”) The sole purpose of Martinez is to
permit habeas petitioners an opportunity to overcome the bar against federal review
of claims that “no state court at any level” has heard because they were procedurally
defaulted. Martinez, 566 U.S. at 10–11. Accordingly, Martinez does not apply to
claims that were not actually defaulted, or were defaulted at some stage other than
initial review, even when Petitioner claims they were presented poorly at initialreview proceedings.
...
1.

Claim C.20–C.23, E.2–E.5 — Mitigation Evidence

Petitioner alleges that counsel “failed to investigate and develop an accurate
mitigation narrative in advance of trial” (C.20), and that they “failed to develop and
present an accurate mitigation narrative” (E.2). (Doc. No. 14 at 34, 44.) Those
general claims appear simply to summarize the following more specific claims:
counsel failed to investigate and present evidence that Petitioner had suffered
permanent and significant brain damage in connection with his stepfather’s torture
of him (C.21 and E.3); counsel “failed to investigate that [Petitioner] experienced
Complex Trauma throughout his developmental years” (C.22 and E.4); counsel
failed to investigate and present evidence that Johnny Michelli is Petitioner’s
biological father and that the Michelli family history contains mitigating evidence
(C.23 and E.5). (Doc. No. 14 at 35, 44–45.)
In his post-conviction petition, Petitioner raised a claim that counsel had failed to
present available mitigation testimony and evidence during the sentencing phase of
the trial. (Doc. No. 26-7 at 190.) The post-conviction trial court denied relief on
that claim:
The record reflects that trial counsel presented the testimony of
several mitigation witnesses. These included the petitioner’s family
members, family friends, and school principal, who detailed his
difficult upbringing; Dr. Guin, a social worker who detailed the
abusive environment present in Louisiana youth correctional
facilities during the period in which the petitioner was held at such
a facility; Dr. Cunningham, who testified regarding the petitioner’s
potential for violence in prison; and Dr. Caruso and Dr. Neilson,
who testified regarding their psychological testing of the petitioner.
The petitioner has raised specific issues regarding the testimony of
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both Dr. Caruso and Dr. Guin; as stated earlier in this order, these
issues are without merit. Furthermore, no proposed mitigation
evidence was presented during the evidentiary hearing, as the only
mental health expert who testified, Dr. Auble, focused her testimony
on the petitioner’s contention that his initial statements to police
were coerced. Thus, the Court can only speculate as to the nature of
any proposed mitigation evidence or the manner in which it would
have aided the petitioner. Thus, the Court finds that the petitioner
has not established that counsel rendered ineffective assistance as to
this issue.
(Doc. No. 26-8 at 189–90.) Petitioner did not raise this claim on post-conviction
appeal. (Doc. No. 26-14.) Accordingly, Respondent argues that the current claims
were defaulted on post-conviction appeal. (Doc. No. 134 at 23–24.)
Petitioner relies on Martinez to overcome the default of these claims. (Doc. No. 111
at 309.) He submits mitigation evidence that he argues counsel should have
presented in state court (see Doc. No. 111 at 249–309) and argues that Martinez
applies to these claims because “if post-conviction counsel’s ineffectiveness is the
reason that evidence was not developed in state court, the petitioner is not at fault
for failing to develop that evidence.” (Doc. No. 137 at 3.) But for the reasons
discussed above, Martinez does not provide an opportunity to present new evidence
in support of claims that were raised and addressed on the merits in state court or
apply to claims that were defaulted on post-conviction appeal. West v. Carpenter,
790 F.3d 693 (6th Cir. 2015).
Accordingly, Petitioner has failed to overcome the default of these claims, and they
are not subject to federal habeas review.
(Doc. No. 153 at 168–72, 185–86.)
Petitioner argues that the Court’s determination that these claims were defaulted on postconviction appeal was incorrect because they were “never presented to the post-conviction trial
court.” (Doc. No. 155 at 3.) He asserts that “[t]his is not just Mr. Rogers’ position, but has also
been the Respondent’s position throughout the federal habeas litigation.” (Id. at 3.) That assertion
mischaracterizes the history of this matter. As the Court noted in its previous Memorandum
Opinion, Petitioner significantly complicated the task of determining which of his claims were
exhausted or even purportedly exhausted by the manner in which he presented them. (Doc. No.
153 at 55 n.16.) Respondent was not immune to that complication. (See id. at 58–59 and n.17
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(observing that Respondent’s view of whether certain claims were exhausted or defaulted had
evolved during the course of litigation).) However, by the time Respondent filed his reply in
support of his motion for summary judgment, he was very clear about the status of Petitioner’s
IATC-mitigation claims:
The petitioner cannot show that Martinez applies to excuse the procedural default
of this claim. In essence, this is a claim that trial counsel failed to investigate and
present available mitigating evidence. The petitioner raised this allegation in his
amended post-conviction petition, and the post-conviction court considered the
claims on the merits. (ECF No. 26-7, Page ID# 7762, 7767, ¶ 4.11, ¶ 5.24; ECF No.
26-8, Page ID# 8022-23.) The petitioner procedurally defaulted this claim on postconviction appeal. Martinez does not apply to claims raised in the initial review
collateral proceedings but not raised on appeal. See Middlebrooks v. Carpenter, 843
F.3d 1127, 1136 (6th Cir. 2016); West v. Carpenter, 790 F.3d 693, 698 (6th Cir.
2015); Wallace v. Sexton, 570 Fed. App’x. 443, 453 (6th Cir. 2014). Because the
petitioner raised this claim in his initial-review collateral proceedings and the postconviction court considered the issue on the merits, this claim does not fall within
the ambit of Martinez. Accordingly, the petitioner cannot show cause and prejudice
to excuse the default.
(Doc. No. 134 at 24.) Petitioner’s surreply did not dispute that he had raised his IATC-mitigation
claim in his post-conviction petition or otherwise address whether or when any of his claims had
been exhausted. (Doc. No. 137.) He simply argued that Martinez enabled him to present new
evidence in this Court in support of any and all of his defaulted IATC claims. (Id. at 1–4.)
Similarly, the gist of Petitioner’s current argument is that presenting newly-raised evidence
in support of his IATC-mitigation claims effectively makes them new claims that were never raised
in state court and that, accordingly, Martinez applies to them. He argues that “[t]he evidence
presented in support of a claim defines the claim.” (Doc. No. 155 at 4.) But the United States
Court of Appeals for the Sixth Circuit held otherwise in West, as this Court explained in rejecting
a nearly identical argument last year:
Because this claim was defaulted on post-conviction appeal, rather than as the result
of ineffective assistance at the initial-review stage of post-conviction proceedings,
Martinez does not authorize any reconsideration of it. West v. Carpenter, 790 F.3d
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693, 698–99 (6th Cir. 2015.) Relying on Ninth Circuit precedent, the petitioner
argues that Claim 12a is actually a new claim that was never raised in state court
“[a]s [it] is currently presented.” (DE #297, at 29– 30.) But it is in fact the same
claim litigated at the post-conviction hearing—that trial counsel ineffectively failed
to investigate and present available mitigation evidence—with new facts raised in
support of it. Like [Cullen v.] Pinholster, [563 U.S. 170 (2011),] West, Escamilla
[v. Stephens, 749 F.3d 380 (5th Cir. 2014)] and Rhines [v. Young, No. 5:00-CV05020-KES, 2016 WL 614665 (D.S.D. Feb. 16, 2016)]—and unlike Martinez—the
petitioner had his day in court on this claim. As the Sixth Circuit instructed in West,
even if the failure to assert these particular facts on that day resulted in the rejection
of a potentially meritorious claim for reasons “traceable directly to counsel’s
deficient advocacy,” that deficiency did not cause the default of the claim in order
to trigger Martinez’s application. West, 790 F.3d at 698–99. The default occurred
when the petitioner failed to appeal the rejection of his claim, which is a stage of
proceedings to which Martinez does not apply: “The holding in this case does not
concern attorney errors in other kinds of proceedings, including appeals from
initial-review collateral proceedings[.]” Martinez v. Ryan, 566 U.S. 1, 16 (2012)
(emphasis added). In essence, the petitioner is attempting to do the same thing that
the Supreme Court held Pinholster was prohibited from doing—add new mitigation
evidence that trial counsel was allegedly ineffective for failing to present—but with
the added twist that he also defaulted the original claim on post-conviction appeal.
He is not entitled to relief on either basis.
Smith v. Carpenter, No. 3:99-CV-0731, 2018 WL 317429, at *13 (M.D. Tenn. Jan. 8, 2018)
(Trauger, J.), certificate of appealability denied sub nom. Smith v. Mays, No. 18-5133, 2018 WL
7247244 (6th Cir. Aug. 22, 2018). In denying a COA from that ruling, the Sixth Circuit made it
even more clear than it was in March that habeas petitioners cannot use Martinez to bolster IATC
claims with evidence they failed to present in state court:
Lastly, Smith argues that his trial counsel provided ineffective assistance by failing
to present mitigating evidence of his background and personal history. It is
undisputed that Smith’s post-conviction counsel raised this claim in his state postconviction petition but his appellate post-conviction counsel failed to appeal the
denial of the claim. This court has concluded that the Martinez/Trevino exception
does not extend to ineffective assistance provided by post-conviction appellate
counsel. See West v. Carpenter, 790 F.3d 693, 699 (6th Cir. 2015). Smith also
attempts to rely on new evidence in support of this claim developed during his
federal habeas proceedings, but this court has concluded that such an attempt is not
permissible under Martinez and Trevino. See Moore v. Mitchell, 708 F.3d 760, 785
(6th Cir. 2013).
Smith, 2018 WL 7247244, at *4.
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Petitioner argues that “[i]t was [the] abject failure of counsel—not Mr. Rogers—that led
the state court to reject the claim it was presented.” (Doc. No. 155 at 16.) But he ignores that
having a claim rejected and defaulting a claim are two materially different events under habeas
law. He asserts, purely as a matter of logic, that “there is no principled difference between an
ineffective post-conviction attorney failing to raise a claim at all and an ineffective post-conviction
attorney raising a claim but then ineffectively failing to present or develop the facts.” (Id.) But he
does not address, much less distinguish, West, Moore, or any of the other circuit precedent that is
clearly adverse to that position. He argues that his failure to appeal the post-conviction trial court’s
denial of relief “is of no moment,” (id. at 16 n.2), but West teaches the exact opposite. Because
the cases cited above dictate that Martinez does not apply to the claims in question—and those
claims are thus procedurally defaulted without cause—it is unnecessary for the Court to speak to
Petitioner’s arguments about whether the claims are substantial. (See Doc. No. 155 at 5–12.) And
because existing Sixth Circuit law so clearly forecloses Petitioner’s argument, the matter does not
“deserve encouragement to proceed further” as required for a COA to issue. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003).
For these reasons, Petitioner’s motion will be denied.
An appropriate Order shall enter.

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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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