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Rogers v. Hampton

United States District Court, E.D. Tennessee, Chattanooga

December 17, 2019

ROY LEN ROGERS, Petitioner,



         Roy Len Rogers, Petitioner, has pro se filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, following his convictions for the reckless endangerment of Vanessa Collett, his ex-wife, and the first- and second-degree murder of Gregory Keith Brown, whom Mrs. Collett was dating [Doc. 1]. After reviewing the parties' filings and the relevant state court record, the Court has determined that Petitioner is not entitled to relief under §2254, and no evidentiary hearing is warranted. See Rules Governing § 2254 Cases, Rule 8(a) and Schriro v. Landrigan, 550 U.S. 465, 474 (2007). For the reasons set forth below, the §2254 Petition is DENIED, and this matter will be DISMISSED.

         I. BACKGROUND

         In March 2007, Petitioner and Mrs. Collett separated after a three-month marriage and a preceding two-month courtship. Rogers v. State, No. E2017-00445-CCA-R3-PC, 2018 Tenn. Crim. App. LEXIS 305, at *2 (Tenn. Crim. App. 2018) (“Rogers III”). Mrs. Collett stated that the marriage ended due to Petitioner's “controlling and threatening” behavior, which unfortunately continued after their separation. Id. at *2-3. In the month following the couple's separation, Mrs. Collett and her daughter, Cierra Bennett, moved in with Mrs. Collett's mother. Id. Petitioner called Mrs. Collett incessantly, “sometimes… hundreds of [times] a day, ” drove by the residence and knocked on the door, and followed her on many occasions. Id. at *3. Testimony from Mrs. Collett, Ms. Bennett, Mrs. Collett's mother, and her sister Dottie Hawkins established that Petitioner's threats included stating that if Petitioner could not have Mrs. Collett no one could, calling Mrs. Collett and saying “dead… D-E-A-D, ” and telling her family members that Mrs. Collett was as good as dead or that he was on his way to kill her. Id. at *3, 6-7. Even after Mrs. Collett changed her phone number, moved into a different apartment with Ms. Bennett, and filed for an Order of Protection, Petitioner's threats and harassment continued. Id. at *3.

         In June 2007, Mrs. Collett began dating the victim, Gregory Keith Brown, at which point Petitioner also began calling Mr. Brown several times per day. Id. Police later found evidence that on July 12, Petitioner also took photos of Mr. Brown's car outside of Mrs. Collett's residence. Id. at *11.

         On July 28, 2007, while watching television, Mrs. Collett and her daughter heard their windchime, which a domestic violence counselor had recommended they place on the porch to announce intruders. Id. at *4. Mrs. Collett stated that after Ms. Bennett “looked through the door's peephole and stated, ‘Mama, it's Len[, ]'” she called 9-1-1 and reported the prowler, without telling the operator that it was Petitioner. Id. By the time the police arrived, Petitioner was gone. Id.

         The next evening between 11:15 and 11:30 p.m., after dinner and a visit with Mrs. Collett's son, during which Mr. Brown had ignored “three or four” calls from Petitioner, Mrs. Collett, Mr. Brown, and Ms. Bennett returned to Mrs. Collett's residence. Id. at *5. Mrs. Collett testified that Mr. Brown had both made arrangements to stay with her and brought a .380 handgun to give to her for her protection. Id. Mrs. Collett and Mr. Brown were in Mrs. Collett's bedroom packing a bag for his business trip the next day when Mrs. Collett heard a “pop” and “felt a burning on [her] left hand and the side of [her] face.” Id. at *5-6. When she realized that the victim had been shot, she ran to her daughter's room to call 9-1-1; she originally reported that the victim had shot himself. Id. at *6.

         However, investigating officers found that the .380 had not been unholstered or fired. State v. Roy Len Rogers, No. 2011-02529-CCA-R3-CD, 2013 Tenn. Crim. App. LEXIS 814, at *67 (Tenn. Crim. App. 2013) (“Rogers I”). Instead, from outside Mrs. Collett's home, Detective Chris Hall “discovered a bullet hole in Mrs. Collett's bedroom window as well as a nine-millimeter shell casing on the ground outside the window.” Rogers III, at *8. He noted that there was “moss…mashed down” as if “someone had been standing… at the edge of the window” and that, due to a gap in the window covering, from this vantage point, he had an unobstructed view into the bedroom. Id. at *8-9. Detective Hall also found tire tracks, not sufficiently detailed but notably with three longitudinal stripes, and fresh marks indicating that a vehicle had “bottomed out, ” approximately 100 feet from Mrs. Collett's apartment. Id. at *9.

         At approximately 2 a.m., officers arrived at Petitioner's home, where he opened the door wearing pajama bottoms and no shirt and told them he was aware of the shooting. Rogers I, at *25. In the early morning hours of July 30, Petitioner was brought in for questioning by the TBI. Rogers III, at *9. He told the agent that his children were staying overnight with his parents because his air-conditioning unit was broken; he then asked to speak with an attorney at which point the interview ceased. Id. at *9-10. After obtaining a search warrant, officers found two nine-millimeter shell casings on Petitioner's property, which after testing were shown to be manufactured by the same company and fired by the same firearm as the shell casing found at Mrs. Collett's residence.[1] Id. at *10. The officers also took Petitioner's 1993 Honda Civic from the property for testing, which showed that the tires on the vehicle had three longitudinal stripes and that there were fresh scrape marks on the bottom of the vehicle, as if the vehicle had “bottomed out.” Id. at *11.

         An investigation into Petitioner's phone activity revealed that Petitioner made fifteen phone calls to the victim between 9:08 a.m. and 10:05 p.m. the day of the shooting. Id. at *13. It likewise revealed a conspicuous gap in Petitioner's phone calls around the time of the shooting. Petitioner made outgoing phone calls from his cell phone at 11:08 p.m. and from his landline at 11:20 p.m. Id. He did not make further outgoing calls until a 12:09 a.m. call from his cell phone and a 12:16 a.m. call from his home phone; each of these calls were made to Daniel Witherow, and during the later telephone call Petitioner was aware of the shooting and expressed a desire to record the time of the calls for an alibi. Id. at *12-13, 14. Likewise, Petitioner did not answer calls to his cell phone at 12:05 a.m. or to his home phone at 12:10 a.m. from his brother, Russell Rogers, a Rhea County Sheriff's Department (“RCSD”) officer who had heard of the shooting and feared Petitioner's involvement. Id. at *12. Instead, Petitioner called Mr. Rogers back at 12:12 a.m. from his cell phone. Id.

         The police measured the distance and clocked the amount of time it would take Petitioner to reach Mrs. Collett's apartment. Id. at *9. They determined that the residences were approximately eight miles apart, and that when driving the speed limit, the travel took 10 minutes, but that when driving 10 - 15 miles per hour over the speed limit, the distance could be covered in approximately seven minutes. Id.

         It was later discovered that the pawn shop Petitioner worked at during the marriage and for a brief period of time after the couple's separation was missing a 9mm firearm. Id. at *10. The pistol had been taken in on March 26, 2007, after the couple had separated, and Petitioner had processed the weapon. Id. There was a hold posted on the weapon in April, meaning the item was not for resale, and Petitioner was again the employee who notated this in the computer system. Id. at *10-11. It was determined that this weapon was one of the many possible options to have fired the shell casings found at the scene and at Petitioner's home. Id. at *10. Petitioner left his employment at the pawn shop that same April. Id.

         A Rhea County Grand Jury charged Petitioner of one count each first-degree premeditated murder and first-degree felony murder for the shooting death of Gregory Brown, and one count of attempted first-degree murder of Vanessa Collett. Id. at *1-2. Petitioner was then convicted of both first-degree and second-degree murder for the shooting of Mr. Brown[2], and as a lesser-included offense of attempted first degree-murder, reckless endangerment of Mrs. Collett. Id. at *2. He was sentenced to life imprisonment with an additional 11 months and 29 days to be served concurrently. Id.

         Petitioner filed a Direct Appeal alleging that: the evidence was insufficient to support any of his convictions, that the jury's finding of both first- and second- degree murder was inconsistent, that the trial court committed various errors, and that the State suppressed exculpatory information in violation of Brady v. Maryland [Doc. 12-18]. The Tennessee Court of Criminal Appeals (“TCCA”) affirmed his conviction. Rogers I. Petitioner then applied for discretionary review with the Tennessee Supreme Court (“TSC”), which was denied [Doc. 12-26].

         Petitioner then filed a petition for state post-conviction relief, which was summarily denied as the post-conviction trial court found that his claims had been addressed on direct appeal [Doc. 12-27 p. 3-24]. On appeal, the TCCA found that when granted the leniency afforded to pro se petitioners, Petitioner had stated a colorable claim under the Post-Conviction Procedure Act and thus remanded Petitioner's petition to the trial court for the appointment of counsel and further proceedings. Rogers v. State, No. E2015-00255-CCA-R3-PC, 2015 Tenn. Crim. App. LEXIS 604, at *2 (Tenn. Crim. App. 2015) (“Rogers II”). After the appointment of counsel, new briefing, and evidentiary hearings, the post-conviction trial court again denied Petitioner's post-conviction petition on remand [Doc. 12-32 p. 124-38]. The TCCA affirmed the denial of post-conviction relief. Rogers III. Petitioner again applied for discretionary review with the TSC, which was denied [Docs. 12-50 and 12-51].

         Petitioner then filed this habeas petition in which he alleges the ineffective assistance of counsel, the insufficiency of the evidence as to his convictions, and various trial court errors [Doc. 1].


         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28 U.S.C. §2254, a district court may not grant habeas corpus relief for a claim that a state court adjudicated on the merits unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d)(1) and (2). This standard is intentionally difficult to meet. Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quotation marks omitted). The AEDPA requires heightened respect for both state court legal judgments and factual findings. See Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). Under the unreasonable application clause, the proper inquiry is whether the state court's decision was “objectively unreasonable, ” and not simply erroneous or incorrect. Williams v. Taylor, 529 U.S. 362, 409 - 11 (2000). Where the record supports the state court's findings of fact, those findings are entitled to a presumption of correctness which may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         Habeas relief is limited not only by the high deference granted to state court judgments and findings, but also by the limitations on which claims federal courts may address. Federal courts may only grant habeas relief on claims by state prisoners when the prisoner has exhausted the remedies available in state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Generally, exhaustion requires a petitioner to “fairly present” his federal claims to all levels of the state appellate system, including the state's highest court, to ensure that the state was given a “full and fair opportunity to rule on the petitioner's claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990); Duncan v. Henry, 513 U.S. 364, 365 - 66 (1995); Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); See O'Sullivan, 526 U.S. at 842. Tennessee has determined that exhaustion is satisfied when the Tennessee Court of Criminal Appeals has denied relief on a claim, regardless of presentation to the Tennessee Supreme Court. Tenn. S.Ct. Rule 39 (Supp. 2001).

         To fairly present his claims, it is not enough for a petitioner to rely merely on the presentation of facts that implicate a federal claim or a mirroring state law claim. Duncan, 513 U.S. at 365-66. Rather, to satisfy the exhaustion requirements of a federal claim, a petitioner must provide the state courts with some indication that he is “asserting claims under the United States Constitution, ” which he may do by (1) relying “on federal cases employing constitutional analysis, ” (2) relying on “state cases employing constitutional analysis, ” (3) asserting “the claim in terms so particular as to call to mind a specific constitutional right, ” or (4) alleging “a pattern of facts well within the mainstream of constitutional litigation.” Duncan, 513 U.S. at 365-66; McMeans v. Brigano, 228 F.3d 674, 680 (6th Cir. 2000); Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987) (quoting Daye v. Attorney General, 696 F.2d 186, 193-93 (2nd Cir. 1982). Although exhaustion is deemed necessary, if there are no further state court remedies available to a petitioner, lack of exhaustion will not foreclose merits review by the federal court. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

         Regardless of exhaustion, a claim may also be foreclosed from review if it has been procedurally defaulted. A claim is procedurally barred if (1) it was never presented to the highest available state court and is now barred from such presentation by a state procedural rule or (2) the state courts were prevented from “reaching the merits of the petitioner's claim” because Petitioner failed to comply with a regularly enforced, “adequate and independent” state procedural rule. Wallace v. Sexton, 570 F. App'x. 443, 449 (6th Cir. 2014) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)); Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000) (citing Wainwright v. Sykes, 433 U.S. 72, 80, 84, 87 (1977)).

         III. ANALYSIS

         A. Ineffective Assistance of Counsel

         Petitioner's first claim for habeas relief, which encompasses seven sub-claims, is that his trial counsel was ineffective under the Sixth Amendment. He claims that counsel was ineffective for: (1) failing to raise the insufficient description of Petitioner's property included within the search warrant in his motion to suppress the evidence found during the search, (2) failing to object to Vanessa Collett's testimony as to the victim's purchase of a gun for her, (3) failing to take any steps to address the testimony of Dottie Hawkins as to Petitioner's violent character, (4) opening the door to testimony regarding Petitioner's violent character, (5) failing to include the recording of the 9-1-1 call as part of the record on appeal, and (6) failing to raise the issue of domestic violence during voir dire. His final claim, (7), is that the cumulative effect of counsel's errors deprived Petitioner of a fair trial. Each of these claims has been exhausted and is not procedurally defaulted and will, as such, be evaluated on its merits.

         To successfully prove that counsel was constitutionally ineffective, a defendant must establish (1) that counsel's performance was deficient such that he was no longer “functioning as the ‘counsel' guaranteed under the Sixth Amendment, ” and (2) that counsel's “performance prejudiced the defense… so as to deprive the defendant of a fair trial” and undermined the reliability of trial results. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficiency, the defendant must show “that counsel's representation fell below an objective standard of reasonableness.” Id. at 688. To prove prejudice, the defendant must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

         The Supreme Court has clarified that when a federal court reviews a state court's application of Strickland, which sets its own high bar for claims, “establishing that a state court's application was unreasonable under §2254(d) is all the more difficult.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). “In those circumstances, the question before the habeas court is ‘whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.'” Id.; See Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating the “Supreme Court has recently again underlined the difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA . . . .”).

         1. Warrant Issues

         Petitioner claims that the evidence found during the search of his home should have been suppressed because the search warrant did not contain a “particular description of the place to be searched, ” and that trial counsel was ineffective for not including this deficiency in his Motion to Suppress [Doc. 1 p. 16-19, 20-24]. Petitioner alleges that the warrant did not properly include, incorporate, or attach the description of the property, because the description was included in an exhibit attached to the affidavit and not in the affidavit itself, and that the substance of the description is ambiguous in violation of the Fourth Amendment [Id.]. He claims that although counsel attempted to raise this issue in his Motion for New Trial, it was treated as waived because he did not raise it in his Motion to Suppress prior to trial, and thus counsel was ineffective [Id.]. The Respondent contends that both the manner of the description's inclusion and its substance were appropriate, and that it was not unreasonable for the TCCA to find that trial counsel was not then ineffective for failing to include this issue in his motion to suppress [Doc. 15 p. 19-20]. The Court finds that the TCCA did not unreasonably apply Strickland to find that counsel was not constitutionally ineffective.

         The search warrant obtained to authorize the search of Petitioner's property included the following language:

Proof having been made before me and reduced to writing and sworn to by Chris Hall, Investigator with the Rhea County Sheriff's Department whose affidavit is attached hereto and is hereby referred to for its contents and said contents incorporated herein, there is probable cause to believe that Len Rogers shot and killed Gregory Keith Brown at approximately the midnight hour of July 29, July 30, 2007, and that evidence of such crime … is being concealed on the premises of Len Rogers more particularly described in Exhibit “A” to the Affidavit and made part of this Warrant as if copied verbatim herein and specifically Len Rogers's 1993 Blue Honda Civic with License plate number 087-DVQ in Rhea County, Tennessee, and from proof it is adjudged that the offense of Criminal Homicide has been committed by the defendant Len Rogers and that the evidence of such is on the premises hereinbefore described, and you are hereby commanded in the name of the State of Tennessee to make an immediate search of the above named person, the above described property and automobile for evidence of criminal homicide day or night of with any outbuildings, containers, trailers, or outbuildings under the control of the defendant, Len Rogers.

[Doc. 12-16 p. 15] (emphasis added). The underlying sworn affidavit requests a warrant “authorizing the search of the person of Len Rogers, along with his residence described in Exhibit ‘A', including any and all vehicles… out buildings, trailers and storage containers found on said property…” [Doc. 12-16 p. 17]. Exhibit A, which was attached to the warrant, gave detailed directions to Petitioner's residence, described his home, and named Petitioner as the owner or controller of the property [Doc. 12-16 p. 18].

         Petitioner first challenged the search warrant in his Motion to Suppress and later in his Motion for New Trial but did not include a challenge to the description of the property included within the affidavit in either [Doc. 12-1 p. 89-90]. On the second appeal of the dismissal of his post-conviction petition, the TCCA ruled that Petitioner had not shown “how trial counsel's failure to seek suppression of the search warrant on the basis of an alleged insufficient description of the petitioner's property would have affected the outcome of his trial.” Rogers III, at *31. To obtain federal habeas relief on this claim, this Court would not only have to find that trial counsel was ineffective under Strickland's two-prong deficiency and prejudice test, but also that the TCCA had no reasonable basis for this holding. Harrington, 562 U.S. at 105.

         Under federal interpretation, warrants may be properly read to include the contents of incorporated and attached documents. See Baranski v. Fifteen Unknown Agents of the BATF, 452 F.3d 433, 440 (6th Cir. 2006). A warrant's description of the property to be searched is adequate “if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended.” United States v. Montgomery, 395 F. App'x. 177, 187 (6th Cir. 2010) (quoting Steele v. United States, 267 U.S. 498, 503 (1925)). Tennessee courts have adopted a similar view. State v. Mack, 188 S.W.3d 164, 171(Tenn. Crim. App. 2004) (citing State v. Lowe, 949 S.W.2d 300, 304 (Tenn. Crim. App. 1996) (citing United States v. Blakeney, 942 F.2d 1001, 1024 (6th Cir. 1991))).

         The warrant included clear language incorporating not only the affidavit, which itself referenced Exhibit A, but also separately incorporated Exhibit A. Both the affidavit and the exhibit were attached to the search warrant, and both were signed by the judge. Petitioner has not pointed to any precedent, nor is the Court aware of any, distinguishing between incorporating an affidavit, as allowed in both federal and Tennessee courts, and incorporating an affidavit along with accompanying exhibits. As to Petitioner's argument regarding the substance of Exhibit A, the language in the exhibit contained specific directions, a physical description (including the cars expected to be on the property), and it named the Petitioner as the owner. Petitioner has not pointed to any precedent establishing that such a description is inadequate, nor has he given any indication as to what more was needed to sufficiently describe his property. In short, as the TCCA ruled, because it is not clear that the warrant was at all deficient in its description, there are no grounds on which to determine that counsel's failure to seek suppression of the evidence on this issue would have affected the outcome of trial.

         Counsel raised many claims in his Motion to Suppress the evidence obtained pursuant to the search warrant, and he will not be faulted for failing to bring forth one issue, particularly where Petitioner points to no case law establishing that there was any merit to this argument. See O'Hara v. Brigano, 499 F.3d 492, 506 (6th Cir. 2007). Accordingly, for the reasons set forth above, the Court finds neither deficiency nor prejudice, nor that the TCCA was unreasonable for finding none.

         2. ...

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