United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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.
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. 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.
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.
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
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.
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, 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.
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].
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].
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].
STANDARD OF REVIEW
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;
(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).
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).
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).
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
Ineffective Assistance of Counsel
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
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.
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
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 . . . .”).
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
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].
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
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))).
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.
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.