                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0434n.06

                                           No. 10-5072                                     FILED
                                                                                      Apr 23, 2012
                          UNITED STATES COURT OF APPEALS
                                                                                LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

CHARLES R. ROGERS,                                   )
                                                     )
       Petitioner-Appellant,                         )
                                                     )       ON APPEAL FROM THE
v.                                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE WESTERN
NANCY DOOM, Warden,                                  )       DISTRICT OF KENTUCKY
                                                     )
       Respondent-Appellee.                          )               OPINION
                                                     )



       BEFORE: WHITE, STRANCH, and FARRIS,* Circuit Judges.


       PER CURIAM. Charles R. Rogers, a Kentucky state prisoner, appeals a district court

judgment denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254.

       In 2004, Rogers was charged with first-degree rape, and a jury trial was held. The evidence

at trial showed that Rogers and the victim had previously had a sexual relationship, which the victim

had ended. On the day of the crime, the victim’s birthday, they were drinking at her home. The

victim testified that Rogers handcuffed her, beat her, and raped her. The victim’s son arrived,

causing Rogers to leave, and the son discovered the victim still handcuffed and severely beaten. She

was taken to the hospital by the police. A rape kit showed no DNA from Rogers, and the physical

examination did not provide evidence of a rape. Physical evidence was also subsequently obtained

from Rogers, revealing the victim’s blood on his underwear, apparently from a cut lip she incurred



       *
       The Honorable Jerome Farris, Circuit Judge of the United States Court of Appeals for the
Ninth Circuit, sitting by designation.
No. 10-5072
Rogers v. Doom

in the beating. Rogers admitted handcuffing and beating the victim, but denied that raping her. The

jury, however, believed the victim and found Rogers guilty of first-degree rape. He was sentenced

to twenty years of imprisonment. His conviction was upheld on direct appeal in the state courts. He

then filed for state post-conviction relief, raising a number of claims of ineffective assistance of

counsel. Relief was denied by the state courts without holding an evidentiary hearing.

       Rogers filed for federal habeas corpus relief on the basis of ineffective assistance of counsel.

The claims that had been exhausted in the state courts included allegations that counsel failed to

conduct an adequate pretrial investigation, call allegedly exculpatory witnesses, call a forensic

expert, present a defense, impeach the prosecution witnesses, or object to certain testimony. A

magistrate judge recommended that the petition be denied, and the district court adopted this

recommendation over Rogers’s objections.

       On appeal, Rogers argues that his counsel’s poor cross-examination of the government’s

expert witnesses supports his claim that his attorney failed to adequately investigate his case and

failed to present a defense. He further argues that the district court erred in denying him an

evidentiary hearing on his ineffective-assistance-of-counsel claim. He contends that he must have

such a hearing on this claim in order for us to be able to properly review this claim. But he is

mistaken. This is a case where we are able to effectively review his ineffective-assistance-of-counsel

claim on the record before us. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (holding

that an evidentiary hearing does not need to be held when the state-court record is sufficient to

review the petitioner’s ineffective-assistance claim); Wilcher v. Hargett, 978 F.2d 872, 877 (5th Cir.

1992) (“No hearing is required where the record is complete and the evidence in the record is

sufficient to provide full review of the petitioner’s [ineffective-assistance] claim.”). Because we are

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No. 10-5072
Rogers v. Doom

able to properly review Rogers’s ineffective-assistance claim, we do not need to decide what impact,

if any, Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), has on this case.

          Under AEDPA, a federal court may not grant habeas relief on a claim adjudicated on the

merits in the state courts unless the state court’s ruling “was (1) ‘contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme Court

of the United States’; or (2) ‘based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’” Wogenstahl v. Mitchell, 668 F.3d 307, 320 (6th

Cir. 2012) (quoting 28 U.S.C. 2254(d)).

          To find that Rogers received ineffective assistance of counsel, his counsel’s performance

must have been so deficient that Rogers’s defense was prejudiced. See Strickland v. Washington,

466 U.S. 668, 687 (1984). The state courts acknowledged that Strickland controlled the analysis of

the claims raised. Rogers must therefore show that the state courts applied Strickland to the facts

in this case in an objectively unreasonable manner. See Woodford v. Visciotti, 537 U.S. 19, 25

(2002).

          The state appellate court concluded that an evidentiary hearing was not necessary because

several of the claims of ineffective assistance were flatly refuted by the record, including that counsel

failed to impeach the prosecution witnesses, and that he failed to argue that Rogers was guilty only

of kidnaping and assault but not rape. Furthermore, the state court found several other claims

conclusory, including the claims of failure to investigate, call witnesses, and call an expert witness.

Finally, the state court rejected the claim that counsel was ineffective in failing to object to the

victim’s testimony that Rogers had spent time in prison, finding that it may have been sound strategy




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No. 10-5072
Rogers v. Doom

not to draw attention to this isolated statement, or alternatively, that the statement could not have

prejudiced the outcome of the trial.

        These findings are supported by the record. Rogers did not show what relevant evidence was

available from an investigation, how any witness’s testimony would have changed the outcome of

the trial, or why an additional expert was needed when the state’s experts already testified that there

was no physical evidence of rape and that no DNA from Rogers was found. Although his attorney

did not vigorously cross-examine the state’s forensic expert witnesses—indeed, his attorney failed

to cross-examine Bridgett Holbrook—his attorney highlighted the favorable portion of the experts’

testimony by arguing during closing that there was no forensic evidence that supported the claim of

rape. Moreover, his attorney’s pretrial memorandum shows that the attorney was aware of the lack

of objective evidence of sexual intercourse and planned to use this fact to Rogers’s advantage at trial.

The record therefore shows that trial counsel’s strategy was based on the lack of forensic evidence

of rape, and counsel argued forcefully in closing argument that this entitled Rogers to be acquitted.

        Given these facts and our strong presumption that an attorney acted reasonably, the record

before us is sufficient to conclude without a hearing that Rogers did not receive ineffective assistance

of counsel. So for even stronger reasons, Rogers has not shown that the state court’s application of

Strickland to the facts in his case was objectively unreasonable. The district court’s judgment

denying this petition is therefore affirmed.




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