     Case: 12-60760      Document: 00512536618         Page: 1    Date Filed: 02/19/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 12-60760                            February 19, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
DERWIN ROGERS,

                                                 Petitioner-Appellant

v.

THE STATE OF MISSISSIPPI; CHRISTOPHER B. EPPS, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS,

                                                 Respondents-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:07-CV-600


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Petitioner-Appellant Derwin Rogers, Mississippi prisoner # L2701,
appeals the dismissal of his 28 U.S.C. § 2254 application in which he
challenged his conviction on four counts of forcible rape. The district court
granted a certificate of appealability (COA) on whether Rogers sustained his
burden of demonstrating that the procedural bar set out in Miss. Code Ann. §



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 12-60760     Document: 00512536618      Page: 2   Date Filed: 02/19/2014


                                  No. 12-60760

99-39-21(1) was not consistently and regularly applied to claims identical or
similar to Rogers’s claims challenging (1) the denial of a continuance which, in
turn, he alleges, resulted in denial of his counsel of choice, and (2) the denial
of an amendment to his indictment.
      We “review de novo a district court’s denial of federal habeas review
based on a state procedural ground.” Stokes v. Anderson, 123 F.3d 858, 859 (5th
Cir. 1997). Under the procedural-default doctrine, federal courts are precluded
from federal habeas review where the last state court to consider the claims
raised by the applicant based its denial of relief on an independent and
adequate state-law procedural ground. Coleman v. Thompson, 501 U.S. 722,
729-30 (1991). To satisfy the “independent” and “adequate” requirements, the
state court’s dismissal must clearly and expressly reflect that it rests on a state
procedural bar, and the bar must be strictly or regularly applied by state courts
to the vast majority of similar claims. Martin v. Maxey, 98 F.3d 844, 847 (5th
Cir. 1996). As the applicant, Rogers has the burden of establishing that the
state did not strictly or regularly follow a procedural bar around the time of his
denial of relief in state court. Stokes, 123 F.3d at 860.
      Rogers contends that his claims concerning the denial of counsel of choice
and the substantive amendment to the indictment constitute errors that
affected his fundamental rights. He argues that these errors are now excepted
from the procedural bar set forth in Miss Code Ann. § 99-39-21(1). Relying on
Rowland v. State, 42 So. 3d 503 (Miss. 2010), he insists that he has sustained
his burden of showing that Mississippi courts have not been consistent in
applying the procedural bar to issues affecting fundamental rights.
      Although Rogers cites cases purporting to establish that the rights
underlying his claims of denial of counsel of choice and improper substantive
amendment of the indictment are “fundamental rights,” none shows that such



                                        2
    Case: 12-60760    Document: 00512536618     Page: 3   Date Filed: 02/19/2014


                                 No. 12-60760

claims are exempt from the procedural bar of § 99-39-21(1) or that the
Mississippi Supreme Court has failed to apply the procedural bar at issue to
claims identical or similar to those that Rogers seeks to raise. As Rogers has
not identified specific instances when the Mississippi Supreme Court did not
apply the procedural bars to claims identical or similar to those he seeks to
raise, he has not met his burden of establishing that the procedural bars were
not strictly or regularly applied “to the vast majority of similar claims.”
Martin, 98 F.3d at 847 (internal quotation marks and citation omitted); see also
Stokes, 123 F.3d at 860-61.
      The judgment of the district court is AFFIRMED.




                                       3
