                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0281n.06

                                           No. 19-5427

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                 FILED
WILLIAM GLENN ROGERS,                                    )                 May 18, 2020
                                                         )             DEBORAH S. HUNT, Clerk
       Petitioner-Appellant,                             )
                                                         )
v.                                                       )          ORDER
                                                         )
TONY MAYS, Warden,                                       )
                                                         )
       Respondent-Appellee.                              )


Before: MOORE, WHITE, and STRANCH, Circuit Judges.

       William Glenn Rogers is a Tennessee death-row inmate represented by counsel. In 2000,
a jury convicted Rogers of one count of first-degree premediated murder, two counts of first-degree
felony murder, one count of especially aggravated kidnapping, one count of rape of a child, and
two counts of criminal impersonation. And following a mitigation hearing, the jury sentenced
Rogers to death. The Tennessee Court of Appeals and the Tennessee Supreme Court affirmed
Rogers’s convictions and sentence on appeal.
       In 2006, Rogers filed a petition for post-conviction relief, in which he asserted, among
other claims, that his trial counsel had been constitutionally ineffective for failing to either
“adequately investigate defense expert mitigation evidence” or “present available mitigation
testimony and evidence during the sentencing phase of the trial.” R.26-7, Page ID #7690–91,
7696. Rogers’s post-conviction counsel did not, however, appear to do much with these claims
besides list them in Rogers’s petition. As a result, although Rogers’s post-conviction counsel
gathered and presented evidence at Rogers’s post-conviction evidentiary hearing with respect to
other of Rogers’s claims (including other ineffective-assistance-of-trial-counsel (“IATC”) claims),
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that counsel did not present evidence with respect to the two “mitigation” IATC claims noted
above. The state trial court accordingly dismissed the claims with the following discussion:
                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 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.

R.26-8, Page ID #8022–23 (emphasis added).
       The trial court then proceeded to reject all of Rogers’s other post-conviction claims. And
although Rogers appealed several of those adverse conclusions to the Tennessee Court of Criminal
Appeals, to no avail, he did not appeal the trial court’s ruling as to his “mitigation” IATC claims.
       Rogers then filed a lengthy habeas petition in federal district court, in which he asserted,
among other claims, that his trial counsel had been constitutionally ineffective for failing to do the
following (much more specific) things prior to, and during, Rogers’s mitigation hearing: (1)
“counsel failed to investigate and present evidence that [Rogers] had suffered permanent and
significant brain damage in connection with his stepfather’s torture of him”; (2) “counsel ‘failed
to investigate that [Rogers] experienced Complex Trauma throughout his developmental years’”;
and (3) “counsel failed to investigate and present evidence that Johnny Michelli is [Rogers’s]
biological father and that the Michelli family history contains mitigating evidence.” R.153, Page
ID #27282 (quoting Rogers’s petition). The driving point of all of this was, of course, that had the
jury heard this additional mitigation evidence, it might not have sentenced Rogers to death.
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         There was, however, a problem. The state post-conviction court had arguably rejected
Rogers’s mitigation IATC claim on the merits, per the above-quoted discussion. And this mattered
because, if the state court had in fact adjudicated Rogers’s claim on the merits, it would preclude
Rogers from raising any of the “new” mitigation evidence noted above. See Cullen v. Pinholster,
563 U.S. 170 (2011). So Rogers pivoted by arguing to the district court that he had procedurally
defaulted his mitigation IATC claim in state post-conviction court, and that that procedural default
should be excused under Martinez v. Ryan, 566 U.S. 1 (2012), which essentially holds that, if a
habeas petitioner’s post-conviction counsel was constitutionally ineffective in procedurally
defaulting the petitioner’s ineffective-assistance-of-trial-counsel claim during post-conviction
proceedings, on habeas review a federal court can forgive that procedural default and consider the
petitioner’s IATC claim anew. See Atkins v. Holloway, 792 F.3d 654, 657–60 (6th Cir. 2015).
         The district court, however, rejected this claim (along with Rogers’s numerous other
claims) in a thorough and thoughtful 206-page order. More specifically, with respect to the issue
at hand, the district court found that the state trial court had rejected Rogers’s mitigation IATC
claim on the merits and that, to the extent a procedural default occurred, it was solely when
Rogers’s post-conviction counsel failed to appeal that adverse merits determination (which is an
irrelevant event for Martinez purposes). See R.153, Page ID #27283 (“Martinez does not . . . apply
to claims that were defaulted on post-conviction appeal.” (citing West v. Carpenter, 790 F.3d 693
(6th Cir. 2015))). And, in a subsequent order, the district court re-iterated this conclusion, and
further concluded that the issue was straightforward enough that a certificate of appealability
(“COA”) was not warranted. See Rogers v. Mays, No. 3:13-cv-00141, 2019 WL 2327520, at *5
(M.D. Tenn. May 31, 2019); see also 28 U.S.C. § 2253(c)(2) (requiring habeas petitioners to obtain
a COA from either the district court or the circuit court before being allowed to appeal a denied
claim).1




         1
           The district court did, however, provide Rogers with a COA as to other issues raised in Rogers’s habeas
petition. See R.154, Page ID #27304 (listing five categories of issues). But because the parties have not yet briefed
these issues we do not consider them here.
                                                    No. 19-5427
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         Rogers now requests that we provide him that COA, and thereby consider his mitigation
IATC claim, and related issues, alongside his other claims certified for appeal. See supra n.1. To
obtain a COA, a petitioner must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas claim on a procedural ground
without reaching the underlying constitutional claim, as is the case here, a COA should issue when
the petitioner demonstrates “that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). This standard “does not require a showing that the appeal will succeed.”
Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). Rather, the question is whether the issues
presented in the petition are “debatable among jurists of reason” and “deserve encouragement to
proceed further.” Id. at 336 (quotation omitted).
         After careful review of the district court’s rulings, the parties’ briefing, and the relevant
case law cited therein, we think reasonable jurists could debate whether Rogers’s post-conviction
counsel procedurally defaulted Rogers’s mitigation IATC claims in post-conviction court by
failing to submit any evidence in support of the claims, and whether counsel was constitutionally
ineffective in so doing. Compare, e.g., Dickens v. Ryan, 740 F.3d 1302, 1316–22 (9th Cir. 2014)
(en banc) (majority opinion) with id. at 1324–38 (Callahan, J., dissenting); see also Williams v.
Filson, 908 F.3d 546, 572–74 (9th Cir. 2018); Escamilla v. Stephens, 749 F.3d 380, 394–95 (5th
Cir. 2014); Gallow v. Cooper, 570 U.S. 933 (2013) (statement of Breyer and Sotomayor, JJ.,
respecting the denial of the petition for certiorari).2 And were Rogers to succeed in that showing,
and thereby open up his underlying IATC claim to further review, reasonable jurists could also
debate the merits of Rogers’s constitutional showing.



         2
           We acknowledge the Sixth Circuit precedent cited by the Warden and the district court, some of which is
arguably helpful to the Warden’s position on this question. See, e.g., West v. Carpenter, 790 F.3d 693, 698–99 (6th
Cir. 2015); Moore v. Mitchell, 708 F.3d 760, 784–85 (6th Cir. 2013). However, because neither of those decisions
addressed directly the distinction between a “procedurally defaulted” claim and a claim “rejected on the merits”—and
certainly not to the extent the Ninth Circuit did in Dickens—that case law does not invariably require us to rule in the
Warden’s favor.
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                                              -5-

       Of course, given the labyrinthine nature of habeas law in general, and Martinez v. Ryan in
particular, Rogers “has a long way to go” before we could rule in his favor. Atkins, 792 F.3d at
660. But those realities alone are no reason to refrain from issuing a COA and at least giving the
issue our full consideration, with the benefit of briefing and argument. This is especially so
because a man’s life is at stake.
       For these reasons, we GRANT Rogers’s request for an expanded COA, with respect to the
nine mitigation-based IATC claims identified in Rogers’s COA petition at pages four to five. See
App. R. 16 (citing claims C.20–24 and E.2–5).
                                             ENTERED BY ORDER OF THE COURT




                                             Deborah S. Hunt, Clerk
