Rogers v. Klee

• Decision Date: 30 October 2014
• Docket Number: CASE NO. 2:07-CV-11902
• Parties: KEITH L. ROGERS, #293546, Petitioner, v. PAUL D. KLEE, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

KEITH L. ROGERS, #293546, Petitioner, v. PAUL D. KLEE, Respondent.

CASE NO. 2:07-CV-11902

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

October 30, 2014

HONORABLE NANCY G. EDMUNDS

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Keith L. Rogers ("Petitioner") was convicted of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.530b(1)(f), felonious assault, MICH. COMP. LAWS § 750.82, and domestic violence, MICH. COMP. LAWS § 750.81(2), following a jury trial in the Wayne County Circuit Court. He was sentenced to concurrent terms of 25 to 40 years imprisonment on the criminal sexual conduct conviction, one to four years imprisonment on the assault conviction, and three months in jail on the domestic violence conviction in 2003.¹

In his pleadings, Petitioner raises claims concerning the use of his wife's testimony (illegal entry, witness coercion, spousal privilege), the non-disclosure of evidence, the effectiveness of trial counsel, the great weight and the sufficiency of the evidence, the jury instructions, the admission of other acts evidence, the appellate record, and theeffectiveness of appellate counsel. For the reasons set forth, the Court denies the habeas petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner's convictions arise from an assault upon his wife at their home in Detroit, Michigan on January 24, 2003. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir.2009), as follows:

Defendant's convictions arose from the physical and sexual assault of his wife outside of their home on the evening of January 24, 2003. The complainant returned home after visiting her sister's house and found defendant waiting for her. Defendant accused her of having an affair and failing to pick up his son from school. Defendant grabbed the complainant by the inside of her mouth and pulled her from her vehicle. In the driveway, defendant proceeded to tear off the complainant's pants and underwear. He repeatedly shoved his hand into her vagina. Defendant again grabbed the complainant by the inside of her mouth and lifted her into the air. Defendant dragged the complainant into the garage where he continued his physical assault. Defendant choked the complainant by strangling her and by shoving his hand into her mouth. He repeatedly hit the complainant, slammed her against walls, and hit her head against the stone steps leading into the house. Defendant ignited the complainant's hair with a lighter. He repeatedly threatened to kill her, once brandishing a shovel. However, in the middle of this prolonged assault, defendant allowed the complainant to answer a phone call from her sister, who summoned the police. Defendant was subsequently arrested and the complainant was hospitalized.

People v. Rogers, No. 249496, 2005 WL 2516964, *1 (Mich. Ct. App. Oct. 11, 2005) (unpublished).

Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising claims concerning the admission of other acts evidence and the effectiveness of counsel at trial and sentencing. The court initially remanded the case to the trial court for an evidentiary hearing on the ineffective assistance of counselclaims. The trial court conducted the hearing and denied relief on Petitioner's motion for new trial. The Michigan Court of Appeals subsequently affirmed Petitioner's convictions and sentences. Id. Petitioner filed an application for leave to appeal with the Michigan Supreme Court raising the same issues, as well as new claims concerning the jury instructions and the effectiveness of trial and appellate counsel, which was denied in a standard order. People v. Rogers, 474 Mich. 1071, 711 N.W.2d 324 (2006). His request for reconsideration was also denied. People v. Rogers, 474 Mich. 1132, 712 N.W.2d 471 (2006).

In 2007, Petitioner filed his initial federal habeas petition raising all of the foregoing issues as grounds for relief. The Court determined that Petitioner had not fully exhausted all of his habeas claims in the state courts and held the petition in abeyance so that Petitioner could return to state court to do so.

Petitioner subsequently filed a motion for relief from judgment with the state trial court raising all of his claims. The trial court denied the motion under the plain error standard finding that the claims lacked merit. People v. Rogers, No. 03-002196 (Wayne Co. Cir. Ct. Sept. 7, 2010). Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied "for failure to establish entitlement to relief under Mich. Ct. R. 6.508(D)." People v. Rogers, No. 300401 (Mich. Ct. App. July 20, 2011) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Rogers, 490 Mich. 971, 806 N.W.2d 333 (2011).

Petitioner then successfully moved to reopen this case and proceed on an amended petition. He raises the following claims:

I. Petitioner's convictions were obtained illegally in violation of his IV andXIV amendment rights under both the U.S. and Michigan Constitutions: when his wife was coerced to testify under threat by the Detroit police; when they illegally entered their home without a search warrant; when they overheard a private conversation and told the defendant's wife that if she did not testify to what he was going to charge, they would remove their children from the home.

II. Petitioner's convictions were obtained illegally in violation of his right to privileged communication under the V Amendment of both the U.S. and Michigan Constitutions, when his spouse was forced to testify under against him by the prosecution and the police.

III. Petitioner's convictions were obtained in violation of his V and XIV amendment rights under both the U.S. and Michigan Constitutions, when the prosecution failed to disclose evidence favorable to the defense when his wife told them that she had not been sexually assaulted, and used perjured testimony to prove his guilt.

IV. Petitioner was denied the effective assistance of counsel in violation of his VI amendment rights under both the U.S. and Michigan Constitutions during critical stages of trial when counsel failed to elicit testimony from his wife that she had not been raped, failed to move for a mistrial when trial court didn't give the proposed lesser instruction of CSC III, failed to request lesser included instructions, failed to suppress the testimony of Officer Brandon Cole which was in violation of the defendant's IV amendment rights and his Miranda rights, allowing the prosecution to use them to convict him, and for failing to present and defense or adversarial challenge on behalf of the defendant.

V. Petitioner's conviction for CSC-I was against the great weight of the evidence and was based on insufficient evidence in violation of his right to due process under the XIV amendment of both the U.S. and Michigan Constitutions.

VI. Petitioner was denied due process in violation of his V and XIV amendment rights to a properly instructed jury when the trial court failed to give defense counsel's required instruction of CSC III as a lesser included instruction to CSC I.

VII. Petitioner was denied his constitutional due process right to a fair trial where Judge Fresard's failure to exercise her discretion in ruling on the prosecution's MRE 404(b) motion, which was totally inconsistent with substantial justice under MCR 2.613, and resulted in a miscarriage of justice under MCL 769.26.

VIII. Assuming arguendo that Judge Fresard could be said to have

exercised discretion when ruling on the prosecution's MRE 404(b) motion, Petitioner was denied his constitutional due process right to a fair trial when Judge Fresard erred in allowing defendant's wife, Bernadine Rogers, to testify about other acts under MRE 404(b) that resulted in Petitioner suffering irreparable prejudice before the jury.

IX. Petitioner was denied due process under the XIV Amendment of the Constitution when the trial judge failed to allow him to make a complete and full record for the Michigan Court of Appeals to evaluate.

X. Petitioner was denied the effective assistance of appellate counsel in violation of his VI amendment rights under both the U.S. and Michigan Constitutions, when counsel failed to identify and raise meritorious state and federal issues, and failed to orally argue his brief before the Court of Appeals.

Respondent has filed an answer to the petition contending that it should be denied because the claims are not cognizable, barred by procedural default, and/or lack merit. Petitioner has filed a reply brief.

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified 28 U.S.C. § 2241 et seq., provides the standard of review for federal habeas cases brought by state prisoners. The AEDPA provides in relevant part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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) (1996).

"A state court's decision is ...