Rogers v. Sec'y, Dep't of Corr.

Decision Date27 June 2019
Docket NumberCase No. 8:17-cv-2680-T-33SPF
CourtU.S. District Court — Middle District of Florida

Joe Edwin Rogers, Jr., a Florida inmate, timely filed a counseled petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) challenging his Hernando County convictions and a supporting memorandum of law (Doc. 2). Respondent filed a response (Doc. 9) and Rogers filed a reply (Doc. 15). In accordance with a previous Order of this Court (Doc. 17), Respondent filed a supplemental response (Doc. 20). Rogers did not reply to the supplemental response. Upon review, the petition will be DENIED.

Procedural History

Rogers was convicted after a jury trial of 125 counts of possession of child pornography. (Doc. 10-2, Ex. A cont'd, doc. pp. 60-84; Doc. 10-3, Ex. A cont'd, doc. pp. 1-102). He was sentenced to an overall term of 75 years in prison, followed by 10 years of sex offender probation. (Doc. 10-4, Ex. A cont'd, doc. p. 2; Doc. 10-6, Ex. A cont'd, doc. pp. 1-4). The state appellate court affirmed the convictions and sentences in a written opinion. Rogers v. State, 96 So. 3d 922 (Fla. 5th DCA 2012). The state appellate court dismissed Rogers's petition alleging ineffective assistance of appellate counsel, filed under Florida Rule of Appellate Procedure 9.141(d). (Doc. 10-29, Exs. II, JJ).

Rogers also filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and amendments to the motion. (Doc. 10-25, Ex. N, Doc. 10-26, Exs. N cont'd, P, Q). The state postconviction court summarily denied relief. (Doc. 10-26, Exs. O, R). The state appellate court affirmed in part and reversed in part. Rogers v. State, 162 So.3d 334 (Fla. 5th DCA 2015). On remand, the state postconviction court conducted an evidentiary hearing on several of Rogers's claims. It then entered a final order denying Rogers's motion. (Doc. 10-28, Ex. AA). The state appellate court per curiam affirmed the denial of relief. (Doc. 10-29, Ex. EE).

Rogers filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). (Doc. 10-29, Ex. MM). The state court denied the motion on the basis that Rogers's claim was not cognizable under Rule 3.800(a), and the state appellate court per curiam affirmed. (Doc. 10-29, Exs. NN, PP).


In 2007, Rogers and his then-girlfriend, Catherine Schlaegel, lived in Tennessee. They had a daughter together in 2007 but maintained separate residences. In May 2007, Rogers moved to Spring Hill, in Hernando County, Florida, to begin a new job. He took a limited amount of belongings with him. Schlaegel and their daughter moved in June 2007. At that time, a moving truck brought the rest of Schlaegel's and Rogers's belongings. They lived together in Spring Hill.

As Schlaegel was organizing the new house, she threw away adult pornography that she found. In July or August 2007, Schlaegel located an unmarked compact disk either in Rogers's laptop bag or in his closet. When she put the disk in her computer, she saw one image of child pornography. Schlaegel hid the disk in her closet. When she confronted Rogers, he said he did not know what she was talking about. But Rogers agreed to go to a therapist, and he and Schlaegel went to therapy together several times.

Schlaegel and Rogers moved to Citrus County in December 2007; they separated in approximately May 2008 and began living in separate residences. In April 2009, after Schlaegel attempted suicide, Rogers filed an emergency motion in state court to obtain custody of their daughter. Schlaegel contacted police, and provided them with the disk on May 1, 2009. A short time later, Schlaegel went to Rogers's home while wearing a recording device. Their recorded conversation was played at trial. In the conversation, Rogers stated that he had sometimes accidentally downloaded child pornography, but maintained that he believed he had deleted it all.

Detectives used a program called Forensic Tool Kit to analyze the disk provided by Schlaegel. The program recovered 178 images of child pornography. The State charged Rogers with 125 counts of possession of child pornography.

Standard Of Review

The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:

(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.

A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

The AEDPA was meant "to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one." Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").

The state appellate court affirmed the denial of each claim for postconviction relief without discussion. These decisions warrant deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."). When a state appellate court issues a silent affirmance, "the federal court should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale" and "presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

Exhaustion Of State Remedies; Procedural Default

A federal habeas petitioner must exhaust his claims for relief by raising them in state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.").

The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971). "If the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

Ineffective Assistance Of Counsel

Claims alleging ineffective assistance of counsel are analyzed under the test announced in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and resulting prejudice. Id. at 687. To show deficient performance, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. A court must consider whether, "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id. at 690. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Rogers must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691-92. To demonstrate prejudice, Rogers must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal habeas review because "[t]he standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the...

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