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Rogers v. Kemper

United States District Court, E.D. Wisconsin

April 4, 2017

PAUL KEMPER, Respondent.


          William C. Griesbach, Chief Judge.

         On March 29, 2017, Tony Phillip Rogers filed this petition pursuant to 28 U.S.C. § 2254, asserting that his state court conviction and sentence were imposed in violation of the Constitution. Rogers was convicted in Milwaukee County Circuit Court following a jury trial of four counts of first degree sexual assault of a child and one count of incest with a child. He was sentenced to a total of 25 years of initial confinement followed by 15 years of extended supervision. He is currently incarcerated at Racine Correctional Institution. Rogers claims he lacks the funds to pay the $5.00 filing fee and has filed a motion to proceed in forma pauperis. After reviewing a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his petition, it appears Rogers lacks the funds to pay the filing fee. Leave to proceed in forma pauperis therefore will be granted.

         Pursuant to Rule 4 of the Rules Governing § 2254 Proceedings, I must give the case prompt initial examination:

If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States Attorney to file an answer, motion, or other response within a fixed time, or take other action the judge may order.

         Rule 4, Rules Governing § 2254 Proceedings. During my initial review of habeas petitions, I look to see whether the petitioner has set forth cognizable claims under § 2254.

         Rogers exhausted three possible issues during the state court appeals process: (1) ineffective assistance of counsel for failing to seek admission of the victim's mental health records; (2) trial court error for denying his request to introduce other acts evidence at trial in an attempt to show prior fabrication by the victim; and (3) trial court error for denying his motion for a mistrial after his jail-issued wristband became viable to the jury. He now presents seven grounds for relief in his habeas petition, although a review of the petition reveals the additional claims, to the extent they are valid at all, appear to simply be restatements of the three exhausted claims. Rogers' unexhausted claims-an Eighth Amendment claim for being forced to wear a jail wristband during pretrial custody and an ineffective assistance of counsel claim for failure to immediately object to and move for a mistrial due to the presence of the wristband-will be dismissed as plainly meritless. The Eighth Amendment claim does not challenge the constitutionality of his conviction or sentence and thus is not appropriately decided in a Section 2254 claim. Rogers' claim that his attorney was ineffective in failing to immediately move for a mistrial when his jail wristband was displayed to the jury has no merit because his attorney did object and move for a mistrial. The trial court denied the motion and was affirmed by the court of appeals. There is no more counsel could have done. Therefore, I will proceed to screen Rogers' three exhausted claims.

         A. Ineffective Assistance of Counsel

         Rogers claims that his trial counsel was ineffective for failing to obtain the medical/mental health records of the victim for use in trial, or at the very least for failing to file a motion to allow for an in camera review of the victim's medical records. Specifically, Rogers asserts that his attorney should have made the request because he learned that the victim had been briefly admitted into a psychiatric hospital and because the victim wrote a letter which indicated she was in need of mental health assistance and was hearing voices. Ineffective assistance of counsel deprives a defendant of his Sixth Amendment right to counsel and is therefore a proper ground for relief under 28 U.S.C. § 2254. To establish a claim of ineffective assistance of counsel, a petitioner must show that counsel was deficient in his performance and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance requires demonstrating that the lawyer's representation fell below an objective standard of reasonableness as measured by prevailing professional norms. Id. at 687-88. To establish prejudice, a petitioner must show that there is a reasonable probability that but for his lawyer's deficient performance, the result of the proceeding would have been different. Id. at 694.

         On direct appeal, the Wisconsin Court of Appeals rejected this argument on the ground that trial counsel would have been unable to make the preliminary showing of materiality of the victim's medical records that is required for an in camera review. In Wisconsin, a defendant may obtain in camera inspection of a victim's privileged medical records by making a preliminary showing on a specific factual basis that the records are material to the defense and that there is a reasonable likelihood that the records will be necessary to a determination of guilt or innocence. See State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719 (Ct. App. 1993); State v. Green, 2002 WI 68, 253 Wis.2d 356, 646 N.W.2d 298. The Court of Appeals characterized Rogers' basis for an in camera review of the victim's medical records as simply linking a series of guesses:

He jumps from the fact that the victim was hospitalized to his speculation that she must have mental health records and that they will show that she suffered “from a mental illness” and that it would be the type of mental illness that would somehow make it “more likely that she had fabricated or misremembered the events” at issue, which would have a great impact on the jury. However, he offers no “fact-specific evidentiary showing” of relevance.

State v. Rogers, No. 2015 AP921-CR, 2016 WI.App. 41, ¶ 23, 369 Wis.2d 223, 880 N.W.2d 183 (April 12, 2016) (citations omitted).

         This appears to possibly misstate the evidence that was available to Rogers in support of a motion for in camera review of the victim's medical records. Not only did trial counsel receive information that the victim had been admitted to a psychiatric hospital, but the victim's letter allegedly indicated that she was in need of mental health assistance and was “[a]lways hearing voices . . .” Id. at ¶ 4. At this stage, I cannot determine whether the decision to deny Rogers' ineffective assistance of counsel claim was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Of course, all of this evidence and the alleged linkage may have been discussed at length during the pretrial hearing addressing the scope of defense counsel's cross examination of the victim. Without more information, however, I am unable to say Rogers is entitled to no relief. This claim will therefore remain.

         B. Other Acts Evidence

         Rogers next argues that the trial court erred by denying his request to introduce evidence from a witness who claimed that the victim had previously lied about witnessing another friend being molested and about being physically abused by her mother. The Wisconsin Court of Appeals first held that Rogers failed to preserve the affidavit in his record on appeal and thus must assume that the missing affidavit supported the trial court's ruling to exclude it under Fiumefreddo v. McLean, 174 Wis.2d 10, 27, 496 N.W.2d 226 (Ct. App. 1993). The Court of Appeals also found that even if the affidavit was available, it was offered for the purpose of showing that the victim was a liar, ...

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