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Rogers v. Kemper

United States District Court, E.D. Wisconsin

August 2, 2017

PAUL KEMPER, Defendant.



         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 on four counts of first degree sexual assault of a child under thirteen 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. The court screened the petition on April 4, 2017 and allowed Rogers to proceed on two claims: (1) ineffective assistance of counsel based on his attorney's failure to obtain the victim's mental health records, or at least file a motion for an in camera review; and, (2) the trial court erred when it denied his request to introduce other acts evidence at trial in an attempt to show prior fabrication by the victim. The issues presented here were already well-developed in the state court proceedings. Based on the court's review of the petition, answer and exhibits attached thereto, I conclude that further briefing is unnecessary and will proceed to decide the case on the record before me. For the reasons discussed herein, the petition will be denied and the case dismissed.


         Rogers was convicted of repeatedly sexually assaulting his daughter, DAR, between 2005 and 2010, when she was between the ages of eight and twelve. DAR reported the criminal conduct in a letter written to her mother in 2012. In her letter, DAR also mentioned having suicidal thoughts, feeling overwhelmed, and hearing voices. Prior to trial, the state filed a motion in limine seeking to prevent counsel for Rogers from offering evidence that DAR was diagnosed with and received inpatient treatment for a mental illness. Roger's attorney opposed the motion noting that his investigator had learned that DAR had been hospitalized and diagnosed with Schizophrenia. The prosecutor, on the other hand, claimed that DAR's mother had informed her DAR's diagnosis was depression, which she contended was not surprising given what her father had done to her. ECF No. 10-10 at 5-7. The trial court granted the State's motion on the ground that since neither party intended to call as a witness a psychologist or other expert qualified to testify on mental health diagnosis and treatment, there was no foundation for such testimony. ECF No. 10-11 at 2-7.

         This did not leave the defense without any basis on which to challenge DAR's credibility, however. The trial court held that the defense was free to explore DAR's conduct through cross examination of her and her mother concerning the letter she had written, hearing voices, suicidal thoughts and acting out behavior. Id. at 6-7. At trial, the State relied on DAR's letter to her mother, as well as testimony from DAR, her mother, her friend, and a police officer. Rogers, through cross-examination and testimony from one of DAR's friends, challenged the allegations as not credible given DAR's statement that she heard voices, her mental state, and her proclivity to lie. After a three-day trial, the jury returned a guilty verdict on all five counts.

         Rogers filed a motion for postconviction relief in state circuit court, alleging his trial counsel was ineffective for failing to obtain the victim's mental health records, or at least move for in camera review. He also claimed the trial court erred in denying his request to admit other acts evidence and his motion for mistrial on the ground that his jail wristband was visible to the jury. The circuit court denied relief and Rogers appealed. The Wisconsin Court of Appeals rejected Rogers' arguments and affirmed the judgment. The Wisconsin Supreme Court denied Rogers' petition for review.


         Rogers' petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Under AEDPA, habeas corpus relief for persons serving sentences imposed by state courts may not be granted on 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 United States Supreme Court; 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). A state court decision is “contrary to . . . clearly established Federal law” if the court did not apply the proper legal rule, or, in applying the proper legal rule, reached the opposite result as the Supreme Court on “materially indistinguishable” facts. Brown v. Payton, 544 U.S. 133, 141 (2005). A state court decision is an “unreasonable application of . . . clearly established Federal law” when the court applied Supreme Court precedent in “an objectively unreasonable manner.” Id.

         This is, and was meant to be, a difficult standard to meet. Harrington v. Richter, 562 U.S. 86, 102 (2011). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal citation and quotation marks omitted). The standard of review for factual findings is similarly deferential. Factual determinations by state courts are presumed to be correct, a presumption that can only be overcome by clear and convincing evidence presented by the petitioner. 28 U.S.C. § 2254(e)(1).


         A. Ineffective ...

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