Rogers v. McDaniel (801 F. Supp. 2d 1049, 2011)

ORDER

EDWARD C. REED, District Judge.

Introduction

This case is a petition for a writ of habeas corpus by Mark Rogers, a Nevada prisoner sentenced to death. The case is before the court with respect to the merits of the claims remaining in Rogers’ second amended habeas petition. The court will deny Rogers relief with respect to Grounds 3, 5, 6, 9, 10, 11, 13,19, 24, and 38 of his second amended petition. The court will grant Rogers relief with respect to Grounds 20, 21, and 23 of his second amended petition, all of which relate to Rogers’ death sentence; accordingly, the court will order that Rogers be granted a new penalty-phase trial, or that his death sentence be vacated and a non-capital sentence imposed upon him, consistent with law.

Background Facts and Procedural History

In its September 3, 1985 decision affirming Rogers’ convictions and sentence, the Nevada Supreme Court described, as follows, the facts of the case as revealed by the evidence:

On December 3, 1980, Frank and Linda Strode returned from a Thanksgiving trip to their home in an isolated part of Pershing County near Majuba Mountain, where they resided with Frank’s parents, Emery and Mary Strode, and Frank’s sister, Meriam Strode Tread-well. When they entered the parents’ trailer, they found the dead bodies of Emery, Mary and Meriam under a blanket in a bedroom. Emery had been shot three times and stabbed twice with a knife which was left in his chest. A pocket watch discovered in Emery’s shirt pocket had been struck by one of the bullets; the hour hand of the watch was stopped at one o’clock. Mary had been stabbed in the back and shot in the chest. Meriam, whose wrists were bound with an electric cord, died from a single gunshot wound in her back. Emery and Meriam kept daily diaries. The last entry in both diaries was recorded on the morning of December 2, 1980.

On December 1, 1980, between 4:30 and 5 p.m., Robert Schott gave defendant a ride from Winnemucca to Imlay. As soon as Rogers climbed into Schott’s truck, he looked nervously in both the back of the truck and the rear view mirror. Defendant introduced himself as John and claimed that he was a musician going to Reno to look for a job. At one point during the drive, defendant blurted out: “You may not believe it but I am a good American. You may not believe it but I’m on your side. I would fight for my country.”

On December 2, 1980, between approximately 12:15 and 12:45 p.m., David Hartshorn, a geologist working at the Majuba Hill Mine, observed Rogers standing alongside a road near Majuba Canyon and offered him a ride. During the ride, Hartshorn gave defendant a can of Seven-Up to drink. Defendant stated that “[sjomebody is shooting rockets ... and one of these days it will hit my pyramid and blow me up.” Rogers alighted at the Strode residence with the Seven-Up can in hand.

Between 12:30 and 2 p.m. that same day, Ray Horn, a mechanic at a nearby mine, was driving on a county road near Majuba Mountain. As he passed a dark metallic blue truck, a slender young man driving the truck shot at Horn several times. Between 3:30 and 4 p.m., Earl L. Smith, a highway maintenance worker saw Rogers standing on a road between Denio and Winnemucca and provided him a ride because defendant had run out of gasoline. Rogers was later observed traveling at an extremely high rate of speed in a blue truck, which was identified by its license number as the Strodes’ truck.

On December 5, 1980, Rogers was refused entry into Canada. In conversing with a Canadian police officer, Rogers indicated that he was the King of North America. On January 4, 1981, defendant was arrested in Florida when he was seen riding on the bumper of a car, holding on to a luggage rack. After he was arrested, Rogers told police that God knew him and that we were all a part of mother nature. During fingerprinting, defendant refused to speak and wrote on a piece of paper that he belonged to the government. Later at the jail, defendant claimed that he had killed the Strode family in self-defense.

Rogers’ fingerprints were lifted from various items in the Strode residence, including a Seven-Up can and a glass jar found in the bedroom under the blanket with the victims’ bodies. At trial, the defense presented the testimony of several expert witnesses which indicated defendant was a paranoid schizophrenic at the time of evaluation and that defendant’s behavior at the time of the commission of the crimes was consistent with psychotic paranoid delusions, schizophrenia and psychosis and that Rogers could not tell right from wrong or the nature and quality of his acts. One psychologist believed that defendant, who was trained in acting, was faking his symptoms. After finding the defendant guilty of the crimes charged, the jury imposed the death penalty for the three murder convictions, and prison terms for the attempted murder and grand larceny.

Rogers v. State, 101 Nev. 457, 705 P.2d 664, 667-68 (1985), cert. denied, 476 U.S. 1130, 106 S.Ct. 1999, 90 L.Ed.2d 679 (1986); Exhibit P555.

Rogers appealed, and the Nevada Supreme Court affirmed on September 3, 1985, Id.', see also Exhibits P553, P554. The United States Supreme Court denied Rogers’ petition for a writ of certiorari on May 19, 1986. Rogers v. Nevada, 476 U.S. 1130, 106 S.Ct. 1999, 90 L.Ed.2d 679 (1986).

On February 26, 1986, Rogers filed a petition for post-conviction relief in the state district court. Exhibits P556, P557. The state district court held an evidentiary hearing, at which Rogers testified. Exhibit R7, pp. 361-426. On September 29, 1986, the state district court denied the petition. Exhibit R7, p. 435. Rogers appealed. See Exhibit P533. On June 20, 1987, the Nevada Supreme Court dismissed the appeal. Exhibit P558.

On October 26, 1987, Rogers filed a petition for a writ of habeas corpus in this court, initiating the case of Rogers v. Whitley, 3:87-cv-0505-ECR. Counsel was appointed to represent Rogers. On July 27, 1989, the court stayed that action so that Rogers could exhaust certain claims in state court. Rogers v. Whitley, 3:87-ev-0505-ECR, docket # 53; see also Rogers v. Whitley, 717 F.Supp. 706 (D.Nev.1989); Rogers v. Whitley, 701 F.Supp. 757 (D.Nev.1988).

On October 15, 1990, Rogers filed, in state court, a second petition for post-conviction relief. Exhibit P559. On December 24, 1991, that petition was denied. Exhibit R8, p. 616. Rogers appealed. See Exhibit P560. The Nevada Supreme Court dismissed the appeal on May 28, 1993. Exhibit P561.

On December 1, 1993, Rogers filed a second federal habeas corpus action in this court: Rogers v. Angelone, 3:93-cv-0785-ECR. Two weeks later, on December 14, 1993, Rogers’ first federal habeas action was dismissed. See Rogers v. Whitley, 3:87-cv-0505-ECR, docket #101. The petition in Rogers’ second federal habeas action was amended and supplemented, and respondents answered. See Rogers v. Angelone, 3:93-cv-0785-ECR, docket # 13, # 16, and # 29. On March 6, 1997, the court ordered the action dismissed, without prejudice, in order to permit Rogers to further exhaust claims in state court. Rogers v. Angelone, 3:93-cv-0785-ECR, docket # 76, # 81, # 82.

On March 24,1997, Rogers filed, in state district court,' a third petition for post-conviction relief. Exhibit P562. On March 25, 1998, the State moved to dismiss the petition. Exhibit R4, p. 678. On July 13, 1999, the state district court granted that motion in part and denied it in part, dismissing certain of Rogers’ claims and ordering the State to answer certain of his claims. Exhibit R5, pp. 869, 925. On May 1, 2000, the court dismissed the remaining claims. Exhibit R5, p. 974. Rogers appealed. See Exhibit P563. The Nevada Supreme Court affirmed on May 13, 2002. Exhibit P564.

On June 25, 2002, Rogers initiated this, his third, federal habeas action, by filing a “renewed” petition for writ of habeas corpus (docket # ll).

On November 24, 2004, Rogers moved for a stay of these proceedings, under Rohan ex rel. Gates v. Woodford, 834 F.3d 803 (9th Cir.), cert. denied, 540 U.S. 1069, 124 S.Ct. 809, 157 L.Ed.2d 732 (2003), contending that he was incompetent to proceed (docket # 39). On September 21 and 22, 2005, the court held an evidentiary hearing on that motion (docket # 60, # 61). The court denied the motion in an order entered on October 24, 2005 (docket # 58). On May 18, 2006, the court denied a motion to reconsider (docket # 69).

On December 14, 2006, Rogers filed a first amended petition (docket # 75), and on December 19, 2006, he filed a second amended petition (docket # 77).

On July 24, 2007, Rogers filed a motion for leave of court to conduct discovery (docket #84). On August 10, 2007, respondents filed a motion to dismiss (docket #85). On March 24, 2008, 2008 WL 820088, the court entered an order (docket # 108) denying Rogers’ motion for leave to conduct discovery, and granting in part and denying in part the motion to dismiss. The court dismissed, with prejudice, the following claims in the second amended petition: Grounds 1, 2, 4, 8, 12, 14, 15, 16, 17, 18, 22, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, and 37. The court dismissed Ground 30 without prejudice, finding that it was not ripe. The court found Ground 7 to be unexhausted, and required Rogers to either abandon that claim or have his entire second amended petition dismissed. On April 24, 2008, Rogers abandoned Ground 7 (docket # 109). This left the following claims in Rogers’ second amended petition to be resolved on their merits: Grounds 3, 5, 6, 9, 10, 11,13, 19, 20, 21, 23, 24, and 38.

Respondents filed an answer (docket # 114), on October 23, 2008, responding to the claims remaining in the second amended petition. On March 6, 2009, Rogers filed a reply (docket # 121) and a motion for evidentiary hearing (docket # 123), requesting an evidentiary hearing with respect to Ground 6. On August 3, 2009, respondents filed a response to the reply (docket # 129), and an opposition to the motion for evidentiary hearing (docket # 128). On August 31, 2009, Rogers filed a reply in support of the motion for evidentiary hearing (docket # 132). On January 22, 2010, the court denied the motion for an evidentiary hearing (docket # 133).

Standard of Review of the Merits of Rogers’ Claims

This action was initiated on June 25, 2002. Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Anti-terrorism and Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); see also Reply (docket # 121), pp. 16-17 (Rogers concedes that AEDPA standards apply).

28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:

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).

A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite 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, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An “unreasonable application” occurs when “a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409, 120 S.Ct. 1495. “[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.” Id. at 411, 120 S.Ct. 1495.

The Supreme Court has explained that “[a] federal court’s collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The “AED-PA thus imposes a ‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that state-court decisions be given the benefit of the doubt.’ ” Renico v. Lett, — U.S. -, -, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam)). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, — U.S. -, -, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)); see also Cullen v. Pinholster, — U.S. -, -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (describing the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt”) (citing Harrington, 131 S.Ct at 786, and Woodford, 537 U.S. at 24, 123 S.Ct. 357 (internal quotation marks, and citations, omitted)).

The analysis under § 2254(d)(1) looks to the law that was clearly established by United States Supreme Court precedent at the time of the state court’s decision. Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen, 131 S.Ct. at 1398. In Cullen, the Court reasoned that the “backward-looking language” present in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made,” and, therefore, the record under review must be “limited to the record in existence at that same time i.e., the record before the state court.” Id.

Analysis

Ground 3

In Ground 3, Rogers claims that he was denied due process of law because of his alleged incompetence. Second Amended Petition, pp. 72-97. Rogers alleges that he “suffers from schizophrenia with frequent eruptions of psychosis” and that “[t]he trial court violated state and federal constitutional protections of due process and fundamental fairness by exercising jurisdiction over him, trying him, and forcing him to proceed through appellate and post-conviction and habeas litigation while insane and incompetent.” M

The trial of an incompetent defendant violates the Due Process Clause of the United States Constitution. Indiana v. Edwards, 554 U.S. 164, 169-70, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008); Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). A defendant is incompetent if “he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense.” Drope, 420 U.S. at 171, 95 S.Ct. 896.

Rogers was found competent to stand trial, and was tried and convicted. The issue of Rogers’ competence was not raised on his direct appeal. See Exhibit P553, P554; see also Rogers v. State, 101 Nev. 457, 705 P.2d 664 (1985).

After Rogers filed his first state post-conviction petition, the state district court held an evidentiary hearing to determine whether he was competent to proceed. See Exhibit X(B) (transcript of hearing). At the conclusion of the hearing, the court found Rogers competent. Id. at 58-59; see also Exhibit R7, pp. 359-60. On the appeal in his first state post-conviction action, Rogers conceded that there was substantial evidence to support the finding that he was competent to proceed with that action, and that he had no legal authority to support an argument for reversal of that finding. See Exhibit P533, p. 8. In his first state post-conviction action, Rogers did not make any claim regarding his competence to go to trial in 1981. See Exhibit P533, P556, P557, P558; Exhibit R7, p. 435-39.

In his second state post-conviction action, Rogers made no claim, in either the state district court or the Nevada Supreme Court, regarding his competence at any stage of the proceedings. See Exhibits P559, P560, P561.

In his third state post-conviction action, Rogers claimed that he was incompetent and incapable of assisting his counsel at trial, on appeal, and in his post-conviction petitions in the state court. Exhibit P562, pp. 48-49. The state district court dismissed that claim on procedural grounds. See Exhibit R5, pp. 922-23, 981. The Nevada Supreme Court affirmed that ruling on appeal. Exhibit P564.

Rogers’ claim in Ground 3 is a factual argument that Rogers was incompetent during the trial and post-conviction proceedings. Rogers does not claim any constitutional violation arising from the procedures employed by the state courts to determine his competence. Rogers only argues that the state courts erred in finding him competent. To obtain federal habeas relief on such a claim — asserting an erroneous determination of a factual issue by a state court — Rogers must show that the state-court adjudication “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)(2).

There was ample evidence before the trial court indicating that Rogers was competent to stand trial; the trial court’s determination in that regard was reasonable in light of the evidence.

It appears that the trial court’s determination that Rogers was competent to stand trial was ultimately based upon the reports of three psychiatrists who examined Rogers: Donald A. Molde, M.D., Jerry A. Howie, M.D., and Philip A. Rich, M.D. See Exhibits P546, P548. Those psychiatrists unanimously found Rogers competent to stand trial. See Exhibit P548. Dr. Molde stated in his report:

After completing my examination it is my opinion that:

(1) Mr. Rogers is presently of sufficient mentality such that he understands the nature of the charges against him;

(2) Mr. Rogers is presently of sufficient mentality such that he understands the difference between right and wrong particularly with respect to the alleged offense.

(3) Mr. Rogers is currently of sufficient mentality such that he is able to assist his attorney in his own defense or to receive the judgment of the Court.

Exhibits P476, P548. Similarly, both Dr. Howie and Dr. Rich concluded in their reports:

I. Mr. Mark James Rogers is of sufficient mentality to know the difference between right and wrong.

II. Mr. Mark James Rogers is of sufficient mentality to understand the nature of the offense charged.

III. Mr. Mark James Rogers is of sufficient mentality to aid and assist counsel in the defense of the offense charged or to show cause why judgement should not be pronounced.

Exhibits P475, P477, P548. In light of the reports of these three psychiatrists appointed by the state trial court to examine Rogers, this court certainly cannot say that the determination that Rogers was competent to stand trial “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2).

Rogers also argues that he was incompetent to proceed with his state post-conviction actions. Rogers, however, does not cite any precedent holding that it is a violation of the federal constitutional right to due process of law for a defendant’s state post-conviction challenge to proceed while he is incompetent. Therefore, a fundamental shortcoming of this part of Ground 3 is that Rogers has not demonstrated that a federal right is at stake. See 28 U.S.C. § 2254(a) (federal court to entertain state prisoner’s petition for a writ of habeas corpus “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States”).

Moreover, even assuming that there is arguably a right under federal law for a defendant to be competent to proceed with his state post-conviction actions, the state district court’s determination that Rogers was competent to proceed with his first state post-conviction proceeding was reasonable. In Rogers’ first state post-conviction action, the state district court held an evidentiary hearing, on September 22, 1986, and, based on the evidence presented, determined that Rogers was competent to proceed. See Exhibit X(B) (transcript of hearing); see also Exhibit R7, pp. 359-60 (state district court’s order). At the hearing, Rogers called as a witness Dr. Michael Irwin, a psychiatrist. Id. at 3-24. Dr. Irwin had examined Rogers and had written a report. Id. at 4; see also Exhibit P481 (letter from Dr. Irwin to state court, with report). Dr. Irwin testified that he believed Rogers had “a paranoid delusional system,” and, as a result, although he was able to clearly understand the legal process, because of his “delusional system and his beliefs of influences on the various court participants in the proceedings,” he did not believe Rogers to be competent. Exhibit X(B), pp. 5-6. On cross-examination, Dr. Irwin stated that he found Rogers to have memory of the trial, and to have opinions regarding his attorneys’ use of certain witnesses. Id. at 8, 9, 13, 17. Rogers also called as a witness at the hearing, Dr. Lynn B. Gerow, a psychiatrist. Id. at 24-46. Dr. Gerow examined Rogers, wrote a report, and found Rogers to be competent. Id. at 25; see also Exhibit P480 (letter from Dr. Gerow to court, with report). Dr. Gerow believed that Rogers was malingering. Exhibit X(B), pp. 34-35. Dr. Gerow testified that Rogers could describe the appeal process in a capital case, and that Rogers expressed opinions regarding the performance of his counsel. Id. at 32-33, 36. There was, therefore, some disagreement between the two doctors who testified, regarding Rogers’ competence. Again, however, the question for this court is whether the state court’s finding that Rogers was competent “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2). This court cannot say that the finding that Rogers was competent to proceed with his post-conviction petition was unreasonable. Moreover, on the appeal in his first state post-conviction action, Rogers conceded that there was substantial evidence to support the finding that he was competent to proceed, and that he had no legal authority to support an argument for reversal of that finding. See Exhibit P533, p. 8.

This court, therefore will deny habeas corpus relief with respect to Ground 3.

Ground 5

In Ground 5, Rogers claims that, in violation of his constitutional right to effective assistance of counsel, his trial counsel rendered ineffective assistance “by not investigating his mental health, or consulting with mental health experts, including but not limited to, Dr. Gutride’s reports and possible testimony, because the state offered false and misleading testimony from Dr. Gutride, or because the state withheld and suppressed material evidence in the Lakes Crossing Progress Notes.” Second Amended Petition, pp. 105-17.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court propounded a two prong test for analysis of claims of ineffective assistance of counsel: a petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney’s representation “fell below an objective standard of reasonableness,” and (2) that the attorney’s deficient performance prejudiced the defendant such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052.

Rogers did not raise this claim of ineffective assistance of counsel on his direct appeal. See Exhibits P553, P554.

Rogers did raise this claim, albeit in a less specific manner, in his first state post-conviction petition. See Order entered March 24, 2008 (docket # 108), p. 46; see also P533, pp. 8-17. The state district court held an evidentiary hearing in that case, see Exhibits P534, P538, P543, and R7, pp. 361^426, and then denied Rogers’ petition. Exhibit R7, p. 435-39. Rogers appealed, and the Nevada Supreme Court dismissed the appeal. Exhibit P558.

In his second state post-conviction action, Rogers did not assert this claim of ineffective assistance of counsel. See Exhibits P559, P560, P561.

In his third state post-conviction action, Rogers raised a claim of ineffective assistance of counsel somewhat similar to the claim in Ground 5. Exhibit P562, p. 41 (Ground 401 in third state post-conviction petition). The state district court dismissed that claim on procedural grounds. See Exhibit R5, pp. 922-23, 981. The Nevada Supreme Court affirmed that ruling on appeal. Exhibit P564.

In Ground 5, the essence of Rogers’ claim of ineffective assistance of counsel is that his trial counsel did not use records from Lake’s Crossing, a mental health facility where Rogers was twice admitted for evaluation of his competence to stand trial, and did not consult experts regarding those records, in order to effectively cross examine Dr. Gutride, the State’s expert witness in rebuttal of Rogers’ insanity defense. See Second Amended Petition, pp. 105-17. Seeking to show that Dr. Gutride could have been subjected to effective cross-examination, Rogers relies upon the following exhibits: Exhibit P227 (declaration of Natalie Novick Brown, Ph.D., dated December 18, 2006); Exhibit P229 (declaration of Raphael Morris, M.D., dated December 13, 2006); Exhibit P231 (declaration of Mitchell Alan Young, M.D., dated December 18, 2006); Exhibit P460 (psychological evaluation by Dr. Gutride, dated March 17, 1981); Exhibit P461 (clinical summary by Dr. Gutride, dated March 18,1981); Exhibit P462 (addendum to psychiatric evaluation by Dr. Richnak, dated March 19, 1981); Exhibit P473 (Lake’s Crossing discharge summary, dated June 12, 1981); Exhibit P524 (records, including progress notes, from Lake’s Crossing). However, there is no indication in the record that any of those materials was ever presented as evidence in state court. None of these materials was mentioned in Rogers’ first state post-conviction petition. See Exhibits P556, P557. None of these materials was offered into evidence in the evidentiary hearing held in state court with respect to Rogers’ first state post-conviction petition. See Exhibit R7, pp. 361-426. After the state district court denied Rogers’ first state post-conviction petition (see Exhibit R7, p. 435), and Rogers appealed, Rogers did not mention any of these materials in his opening brief on appeal. See Exhibit P533.

In Cullen, the Supreme Court held that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen, 131 S.Ct. at 1398. This court, then, defers to the state court, as required by § 2254(d), considering only the evidence that was before the state court when it ruled on Rogers’ claim.

When given the opportunity at an evidentiary hearing, Rogers offered no evidence at all in state court to support his contention that his trial counsel were ineffective in preparing for and conducting the cross-examination of Dr. Gutride. See Exhibit R7, pp. 361-426 (transcript of evidentiary hearing). The only evidence presented at the evidentiary hearing in state court was the testimony of Rogers himself, and that testimony had no significant bearing on the claim raised in this case in Ground 5. See Exhibit R7, pp. 363-94. Given Rogers’ failure to substantiate his claim in state court, this court cannot say that the state court’s summary rejection of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or that the state court’s ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

The court will deny habeas corpus relief with respect to Ground 5.

Ground 6

In Ground 6, Rogers claims that he was denied effective assistance of his trial counsel, because counsel did not conduct a sufficient punishment investigation. Second Amended Petition, pp. 118-68.

On his direct appeal, Rogers asserted that the trial court denied him his federal constitutional rights by denying his counsel the opportunity to adequately develop mitigating evidence in preparation for the penalty phase of the trial. See Exhibits P553, pp. 56-58; see also Order entered March 24, 2008 (docket # 108), p. 47. The Nevada Supreme Court ruled that Rogers did not show “prejudice resulting from a lack of funds to prepare mitigating circumstances for the penalty hearing.” Rogers v. State, 101 Nev. 457, 467, 705 P.2d 664, 671 (1985); Exhibit P. 555, p. 10.

In his first state post-conviction petition, Rogers claimed that his trial counsel were ineffective for not conducting a sufficient punishment investigation. Exhibit P557, pp. 2-3. The state district court held an evidentiary hearing in that case, see Exhibits P534, P538, P543, and R7, pp. 361-426, and then denied Rogers’ petition. Exhibit R7, p. 435-39. Rogers appealed, and raised on appeal the claim that his counsel failed to conduct a sufficient penalty investigation. See P533, pp. 8-17. The Nevada Supreme Court dismissed the appeal. Exhibit P558.

In his second state post-conviction action, Rogers did not assert this claim of ineffective assistance of counsel. See Exhibits P559, P560, P561.

In his third state post-conviction action, Rogers raised claims that his trial counsel were ineffective for not conducting a sufficient penalty investigation. Exhibit P562, p. 42 (Grounds 41A and 41B in third state post-conviction petition). The state district court dismissed those claims on procedural grounds. See Exhibit R5, pp. 917-18, 981. The Nevada Supreme Court affirmed that ruling on appeal. Exhibit P564.

In Ground 6, in this case, Rogers sets forth a great deal of information about his past, supported by declarations of the following witnesses: Tammy Huskey, an investigator employed by Rogers’ counsel (Exhibit P212); Lt. Thomas Doyle, of the Eastlake, Ohio, Police Department (Exhibit P212); Yvonne Sampson, Rogers’ former wife (Exhibit P204); Robert Reebel, Yvonne Sampson’s father (Exhibit P207); Edward Heyduk, Jr., Rogers’ brother (Exhibit P202); Susan Erdman, Rogers’ mother (Exhibit P201); Kenneth Heyduk, Rogers’ brother (Exhibit P205); Edward Heyduk, Sr., Rogers’ adoptive father (Exhibit P206); Shirley Halbrook, Rogers’ aunt (Exhibit P212); Nicholas Forte, a former narcotics agent in Lake County, Ohio (Exhibit P236); Carl Jerome, a friend of George Douglas (“Doug”) Morrison, and an acquaintance of Rogers (Exhibit P209); Ed Reed, a childhood friend of Rogers (Exhibit P210); John Provasoli, a contractor who employed Rogers for a time (Exhibit P212); Paul Slapnicker, a friend of Rogers (Exhibit P212); Thomas Altizer, a friend of Rogers (Exhibit P212); Ulysses Altizer, an acquaintance of Rogers (Exhibit P212); Louis Antenori, a friend of Rogers (Exhibit P212); Timothy Mahaffey, a co-worker with Rogers (Exhibit P212); Jolie Kanat, an employee at an acting school that Rogers attended (Exhibit P212); Patty Still, Doug Morrison’s ex-wife (Exhibit P212); Faith Croswell, Doug Morrison’s daughter (Exhibit P212); and Patricia Thompson, Rogers’ aunt (Exhibit P212). In addition, Rogers relies upon documentary exhibits in support of Ground 6, including school records (Exhibit P522), military records (Exhibit P567), hospital records (Exhibit P570), and police records (Exhibit P519, P571, P596). Rogers also proffers a declaration of Virginia Shane, Rogers’ trial counsel (Exhibit P220). Rogers generally attempts, in offering this evidence, to show that, had a more extensive penalty investigation been conducted, the outcome of the penalty phase of his trial might have been different.

These declarations and documentary exhibits, proffered by Rogers in support of Ground 6, were not before the state court that ruled on the merits of the claim. See Exhibits P533, P556, P557; Exhibit R7, pp. 361-426. At the evidentiary hearing regarding this claim, in state court, the only evidence offered was the testimony of Rogers himself. See Exhibit R7, pp. 361-426. Rogers testified that his attorneys called his mother to testify, in the guilt phase of his trial, against his wishes. Id. at 366, 370. Rogers testified that his attorneys never discussed with him anything about his past or his family that they could use in the penalty phase of the trial. Id. at 366-67. On cross-examination, when pressed to identify the witnesses that he believed his attorneys should have called to testify in the penalty phase of the trial, Rogers initially had difficulty naming any. Id. at 371-72. Eventually, on cross-examination, Rogers identified four individuals from Los Angeles that he would call as character witnesses: Robert Hups, William Lanski, Ted Brady, and John Profesoli. Id. at 372-75. Rogers testified: “All these people I worked for a stretch of two or three years and I worked hard and was always there and clean and did my work.” Id. at 375. None of those individuals are represented in the many declarations now submitted in this case by Rogers. Rogers also indicated that he might have called Doug Morrison to testify on his behalf; however, Morrison was, in fact, called as a witness at trial, by the prosecution. See id. at 374-76; see also Exhibit IV(F), pp. 353-81. On redirect examination, Rogers testified about the circumstances regarding his prior criminal prosecutions in Ohio. See Exhibit R7, pp. 383-90. There was no other evidence offered at the evidentiary hearing regarding Rogers’ claim that his attorneys conducted an insufficient penalty investigation.

Rogers’ self-serving testimony that his attorneys could have located and called as witnesses a handful of acquaintances in Los Angeles, and they would generally have said positive things about him, was not compelling evidence that he was prejudiced by his attorneys’ failure to conduct a more extensive penalty investigation.

As directed by the Supreme Court in Cullen, in considering the merits of the claim in Ground 6, this court limits its perspective to the evidence that was before the state court that ruled on the merits of the claim. In light of the evidence presented at the evidentiary hearing in state court, this court cannot say that court’s ruling, that Rogers was not prejudiced by his attorneys’ limited penalty investigation, was unreasonable. In view of the evidence before the state court, that ruling was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). The court will deny habeas corpus relief with respect to Ground 6.

Ground 9

In Ground 9, Rogers claims that his constitutional rights were violated as a result of the trial court’s denial of his motion for change of venue. Second Amended Petition, pp. 176-78.

In Hayes v. Ayers, 632 F.3d 500 (9th Cir.2011), the court of appeals set forth the law governing such a claim:

The Sixth and Fourteenth Amendments “guarantee! ] to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). When a trial court is “unable to seat an impartial jury because of prejudicial pretrial publicity or an inflamed community atmosphere[,] ... due process requires that the trial court grant defendant’s motion for a change of venue.” Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir.1988) (citing Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417,10 L.Ed.2d 663 (1963)).

In this circuit, we have identified “two different types of prejudice in support of a motion to transfer venue: presumed or actual.” United States v. Sherwood, 98 F.Sd 402, 410 (9th Cir.1996). Interference with a defendant’s fair-trial right “is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime.” Harris, 885 F.2d at 1361. Actual prejudice, on the other hand, exists when voir dire reveals that the jury pool harbors “actual partiality or hostility [against the defendant] that [cannot] be laid aside.” Id. at 1363. The Supreme Court applied this two-pronged analytical approach in a case it decided at the end of its last term. See Skilling v. United States, 561 U.S. -, 130 S.Ct. 2896, 2907, 177 L.Ed.2d 619 (2010) (considering, first, whether pretrial publicity and community hostility established a presumption of juror prejudice, and then whether actual bias infected the jury).

“A presumption of prejudice” because of adverse press coverage “attends only the extreme case.” Skilling, 130 S.Ct. at 2915; see also Harris, 885 F.2d at 1361 (“The presumed prejudice principle is rarely applicable and is reserved for an extreme situation.” (citing Neb. Press Ass’n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)) (citation and internal quotation marks omitted)).

Where circumstances are not so extreme as to warrant a presumption of prejudice, we must still consider whether publicity and community outrage resulted in a jury that was actually prejudiced against the defendant. This inquiry focuses on the nature and extent of the voir dire examination and prospective jurors’ responses to it. See Skilling, 130 S.Ct. at 2917-23. Our task is to “determine if the jurors demonstrated actual partiality or hostility [toward the defendant] that could not be laid aside.” Harris, 885 F.2d at 1363.

Hayes, 632 F.3d at 507-11.

Before trial, Rogers filed a motion for change of venue. Exhibit P577. The motion stated generally that there had been “[e]motionally charged and prejudicial publicity” in local newspapers. Id. The motion also stated that “[t]he makeup of the community is largely agricultural and mining, with many community members living in remote areas as did the victims.” Id. The motion was supported by an affidavit of Rogers’ counsel, in which counsel stated, in relevant part:

2.Your affiant resides in Pershing County, Nevada and has resided in Pershing County, Nevada, throughout the pendency of this action. During the course of her representation of the defendant herein, and her residence in Pershing County, Nevada, your affiant has been approached on numerous occasions by local citizens who your affiant believes to be registered voters and otherwise qualified to sit on juries in Pershing County, Nevada.

Your affiant has had numerous conversations with local citizens the content of which is as follows: I will be approached by one or more members of the local public. One or more of them will ask me if I am representing the defendant in the case out of which this action arose. One or more of the local public will then say to me that the defendant herein should be taken out and hanged, as was done in the old days.

3. Your affiant had been informed by the editor/publisher of the local newspaper, the Lovelock Review-Miner, that she and other members of the community had seen the defendant within the community prior to December 1980, fighting in bars, breaking cue sticks in a fit of rage and loitering in mining camp areas. Your affiant’s investigator checked all leads and found that the defendant was not the person observed.

Your affiant has been approached by this same editor/publisher who is on the jury venire who admitted her prejudice and asked for a stipulation that she be removed from the jury. If the newspaper is biased, then the members of the community who read the newspaper will reflect that bias.

4. The members of the community who have been interviewed by the State as witnesses who knew the victims have all expressed their friendly and helpful nature. In a small community, with many members of the community from whom the jury will be drawn knowing the victims, it will be impossible to select an unbiased jury.

5. The Defendant in this action is a young transient who has lived in Hollywood and whose lifestyle is totally foreign to the local community. Your affiant believes that certain testimony which may come in regarding the Defendant’s living arrangements would prejudice a rural jury to the extent that it would prevent a fair trial.

Id. That affidavit of counsel was the only evidence offered in the trial court in support of the motion for change of venue. The trial court heard argument and denied the motion on November 16, 1981. See Exhibit IV(E), pp. 313-16.

Rogers raised this issue on his direct appeal to the Nevada Supreme Court. See Exhibit P553, pp. 8-10. In his opening brief on appeal, Rogers argued:

It is submitted that a review of the jury selection process in this ease will reveal that the appellant did not receive a fair trial. Given the rural nature of Pershing County and its small population, it would be impossible for an outside “hippy type” to receive a fair and impartial trial concerning the murder of local citizens. The court should have transferred venue.

Id. at 9-10.

The Nevada Supreme Court ruled as follows:

Defendant contends that the court erred in denying his motion for change of venue because the editor/publisher of a local newspaper, in a conversation with defense counsel, acknowledged her prejudice against defendant. Defendant reasons that if the newspaper is biased, then the community must be biased. Counsel’s affidavit in support of the motion to change venue was unsupported by any evidence which might have demonstrated the extent or inflammatory nature of any pretrial publicity, or whether there was any prejudicial effect on the prospective jurors. Under these circumstances, where defendant failed to demonstrate that any pretrial publicity corrupted the trial, the district court did not abuse its discretion in denying defendant’s motion for change of venue. NRS 174.455; Kaplan v. State, 96 Nev. 798, 618 P.2d 354 (1980).

Rogers v. State, 101 Nev. 457, 462, 705 P.2d 664, 668 (1985).

Rogers did not raise this issue in his first state post-conviction action. See Exhibits P533, P556, P557. Nor did Rogers raise the issue in his second state post-conviction action. See Exhibits P559, P560, P561.

In his third state post-conviction action, Rogers did raise this issue, asserting the following:

Petitioner was tried in a rural county, the population of which was small and of which Petitioner was not a resident. The residents of the area engaged primarily in mining and agriculture and many lived in remote areas as did the victims. Relatively few people lived in Pershing County at the time of the murders; their own hard lives were scattered across hundreds of square miles of high desert. They knew the victims; they paid attention when the outside world encroached; they learned about the crime; they talked about the crime; they learned about the suspect; they talked about the suspect; they saw artists’ renderings of the suspect everywhere; they paid attention to the manhunt; they learned of the Petitioner’s arrest; they heard about the connections between Petitioner and the crime. They heard opinions about Petitioner’s guilt; they had opinions about the death penalty; and, they believed in an “eye for an eye.” When they learned Petitioner had pled “not guilty” by reason of insanity, they saw him as taking advantage of a “loophole” in the law. This was the atmosphere in Pershing County in late 1981.

Defense counsel filed a motion of change of venue. The affidavit which defense counsel filed in support of the motion for change of venue stated that she had been approached on numerous occasions by residents of the area who informed her that the Petitioner should be hung, as was done in the “old days.” There was significant pretrial publicity concerning the crimes charged and the editor/publisher of the local newspaper voluntarily removed herself from the jury venire due to admitted prejudice. In so doing, the editor/publisher informed Petitioner’s counsel that she and other members of the community had seen the Petitioner in the community prior to the offenses charged and had witnessed, and had discussed witnessing, Petitioner’s bawdy behavior.

With only one exception, each of the fifty-four potential jurors examined about prior knowledge had heard something about the crime and/or the Petitioner. Of the twelve regular jurors finally empaneled all but one had read, seen, and/or heard something about the crime and the defendant; one knew the victims; five were friendly with local law enforcement; seven had difficulties accepting any insanity defense; and, two functionally equated first degree murder with mandatory imposition of the death penalty.

Exhibit P562, pp. 11-12. That claim was dismissed by the state district court on procedural grounds. See Exhibit R5, pp. 870, 880-81, 911-12, 925. The state district court’s ruling was affirmed on appeal. See Exhibit P564.

In this federal habeas corpus action, in Ground 9, Rogers expands significantly upon the argument and evidence that he offered in state court. Rogers argues that the newspaper in the county where the Strode killings occurred published articles that included “detrimental or biased reporting,” that created “tremendous fear throughout the county,” and that caused a prejudicial atmosphere preventing Rogers from receiving a fair trial. See Second Amended Petition, pp. 176-78. Rogers has submitted, as exhibits, copies of newspaper articles published within the two months after the murders, between December 10, 1980, and January 14, 1981. Exhibits P301, P302, P303, P304. In addition, Rogers argues that he could not receive a fair trial in Pershing County “because the victims were founding members of the Pershing County chapter of the vigilante group, Posse Comitatus.” Second Amended Petition, pp. 177-78.

In state court — before the trial court, on direct appeal, and in three state post-conviction proceedings, over a period of more than twenty years — Rogers never made the argument that his trial was rendered unfair on account of activities of Posse Comitatus. Moreover, in state court, Rogers never offered the following exhibits, which are now proffered by Rogers in this court: Exhibits P211 (declaration of Russell Beckwith, a bailiff at Rogers’ trial (¶ 5, concerning Posse Comitatus)), P213 (declaration of Suzzet Ramirez), P214 (declaration of Ahtrum L. Thunder), P215 (declaration of David VanZant), P218 (declaration of Ken Ells-worth, former sheriff of Pershing County), P220 (declaration of Virginia Shane, Rogers’ trial counsel (fifth paragraph, concerning Posse Comitatus)), P223 (declaration of Daniel Levitas, purportedly an expert on Posse Comitatus), P224 (declaration of Kelly D. Miller (¶¶ 5-7, regarding Posse Comitatus)), P301, P302, P303, P304, P323, P324, P329, P330, P331, P335, P336, P337, P341, P342, P343, P347, P348, P349, P353, P354, P355, P359, P360, P361, P365, P366, P367, P371, P372, P373, P325, P327, P328, P332, P333, P334, P338, P339, P340, P344, P345, P346, P350, P351, P352, P356, P357, P358, P362, P363, P364, P368, P369, P370, P374, P375, P376, P377, P378, P383, P384, P389, P390, P395, P396, P401, P402, P407, P408, P413, P414, P419, P420, P425, P426, P431, P432, P437, P438, P443, P444, P449, P450, P379, P380, P385, P386, P391, P392, P397, P398, P403, P404, P409, P410, P415, P416, P421, P422, P427, P428, P433, P434, P439, P440, P445, P446, P451, P452, P381, P382, P387, P388, P393, P394, P399, P400, P405, P406, P411, P412, P417, P418, P423, P424, P429, P430, P435, P436, P441, P442, P447, P448, P453, P454, P455, P456, and P510. Because this evidence was not before the state courts, it is not considered in this court’s analysis under 28 U.S.C. § 2254(d). See Cullen, 131 S.Ct. at 1398.

Properly viewed in light of the evidence that was before the state courts, the Nevada Supreme Court’s ruling, that there was no error in the denial of the motion to change venue, was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d). The anecdotal evidence in the affidavit presented by counsel in state court did not show there to have been either presumed or actual prejudice warranting a change of venue. The court will deny habeas corpus relief with respect to Ground 9.

Ground 10

In Ground 10, Rogers claims that his constitutional rights were violated as a result of the trial court’s denial of his motion to sequester the jury. Second Amended Petition, pp. 179-80. Rogers’ claim, in its entirety, is as follows:

Mr. Rogers is entitled to a new trial and sentencing hearing because the trial court’s ruling denying Mr. Rogers’ motion to sequester the jury denied Mr. Rogers his state and federal constitutional rights to due process and fundamental fairness at trial. U.S. Const. Amend. V, VI, XIV.

Trial counsel filed a Motion to Sequester the jury during trial on October 12, 1981. Pet. Ex. 603 [Exhibit P603]. This motion was accompanied by written Points and Authorities arguing the sequestration was necessary to protect the fundamental fairness of the trial by protecting the jurors from outside, prejudicial influences. Id. The trial court heard the argument on October 29, 1981. TT 10/29/81 at 994-996 [Exhibit IIB, pp. 64-66]. The prosecutor argued that sequestration would be unfair to the jurors. The court found that rural juries are very competent and generally follow his admonitions and denied the motion. TT 10/29/81 at 996 [Exhibit IIB, p. 66].

The Nevada and Federal Constitution both require that a defendant be tried by an impartial panel on evidence presented in court. These requirements support fundamental fairness by giving a defendant an opportunity to understand what evidence is condemning him and to contest that evidence before an impartial panel. As demonstrated at length in Claim One, Mr. Rogers was unable to receive a fair trial in Pershing County because the victims were founding members of the Pershing County chapter of the vigilante group, Posse Comitatus. In an effort to avenge the Strodes’ death, members of the Posse Comitatus attempted to attend court armed and informed the bailiff that they would take matters regarding Mr. Rogers into their own hands if the court system did not reach an acceptable result. Posse members or sympathizers sat on Mr. Rogers’ jury. They intentionally failed to disclose their affiliation so they could sit on the jury and ensure a death sentence. Further, Frank Strode, the victims’ son and brother, openly brandished his own Posse Comitatus badge for the jury during direct examination by the district attorney. Under these circumstances, the trial court had a duty to sequester the jury to attempt to limit the prejudicial effect of Posse Comitatus on Mr. Rogers’ trial.

Mr. Rogers was also protected by the Nevada Supreme Court’s requirement that a trial court weigh the defendant’s right to a fair trial heavily against jurors’ rights to daily comforts when determining whether or not to sequester. This requirement protected Mr. Rogers right to a fair trial. The trial court abridged that right to a fair trial by denying the motion to sequester the jury. Mr. Rogers is entitled to relief in the form of a new trial and new sentencing proceeding. The above stated claim is of obvious merit. Competent appellate counsel would have raised and litigated this meritorious issue on direct appeal and in state post-conviction. There is no reasonable appellate strategy, reasonably designed to effectuate petitioner’s best interest, that would justify appellate counsel’s failure in this regard. Petitioner is entitled to relief in the form of a new trial and sentencing hearing.

Id. (citations to the record in this case, in the form used in this order, added in brackets).

Here again, Rogers’ argument in Ground 10 relies primarily upon a theory — that sequestration was necessary because of activities of Posse Comitatus— and evidence not offered in state court.

In his motion to sequester the jury, in the trial court, Rogers’ entire argument was as follows:

It is clear from the wording of NRS 175.391 that a jury should be sequestered, upon their being sworn, unless the trial court exercises his discretion to let them separate.

If any case could require sequestration of the jury, the present case is one. The present case involves:

(1) The alleged brutal murder of 3 persons,

(2) By a nonresident youth without ties to the community,

(3) Involving guns and a knife as weapons,

(4) Involving a high degree of publicity,

(5) Deep and negative feelings in the community,

(6) The State seeks the death penalty.

In a capital case the Court must assure that every procedural safeguard is employed to protect the defendant. Gregg v. Georgia, 430 [428] U.S. 153 [96 S.Ct. 2909, 49 L.Ed.2d 859] (1976), Gardner v. Florida, 430 U.S. 349 [97 S.Ct. 1197, 51 L.Ed.2d 393] (1977), Beck v. Alabama [447 U.S. 625, 100 S.Ct. 2382], 65 L.Ed.2d 392 (1980).

The sequestration of the jury is one safeguard designed to protect the defendant. It insulates the jury from influences in the community which may affect the verdict. No doubt there will be a great deal of publicity at the time of the present trial, and it will be most difficult for the twelve selected jurors not to be influenced by the negative feelings present in the community.

The prosecutor seeks death. Mark James Rogers must be given every protection, and sequestration is therefore called for.

Exhibit P603, p. 2 (emphasis in original). Nothing of substance was added in the oral argument regarding this motion, on October 20, 1981. See Exhibit IIB, pp. 1, 64-66. The trial court denied the motion. Id. at 64.

Rogers raised this issue on his direct appeal to the Nevada Supreme Court. Exhibit P553, pp. 10-12. In his opening brief on appeal, Rogers argued:

In the instant case, Rogers was charged with the brutal murder of three local citizens. The defense attorney had filed an affidavit revealing that rumor and speculation concerning the defendant was being spread throughout the country. The same affidavit revealed the editor/publisher requested to be dropped as a potential juror due to that prejudice.

The only objection to sequestration voiced by the prosecution was that it would be inconvenient to the jurors.

Id., p. 12; see also Exhibit P554. The Nevada Supreme Court ruled as follows:

Relying on Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957), Rogers also argues that the district court erred by denying his motion to sequester the jurors. In Sollars, we reversed a first degree murder conviction because the trial court permitted separation of the jury where there was a daily barrage of inflammatory headlines in two daily Las Vegas newspapers. We determined that the court’s admonition to the jury not to read the newspapers was insufficient because it could be inferred that the jury was exposed to prejudicial communications merely by glancing at any headline.

It is true that a trial court must exercise care and sensitivity in granting separation over a defendant’s objection. We nevertheless conclude that Sollars is inapposite to the instant case. The district court’s attention was not drawn to any newspapers or other forms of communication to which the jurors may have been exposed to the defendant’s prejudice. Moreover, the grounds for defendant’s motion were merely that “[n]o doubt there will be a great deal of publicity at the time of the present trial, and it will be most difficult for the twelve selected jurors not to be influenced by the negative feelings present in the community.” The jurors were examined on voir dire regarding their exposure to news accounts of the crime. The trial court admonished the jury before each separation and in the final jury instructions that they were not to be influenced by public opinion and that they were to consider only the evidence produced at trial. As this Court stated in Crew v. State, 100 Nev. 38, 675 P.2d 986 (1984), the decision of the trial court “will be overturned only if appellant demonstrates that either the nature of the publicity or the jury’s actual exposure to it created a probability of prejudice.” Here, there was simply no demonstration that the jurors were exposed to any form of communication that would have adversely impacted their commitments to fairly and impartially weigh the evidence adduced at trial. The trial court did not abuse its discretion in denying sequestration. NRS 175.391.

Rogers v. State, 101 Nev. 457, 462-63, 705 P.2d 664, 668 (1985).

Rogers did not raise this claim in his first state post-conviction action or his second state post-conviction action. See Exhibits P533, P556, P557, P560, P561.

In his third state post-conviction action, Rogers did raise this issue. Exhibit P562, p. 12. His entire argument regarding this issue, in his petition in that action, was as follows:

The trial court refused to sequester the jury as requested by the defense. Prior to and during the course of the trial a great deal of unfavorable publicity concerning the Petitioner, the crimes charged and the trial, appeared in the local newspapers.

Id. That claim was dismissed by the state district court on procedural grounds. See Exhibit R5, pp. 870, 881-82, 925. The state district court’s ruling was affirmed on appeal. See Exhibit P564.

Now, in Ground 10 of his second amended petition in this case, Rogers shifts his focus, and argues that sequestration was necessary on account of the activities of Posse Comitatus. See Second Amended Petition, pp. 179-80. In state court, Rogers never made the argument that sequestration of the jury was necessary because of Posse Comitatus. And, Rogers never offered in state court the following exhibits, which he now offers in this court in support of his claim: Exhibits P211 (declaration of Russell Beckwith, a bailiff at Rogers’ trial (¶ 5, concerning Posse Comitatus)), P213 (declaration of Suzzet Ramirez), P214 (declaration of Ahtrum L. Thunder), P215 (declaration of David VanZant), P218 (declaration of Ken Ellsworth, former sheriff of Pershing County), P220 (declaration of Virginia Shane, Rogers’ trial counsel (fifth paragraph, concerning Posse Comitatus)), P223 (declaration of Daniel Levitas, purportedly an expert on Posse Comitatus), P224 (declaration of Kelly D. Miller (¶¶ 5-7, regarding Posse Comitatus)), P301, P302, P303, P304, P323, P324, P325, P327, P328, P329, P330, P331, P332, P333, P334, P335, P336, P337, P338, P339, P340, P341, P342, P343, P344, P345, P346, P347, P348, P349, P350, P351, P352, P353, P354, P355, P356, P357, P358, P359, P360, P361, P362, P363, P364, P365, P366, P367, P368, P369, P370, P371, P372, P373, P374, P375, P376,