Rogers v. McDaniel

MARK ROGERS, Petitioner,

v.E.K. McDANIEL, et at., Respondents.

3:02-cv-0342-ECR-RAM

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dated: July 8, 2011

ORDER

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 Treadwell. 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 "[s]omebody 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. Onepsychologist 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 (1986); Exhibit P555.¹

Rogers appealed, and the Nevada Supreme Court affirmed on September 3, 1985. Id.; see atso 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 (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. 361-426.² 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. Whittey, 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-cv-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 P559.³ 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 #11).⁴

On November 24, 2004, Rogers moved for a stay of these proceedings, under Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir.), cert. denied, 540 U.S. 1069 (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, 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 withrespect 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). O...