NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0434n.06 No. 10-5072 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT CHARL ES R. R OGERS, Petitioner-Appellant,

v. NANCY DO OM, Warden, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF KE NTUCKY OPI NI ON

BEF ORE: WHI TE, STRANCH, and F ARRI S, Circuit J udg es. *

PER CURI AM

. Charles R. Roge rs, a Kentucky state prisoner, appea ls a district court judgme nt deny ing his pe tition for a writ of ha beas c orpus, filed pursua

nt to 28 U.S.C . § 2254. I n 2004, Roge rs was char g ed with first-deg ree rape , and a jury trial was held. The evidenc e at trial showed that Roge rs and the victim had previously had a sexual rela tionship, which the victim had ended. On the day of the crime, the victim’s birthday , they wer e d ri n k i n g at her home. The victim testified that Roge rs handcuf fed her, beat her, and rape d her. The victim’s son arr ived, causing Roge rs to leave , and the son discovere d the victim still handcuf fed and sever ely beate n. She

was taken to the hospital by the police. A rape kit showe d no DNA from Roge rs, and the phy sical examination did not provide evidenc e of a rape . Phy sical evidenc e was also subsequently obtained from Roge rs, reve aling the victim’s blood on his underw ear , appar ently from a cut lip she incurre d

The Honor able Jerome F arr is, Circuit Judge of the United States Court of Appea ls for the * Ninth Circuit, sit ting by

desig nation.No. 10-5072

Rogers v. D oom in the beating

. Roge rs admitted handcuf fing and beating the victim, but denied that raping her. The jury , howeve r, believed the victim and found Roge rs g uilty of first-deg ree rape . He was sentenc ed to twenty y ear s of imprisonment. His conviction was upheld on direc t appea l in the state courts. He then filed for state post-conviction relief , raising a number of claims of ineffe ctive assistance of counsel. Relief

was de nied by

the state c ourts without holding an e videntiary hear ing. Roge rs filed for fede ral habea s corpus relief on the basis of ineffe ctive assistance of counsel. The cl aims that had been exhausted in the state courts included alleg ations that counsel failed to conduct an adequa

te pretria l investiga tion, call alleg edly exculpatory wi t n es s es , call a fore nsic expert, prese nt a defe nse, impeach the prosec ution wi tnesses, or object to cer tain testimony

. A mag istrate jud ge re commended that the petition be denied, and the district court adopted this

rec ommendation over Rog ers’ s objections. On appea l, Roge rs arg ues that his counsel’s poor cross-e x am i n at i o n of the g overnme nt’s exper t wi t n esses supports his claim that his attorney failed to adequately investiga te his case and failed to prese nt a defe nse. He further arg ues that the district court err ed in deny ing him an evidentiar y hear ing on his ineffe ctive-a ssistance-of -counse l claim. He contends that he must ha ve such a hear ing on thi s claim in order for us to be able to proper ly revie w this claim. But he is mistaken. This is a case wher e we are able to eff ectively r e v iew his ineffe ctive-a ssistance-of -counse l claim on the rec ord befor e us. See Totten v

. Merk le , 137 F.3d 1172, 1176 (9th Cir. 1998) (holding that an evidentiar

y hear ing does not need to be hel d wh en the state-c ourt rec ord is sufficie nt to revie w the petitioner’s ineffe ctive-a ssistance claim); W ilcher v. Hargett , 978 F.2d 872, 877 (5th Cir. 1992) (“No hear ing is require d wher e the rec ord is complete and the evidenc e in the rec ord is sufficie nt to provide full revie w of the petitioner’s [i neff ective- assistance ] claim.”)

. Be cause we are -2-No. 10-5072

Rogers v. D oom able to proper ly revie w Roge rs’s ineffe ctive-a ssistance claim, we do not need to decide what impact, if any , Cullen v. Pinholster , 131 S. Ct . 1388, 1398 (2011), has on this case

. Under AEDPA, a fede ral court may not g rant habea s relief on a claim adjudicate d on t h e merits in the state cour t s u nless the state court’s ruling “wa s (1) ‘contra ry to, or involved an

unrea sonable application of, clearly established F eder al law, as deter mined by the S upreme Court of the United States’; or (2) ‘base d on an unrea sonable determ i nation of the fac ts in light of the evidenc e prese nted in the State court proce eding .’” W ogenstahl v. Mitchell , 668 F.3d 307, 320 (6th Cir. 2012) (quoting 28 U.S.C. 2254(d)). To find that Roge rs rec eived ineffe ctive assistance of counsel, his counsel’s perf ormanc e must have been so defic ient that Roge rs’s defense was prejudiced. See Strickland v. W ashington , 466 U.S. 668, 687 (1984). The state courts acknow ledg ed that Strickland controlled the analy sis of the claims raised. Roge rs m ust theref ore show that the s tate courts applied Strickland to the facts in this case in an objectively unrea sonable manner . See W oodford v. Visciotti , 5 3 7 U. S

. 1 9 , 25 (2002). The sta t e appellate court concluded that an evidentiary hear ing was not nece ssary beca use

sever al of the claims of ineffe ctive assistance wer e flatly ref uted by the rec ord, including that counsel failed to impeach the prosec ution witnesses, and that he failed to arg ue that Roge rs was g uilty only of kidnaping and assault b u t n o t rape . Fur thermore , the state court found sever al other claims conclusory , including the claims of failure to investiga te, call witnesses, and call an expert witness. Finally , the st ate court reje cted the claim that counsel was ineffe ctive in failing to object to the victim’s testimony that Roge rs had spent time in prison, finding that it may have been sound strateg y

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Rogers v. D oom not to draw attenti on to this isolated statement, or alterna tively , that the statement could not have prejudice d the outcome of the trial. These finding s are supported by the rec ord. Roge rs did not show what rele vant evidenc e was available from an investiga tion, how any witness’s testimony would have c hang ed the outcome of the trial, or why an additional expert was neede d when the state’s experts alre ady testified that there

was no phy sical evidenc e of rape and that no DNA from Roge rs was found. Although his attorney did not vigor ously cross-e x amine the state’s fore nsic expert witnesses—indee d, his attorney failed to cross-e x amine Br idge tt Holbrook—his attorney highlig hted the favor able portion of the experts’ testimony by arg uing during closing that there was no fore nsic evidenc e that supported the claim of rape . Moreove r, his attorney ’s pretria l memorandum shows that the attorney was awa re of the lack of objective evidenc e of sexual intercour se and planned to use this fac t to Roge rs’s advanta g e at trial. The rec ord there fore shows that trial counsel’s strateg y was based on the lack of fore nsic evidenc e of rape , and counsel arg ued forc efully in closing arg ument that this entitled Roge rs to be acquitted. Given these fac ts and our st rong presumption that an attorne y acte d rea sonably , the re cord befor e us is sufficie nt to conclude without a hear ing that Roge rs did not rec eive ineffe ctive assistance of counsel. So for even strong er rea sons, Roge rs has not shown that the state court’s application of Strickland to the fa ct s i n h i s case was objectively unrea sonable. The district court’s judgme nt deny ing this petition is therefor e af firmed.

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