NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0281n.06

No. 19-5427

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM GLENN ROGERS,

Petitioner-Appellant,

v.

TONY MAYS, Warden,

Respondent-Appellee.

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O R D E R

Before: MOORE, WHITE, and STRANCH, Circuit Judges.

William Glenn Rogers is a Tennessee death-row inmate represented by counsel. In 2000, 

a jury convicted Rogers of one count of first-degree premediated murder, two counts of first-degree 

felony murder, one count of especially aggravated kidnapping, one count of rape of a child, and 

two counts of criminal impersonation. And following a mitigation hearing, the jury sentenced 

Rogers to death. The Tennessee Court of Appeals and the Tennessee Supreme Court affirmed 

Rogers’s convictions and sentence on appeal. 

In 2006, Rogers filed a petition for post-conviction relief, in which he asserted, among 

other claims, that his trial counsel had been constitutionally ineffective for failing to either 

“adequately investigate defense expert mitigation evidence” or “present available mitigation 

testimony and evidence during the sentencing phase of the trial.” R.26-7, Page ID #7690–91, 

7696. Rogers’s post-conviction counsel did not, however, appear to do much with these claims 

besides list them in Rogers’s petition. As a result, although Rogers’s post-conviction counsel 

gathered and presented evidence at Rogers’s post-conviction evidentiary hearing with respect to 

other of Rogers’s claims (including other ineffective-assistance-of-trial-counsel (“IATC”) claims), 
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that counsel did not present evidence with respect to the two “mitigation” IATC claims noted 

above. The state trial court accordingly dismissed the claims with the following discussion:

The record reflects that trial counsel presented the testimony of several 

mitigation witnesses. These included the petitioner’s family members, family 

friends, and school principal, who detailed his difficult upbringing; Dr. Guin, a 

social worker who detailed the abusive environment present in Louisiana youth 

correctional facilities during the period in which the petitioner was held at such a 

facility; Dr. Cunningham, who testified regarding the petitioner’s potential for 

violence in prison; and Dr. Caruso and Dr. Neilson, who testified regarding their 

psychological testing of the petitioner. The petitioner has raised specific issues 

regarding the testimony of both Dr. Caruso and Dr. Guin; as stated earlier in this 

order, these issues are without merit. Furthermore, no proposed mitigation evidence 

was presented during the evidentiary hearing, as the only mental health expert who 

testified, Dr. Auble, focused her testimony on the petitioner’s contention that his 

initial statements to police were coerced. Thus, the Court can only speculate as to 

the nature of any proposed mitigation evidence or the manner in which it would 

have aided the petitioner. Thus, the Court finds that the petitioner has not 

established that counsel rendered ineffective assistance as to this issue. 

R.26-8, Page ID #8022–23 (emphasis added). 

The trial court then proceeded to reject all of Rogers’s other post-conviction claims. And 

although Rogers appealed several of those adverse conclusions to the Tennessee Court of Criminal 

Appeals, to no avail, he did not appeal the trial court’s ruling as to his “mitigation” IATC claims. 

Rogers then filed a lengthy habeas petition in federal district court, in which he asserted, 

among other claims, that his trial counsel had been constitutionally ineffective for failing to do the 

following (much more specific) things prior to, and during, Rogers’s mitigation hearing: (1) 

“counsel failed to investigate and present evidence that [Rogers] had suffered permanent and 

significant brain damage in connection with his stepfather’s torture of him”; (2) “counsel ‘failed 

to investigate that [Rogers] experienced Complex Trauma throughout his developmental years’”; 

and (3) “counsel failed to investigate and present evidence that Johnny Michelli is [Rogers’s] 

biological father and that the Michelli family history contains mitigating evidence.” R.153, Page

ID #27282 (quoting Rogers’s petition). The driving point of all of this was, of course, that had the 

jury heard this additional mitigation evidence, it might not have sentenced Rogers to death. 
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There was, however, a problem. The state post-conviction court had arguably rejected 

Rogers’s mitigation IATC claim on the merits, per the above-quoted discussion. And this mattered 

because, if the state court had in fact adjudicated Rogers’s claim on the merits, it would preclude 

Rogers from raising any of the “new” mitigation evidence noted above. See Cullen v. Pinholster, 

563 U.S. 170 (2011). So Rogers pivoted by arguing to the district court that he had procedurally 

defaulted his mitigation IATC claim in state post-conviction court, and that that procedural default 

should be excused under Martinez v. Ryan, 566 U.S. 1 (2012), which essentially holds that, if a 

habeas petitioner’s post-conviction counsel was constitutionally ineffective in procedurally 

defaulting the petitioner’s ineffective-assistance-of-trial-counsel claim during post-conviction 

proceedings, on habeas review a federal court can forgive that procedural default and consider the 

petitioner’s IATC claim anew. See Atkins v. Holloway, 792 F.3d 654, 657–60 (6th Cir. 2015).

The district court, however, rejected this claim (along with Rogers’s numerous other 

claims) in a thorough and thoughtful 206-page order. More specifically, with respect to the issue 

at hand, the district court found that the state trial court had rejected Rogers’s mitigation IATC 

claim on the merits and that, to the extent a procedural default occurred, it was solely when 

Rogers’s post-conviction counsel failed to appeal that adverse merits determination (which is an 

irrelevant event for Martinez purposes). See R.153, Page ID #27283 (“Martinez does not . . . apply 

to claims that were defaulted on post-conviction appeal.” (citing West v. Carpenter, 790 F.3d 693 

(6th Cir. 2015))). And, in a subsequent order, the district court re-iterated this conclusion, and 

further concluded that the issue was straightforward enough that a certificate of appealability 

(“COA”) was not warranted. See Rogers v. Mays, No. 3:13-cv-00141, 2019 WL 2327520, at *5

(M.D. Tenn. May 31, 2019); see also 28 U.S.C. § 2253(c)(2) (requiring habeas petitioners to obtain 

a COA from either the district court or the circuit court before being allowed to appeal a denied 

claim).

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1 The district court did, however, provide Rogers with a COA as to other issues raised in Rogers’s habeas 

petition. See R.154, Page ID #27304 (listing five categories of issues). But because the parties have not yet briefed 

these issues we do not consider them here. 
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Rogers now requests that we provide him that COA, and thereby consider his mitigation 

IATC claim, and related issues, alongside his other claims certified for appeal. See supra n.1. To 

obtain a COA, a petitioner must make “a substantial showing of the denial of a constitutional 

right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas claim on a procedural ground 

without reaching the underlying constitutional claim, as is the case here, a COA should issue when 

the petitioner demonstrates “that jurists of reason would find it debatable whether the petition 

states a valid claim of the denial of a constitutional right and that jurists of reason would find it 

debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 

U.S. 473, 484 (2000). This standard “does not require a showing that the appeal will succeed.” 

Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). Rather, the question is whether the issues 

presented in the petition are “debatable among jurists of reason” and “deserve encouragement to 

proceed further.” Id. at 336 (quotation omitted).

After careful review of the district court’s rulings, the parties’ briefing, and the relevant 

case law cited therein, we think reasonable jurists could debate whether Rogers’s post-conviction 

counsel procedurally defaulted Rogers’s mitigation IATC claims in post-conviction court by 

failing to submit any evidence in support of the claims, and whether counsel was constitutionally 

ineffective in so doing. Compare, e.g., Dickens v. Ryan, 740 F.3d 1302, 1316–22 (9th Cir. 2014) 

(en banc) (majority opinion) with id. at 1324–38 (Callahan, J., dissenting); see also Williams v. 

Filson, 908 F.3d 546, 572–74 (9th Cir. 2018); Escamilla v. Stephens, 749 F.3d 380, 394–95 (5th 

Cir. 2014); Gallow v. Cooper, 570 U.S. 933 (2013) (statement of Breyer and Sotomayor, JJ., 

respecting the denial of the petition for certiorari).2 And were Rogers to succeed in that showing, 

and thereby open up his underlying IATC claim to further review, reasonable jurists could also 

debate the merits of Rogers’s constitutional showing.

2 We acknowledge the Sixth Circuit precedent cited by the Warden and the district court, some of which is 

arguably helpful to the Warden’s position on this question. See, e.g., West v. Carpenter, 790 F.3d 693, 698–99 (6th 

Cir. 2015); Moore v. Mitchell, 708 F.3d 760, 784–85 (6th Cir. 2013). However, because neither of those decisions 

addressed directly the distinction between a “procedurally defaulted” claim and a claim “rejected on the merits”—and 

certainly not to the extent the Ninth Circuit did in Dickens—that case law does not invariably require us to rule in the 

Warden’s favor. 
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Of course, given the labyrinthine nature of habeas law in general, and Martinez v. Ryan in 

particular, Rogers “has a long way to go” before we could rule in his favor. Atkins, 792 F.3d at 

660. But those realities alone are no reason to refrain from issuing a COA and at least giving the

issue our full consideration, with the benefit of briefing and argument. This is especially so 

because a man’s life is at stake. 

For these reasons, we GRANT Rogers’s request for an expanded COA, with respect to the 

nine mitigation-based IATC claims identified in Rogers’s COA petition at pages four to five. See

App. R. 16 (citing claims C.20–24 and E.2–5). 

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk