FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK ROGERS,

Petitioner-Appellee/

Cross-Appellant,

v.

E. K. MCDANIEL; CATHERINE

CORTEZ MASTO,

Respondents-Appellants/

Cross-Appellees.

Nos. 11-99009

11-99010

D.C. No.

3:02-cv-00342-

ECR-RAM

OPINION

Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, Jr., Senior District Judge, Presiding

Argued and Submitted

June 11, 2015—San Francisco, California

Filed July 16, 2015

Before: Barry G. Silverman, Ronald M. Gould,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Gould
2 ROGERS V. MCDANIEL

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the district court’s grant of habeas

corpus relief regarding Mark Rogers’s death sentence,

affirmed the district court’s denial of Rogers’s motion for a

stay based on competency, expanded Rogers’s Certificate of

Appealability as to several of his guilt-phase claims, vacated

the district court’s denials of relief on those claims, and

remanded for further proceedings.

The panel held that a depravity-of-mind aggravating

factor and jury instruction were unconstitutionally vague

under clearly established Supreme Court law, and that the

error was not harmless.

The panel held that the district court did not abuse its

discretion in denying Rogers’s motion to stay proceedings

due to his purported incompetency.

The panel expanded the COA, vacated the district court’s

denials of relief as to guilt-phase claims, and remanded for

further proceedings because the district court did not have the

benefit of many potentially relevant cases decided while

Rogers’s appeal was pending, including Martinez v. Ryan,

132 S. Ct. 1309 (2012); Dickens v. Ryan, 740 F.3d 1302 (9th

Cir. 2014) (en banc); Sossa v. Diaz, 729 F.3d 1225 (9th Cir.

2014); and Rhines v. Weber, 544 U.S. 269 (2005).

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ROGERS V. MCDANIEL 3

COUNSEL

Catherine Cortez Masto, Attorney General, Robert E.

Weiland (argued), Senior DeputyAttorneyGeneral, Office of

the Nevada Attorney General, Reno, Nevada, for

Respondents-Appellants/Cross-Appellees.

Rene Valladares, Federal Public Defender, Michael Pescetta

(argued), Tiffani D. Hurst, and Randolph Fiedler, Assistant

Federal Public Defenders, Federal Public Defender’s Office,

Las Vegas,Nevada, for Petitioner-Appellee/Cross-Appellant.

OPINION

GOULD, Circuit Judge:

Through its officials, the state of Nevada appeals the

district court’s grant of partial habeas corpus relief to

petitioner Mark Rogers, a Nevada prisoner who has been

sentenced to death. Rogers cross-appeals from the district

court’s decision not to stay habeas corpus proceedings due to

Rogers’s purported incompetency, and also challenges the

district court’s denial of habeas corpus relief on other claims. 

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. 

Because a penalty-phase jury instruction was

unconstitutionally vague under law clearly established by the

U.S. Supreme Court at the time of trial, and this error had a

substantial and injurious effect, we affirm the district court’s

decision to grant the writ on this basis. We also conclude that

the district court did not abuse its discretion in denying

Rogers a competency stay. Finally, we expand Rogers’s

Certificate of Appealability (“COA”) as to several of his
4 ROGERS V. MCDANIEL

claims, vacate the district court’s denials of relief on those

claims, and remand for further proceedings.

I

A. Rogers’s offenses and trial.

In 1981, Rogers was charged with three counts of murder,

as well as larceny and attempted murder. The Nevada

Supreme Court described his offenses as follows:

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, Emeryand 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
ROGERS V. MCDANIEL 5

was recorded on the morning of December 2,

1980.

Rogers v. State, 705 P.2d 664, 667 (Nev. 1985) (per curiam).

At trial, Rogers presented significant evidence of his

strange behavior around the time of the murders. One

witness testified that on the day before the murders, he

interacted with Rogers, who made “erratic” statements,

including telling the witness that “you may not believe it but

I’m a good American,” that “I’m on your side,” and that “I

would fight for my country.” On the day of the killings

another witness testified that Rogers introduced himself as

Teepee and said that he lived in a pyramid. That witness

further testified that Rogers identified a nearby hill as “Mount

Olympus” asked him if he was the one shooting rockets off

of “Mount Olympus,” and when the witness denied that he

was, Rogers told him, “Somebody is shooting rockets off of

Mount Olympus and one of these days it will hit my pyramid

and blow me up.”

Rogers presented additional evidence that his erratic

behavior continued in the period after the murders. Three

days after the killings Rogers was refused entry into Canada. 

Rogers told Canadian officers at the border that he was the

emperor or king of North America, and that there was a

contract on his life involving the FBI, CIA, motorcycle gangs

and the mafia. About a month later, Rogers was arrested in

Florida. After his arrest Rogers told the police that “God

knew him” and that we are all a part of mother nature. 

Further, during fingerprinting Rogers wrote on a piece of

paper that he “belonged to the government.”
6 ROGERS V. MCDANIEL

Rogers also presented the testimony of psychiatrists

suggesting that he “was a paranoid schizophrenic at the time

of evaluation and that [his] 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.” Id. at 668. The jury convicted Rogers on

all three counts of first-degree murder.

At the penalty phase of Rogers’s trial, the prosecution

sought to prove several aggravators that would make Rogers

eligible for the death penalty. Rogers called no witnesses and

presented no evidence, instead relying on the evidence of his

mental state presented during the guilt phase. Ultimately, the

jury found two aggravators: that “[t]he murder was

committed by a person who was previously convicted of a

felony involving the use or threat of violence to the person of

another,” and that “[t]he murder involved torture, depravity

of mind or mutilation of the victim.” The jury found no

mitigating factors sufficient to outweigh the two aggravators

and imposed the death penalty.

On direct appeal, Rogers argued, inter alia, that the

aggravating circumstance and related jury instruction, that

“[t]he murder involved torture, depravity of the mind, or

mutilation of the victim,” was unconstitutionally vague under

Godfrey v. Georgia, 446 U.S. 420 (1980). The Nevada

Supreme Court rejected this argument, holding that: (1) the

jury instruction gave adequate guidance on the meanings of

“torture,” “depravity of mind,” and “mutilate;” and (2) “the

jurywas justified in finding the aggravating circumstance that

the victims were tortured and the murders were committed

with depravity of mind,” because of the evidence that the

Strodes were shot and stabbed repeatedly. Rogers, 705 P.2d
ROGERS V. MCDANIEL 7

at 671–72. The Nevada Supreme Court also performed, as

required under state law, an independent analysis of the

sufficiency of the evidence supporting the two aggravators

found by the jury, concluded the evidence was sufficient, and

affirmed Rogers’s convictions. Id. at 673.

B. Post-conviction proceedings.

Rogers filed his first petition for state post-conviction

relief in 1986. He was appointed counsel, who filed a fivepage supplemental brief. The state district court determined

Rogers was competent to proceed, and then held an

evidentiary hearing at which Rogers testified as the sole

witness. The district court then denied Rogers’s petition, and

the Nevada Supreme Court affirmed on appeal.

Rogers first filed a federal habeas petition in 1987. 

Twice, his federal petitions contained both exhausted and

unexhausted claims, and twice his federal petitions were

stayed, and ultimately dismissed without prejudice so that

Rogers could return to state court, file new state petitions for

post-conviction relief, and present the unexhausted claims in

state court. Each of those successive state petitions was

dismissed. Rogers’s operative federal habeas petition is his

third, filed on June 25, 2002.

The federal district court dismissed some of Rogers’s

claims as either untimely or procedurally defaulted. 

Addressing Rogers’s remaining claims on the merits, the

district court granted Rogers habeas corpus relief on his death

sentence, and ordered the state to grant Rogers a new penaltyphase trial or to impose a non-capital sentence. This relief

from the district court was based on its holdings that the jury

instruction on the depravity of mind aggravator was
8 ROGERS V. MCDANIEL

unconstitutionally vague, violating clearly established

Supreme Court law as stated in Godfrey, and that this error

was not harmless.1 The state appealed, resulting in case

number 11-99009. Rogers also appealed, and received a

COA as to several issues, resulting in case number 11-99010.

II

We review a district court’s decision to grant or deny a

petition for writ of habeas corpus de novo. Dixon v. Williams,

750 F.3d 1027, 1032 (9th Cir. 2014). Because Rogers’s third

federal petition was filed in 2002, it is governed by the

Antiterrorism and Effective Death Penalty Act (“AEDPA”),

28 U.S.C. § 2254. Under AEDPA, we may grant relief only

if Rogers can show that the Nevada Supreme Court’s decision

was “(1) ‘contrary to’ clearly established federal law as

determined by the Supreme Court, (2) ‘involved an

unreasonable application of such law,’ or (3) ‘was based on

an unreasonable determination of the facts in light of the

record before the state court.’” Dickens v. Ryan, 740 F.3d

1302, 1309 (9th Cir. 2014) (en banc) (quoting Harrington v.

Richter, 562 U.S. 86, 100 (2011)).

An “unreasonable application” of Supreme Court law

“must be objectively unreasonable, not merely wrong; even

1 The district court also granted relief on Rogers’s claim that he had

received ineffective assistance of counsel, because his trial counsel had

failed to investigate the circumstances surrounding the prior crimes that

had been presented in support of the prior violent felony aggravator, and

had failed to challenge the evidence presented in support of one of those

crimes. Because we conclude that the depravity of mind jury instruction

was unconstitutionally vague, and that this instruction error alone had

substantial and injurious effect, we do not reach Rogers’s claims of

penalty-phase ineffective assistance.
ROGERS V. MCDANIEL 9

clear error will not suffice.” White v. Woodall, 134 S. Ct.

1697, 1702 (2014). See also Harrington, 562 U.S. at 103

(Relief is appropriate only where a state court ruling is “so

lacking in justification that there was an error . . . beyond any

possibility for fairminded disagreement.”). We may look to

prior Ninth Circuit authority as persuasive in determining

when an application of Supreme Court precedent is

objectively unreasonable. Marshall v. Rodgers, 133 S. Ct.

1446, 1450 (2013) (A circuit court reviewing a habeas

petition may “look to circuit precedent to ascertain whether

it has already held that the particular point in issue is clearly

established by Supreme Court precedent.”)

III

A. Was Rogers entitled to penalty-phase relief because

an aggravating factor and jury instruction were

unconstitutionally vague?

At the penalty phase of Rogers’s trial, the jury was

instructed that “an aggravating circumstance of murder in the

First Degree is where the murder involved torture, depravity

of mind, or the mutilation of the victim.” The jury was given

more instructions on each component of the aggravating

circumstance: (1) torture involved “acts with the intent to

cause cruel pain and suffering for the purpose of revenge,

persuasion or for any other sadistic purpose;” (2) mutilation

entails “cut[ting] off or permanently destroy[ing] a limb or

essential part of the body, or to cut off or alter radically so as

to make imperfect;” and (3) depravity of mind “is

characterized by an inherent deficiency of moral sense and

rectitude. It consists of evil, corrupt and perverted intent

which is devoid of regard for human dignity and which is

indifferent to human life. It is a state of mind outrageously,
10 ROGERS V. MCDANIEL

wantonly vile, horrible or inhuman.” But a year before these

instructions, the United States Supreme Court confronted a

Georgia instruction allowing the imposition of a death

sentence “if it is found beyond a reasonable doubt that the

offense ‘was outrageously or wantonly vile, horrible or

inhuman in that it involved torture, depravity of mind, or an

aggravated battery to the victim.’” Godfrey, 446 U.S. at 422

(plurality opinion) (quoting the Georgia instruction). The

Court ruled that instruction unconstitutionally vague absent

a limiting construction, because a “person of ordinary

sensibility could fairly characterize almost every murder as

‘outrageously or wantonly vile, horrible and inhuman.’” Id.

at 428–29. We have previously held that Godfrey represents

“clearly established federal law under AEDPA” invalidating

the same Nevada jury instruction at issue here. Ybarra v.

McDaniel, 656 F.3d 984, 995 (9th Cir. 2011); see also

Valerio v. Crawford, 306 F.3d 742, 752, 755–56 (9th Cir.

2002) (en banc).

On direct appeal, the Nevada Supreme Court tried to

distinguish Godfrey, stating that in Rogers’s case, the “three

victims were repeatedly shot and stabbed,” that one victim

“was shot once in the back in an execution-type killing in

which she was kneeling and the gun was pressed directly

against her body,” and that “[u]nder these circumstances the

jurywas justified in finding the aggravating circumstance that

the victims were tortured and the murders were committed

with depravity of mind.” Rogers, 705 P.2d at 672. However,

in view of the concessions made by the prosecutor in closing

argument, this is an unreasonable determination of the facts

under 28 U.S.C. § 2254(d)(2). See Taylor v. Maddox,

366 F.3d 992, 1001 (9th Cir. 2004) (holding that state court

factfinding is unreasonable where “the state courts plainly

misapprehend or misstate the record in making their findings,
ROGERS V. MCDANIEL 11

and the misapprehension goes to a material factual issue that

is central to petitioner’s claim”). During the penalty phase of

Rogers’s case, the prosecution conceded that neither findings

of torture nor of mutilation in support of the requested

aggravator were warranted. At closing, the state explained to

the jury that “[t]here are three different definitions involved

in this particular thing that you should watch and that is, first,

torture, depravity of mind or the mutilation of the victims.

Two of them probably do not really comply [sic] in this case

and it is hard to tell if the torture, itself, could fit into the

definition as you read that. But, obviously the depravity of

mind has to be here.” The Nevada Supreme Court committed

the same error here as it did in Valerio, because it:

did not mention the fact that the prosecutor, in

his closing argument to the jury, had

specifically stated that the evidence did not

show torture. It did not discuss the fact that

there was no evidence of torture beyond the

wounds themselves. And it did not mention

the fact that there was no evidence of the

killer’s “intent” or “sadistic purpose” beyond

the nature of the wounds.

306 F.3d at 755. We conclude, as we did in Valerio and

Ybarra, that the depravity of mind aggravating factor and jury

instruction are contrary to law clearly established by the

Supreme Court in Godfrey.2

2

In Valerio, we set out two methods by which a state appellate court can

cure an unconstitutionally vague jury instruction. First, the state court

can find the error harmless under Chapman v. California, 386 U.S. 18, 24

(1967), “if it finds beyond a reasonable doubt that the same result would

have been obtained without relying on the unconstitutional aggravating
12 ROGERS V. MCDANIEL

B. Was the jury’s consideration of the unconstitutionally

vague aggravating factor harmless?

Having concluded that the depravity of mind aggravator

was unconstitutionally vague, contrary to Godfrey, and that

the Nevada Supreme Court did not cure that error, we next

address whether the error was harmless. “In the absence of

the rare type of error that requires automatic reversal, relief

is appropriate only if the prosecution cannot demonstrate

harmlessness.” Davis v. Ayala, No. 13-1428, 2015 WL

2473373, at *8 (U.S. June 18, 2015) (internal quotation marks

omitted). The standard governing harmless error review on

federal habeas petitions is stated in Brecht v. Abrahamson:

whether the error “had substantial and injurious effect or

influence in determining the jury’s verdict.” 507 U.S. 619,

637 (1993). “There must be more than a ‘reasonable

possibility’ that the error was harmful.” Ayala, 2015 WL

2473373, at *8 (quoting Brecht, 507 U.S. at 637). But

“where a judge in a habeas proceeding is in grave doubt as to

the harmlessness of the error, the habeas petitioner must

win.” Pensinger v. Chappell, No. 12-99006, 2015 WL

3461989, at *11 (9th Cir. June 2, 2015) (internal quotation

marks omitted); see also Payton v. Woodford, 299 F.3d 815,

828 (9th Cir. 2002) (en banc) (“Only if the State has

circumstance.” 306 F.3d at 756. Or, the state court can undertake a

“‘reweighing’ [of] aggravating and mitigating circumstances under

Clemons [v. Mississippi, 494 U.S. 738, 752–53 (1990)].” Id. at 757. 

Here, the Nevada Supreme Court did not try to cure the instruction error. 

On direct review it erroneously concluded there had been no error; and the

instruction was not mentioned in its dispositions of Rogers’s subsequent

petitions for post-conviction relief. We conclude the Nevada Supreme

Court did not give the “close appellate scrutiny of the import and effect of

invalid aggravating factors” required bySupreme Court and our precedent. 

Id. at 759 (quoting Stringer v. Black, 503 U.S. 222, 230 (1992)).
ROGERS V. MCDANIEL 13

persuaded us that there was no substantial and injurious effect

on the verdict do we find the error harmless.”).

To assess harmlessness in the case of an

unconstitutionally vague jury instruction, we compare the

effect of the jury instruction that was given “to what the

verdict would have been if [a] narrowed instruction had been

given.” Valerio, 306 F.3d at 762. The narrowed instruction

we have applied previously was announced by the Nevada

Supreme Court in Robins v. State, and requires a jury to be

instructed that “depravity of mind” can be found only through

evidence of “torture, mutilation or other serious and depraved

physical abuse beyond the act of killing itself.” 798 P.2d 558,

570 (Nev. 1990).3

Applying that narrowed construction here, we conclude

that the error is not harmless. The prosecution’s concession

at closing argument that the circumstances of Rogers’s crime

likely did not fit the definitions of torture or mutilation

strongly suggests that the jury would not have found the

narrowed aggravator. Further, even absent that concession,

the narrowed instruction itself commands that the torture,

mutilation or serious physical abuse “must have been caused

by an act ‘beyond the act of killing itself.’” Valerio, 306 F.3d

at 762 (quoting Robins, 798 P.2d at 570). As described by

the prosecutor, the evidence of Rogers’s depravity of mind

3 We first applied this test in Valerio. During post-conviction

proceedings there, the Nevada Supreme Court purported to apply the

narrowed instruction. Valerio, 306 F.3d at 755. However, in Ybarra we

applied the Robins instruction, for purposes of harmless error analysis, to

a conviction finalized before Robins was decided, and where, like here,

the Nevada courts never addressed Robins. Ybarra, 656 F.3d at 988–89,

995 n.6. As in Valerio and Ybarra, we assume, without deciding, that this

narrowed instruction is constitutional under Godfrey.
14 ROGERS V. MCDANIEL

consisted of stabbing and shooting one victim, having “some

sort of confrontation” with another victim before stabbing

him twice and shooting him twice, and “execut[ing]” the final

victim by shooting her “in the back.” In Valerio, we

concluded that depravity of mind could not be shown in a

case where the petitioner stabbed his victim 45 separate

times, because we concluded that a juror could have

concluded that all of the victim’s wounds could constitute the

“act of killing itself.” 306 F.3d at 762–63. Here, in contrast,

Rogers inflicted at most five wounds on EmeryStrode, during

a “confrontation,” and considerably fewer upon Mary Strode

and Meriam Treadwell. These acts, though reprehensible,

were coterminous with “the act of killing itself,” and a juror

likely would have concluded that these acts did not constitute

torture or depraved physical abuse.

The existence of the prior conviction aggravator does not

affect this conclusion.4 Nevada is a “weighing” state; a jury

 

4 Neither on direct appeal nor in Rogers’s post-conviction proceedings

has the Nevada Supreme Court addressed harmlessness by noting the

existence of the prior convictions aggravator. So we do not deal with a

harmless error determination by the Nevada Supreme Court.

However, in reviewing Rogers’s third petition for state postconviction relief, the Nevada district court held:

The Warden almost concedes that the jury instructions

in this area were constitutionally defective. Instead the

Warden focuses on the fact that there was a valid

aggravating factor a prior violent felony conviction

. . . .

. . . .
ROGERS V. MCDANIEL 15

can sentence a defendant to death “only if one or more

aggravating circumstances are found and any mitigating

circumstance or circumstances which are found do not

outweigh the aggravating circumstance or circumstances.” 

Nev. Rev. Stat. § 200.030(4)(a). Here, the balance of

aggravating and mitigating circumstances was doubtless

affected by the presence of the unconstitutionally vague

depravity of mind aggravator. Much of what the prosecution

argued at sentencing could find an outlet only though the

depravity of mind aggravator. The prosecution, after

presenting its theory of depravity of mind, described Rogers

as a “pretty mean and vicious person” who had “annihilated”

the Strode family. The prosecutor told the jury that the death

penaltyallowed society to express its “outrage” over murders,

and that outrage was the feeling the jury should have when it

returned its verdict. Since Godfrey, the Supreme Court has

repeatedly warned of the dangers of vague aggravators in

allowing “unchanneled imposition of death sentences in the

uncontrolled discretion” of the jury. 446 U.S. at 429. See

[S]ince this court has already upheld an aggravating

factor it is not necessary for it to reach the ultimate

conclusion on this issue. . . . The likelihood that a

different result would have been reached no verdict of

death if a properly worded jury instruction had been

given is remote. Therefore the harmless error analysis

offered by the Warden is correct.

On appeal, the Nevada Supreme Court dismissed Rogers’s petition on

procedural grounds and did not address the merits of this claim. In other

words, the Nevada Supreme Court did not address harmlessness. Under

AEDPA, we generally look “to a single state court decision, not to some

amalgamation of multiple state court decisions.” Barker v. Fleming,

423 F.3d 1085, 1093 (9th Cir. 2005). However, even assuming that the

Nevada district court’s harmlessness decision is entitled to AEDPA

deference, it is objectively unreasonable.
16 ROGERS V. MCDANIEL

also Stringer, 503 U.S. at 235–36 (“[T]he use of a vague

aggravating factor in the weighing process creates the

possibility not only of randomness but also of bias in favor of

the death penalty.”).

When the jury returned its verdict, it found that there were

“not mitigating circumstances sufficient to outweigh the

aggravating . . . circumstances.” However, there was

significant evidence presented of Rogers’s “extreme mental

or emotional disturbance” at the time of the murders, and we

agree with the district court that Rogers’s mental disturbance

constituted a significant mitigator. Absent the error on the

depravity of mind aggravator, the balance of aggravators and

mitigators looks much different. If just a single juror were

persuaded that evidence of Rogers’s mental disturbance

outweighed the only remaining aggravator, Rogers would

have avoided the death penalty. The state has not given “fair

assurance” that the jury’s instruction on an impermissibly

vague aggravator had no substantial and injurious effect on

the verdict. Gray v. Klausner, 282 F.3d 633, 651 (9th Cir.

2002).

IV

The district court did not abuse its discretion in denying

Rogers’s motion to stay proceedings due to his alleged

incompetency. The district court held an evidentiary hearing,

heard the testimony of experts, and explained in a

comprehensive order the factual findings underlying its

decision that Rogers was competent; none of these findings

was clearly erroneous. See Comer v. Schriro, 480 F.3d 960,

962 (9th Cir. 2007) (en banc) (per curiam). Contrary to

Rogers’s arguments, we need not decide what, if anything,

remains of our decision in Rohan ex rel. Gates v. Woodford,
ROGERS V. MCDANIEL 17

334 F.3d 803 (9th Cir. 2003), after the Supreme Court

abrogated the statutory right to a stay based on competency

in Ryan v. Gonzales, 133 S. Ct. 696 (2013).

Turning to Rogers’s manyuncertified guilt-phase claims,5

we expand Rogers’s COA, vacate the district court’s denials

of relief and remand for further proceedings, because the

district court did not have the benefit of many potentially

relevant cases decided while Rogers’s appeal was pending. 

See Murray v. Schriro, 745 F.3d 984, 1002 (9th Cir. 2014)

(holding that we may issue a COA if jurists of reason could

debate the correctness of district court’s procedural ruling or

whether petitioner has been denied a constitutional right). It

is appropriate that the district court address the significance,

if any, of those new precedents in the first instance.

The district court held that several of Rogers’s claims

were procedurally barred, and dismissed them. After that

order, the Supreme Court decided Martinez v. Ryan, 132 S.

Ct. 1309 (2012), and we have applied Martinez in several

cases, including Ha Van Nguyen v. Curry, 736 F.3d 1287,

1296 (9th Cir. 2013), Detrich v. Ryan, 740 F.3d 1237 (9th

Cir. 2013) (en banc), and Pizzuto v. Ramirez, 783 F.3d 1171,

1176–78 (9th Cir. 2015). We expand the COA as to Claims

12, 14, 15, 16, 17, 18, 26, and 28, vacate the district court’s

dismissal of these claims, and remand them for consideration

of Martinez and our decisions interpreting it. On remand, the

district court should consider whether these claims are claims

of ineffective assistance of trial or direct appeal counsel

5 Our grant of partial habeas corpus relief moots Rogers’s numerous

penalty-phase claims, which we do not address.
18 ROGERS V. MCDANIEL

cognizable under Martinez, and whether Rogers can show

cause and prejudice to excuse his procedural default.6

The district court also denied several claims on the merits,

refusing under Cullen v. Pinholster, 131 S. Ct. 1388 (2011),

to consider new evidence Rogers presented in support of his

federal habeas petition. We expand the COA as to Claims 5,

9, and 10, vacate the district court’s denial of these claims,

and remand for the district court to consider our subsequent

decision in Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014)

(en banc), as well as the decisions in Martinez, Ha Van

Nguyen, Detrich, and Pizzuto.

Finally, the district court determined that several of

Rogers’s claims were barred by AEDPA’s one-year statute of

limitations, 28 U.S.C. § 2244(d)(1), and that Rogers was not

entitled to equitable tolling on those claims. While Rogers’s

case was pending on appeal, we decided Sossa v. Diaz,

729 F.3d 1225 (9th Cir. 2014). We expand the COA as to

Rogers’s Claims 1, 2, and 8, vacate the district court’s

dismissal of those claims, and remand to the district court to

consider whether, in light of Sossa, Rogers is entitled to

equitable tolling on those claims. If the district court

concludes that equitable tolling is appropriate, it should

consider in the first instance whether Rogers can show good

cause for a stay and abeyance procedure under Rhines v.

Weber, 544 U.S. 269 (2005). See Blake v. Baker, 745 F.3d

977, 984 (9th Cir.), cert. denied, 135 S. Ct. 128 (2014)

(holding that a petitioner who showed ineffective assistance

6 Rogers also challenges the sufficiency of the state procedural default

rule applied in his case. We decline at this time to address that sufficiency

issue. Rogers may raise this challenge again in a later appeal, if not

rendered moot by proceedings on remand.
ROGERS V. MCDANIEL 19

of counsel in initial post-conviction review proceedings had

shown “good cause” for a stay and abeyance).

V

We affirm the district court’s grant of habeas corpus relief

related to Rogers’s death sentence. We affirm the district

court’s denial of Rogers’s motion for a stay based on

competency. Finally, we vacate in part the district court’s

denial of guilt-phase habeas relief and remand for further

proceedings consistent with this opinion.

AFFIRMED in part, VACATED in part and

REMANDED.