Tony P. Rogers v. Jason Wells, Warden, No. 17-2903, 3/22/24
Although Rogers claims that his trial counsel was ineffective for not seeking records to impeach the credibility of his accuser in this sexual assault case, the Seventh Circuit court is unpersuaded that the high bar for habeas relief has been met and affirms the district court’s denial of the petition.
(See our post on the previous state court litigation here).
This appeal stems from a 2012 delayed report alleging that Rogers sexually assaulted his biological daughter, DAR. (p.2). The letter reporting these allegations referenced DAR’s mental health struggles. (Id.). At trial, the court did not allow Rogers to cross-examine DAR about her mental health history and diagnoses. (p.3). However, “evidence of DAR hearing voices and other information in the letter was admissible.” (Id.). Counsel conducted a probing cross-examination with respect to these topics. (p.4).
After Rogers was convicted, he moved for postconviction relief, alleging that counsel was ineffective for not seeking to obtain DAR’s medical records. (Id.). Rogers lost at every successive level, ultimately leading to this habeas appeal, where Rogers makes two arguments: “the Wisconsin Court of Appeals erred by (1) unreasonably applying Strickland, and (2) unreasonably applying Ritchie.” (p.7). The appeal ultimately hinges on whether the state court was wrong to conclude that Rogers was not entitled to an in camera review of the records in question. (Id.).
Rogers first has to clear a significant habeas hurdle–whether Wisconsin’s application of the (now overruled) Shiffra/Green test is an “adequate and independent ground” precluding review, as a habeas court may not grant relief when the defendant’s claims “rest on a state-law argument that a state court has rejected.” (p.8). The Court, however, does not buy the State’s argument that state law is dispositive, as it concludes that Shiffra/Green is simply Wisconsin’s mechanism for applying federal constitutional law–the Ritchie rule governing when a defendant is entitled to access confidential records in the State’s possession. (p.11). In a footnote, the Court therefore reads SCOW’s Johnson decision narrowly, as simply rejecting the premise that Ritchie’s rationale applies to “privately held and statutorily privileged health records.” (p.13).
After first disposing of an unpreserved failure to investigate argument, the Court turns to the “core” ineffectiveness argument–that counsel was ineffective for not filing a Shiffra/Green motion. (p.12). On that point, the Court holds that the Wisconsin Court of Appeals did not unreasonably conclude that Rogers could not meet the required materiality showing under Shiffra/Green. (p.14). Using the Ritchie language, Rogers could also not make a “plausible showing” of materiality and, in fact, has offered only “speculation” that is “devoid of context.” (p.16).
While the Court ultimately sides with COA regarding its application of the now-defunct Shiffra/Green test, the opinion is nevertheless notable for its reading of Johnson. In conjunction with another footnote–discussing whether the records were in the possession of the State (an issue that was obviously never developed below given that this only became relevant in Wisconsin after Johnson), we can perhaps see the seeds of a renewed fight over access to victim mental health records in the years to come post-Johnson.
