Mark Rogers v. E. K. McDaniel; Catherine Cortez Masto

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

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ROGERS V. MCDANIEL 2
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.

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ROGERS V. MCDANIEL 3
COUNSEL
Catherine Cortez Masto, Attorney General, Robert E.
Weiland (argued), Senior Deputy Attorney General, 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

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ROGERS V. MCDANIEL 4
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, 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

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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.”

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ROGERS V. MCDANIEL 6
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
jury was 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

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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 five-
page 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 penalty-
phase 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

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ROGERS V. MCDANIEL 8
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.

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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,

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ROGERS V. MCDANIEL 10
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
jury was 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,

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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

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ROGERS V. MCDANIEL 12
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 by Supreme Court and our precedent.
Id. at 759 (quoting Stringer v. Black, 503 U.S. 222, 230 (1992)).

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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.

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ROGERS V. MCDANIEL 14
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 Emery Strode, 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 post-
conviction 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
. . . .
. . . .

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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
penalty allowed 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.

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ROGERS V. MCDANIEL 16
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,

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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 many uncertified 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.

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ROGERS V. MCDANIEL 18
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.

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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.

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