FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MARK ROGERS, No. 19-17158 Petitioner-Appellee, D.C. No. v. 3:02-cv-00342- GMN-WGC JAMES DZURENDA; ADAM PAUL LAXALT; WILLIAM GITTERE, Warden, OPINION Respondents-Appellants. Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding Argued and Submitted April 19, 2021 Seattle, Washington Filed February 14, 2022 Before: Ronald M. Gould, Andrew D. Hurwitz, and Mark J. Bennett, Circuit Judges. Opinion by Judge Gould; Concurrence by Judge Hurwitz; Separate Statement by Judge Hurwitz; Dissent by Judge Bennett 2 ROGERS V. DZURENDA SUMMARY * Habeas Corpus Affirming the district court’s judgment granting Mark Rogers’s 28 U.S.C. § 2254 habeas corpus petition challenging his murder convictions, the panel held that: (1) Rogers satisfied the Strickland v. Washington two-prong test for ineffective assistance of counsel; and (2) the district court did not abuse its discretion in conditionally granting Rogers’s habeas petition and giving the State of Nevada the option to adjudicate Rogers not guilty by reason of insanity (“NGRI”) or to retry him. Because the ineffective assistance claim before the district court was never adjudicated on the merits by the Supreme Court of Nevada, the panel reviewed the claim de novo. On Strickland’s deficient performance prong, the panel held that, even applying the presumption of reasonableness, trial counsel’s investigation, preparation, and execution of their chosen insanity defense fell below an objective standard of reasonableness. The panel wrote that (1) trial counsel’s most significant error was failing to call as a witness—or consult at all—the expert the trial court had appointed to assess Rogers’s competency for trial and sanity at the time of the offenses; (2) this error was compounded by the inadequate preparation of counsel’s chosen mental health experts; (3) trial counsel performed deficiently by not preparing to rebut the State’s mental health expert; and * 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. DZURENDA 3 (4) trial counsel’s failure to explain the elements of the NGRI defense to the jury in their opening statement fell below an objective standard of reasonableness. On Strickland’s prejudice prong, and focusing on what a reasonable, impartial juror would find compelling, the panel concluded there was a reasonable likelihood that Rogers’s NGRI defense would have succeeded if trial counsel had performed effectively. Although trial counsel’s performance was replete with errors, the panel emphasized that the State’s staffing and funding of Rogers’s case contributed to those errors. The panel concluded that the district court—which conditionally granted the writ with instructions for the State to either adjudicate Rogers NGRI or retry him—did not abuse its discretion in fashioning relief, which is narrowly tailored to address the ineffective assistance of counsel without awarding Rogers an unwarranted windfall. Judge Hurwitz concurred in full. He also filed a separate statement, joined by Judges Gould and Bennett, in which he emphasized that the difficult issues confronted in this case might have …
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