Whether a state court unreasonably applies Strickland v. Washington when it imposes a prejudice standard requiring a defendant to 'eliminate or completely discredit' the prosecution's evidence rather than demonstrate a 'reasonable probability' that the outcome would have differed absent counsel's deficient performance

No question identified. : 2 U.S. 668 (1984). The record reflects that Mr. Rogers’s case has been plagued by ineffective assistance of counsel. The state courts uniformly concluded that trial counsel rendered deficient performance in failing to investigate the state’s forensic evidence of rape and in failing to adequately examine the state’s experts regarding said evidence.?2 This weak forensic proof formed the lynchpin of the State’s case for rape, and crucially, for the sentence of death, but due to trial counsel’s inaction, it effectively went unchallenged. Nonetheless, Mr. Rogers’s claim for ineffective assistance was nonetheless denied because the state court crafted and applied a prejudice standard much more demanding than that of Strickland itself—one that required Mr. Rogers to “eliminate or completely discredit” the prosecution’s scientific proof, rather than simply show a “reasonable probability” that the outcome would have differed absent counsel’s error. 2. Mr. Rogers submits that the state court’s creation and imposition of a harsher standard than Strickland is contrary to or an unreasonable application of clearly established federal law, which satisfies 28 U.S.C. § 2254(d)(1), and that he has met his burden of demonstrating prejudice under the actual Strickland standard on de novo review. 3. On August 3, 2022, a panel of the Sixth Circuit Court of Appeals unanimously agreed that (1) the state court correctly determined that Mr. Rogers’ trial counsel was constitutionally defective, (2) the state court unreasonably applied 2 The district court and the panel of the Sixth Circuit that originally decided Mr. Rogers’ appeal also concluded that counsel was clearly deficient. In fact, Respondent did not even attempt to argue at any stage of the federal habeas proceedings that Mr. Rogers’s trial counsel was not deficient. Despite this implicit concession by Respondent, the en banc opinion questions the deficiency determination reached by every other court to have considered the issue. 3 Strickland by requiring that Mr. Rogers “eliminate or completely discredit” the state’s trial proof in order to satisfy the prejudice prong, and (3) de novo review of the claim was accordingly appropriate. Rogers v. Mays, 43 F.4th 530 (6th Cir. 2022) (Op. attached as App. A). After a limited de novo review, a divided panel granted Mr. Rogers’ petition for relief as to this claim of ineffective assistance of counsel, finding penalty phase prejudice as a result of counsel’s unquestioned deficiency. Id. 4. Respondent sought, and was granted, rehearing en banc. On June 5, 2028, the en banc court issued its opinion, denying Mr. Rogers’ claim. Rogers v. Mays, 69 F.4th 381 (6th Cir. 2023) (Op. attached as App. B). Three judges dissented. Jd. at 385, 399-410. 5. The current deadline for filing a petition for writ of certiorari is September 5, 2023. 6. The issue that will be presented to the Court via petition for certiorari is factually and legally complex. The briefing in this case before Sixth Circuit Court of Appeals eclipsed 650 pages; approximately 80 pages of legal argument focused solely on this issue. The issue that Mr. Rogers intends to present to this Court further involves hundreds of pages of testimony and factual support from the state court record. To effectively—and more importantly, concisely—present this issue to the Supreme Court within the limitation of Rule 33.2 is a challenging endeavor that requires additional time. 7. Additionally, undersigned counsel is the Chief of the Capital Habeas Unit (“CHU”) for the Federal Public Defender for the Middle District of Tennessee. Counsel supervises a staff of twenty. The CHU represents 25 men on Tennessee’s death row, as well a man on Texas death row, and two men on federal death row. 4 Counsel’s obligations as both supervisor and counsel in these cases prevents her from being able to file a fulsome petition by September 5, 2023. 8. Counsel for Mr. Rogers has consulted with opposing cou