Ninth Circuit affirms denial of relief to another Arizona death row inmate
Posted on: 9/18/2012 01:36:41 PM by Peoples

On September 18, 2012, the Ninth Circuit (Schroeder with O'Scannlain and Graber) affirmed the denial of Pete Rogovich's habeas petition, finding that he was unable to overcome the "heavy burden under AEDPA."  Rogovich v. Ryan.  His first claim was that the trial court should not have permitted his attorney to present an insanity defense without first establishing on the record Rogovich's consent to the defense.  This claim failed under AEDPA because "there is no clearly established federal law requiring the defendant to consent on the record to an insanity defense."  The second claim was that appellate counsel was ineffective in failing to challenge the use of the aggravating factor for a homicide involving multiple victims.  Relief was denied on this claim because the state court reasonably concluded that appellate was not ineffective.  Notably, Rogovich failed to identify anything that counsel could have argued to challenge the factor and the state supreme court independently reviewed the factor's applicability.  Thus, Rogovich could not establish prejudice.  The third claim was that appellate counsel was ineffective in failing to challenge the prosecutor's closing arguments.  The state post-conviction relief court reasonably found, however, no ineffective assistance as "[t]here was no prosecutorial misconduct that could have been challenged successfully under federal or state law."

As for the district court's denial of an evidentiary hearing and expansion of the record on the three claims, this was proper under Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). 

Finally, Rogovich had sought a certificate of appealability (COA) on a claim alleging that the state court violated his due process rights by failing to collect biological evidence at the time of his arrest, i.e., beer that was in his vehicle.  Rogovich asserted that this evidence might have established he was intoxicated at the time, which was hours after the killings.  A COA was denied on the claim because Rogovich failed to make "a substantial showing of the denial of a constitutional right."  28 U.S.C. section 2253(c)(2).