UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ WILLIAM GLENN ROGERS, │ Petitioner-Appellant, │ > No. 19-5427 │ v. │ │ TONY MAYS, Warden, │ Respondent-Appellee. │ ┘

On Petition for Rehearing En Banc United States District Court for the Middle District of Tennessee at Nashville. No. 3:13-cv-00141—Waverly D. Crenshaw, Jr., Chief District Judge.

Argued En Banc: March 8, 2023

Decided and Filed: June 5, 2023

Before: SUTTON, Chief Judge; MOORE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE, STRANCH, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, MURPHY, DAVIS, and MATHIS, Circuit Judges.

_________________

COUNSEL ARGUED EN BANC: Kelley J. Henry, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. J. Matthew Rice, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON SUPPLEMENTAL BRIEF: Kelley J. Henry, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, Kimberly S. Hodde, HODDE & ASSOCIATES, Nashville, Tennessee, David R. Esquivel, Angel Lasley, BASS, BERRY & SIMS PLC, Nashville, Tennessee, for Appellant. J. Matthew Rice, Richard D. Douglas, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON AMICUS BRIEF: Michael R. Wajda, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Amicus Curiae.

THAPAR, J., delivered the opinion of the court in which SUTTON, C.J., GIBBONS, GRIFFIN, KETHLEDGE, BUSH, LARSEN, NALBANDIAN, READLER, MURPHY and No. 19-5427 Rogers v. Mays Page 2

DAVIS, JJ., joined, and MATHIS, J., joined in part. MATHIS, J. (p. 23), delivered a separate opinion concurring in part and dissenting in part. MOORE, J. (pp. 24–38), delivered a separate dissenting opinion in which CLAY and STRANCH, JJ., joined, and MATHIS, J. joined in part.

_________________

OPINION _________________

THAPAR, Circuit Judge. In 1996, nine-year-old Jacqueline Beard left her mother’s watchful gaze to pick blackberries. William Glenn Rogers made sure she never returned. After stalking Jackie for days, he kidnapped, raped, and murdered her. Then he disposed of her body in the woods, where hunters found her remains four months later.

At trial, a jury found Rogers guilty and sentenced him to death. Since then, Rogers has spent more than two decades challenging his conviction and sentence. In a thoughtful and exhaustive opinion, Chief Judge Waverly Crenshaw denied Rogers’s federal habeas petition. We affirm.

I.

A.

Jackie was a “friendly, happy, and well-liked child.” Rogers v. State, 2012 WL 3776675, at *9 (Tenn. Crim. App. Aug. 30, 2012) (quoting State v. Rogers, 2004 WL 1462649, at *10 (Tenn. Crim. App. June 30, 2004)). Even though she was just nine years old, she played three instruments: guitar, organ, and drums. And she put her musical talents to good use—every year, she sang a solo in church.

But that all changed on July 3, 1996. Ja