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Marks v. Davis

United States District Court, N.D. California, San Jose Division

June 1, 2017

RON DAVIS, Warden, California State Prison at San Quentin, Respondent.

          ORDER DENYING CLAIM 12 Re: Dkt. Nos. 86, 87


         In 1994, Petitioner Delaney Geral Marks (“Petitioner”) was convicted of two counts of first degree murder with personal use of a firearm, and two counts of attempted premeditated murder and infliction of great bodily injury, and sentenced to death. On December 14, 2011, Petitioner filed a petition for a writ of habeas corpus before this Court. ECF No. 3 (“Pet.”).

         The Court has ruled on 11 of Petitioner's 22 claims. See ECF Nos. 52, 74, 75, 76, 77, 81. This Order addresses Claim 12 of the petition. Petitioner requests an evidentiary hearing as to this claim. For the reasons discussed below, Claim 12 is DENIED, and Petitioner's request for an evidentiary hearing is DENIED.

         I. BACKGROUND

         A. Factual Background [1]

         On October 17, 1990, Petitioner entered a Taco Bell restaurant in Oakland, California. After ordering, he shot employee Mui Luong (“Luong”) in the face. Luong survived the shooting but remained in a persistent vegetative state. Petitioner then entered the Gourmet Market, not far from the Taco Bell. There, Petitioner shot John Myers (“Myers”) and Peter Baeza (“Baeza”). Baeza died at the scene but Myers survived. Later that evening, Petitioner and his girlfriend, Robin Menefee (“Menefee”), took a cab driven by Daniel McDermott (“McDermott”). Petitioner shot and killed McDermott. Marks, 31 Cal.4th at 204-06. Petitioner was arrested shortly after McDermott was shot.

         At trial, Lansing Lee (“Lee”), a criminalist, testified with “virtual absolute certainty” that the bullets that shot Baeza and Myers came from Petitioner's gun. Id. at 207. Lee also testified that his analysis “indicated” that the bullet that shot McDermott came from Petitioner's gun and “suggested” that the bullet that injured Luong also came from the same source. Id. At least four eyewitness identified Petitioner as the shooter. Id. at 205. Further, Menefee testified at trial that, on the night of the shootings, Petitioner left her for approximately 30 to 60 minutes and then returned and told Menefee that he had shot two people. Id. at 206. Menefee testified that she and Petitioner entered McDermott's cab. When the cab stopped, Petitioner told Menefee to leave the cab, and Menefee went into an alley. Menefee heard a gunshot, and Petitioner ran towards Menefee and told her that he had shot McDermott. Id.

         Although McDermott carried $1 bills in his taxi in order to make change, McDermott had no paper currency on his body or in his taxi after the shooting. Petitioner, however, was arrested with seven $1 bills on his person. Id. at 206-07. Petitioner was also overheard telling another defendant that “he was in for three murders” and that the victims had died because “I shot them.” Id. at 208.

         Petitioner testified at trial and denied all of the shootings. Id. at 207. The defense also presented evidence that Petitioner's hands did not test positive for gunshot residue. Id. at 208.

         On April 24, 1994, the jury convicted Petitioner of two counts of first degree murder with personal use of a firearm, and two counts of attempted premeditated murder with personal use of a firearm and infliction of great bodily injury.

         During the penalty phase, the prosecutor presented in aggravation evidence of Petitioner's past violent conduct, including incidents of domestic violence and violent conduct while incarcerated. Id. at 208-10. The prosecutor also presented evidence of the effect of the murders on the families of the victims. Id. at 210-11. In mitigation, Petitioner testified as to his history of seizures. Id. at 212. Other witnesses testified that Petitioner had grown up in a strong family environment, and had not engaged in problematic behavior until he was discharged from the army and began using drugs. Id. at 212-13. Petitioner's daughter testified that Petitioner had never hit her, and that she saw him regularly when he was not incarcerated. Id. at 213. On May 6, 1994, the jury set the penalty for the capital crimes at death. Id. at 203.

         B. Procedural History

         On July 24, 2003, the California Supreme Court affirmed the conviction and sentence on direct appeal. People v. Marks, 31 Cal.4th 197 (2003). The U.S. Supreme Court denied certiorari on May 3, 2004. Marks v. California, 541 U.S. 1033 (2004).

         Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On March 16, 2005, the California Supreme Court ordered Respondents to show cause in the Alameda County Superior Court why the death sentence should not be vacated and Petitioner re-sentenced to life without parole on the ground that Petitioner was intellectually disabled within the meaning of Atkins v. Virginia, 536 U.S. 304 (2002), which held that intellectually disabled individuals may not be executed. AG023690.[2] The California Supreme Court denied the remaining claims in the petition on the merits without explanation. In addition to the merits decision, as separate grounds for denial, the California Supreme Court held that four of Petitioner's claims were procedurally barred.

         The Alameda County Superior Court conducted an evidentiary hearing on the issue of Petitioner's alleged intellectual disability. On June 13, 2006, the Superior Court denied the petition, and found that Petitioner had failed to prove by a preponderance of the evidence that he is intellectually disabled within the meaning of Atkins. AG023700-22. On August 14, 2006, Petitioner filed a further petition for writ of habeas corpus on the issue of his intellectual disability. The petition was denied by the California Supreme Court on December 15, 2010. AG028382.

         On December 14, 2011, Petitioner filed his federal petition for writ of habeas corpus in this Court. ECF No. 3. Respondent filed a motion for summary judgment on Claims 2, 3, and 5 on March 26, 2013. ECF No. 37. Petitioner cross-moved for summary judgment on Claims 2, 3, and 5 on March 28, 2013. ECF No. 38. Both Petitioner and Respondent filed opposition briefs on June 10, 2013. ECF Nos. 44, 45. On August 8, 2013, Petitioner and Respondent filed reply briefs. ECF Nos. 48, 49. The claims were denied, and summary judgment in favor of Respondent granted on June 25, 2015. ECF No. 52.

         On December 15, 2015, Petitioner and Respondent filed opening briefs on the merits as to Claims 1, 4, 6, 7, 8, 9, 10, and 11. ECF No. 62; 63. Petitioner filed a response on February 11, 2016. ECF No. 63. Respondent filed a response on February 12, 2016. ECF No. 65.

         The Court denied Claims 1, 6, and 7 on September 15, 2016. ECF No. 74. The Court denied Claims 9 and 11 on September 20, 2016. ECF No. 75. The Court denied Claims 4 and 8 on September 27, 2016. ECF Nos. 76, 77. The Court denied Claim 10 on November 15, 2016. ECF No. 81.

         On February 3, 2017, Petitioner and Respondent filed opening briefs on the merits of Claims 12 through 22. ECF Nos. 86 (“Pet'r Br.”), 87 (“Resp. Br.”). On March 29, 2017, Petitioner and Respondent filed responses. ECF Nos. 89 (“Pet'r Reply Br.”), 90 (“Resp. Reply Br.”).


         A. Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2254(d))

         Because Petitioner filed his original federal habeas petition in 2011, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to the instant action. See Woodford v. Garceau, 538 U.S. 202, 210 (2003) (holding that AEDPA applies whenever a federal habeas petition is filed after April 24, 1996). Pursuant to AEDPA, a federal court may grant habeas relief on a claim adjudicated on the merits in state court only if the state court's adjudication “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         1. Contrary To or Unreasonable Application of Clearly Established Federal Law

         As to 28 U.S.C. § 2254(d)(1), the “contrary to” and “unreasonable application” prongs have separate and distinct meanings. Williams v. Taylor, 529 U.S. 362, 404 (2000) (“Section 2254(d)(1) defines two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court.”). A state court's decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of materially indistinguishable facts.” Id. at 412-13.

         A state court's decision is an “unreasonable application” of clearly established federal law if “the state court identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011). A state court's determination that a claim lacks merit is not unreasonable “so long as ‘fairminded jurists could disagree' on [its] correctness.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         Holdings of the U.S. Supreme Court at the time of the state court decision are the sole determinant of clearly established federal law. Williams, 529 U.S. at 412. Although a district court may “look to circuit precedent to ascertain whether [the circuit] has already held that the particular point in issue is clearly established by Supreme Court precedent, ” Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (per curium), “[c]ircuit precedent cannot refine or sharpen a general principle of [U.S.] Supreme Court jurisprudence into a specific legal rule, ” Lopez v. Smith, 135 S.Ct. 1, 4, (2014) (per curium) (internal quotation marks omitted).

         2. Unreasonable Determination of the Facts

         In order to find that a state court's decision was based on “an unreasonable determination of the facts, ” 28 U.S.C. § 2254(d)(2), a federal court “must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record before the state court, ” Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (internal quotation marks omitted). “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Burt v. Titlow, 134 S.Ct. 10, 15 (2013). That said, “where the state courts plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable.” Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004).

         In examining whether a petitioner is entitled to relief under 28 U.S.C. § 2254(d)(1) or § 2254(d)(2), a federal court's review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). In the event that a federal court “determine[s], considering only the evidence before the state court, that the adjudication of a claim on the merits resulted in a decision contrary to or involving an unreasonable application of clearly established federal law, or that the state court's decision was based on an unreasonable determination of the facts, ” the federal court evaluates the petitioner's claim de novo. Hurles, 752 F.3d at 778. If error is found, habeas relief is warranted if that error “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Petitioners “are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.'” Id. at 637 (quoting United States v. Lane, 474 U.S. 438, 449 (1986)).

         B. Federal Evidentiary Hearing (28 U.S.C. § 2254(e))

         Under Cullen v. Pinholster, habeas review under AEDPA “is limited to the record that was before the state court that adjudicated the claim on the merits.” 563 U.S. at 180-81. The Ninth Circuit has recognized that Pinholster “effectively precludes federal evidentiary hearings” on claims adjudicated on the merits in state court. Gulbrandson v. Ryan, 738 F.3d 976, 993 (9th Cir. 2013); see also Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013) (“Although the Supreme Court has declined to decide whether a district court may ever choose to hold an evidentiary hearing before it determines that § 2254(d) has been satisfied . . . an evidentiary hearing is pointless once the district court has determined that § 2254(d) precludes habeas relief.”) (internal quotation marks and citation omitted).


         Claim 12 of Petitioner's habeas petition asserts that Petitioner was denied effective assistance of counsel during the guilt phase of Petitioner's trial. See Pet. at 222-36; Pet'r Br. at 1. Petitioner presented this claim in his state habeas petition, and the California Supreme Court rejected the claim on the merits without explanation. AG023690 (“All other claims set forth in the petition for writ of habeas corpus are denied. Each claim is denied on the merits.”). Because the California Supreme Court did not provide reasons for its denial of Petitioner's claim, the Court must determine what arguments or theories could have supported the California Supreme Court's decision. See Richter, 562 U.S. at 102 (“Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision.”). The Court then “must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the United States Supreme Court. Id.

         In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court held that ineffective assistance of counsel is cognizable as a denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance, of counsel. Id. at 686. To prevail on an ineffective assistance of counsel claim, a petitioner must establish that: (1) his counsel's performance was deficient, i.e., that it fell below an “objective standard of reasonableness” under prevailing professional norms; and (2) he was prejudiced by counsel's deficient performance, i.e., that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 688-94. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         Ultimately, a petitioner must overcome the “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance” and “might be considered sound trial strategy” under the circumstances. Id. at 689 (internal quotation marks omitted). Moreover, a “doubly” deferential standard of review is appropriate in analyzing ineffective assistance of counsel claims under AEDPA because “[t]he standards created by Strickland and § 2254(d) are both highly deferential.'” Richter, 562 U.S. at 105 (internal quotation marks omitted). When § 2254(d) applies, “the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.

         In the instant claim, Petitioner argues that trial counsel was ineffective during the guilt phase of Petitioner's trial in (1) failing to consult a competency expert to support a finding that Petitioner was incompetent to stand trial; (2) failing to investigate a viable mental state defense during the guilt phase of trial; and (3) failing to investigate and support a defense that Petitioner did not commit the crimes. Pet'r Br. at 6-13. The Court considers each of Petitioner's subclaims below.

         A. Trial Counsel's Alleged Failure to Consult a Competency Expert to Support a Finding that Petitioner was Incompetent to Stand Trial

         Petitioner first argues that trial counsel was ineffective in “unreasonably fail[ing] to consult with a mental health expert to support [trial counsel's] request for a competency evaluation, and to provide such an expert with background materials to render an opinion regarding, and a complete assessment of, [Petitioner's] competency.” Pet'r Br. at 8. This argument relates to counsel's motions during the course of Petitioner's capital murder trial for a second competency hearing. The Court briefly recounts the facts and procedural history relevant to this subclaim, and then turns to the merits.

         1. Relevant Facts and Procedural History

         a. Petitioner's Initial Competency Hearing

         On January 31, 1992, the state trial court, upon Petitioner's motion, suspended criminal proceedings against Petitioner and appointed two psychiatrists, Karen Gudiksen, M.D., and Fred Rosenthal, M.D., to evaluate Petitioner's competency to stand trial. AG000943-44; AG000946-47. In March 1992, both experts informed the court that, in their opinions, Petitioner was not competent to stand trial. According to Dr. Rosenthal, the nature of Petitioner's condition was organic, meaning based on neurological defects or brain damage. Neither expert rendered a formal diagnosis of organic brain damage, however, because “appropriate neurological testing” would have been necessary in order to complete a diagnosis of Petitioner's medical condition, and there was insufficient funding available for Drs. Gudiksen and Rosenthal to complete such testing. AG009803-04, AG023064-65; AG023584. Petitioner's counsel, however, had previously been granted funding to employ Dr. David Stein, Ph.D., to perform neuropsychological testing on petitioner. AG010927. Dr. Stein eventually performed the testing in May 1992. AG010928-29.

         At the state's request, a full jury trial on the issue of Petitioner's competency was conducted before Judge Michael Ballachey of the Alameda County Superior Court from June 24 to July 22, 1992. AG000957-60; AG001258. Petitioner called all three doctors as expert witnesses. Drs. Gudiksen and Rosenthal both testified that, in their opinions, Petitioner was not competent to stand trial. AG010591; AG010883. Dr. Stein testified that, based upon the neurological testing that he had performed, Petitioner suffered from considerable pervasive brain impairment. AG010948-49. Petitioner's counsel did not provide Dr. Stein's test results to Drs. Gudiksen and Rosenthal. AG023065, AG023074.

         The state offered three lay witnesses from the Santa Rita Jail who testified in support of Petitioner's competency. See Marks, 31 Cal.4th at 217-18. The state's witnesses included Deputy Sheriff Timothy Durbin (“Durbin”), who testified that Petitioner asked Durbin for a work assignment in June 1992. Id. at 217; AG011211-12. Petitioner believed that if he had a job “it would look better to his jury when he went to trial later in the year.” AG011212. Petitioner told Durbin “that he was rejecting an invitation to appear” on the television show America's Most Wanted because his attorney had advised him “that it wouldn't be in his best interests” because Petitioner might “‘trip himself up, ' and hurt his case.” Id. Petitioner also told Durbin that he would have a competency hearing in June. AG011213. Durbin asked whether that was a hearing to decide whether Petitioner could fire his attorney, and Petitioner responded, “No, it is a competency hearing to see whether or not I am sane.” Id. Petitioner told Durbin “I should lose that in June and I'll start my main trial later in the year or early '93.” Id.

         On July 22, 1992, the jury found Petitioner competent to stand trial. AG001257.

         b. Motions During Trial for a Second Competency Hearing

         On January 21, 1994, three days before jury selection in Petitioner's capital murder trial was set to begin, the defense moved under California Penal Code section 1368 to suspend the proceedings and have a second hearing to determine Petitioner's competency. AG011558, AG011563-64. Petitioner's counsel represented to the trial court that Petitioner was out of touch with basic reality and could not comprehend the significance of simple facts that were necessary to prepare his case.

         The state law applicable to Petitioner's motion for a second competency hearing provided: “When a competency hearing has already been held and defendant has been found competent to stand trial . . . a trial court need not suspend proceedings to conduct a second competency hearing unless it is presented with a substantial change of circumstances or with new evidence casting a serious doubt on the validity of that finding.” People v. Kelly, 1 Cal.4th 495, 542 (1992). After reviewing the transcript of the 1992 initial competency trial, the trial court found on January 24, 1994, that Petitioner's circumstances at trial were not substantially different from his circumstances at Petitioner's initial competency trial, and that the new evidence Petitioner presented did not cast a serious doubt on the validity of the jury's prior finding that Petitioner was competent. AG011586-87.

         On March 28, 1994, Petitioner moved to dismiss his attorneys and to represent himself. Also on that day, Petitioner's counsel again moved to have the trial court suspend the proceedings and conduct a hearing under section 1368 to determine Petitioner's competency. AG014987. The trial court indicated that it would consider the motions on the next day, and until then, trial would resume as scheduled. AG014989.

         Once trial resumed on that day, Petitioner interrupted the proceedings on several occasions as the defense attempted to point out inconsistencies between eyewitnesses' descriptions of the shooter's dark complexion and dark clothing with photographs of Petitioner wearing a light-colored top and having a medium complexion. See, e.g., AG015087-88. First, Petitioner interrupted when the trial court addressed the jurors regarding the photographs of Petitioner:

THE COURT: Then, ladies and gentlemen, counsel have also entered into a stipulation, and I will inform you that with respect to the exhibits, 28A, B and C, to which there's been testimony, that they reflect the photographs of the defendant, Delaney Marks. Photograph 28A is a photograph, booking photograph, so to speak, taken shortly after his arrest on October 18, 1990. 23B [sic] and 28C are photographs taken of Mr. Marks on earlier occasions, prior to October 18, 1990. So is that -
THE DEFENDANT: Excuse me, Your Honor, that was after I was transferred.
THE COURT: Mr. Marks, please.
THE DEFENDANT: That was after I was taken to Oakland that was taken.
THE COURT: Mr. Marks, I'm going to stop these proceedings and have you removed from the courtroom if you continue.
THE DEFENDANT: Sir, you have misquoted.
THE COURT: If I hear one more remark from you, Mr. Marks, we will stop these proceedings, and I will have you removed. Go ahead, Mr. Thews [defense counsel].


         Later that day, after his counsel finished cross-examining an eyewitness who could not recollect what the shooter was wearing or whether the shooter had any facial hair, Petitioner again interrupted the proceedings:

THE DEFENDANT: This [witness] came within five feet -
THE COURT: Mr. Marks, I don't want to do this again. Mr. Marks, please keep quiet.
THE DEFENDANT: [Defense counsel] keeps blotching his ...

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