United States District Court, N.D. California, San Jose Division
ORDER DENYING CLAIM 12 Re: Dkt. Nos. 86, 87
H. KOH UNITED STATES DISTRICT JUDGE
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.”).
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.
Factual Background 
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.
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 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.
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.
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.
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.
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).
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. 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.
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.
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.
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.
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.
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.”).
Antiterrorism and Effective Death Penalty Act (28 U.S.C.
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).
Contrary To or Unreasonable Application of Clearly
Established Federal Law
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
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)).
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).
Unreasonable Determination of the Facts
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).
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,
Federal Evidentiary Hearing (28 U.S.C. §
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
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.
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
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
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.
Trial Counsel's Alleged Failure to Consult a Competency
Expert to Support a Finding that Petitioner
was Incompetent to Stand Trial
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.
Relevant Facts and Procedural History
Petitioner's Initial Competency Hearing
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.
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.
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.”
22, 1992, the jury found Petitioner competent to stand trial.
Motions During Trial for a Second Competency Hearing
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.
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.
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.
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
THE COURT: Mr. Marks, please.
THE DEFENDANT: That was after I was taken to Oakland that was
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].
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