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Marks v. Chappel

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

June 27, 2017

DELANEY GERAL MARKS, Plaintiff,
v.
KEVIN R. CHAPPEL, et al., Defendants.

          ORDER DENYING CLAIMS 14 THROUGH 21 RE: DKT. NOS. 86, 87

          LUCY H. KOH, UNITED STATES DISTRICT JUDGE

         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 12 of Petitioner's 22 claims. See ECF Nos. 52, 74, 75, 76, 77, 81. This Order addresses Claims 14 through 21. Petitioner requests an evidentiary hearing as to these claims. For the reasons discussed below, these claims are 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 head. 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. Lansing Lee (“Lee”), a criminalist, testified at trial 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, 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. Defendant, 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.

         At trial, Petitioner testified 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 Opp.”), 90 (“Resp. Opp.”).

         On June 1, 2017, this Court issued an order denying Claim 12. ECF No. 91.

         II. LEGAL STANDARD

         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 chose 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).

         III. DISCUSSION

         This Order addresses Claims 14 through 21 of Petitioner's habeas petition. For the reasons discussed below, the Court finds that Petitioner is not ...


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