United States District Court, N.D. California, San Jose Division
ORDER DENYING CLAIMS 14 THROUGH 21 RE: DKT. NOS. 86,
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 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
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.
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.
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.
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 Opp.”), 90 (“Resp.
1, 2017, this Court issued an order denying Claim 12. ECF No.
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. § 2254(e))
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
Order addresses Claims 14 through 21 of Petitioner's
habeas petition. For the reasons discussed below, the Court
finds that Petitioner is not ...