Marks v. Davis

Docket Number17-99007
Decision Date08 July 2024
Citation106 F.4th 941
PartiesDelaney G. MARKS, Petitioner-Appellant, v. Ronald DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Appeal from the United States District Court for the Northern District of California, Lucy H. Koh, District Judge, Presiding, D.C. No. 5:11-cv-02458-LHK

Gary D. Sowards (argued), McBreen & Senior, Los Angeles, California; Cliona R. Plunkett, and Caroline P. Cincotta, Habeas Corpus Resource Center, San Francisco, California; for Petitioner-Appellant.

Sarah J. Farhat (argued), Deputy Attorney General; Alice B. Lustre and Glenn R. Pruden, Supervising Deputy Attorneys General; Ronald S. Matthias and James W. Bilderback II, Senior Assistant Attorneys General; Gerald A. Engler, Chief Assistant

Attorney General; Xavier Becerra, California Attorney General; Office of the California Attorney General, San Francisco, California; for Respondent-Appellee.

Before: Mary H. Murguia, Chief Judge, and Marsha S. Berzon and Ryan D. Nelson, Circuit Judges.

Opinion by Judge Murguia;

Partial Concurrence and Partial Dissent by Judge Berzon;

Partial Concurrence and Partial Dissent by Judge R. Nelson

OPINION

MURGUIA, Chief Circuit Judge:

Petitioner Delaney Marks was convicted of murder and sentenced to death in 1994. After pursuing postconviction review in the California courts, he filed a federal habeas petition under 28 U.S.C. § 2254. The district court denied relief, and Marks timely appeals, raising six claims. We affirm in part, vacate in part, and remand.

In Part I, we hold that the district court properly denied relief on Marks's claim that he was incompetent to stand trial. Although Marks presented substantial evidence of incompetence, there was a reasonable basis in the record for the California Supreme Court to deny this claim. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). A jury unanimously found that Marks was competent. The state trial court judge was firmly convinced that Marks was competent. The state court reasonably could have concluded from Marks's conduct and testimony at trial that he understood the proceedings and was capable of assisting counsel. The contrary opinions of Marks's attorneys were "not determinative." Miles v. Stainer, 108 F.3d 1109, 1113 (9th Cir. 1997). Nor were the opinions of Marks's experts. Three of Marks's experts had testified at the competency trial, and the jury had rejected their opinions. And the remaining experts opined on Marks's competency eight or nine years after trial; such retrospective competency determinations are disfavored. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004). Considering the record as a whole, the California Supreme Court's adjudication of this claim was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Woods v. Etherton, 578 U.S. 113, 117, 136 S.Ct. 1149, 194 L.Ed.2d 333 (2016) (per curiam) (quoting White v. Woodall, 572 U.S. 415, 420, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014)).

In Part II, we hold that the district court erred by denying relief on Marks's claim that he is intellectually disabled and thus ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Marks has shown that the California Supreme Court's rejection of this claim 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)(2). The state court rejected the opinions of two of Marks's experts on the strength of factual findings that were erroneous, objectively unreasonable, and material to the outcome of the proceedings. Accordingly, we vacate the judgment in part and remand to the district court for de novo review of this claim.

In Part III, we hold that the district court properly denied relief on Marks's claim that the judge adjudicating his Atkins claim was biased against him. We recognize that the judge in question directed unusually sharp criticism at Marks's attorneys and witnesses and, in the majority's view, made significant factual errors. The California Supreme Court, however, reasonably could have concluded that the judge did not "display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). There was therefore a reasonable basis for the state court to reject this claim. See 28 U.S.C. § 2254(d); Harrington, 562 U.S. at 98, 131 S.Ct. 770.

In Part IV, we hold that the district court properly denied relief on Marks's claim that he did not knowingly waive his Fifth Amendment right not to testify at trial. Before allowing Marks to testify, the trial court engaged in an extensive colloquy with Marks and defense counsel to confirm that Marks understood his right to testify or to refuse to do so, as well as the consequences of his election. The California Supreme Court reasonably could have concluded from the transcript that Marks fully understood the consequences of his decision. There was therefore a reasonable basis for the state court to reject this claim. See 28 U.S.C. § 2254(d); Harrington, 562 U.S. at 98, 131 S.Ct. 770.

In Part V, we hold that the district court properly denied relief on Marks's first ineffective assistance of counsel claim. Marks contends that his attorneys should have sought funding to retain a mental health expert during trial to opine on his mental competence. He argues that an expert would have concluded that he was incompetent and that this finding would have prompted a second competency hearing at which he would have been found incompetent to stand trial. A jury, however, had already found Marks competent once. The California Supreme Court reasonably could have concluded that a second competency hearing would have reached the same conclusion. The state court therefore reasonably could have concluded that Marks failed to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see 28 U.S.C. § 2254(d); Harrington, 562 U.S. at 98, 131 S.Ct. 770.

Finally, we hold in Part VI that the district court properly denied relief on Marks's second ineffective assistance of counsel claim relating to trial counsel's failure to object to false or misleading statements made by the prosecution during penalty-phase closing argument. Although we grant a certificate of appealability on this claim, we agree with the district court that Marks neither exhausted this claim in the California courts nor adequately pleaded the claim in his federal petition. The district court therefore properly declined to consider this claim.

In sum, we vacate the district court's denial of Marks's Atkins claim and remand for de novo review of that claim. We otherwise affirm.

STANDARD OF REVIEW

"We review de novo the district court's denial of a habeas petition." Gulbrandson v. Ryan, 738 F.3d 976, 986 (9th Cir. 2013). "We also review whether a petitioner failed to exhaust state court remedies de novo." Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008).

Because Marks's petition was filed after April 24, 1996, our review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, federal habeas relief may not be granted unless the state court's adjudication of a claim "(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)-(2).

Under § 2254(d)(1), "clearly established" "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). 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 Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413, 120 S.Ct. 1495. A state court's decision involves "an unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. The standard under § 2254(d)(1) is "difficult to meet" and is satisfied only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Harrington, 562 U.S. at 102, 131 S.Ct. 770. A petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103, 131 S.Ct. 770. It is not enough that the state court decision was "incorrect or erroneous"; "[t]he state court's application of clearly established law must be objectively unreasonable." Lockyer, 538 U.S. at 75, 123 S.Ct. 1166.

Under § 2254(d)(2), "a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT