Marks v. Frauenheim, 2:15-cv-0665 JAM DB P

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesMICHAEL MARKS, Petitioner, v. SCOTT FRAUENHEIM, Respondent.
Docket NumberNo. 2:15-cv-0665 JAM DB P,2:15-cv-0665 JAM DB P
Decision Date11 August 2017

MICHAEL MARKS, Petitioner,

No. 2:15-cv-0665 JAM DB P


August 11, 2017


Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on November 18, 2011 in the Sacramento County Superior Court on counts of inflicting traumatic injury on a cohabitant, assault with a deadly weapon, kidnapping, criminal threat, and false imprisonment by violence or menace. He seeks federal habeas relief on the grounds that: (1) the trial court erred when it denied his motion for a new trial; (2) trial counsel was ineffective; (3) appellate counsel was ineffective; (4) the prosecutor committed misconduct; and (5) petitioner's inability to cross-examine the victim at trial violated the Confrontation Clause. All pleadings have been submitted and this case is ready for decision on petitioner's claims. Also before the court are petitioner's motions for a stay, for the appointment of counsel, and for an evidentiary hearing.


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Upon careful consideration of the record and the applicable law, the undersigned denies the motion for appointment of counsel and recommends that petitioner's motions for a stay and for an evidentiary hearing be denied and that his application for habeas corpus relief be denied.


In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual and procedural summary:

Dena [Marks] told emergency room personnel on November 24[, 2009] that the prior evening, her boyfriend hit her with his fists, cut her palm with a kitchen knife, hit the back of her head with a board (causing her to lose consciousness), and held her against her will in his mother's house. Dena identified defendant as her assailant. She had a bruise on her right cheek, abrasions to her face, a bruise on her left shoulder, and a cut to her right palm. She did not have any bump on her head or mark on her neck. A chest X-ray and computed tomography (CT) scan of her head and face revealed no fractures or internal injuries. The emergency room nurse contacted law enforcement authorities.

City of Sacramento Police Officer Dustin Henderson interviewed Dena at the hospital. Dena again identified defendant as her assailant. She related the following to Officer Henderson:

Around 8:00 or 9:00 p.m. on November 23, defendant told Dena, "[y]ou're gonna die tonight." He barricaded the door to Dena's bedroom and began to punch Dena on her head and face with both of his closed fists. He cut Dena's hand with the blade of a kitchen knife when she put her hands up to stop his strikes. He also grabbed Dena by the neck and choked her. At one point, defendant removed a gun and a razor or box cutter from his pocket and placed them on a dresser.

Defendant beat Dena throughout the evening. Around midnight, he forced her into his car at gunpoint, telling her that his friends had her daughter and he would tell his friends to rape and kill the daughter if Dena did not comply.

Defendant took Dena to a river. He said he was going to drown the demons out of her. He punched her and then hit her in the back of her head with a piece of wood, causing her to lose consciousness.

Defendant then took Dena to his mother's house. He carried her into his bedroom, blocked the bedroom door, and placed Dena in the closet. He hit Dena some more until he got tired.

The next morning, defendant told Dena "to act straight" in front of his mother, otherwise she would not get her daughter back.

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Defendant's mother took Dena to the hospital when she saw Dena's injuries.

Officer Henderson searched defendant's residence and questioned defendant's mother Virginia Marks. The officer found a pile of clothes behind the door of defendant's bedroom, which was consistent with Dena's statement that defendant put things against his bedroom door to block the door. Virginia initially denied taking Dena to the hospital, but eventually admitted that she drove Dena to the hospital that morning. Virginia said, in response to the officer's further questioning, "It's my son. I don't know anything."

Sacramento Police Officer Lisa Nou Khang-Her interviewed Dena by telephone on November 25. The officer read the statement Dena provided to Officer Henderson verbatim and asked Dena if she wanted to make any changes to the statement. Dena confirmed the statement was correct, but changed the length of time she had dated defendant. Dena told the officer defendant assaulted her, the assault began in Dena's home, defendant had a gun, he took her to a river and then to his mother's house against her will, and he continued to hit her there. Dena said she was afraid defendant would kill her and she was going to stay with her mother until defendant was arrested.

Three days after Dena was assaulted, Sacramento County Deputy Sheriff Corey Newman responded to a report that defendant kidnapped Dena. Dena's mother Theresa Marks informed the deputy that defendant threatened Dena's family and then grabbed Dena and drove away in his car.

Dena subsequently failed to appear for an appointment to sign a form for Officer Khang-Her, and later told the officer that the kidnapping and assault never occurred. However, Dena then said the kidnapping and assault occurred, but she did not know who assaulted her. She claimed defendant was not her assailant and said she did not want to press charges against defendant.

Dena said her injuries were from a fight with another woman. She also said she did not know what really happened because of her various medical conditions. Then, she said that a male family member assaulted her and forced her to say defendant was responsible, but she would not say who assaulted her.

Testifying under a grant of immunity, Dena offered yet another story at defendant's preliminary hearing. Defendant's jury heard this preliminary hearing testimony because the district attorney's office could not locate Dena for the trial, despite its reasonably diligent efforts to find her. Dena testified at the preliminary hearing that defendant did not assault her. Instead, Terry Stephens, a family friend with whom Dena had been having an affair, assaulted her in his motor home. According to Dena, Stephens slapped and punched her on and off all day, threatened to kill her, and displayed a gun during the assault. Dena said Stephens dropped her off near a hospital the next day and instructed her to blame defendant for her injuries. Dena claimed she did what Stephens told her to do because she was scared about what Stephens might do to her children. Dena

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also said she was high when Officer Henderson interviewed her, and she was mad at defendant because he left her. She said she sometimes lashed out at him because she was jealous. Dena declared she loved defendant with all her heart, noting that defendant helped her raise her children and he was the father of Dena's 16-year-old daughter.

Dena also testified that she asked defendant to pick her up from her mother's house on November 26 and she left willingly in defendant's car. Theresa likewise told the jury that her report of a kidnapping was based on a misunderstanding. Theresa denied at the trial that defendant threatened Dena or Theresa on November 26.

The prosecution played a recording of a jailhouse telephone conversation between Dena and defendant. The conversation occurred about three months before the start of the trial. Defendant told Dena in the conversation that if she did not go to court, the prosecution will have no case. Defendant said "[d]on't say nothin" and "don't even come in the courtroom."

Regarding the November 23 incident, the jury convicted defendant of inflicting injury upon a cohabitant resulting in a traumatic injury (count one—Pen. Code, § 273.5, subd. (a)),2 assault with a deadly weapon (count two—§ 245, subd. (a)(1)), kidnapping (count three—§ 207, subd. (a)), criminal threat (count four—§ 422), and false imprisonment by violence or menace (count five—§§ 236, 237). The jury found that Dena was developmentally disabled and defendant knew and reasonably should have known of her condition (§ 667.9).3 The jury was deadlocked on counts six (criminal threats) and seven (kidnapping), which relate to the November 26 incident, and the trial court declared a mistrial as to those counts. The trial court found the allegation that defendant had suffered three prior serious felony convictions to be true. It denied defendant's motion for a new trial and motion to strike his prior convictions, and sentenced defendant to 25 years to life in prison on count one, a consecutive 25 years to life in prison on count three, two years for the section 667.9, subdivision (b) enhancement [crime against a developmentally disabled victim], and a total of 20 years for the prior strikes, for an aggregate prison term of 22 years plus 50 years to life. The trial court imposed but stayed sentences of 25 years to life on counts two, four and five.

People v. Marks, No. C069757, 2013 WL 6327418, at *1-3 (Cal. Ct. App. 2013).1


Petitioner appealed his conviction. The Court of Appeal for the Third Appellate District struck the sentencing enhancement for a developmentally disabled victim and affirmed the judgment in all other respects. (Ex. A to Answ. (ECF No. 17-1).) Petitioner filed a petition for

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review with the California Supreme Court. Therein, he raised one claim - that the trial court erred when it denied his motion for a new trial based on new evidence in the form of another recantation from the victim. (Pet. for Rev. (LD 52).) The California Supreme Court denied review on February 11, 2014. (LD 6.)

Petitioner then sought habeas relief from the state...

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