Opinion
CASE NO. CV 11–2458 LHK
06-25-2015
Delaney Geral Marks, Petitioner, v. Ron Davis, Acting Warden of California State Prison at San Quentin, Respondent.
Michael David Laurence, Gary Duane Sowards, San Francisco, CA, for Petitioner.
DEATH PENALTY CASE
ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AS TO CLAIMS 2, 3, AND 5
HON. LUCY H. KOH, District Judge
INTRODUCTION
The instant case arises from Petitioner's conviction and death sentence for crimes that occurred on October 17, 1990. On January 31, 1992, while awaiting trial, Petitioner moved under California Penal Code section 1368 to suspend the criminal proceedings against him in order to determine whether he was competent to stand trial. (AG000943–44, AG000946–47.) On July 22, 1992, after a month-long trial, a jury found Petitioner competent to stand trial. (AG001257.) On January 21, 1994, three days before jury selection for his capital murder trial was set to begin, Petitioner filed a second motion to suspend the proceedings and determine his competency (AG011558, AG011563–64), which the trial judge denied three days later (AG011586–87). On March 28, 1994, during his trial, Petitioner filed a third motion to suspend the proceedings and have his competency evaluated. (AG014987–90.) The trial judge again denied the motion. (AG015298.)
Citations to “AG” refer to the Bates-stamped page numbers identified in the California Attorney General's lodging of the state court record with this Court.
On April 13, 1994, 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. (AG016577–83.) On May 6, 1994, after a penalty phase trial, the jury returned a verdict of death, as well as terms of imprisonment on the other charges. (AG017687–89.)
Petitioner's conviction and death sentence were affirmed by the California Supreme Court on direct appeal on July 24, 2003. See People v. Marks, 31 Cal.4th 197, 2 Cal.Rptr.3d 252, 72 P.3d 1222 (2003). Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on October 28, 2002. On March 16, 2005, that court ordered Respondent 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 he is intellectually disabled within the meaning of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that intellectually disabled individuals may not be executed. (AG023690.) The California Supreme Court denied the remaining claims in the petition.
At the time Atkins was decided, the condition at issue was known as “mental retardation,” but the U.S. Supreme Court recently announced that it would henceforth use the term “intellectual disability.” Hall v. Florida, ––– U.S. ––––, 134 S.Ct. 1986, 1990, 188 L.Ed.2d 1007 (2014). This Court will do the same, except when quoting from the record.
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 his 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. (AG028412–37.) On August 14, 2006, Petitioner filed a further writ of habeas corpus on the issue of his intellectual disability (AG025463–561); this 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 (“Pet.”). Respondent filed an answer on July 17, 2012, ECF No. 24, and Petitioner filed a traverse on November 19, 2012, ECF No. 33. The parties have since filed cross-motions for summary judgment on Claims 2, 3, and 5 of the petition, which concern Petitioner's competency and intellectual disability. ECF No. 37–1 (“Pet'r's MSJ”); ECF No. 38 (“Resp't's MSJ”).
STANDARD OF REVIEW
I. THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT (“AEDPA”)
Because Petitioner filed his original petition in 2011, well after AEDPA's effective date of April 24, 1996, the parties agree that the standards of AEDPA apply to this case. See Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Pursuant to AEDPA, a district court may not grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the 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). In determining whether a petitioner is entitled to relief under this provision, 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, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).
The “contrary to” and “unreasonable application” prongs of section 2254(d)(1) have separate and distinct meanings. See Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision is “contrary to” clearly established U.S. Supreme Court law if that decision fails to apply the correct controlling authority or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Id. at 412–13, 120 S.Ct. 1495. A decision is an “unreasonable application” of U.S. Supreme Court 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, 120 S.Ct. 1495. Importantly, “ ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ” Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495). 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, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).
Holdings of the U.S. Supreme Court at the time of the state court decision are the only definitive source of clearly established federal law under section 2254(d)(1). See Williams, 529 U.S. at 412, 120 S.Ct. 1495; see also Lopez v. Smith, ––– U.S. ––––, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014) (per curiam) (“AEDPA permits habeas relief only if a state court's decision is ‘contrary to, or involved an unreasonable application of, clearly established Federal law’ as determined by this Court, not by the courts of appeals.”). While a federal 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, –––U.S. ––––, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540 (2013) (per curiam), “[c]ircuit precedent cannot refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not announced,” Lopez, 135 S.Ct. at 4 (internal quotation marks omitted).
To find under section 2254(d)(2) that a state court's decision was based on “an unreasonable determination of the facts,” 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.) (internal quotation marks omitted), cert. denied, ––– U.S. ––––, 135 S.Ct. 710, 190 L.Ed.2d 461 (2014). In other words, “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, ––– U.S. ––––, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013) (internal quotation marks omitted). 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).
AEDPA also requires a federal court to presume the correctness of the state court's factual findings, and that presumption of correctness may only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). However, the U.S. Supreme Court has “not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1),” Titlow, 134 S.Ct. at 15, and the Ninth Circuit remains “in a state of confusion as to whether § 2254(d)(2) or (e)(1), or both, applies to AEDPA review of state-court factual findings,” Murray v. Schriro, 745 F.3d 984, 1001 (9th Cir.2014). The Court need not resolve that confusion here because, for the reasons stated below, Petitioner has not shown that the relevant state court decisions were based on an unreasonable determination of the facts under section 2254(d)(2). See Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010) (concluding that because the state court's finding “was not an unreasonable determination of the facts,” there was no “need to decide whether that determination should be reviewed under the arguably more deferential standard set out in § 2254(e)(1)”).
Under AEDPA, a federal court reviews “the last reasoned state-court decision.” Castellanos v. Small, 766 F.3d 1137, 1145 (9th Cir.2014). In a case where “no state-court decision furnishes a basis for the state court's underlying reasoning,” a federal court's “duty under AEDPA is not absolved.” Murray, 745 F.3d at 996. Rather, “the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98, 131 S.Ct. 770. To determine whether a petitioner has met this burden, a federal court must ask “what arguments or theories supported or, ... could have supported, the state court's decision” and decide “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the U.S. Supreme Court].” Id. at 102, 131 S.Ct. 770. Thus, when a state court does not supply reasoning for its decision, a federal court “must engage in an independent review of the record and ascertain whether the state court's decision was objectively unreasonable.” Castellanos, 766 F.3d at 1145 (internal quotation marks omitted). Critically, independent review of the record “is not a de novo review of the constitutional question,” but rather the only way a federal court can determine whether a silent state court decision is objectively unreasonable. Murray, 745 F.3d at 997.
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 constitutional claim “de novo.” Hurles, 752 F.3d at 778. If constitutional error is found, however, habeas relief is warranted only if that error “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under this standard, petitioners “may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’ ” Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (quoting United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)); accord Davis v. Ayala, 576 U.S. ––––, ––––, 2015 WL 2473373, at *8, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015).
II. SUMMARY JUDGMENT
Summary judgment is appropriate if, viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party, there are no genuine disputes of material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At the summary judgment stage, the Court “does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial.” House v. Bell, 547 U.S. 518, 559–60, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and a dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Bald assertions that genuine issues of material fact exist,” however, “are insufficient.” Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir.2007); see also United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir.2011) (“To survive summary judgment, a plaintiff must set forth non-speculative evidence of specific facts, not sweeping conclusory allegations.”). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted).
When, as here, the parties have filed cross-motions for summary judgment, the Court “review[s] each motion for summary judgment separately, giving the nonmoving party for each motion the benefit of all reasonable inferences.” Ctr. for Bio–Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep't, 533 F.3d 780, 786 (9th Cir.2008). In so doing, the Court “must consider each party's evidence, regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir.2011).
DISCUSSION
I. Claim 2: Inadequate Competency Hearing
Respondent first moves for summary judgment on Petitioner's claim that he was denied a fair, reliable, and adequate determination of his competency in his June–July 1992 competency trial. Resp't's MSJ at 6–10. Respondent argues that Petitioner has failed to establish that the California Supreme Court's rejection of this claim in its summary order of March 16, 2005 (AG023690), was contrary to or an unreasonable application of U.S. Supreme Court precedent, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, see 28 U.S.C. § 2254(d). Petitioner cross-moves for summary judgment, contending that Respondent has failed to present affirmative evidence to controvert Petitioner's factual allegations, and that those allegations establish that he is entitled to relief. Pet'r's MSJ at 15–37.
A criminal defendant has a constitutional due process right not to be tried or convicted while incompetent to stand trial. This right assures that a defendant has: (1) a rational, as well as a factual, understanding of the nature of the proceedings against him; and (2) the present ability to consult with his lawyer with a reasonable degree of rational understanding and to assist with the preparation and presentation of his defense. See Drope v. Missouri, 420 U.S. 162, 171–72, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). Protecting this right is “fundamental to an adversary system of justice.” Id. at 172, 95 S.Ct. 896.
To that end, due process requires a trial court to conduct a competency hearing whenever it has a “bona fide doubt” concerning the defendant's competence. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); accord Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir.2010). Petitioner contends that his June–July 1992 competency trial was constitutionally inadequate for three reasons: (1) the trial court provided inadequate funding to two court-appointed psychiatrists who believed that Petitioner was incompetent but needed to perform additional testing in order to confirm their opinions; (2) Petitioner's counsel failed to coordinate the testimony of Petitioner's retained clinical psychologist with the two court-appointed psychiatrists; and (3) the trial court made erroneous evidentiary rulings and gave erroneous instructions that prevented the jury from validly and accurately determining Petitioner's competence to stand trial.
A. First Subclaim: Inadequate Psychiatric Expert Assistance
1. Factual Summary
On 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 conduct 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. (AG010928–29.) At the 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, and Dr. Stein testified that based upon the neuropsychological testing he had performed, Petitioner suffered from considerable pervasive brain impairment. (AG010591, AG010883, AG010948–49.) Petitioner's counsel did not provide Dr. Stein's test results to Drs. Gudiksen and Rosenthal. (AG023065, AG023074.) The 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, 2 Cal.Rptr.3d 252, 72 P.3d 1222. The jury found Petitioner competent to stand trial. (AG001257.)
Although Judge Ballachey did not preside over Petitioner's capital murder trial, see infra, this Court will nevertheless refer to him in this section as the “trial court.”
2. Applicable Supreme Court Precedent
The clearly established federal law applicable to this subclaim is set out in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the U.S. Supreme Court held that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83, 105 S.Ct. 1087.
3. Analysis
Petitioner contends that he “was entitled to state procedures that ensured a reliable assessment of his competency by a competent psychiatrist who was enabled to perform an appropriate examination.” Pet'r's MSJ at 32. Petitioner, however, does not contend that Drs. Gudiksen and Rosenthal were incompetent. Nor does Petitioner contend that he was denied access to them. The issue for the Court, therefore, is whether the examinations conducted by the two court-appointed psychiatrists were “appropriate.”
At Petitioner's competency trial, Dr. Rosenthal testified as follows:
MS. SAWYER: Now, when you're asked by the court to examine someone, does the court pay you your fee?
Susan Sawyer was one of the assistant public defenders who represented Petitioner during pretrial proceedings in state court. (AG023071–77.) Joseph Najpaver, Joseph McGrew, and Charles Denton were the others. (AG023074, AG023146.) On December 10, 1992, the Alameda County Public Defender's office declared a conflict in Petitioner's case, and private counsel, Louis Wies and Albert Thews, were subsequently appointed to represent Petitioner at trial. (AG023077.)
A: Yes. There is a standard fee that is paid by the court, it's a county—I imagine through a county financial services [sic], but it is set by the court.
Q: Okay. Now when you're asked to examine someone for their competence, what, in general, do you do?
A: Well, mostly, I do an evaluation interview with the person, and then whatever records are provided, generally the material that I'm given, generally not too much, but if I'm given some records by the court or by one of the attorneys, I'll review that as well.
(AG010588–89.) Based upon this testimony, combined with testimony that Dr. Rosenthal had examined Petitioner and had reviewed social history information prepared by the defense, Dr. Rosenthal was qualified as an expert and permitted to testify that, in his opinion, Petitioner was not competent to stand trial. Dr. Rosenthal offered the following reasons for his conclusion:
[MS. SAWYER]: And could you give us your reasons why you believed he was not competent to stand trial?
A: There are actually several things in Mr. Marks' history. He had a history of numerous head injuries, some of which from—at least from the available history that I had, sounded serious.
He had a history of seizure, of a seizure disorder which apparently was post-traumatic, that is, the seizures were induced by head injuries. And he had a fairly long history of seizures....
He had been treated by a number of—with a number of antiseizure medications, fairly strong ones, including dilantin and mysoline, and when I saw him he was still receiving mysoline, which is an antiseizure medication.
He also had been described by a number of people over the years as having strange behaviors and strange thoughts and personality problems. And it appeared from the history that his mental state was changeable. There would be times when he would look fairly intact and other times when he would look apparently quite deranged and quite strange.
He also had a history of fairly excessive drug and alcohol abuse. The reason this is significant is that if someone has head injury and if, in the case of Mr. Marks, there is a chance for brain damage, which I believe exists here, then medications or substances that alter mental states can, over a long period of time, produce additional damage. Alcohol is one that is fairly potent in this respect. And, of course, many of the street drugs will do the same thing over long use. So this is adding insult to the brain that's already damaged.
And then getting down to when I saw him, it was fairly clear that this was a man who was having mental problems. He was quite scattered. He would, at times in the interview, be able to attend what looked like in a rational fashion, but it was soon obvious that he could not control that and he very quickly lapsed into repetitive pressured speech that made little sense.
He, at times, would become somewhat scattered, not focused on the material that we were discussing. He had a number of rather unusual ideas about what was going on in his life.
He didn't really understand his situation. He couldn't really tell me clearly what the charges were that he was being held on. He had some idea of charges that really didn't relate to the seriousness of the charges that he was being held on.
(AG010591–93.)
Dr. Gudiksen testified similarly:
[MS. SAWYER]: Now, could you tell us first in general what you do when you—when the court notifies you to examine someone to see if that person is competent or not to stand trial?
A: I get a telephone call from a court clerk or perhaps a minute order in the mail that mentions the attorney of record, and I call that person, because part of the issue is whether this person is understanding the proceedings and whether they are cooperating with the defense counsel in their preparation and presentation of their defense.
So the issue, that issue especially comes to someone's mind, and often the defense attorney's, so I call that person.
And sometimes more than one defense attorney has been involved in working with this particular client, so sometimes I call more than one defense attorney.
I ask for them to summarize the case and ask about what the charges are and if there is any past mental record and what prior offenses may be, often ask that attorney to send me some materials from their file that they think would be pertinent, obviously, a probation officer's report, past ones, or police reports or summaries of mental health or psychiatric treatment, or I'll tell the attorney, “Send me anything you think is pertinent, and I'll take a look at it.”
Then I schedule an appointment to see the defendant, who is almost always in custody. In fact, I guess in 1368, he or she is always in custody. But I schedule the appointment and go to the facility where the person is incarcerated and conduct my examination.
“1368” refers to California Penal Code section 1368, which governs the suspension of criminal proceedings in order for a defendant's mental competence to be evaluated. See People v. Taylor, 47 Cal.4th 850, 859 & n. 3, 102 Cal.Rptr.3d 852, 220 P.3d 872 (2009).
That's how I get ready to do the exam.
(AG010879–80.) Based upon Dr. Gudiksen's subsequent testimony that she had reviewed Petitioner's social history report, spoken with Petitioner's attorneys, and interviewed Petitioner, Dr. Gudiksen was deemed qualified as an expert and permitted to testify that, in her opinion, Petitioner was incompetent to stand trial. (AG010880–82). Dr. Gudiksen based her opinion on both her observations of and conversations with Petitioner (AG010880–94), as well as his medical history, which she testified consisted of “extensive substance abuse,” “repeated episodes of head trauma,” and a “poorly controlled” seizure disorder (AG010890–91). In addition, Dr. Gudiksen testified as to her specific observations of Petitioner that led her to conclude that he was incompetent, stating:
A: Based upon the history and my examination, I didn't feel that he was able to understand the nature of the proceedings against him or to cooperate with defense counsel in the preparation and presentation of a rational defense.
(AG010883.)
Petitioner's argument is essentially that because there was insufficient funding for the two court-appointed psychiatrists to conduct additional neurological or neuropsychological testing to confirm their opinions that Petitioner was incompetent, the examinations that the psychiatrists did conduct were not “appropriate” under Ake. The Court disagrees. To start, the Court notes that Petitioner was only entitled “to ‘provision of one competent psychiatrist.’ ” Leavitt v. Arave, 646 F.3d 605, 610 (9th Cir.2011) (quoting Ake, 470 U.S. at 79, 105 S.Ct. 1087). “Given this unambiguous language,” the Ninth Circuit has held, a “defendant ‘lacks the right to appointment of a second psychiatrist,’ even where the first psychiatrist is alleged to be incompetent or reaches a diagnosis unfavorable to the defense.” Id. (quoting Pawlyk v. Wood, 248 F.3d 815, 824 (9th Cir.2001)). Petitioner, therefore, has already received more than what Ake requires. What's more, the Ninth Circuit has expressed doubt that a right to an “appropriate examination” even exists. “[I]t's far from clear,” the Ninth Circuit has said, “that such a right exists, or that, if it does, we'd be able to review it on habeas.” Leavitt, 646 F.3d at 610 (citations omitted).
In any event, the above passages reveal that both psychiatrists examined Petitioner according to their usual and customary procedures, and that, based upon those standards, they testified as experts that Petitioner was incompetent to stand trial. The testimony of Drs. Gudiksen and Rosenthal was thorough and referred to numerous, specific reasons why they concluded that Petitioner was incompetent. (AG010591–92, AG010883.) Additionally, Dr. Stein, a clinical psychologist, actually conducted neuropsychological tests on Petitioner and opined that, based upon the testing he had performed, Petitioner suffered from considerable pervasive brain impairment. (AG010924–27, AG010947–49.) Petitioner cites no case or statute requiring additional neurological or neuropsychological testing in such a situation.
Indeed, the fact that Drs. Gudiksen and Rosenthal could have performed more testing than what they usually and customarily performed in examining defendants for competency to stand trial does not render the examinations they did perform insufficient under Ake. This is all the more true considering that Petitioner did undergo neuropsychological testing by a clinical psychologist, Dr. Stein, who also testified on Petitioner's behalf. That a jury nevertheless found Petitioner competent to stand trial does not necessarily mean his psychiatric examinations were inadequate.
Because Petitioner was not denied “access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense,” Ake, 470 U.S. at 83, 105 S.Ct. 1087, the California Supreme Court's summary denial of this subclaim was neither contrary to, nor the result of an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court, see 28 U.S.C. § 2254(d)(1). As a result, this subclaim must be denied.
B. Second Subclaim: Ineffective Assistance of Counsel
1. Factual Summary
As explained above, Petitioner offered testimony at his competency trial from two court-appointed psychiatrists, both of whom opined that he was incompetent to stand trial. Neither expert, however, conducted neurological or neuropsychological testing to confirm their impression that Petitioner suffered from organic brain damage. Petitioner also presented the testimony of a clinical psychologist, Dr. Stein, who did conduct neuropsychological tests confirming that Petitioner suffered from significant brain impairment. Dr. Stein, however, did not opine as to Petitioner's competence to stand trial.
Petitioner argues that his counsel should have: (1) provided the results of Dr. Stein's neuropsychological testing to Drs. Gudiksen and Rosenthal, the court-appointed psychiatrists; and (2) elicited testimony from Dr. Stein that Petitioner was incompetent to stand trial. Petitioner contends that by failing to do either, his counsel rendered constitutionally ineffective assistance. See Pet'r's MSJ at 33–34.
2. Applicable Supreme Court Precedent
The clearly established federal law applicable to this subclaim is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the U.S. 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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Ultimately, 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, 104 S.Ct. 2052 (internal quotation marks omitted).
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, 131 S.Ct. 770 (internal quotation marks omitted). When section 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 standard.” Id.
3. Prejudice
Petitioner is unable to establish prejudice resulting from his counsel's alleged deficient performance, and, thus, Petitioner is unable to prevail on this subclaim. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Williams v. Calderon, 52 F.3d 1465, 1470 n.3 (9th Cir.1995) (commending the district court's decision not to consider whether counsel's conduct was deficient after determining that the Petitioner could not establish prejudice). Even assuming Petitioner had established that his counsel's performance was deficient, the Court finds that it was not unreasonable for the California Supreme Court to conclude that there was no reasonable probability that, had counsel provided Dr. Stein's test results to Drs. Gudiksen and Rosenthal, the jury would have ruled differently and found that Petitioner was incompetent to stand trial.
Sawyer, one of Petitioner's attorneys in state court, said in an affidavit: “In the course of preparing and presenting evidence of Mr. Marks's incompetence, I did not have any tactical reason not to provide Dr. Gudiksen and Dr. Rosenthal with the results of Dr. Stein's neuropsychological evaluation.” (AG023074.) Nonetheless, the Court need not decide whether it was deficient performance for counsel not to provide Drs. Gudiksen and Rosenthal with the results of Dr. Stein's examination. As noted above, this Court may properly analyze the prejudicial impact of any alleged deficiencies without first determining whether counsel's performance was actually deficient.
Petitioner emphasizes that the California Supreme Court, in reviewing the separate question whether substantial evidence supported the competency jury's verdict, found the testimony of the court-appointed psychiatrists “suspect” because the bases for their opinions were at times “limited.” See Pet'r's MSJ at 32 & n.7 (citing Marks, 31 Cal.4th at 219–20, 2 Cal.Rptr.3d 252, 72 P.3d 1222). For instance, the California Supreme Court found “Dr. Gudiksen's information about defendant's history was limited to that which she received from defense counsel and her meetings with defendant,” chiding Dr. Gudiksen at one point because “she had not read the preliminary hearing transcript.” Marks, 31 Cal.4th at 219, 2 Cal.Rptr.3d 252, 72 P.3d 1222. Seizing on that language, Petitioner contends that had counsel provided Drs. Gudiksen and Rosenthal with the results of Dr. Stein's neuropsychological testing and Petitioner's social history, there is a reasonable probability that the jury would have found him incompetent to stand trial. Pet'r's MSJ at 33–34.
The Court is not convinced. First of all, Petitioner's assertion that the psychiatrists were not provided evidence of Petitioner's social history is directly refuted by the record. (AG010589, AG010592–93 (Dr. Rosenthal testifying that he had reviewed “a summary” of Petitioner's “social history” and describing that history); AG010881 (Dr. Gudiksen testifying that she had reviewed “a summary of Mr. Marks' social history”).) Second, as explained above, to the extent the psychiatrists' credibility was weakened by the fact that they did not conduct neuropsychological testing, Dr. Stein's testimony—that he had performed such testing and that Petitioner indeed suffered from organic brain damage—would likely have rehabilitated their credibility in the eyes of the jury. Far from the complicated “jigsaw puzzle” Petitioner portrays, Pet'r's MSJ at 34, a reasonable jury could have drawn the logical inferences from the experts' testimony.
Finally, the contrary evidence submitted by the state was quite strong, including statements Petitioner had made demonstrating that he was well aware of the nature of the proceedings against him and the potential punishments he faced. See Marks, 31 Cal.4th at 219–20, 2 Cal.Rptr.3d 252, 72 P.3d 1222. For example, in June 1992, Petitioner, then incarcerated in the Santa Rita Jail, asked Deputy Sheriff Timothy Durbin for a work assignment, telling Durbin that Petitioner believed that if he had a job it would look better to the jury in his upcoming trial. Id. at 217, 2 Cal.Rptr.3d 252, 72 P.3d 1222. In the course of their conversation, Petitioner stated that he would have a competency hearing soon. Id. When Durbin asked Petitioner if that was a hearing to decide whether to fire his attorney, Petitioner responded, “No, it is a competency hearing to see whether or not I am sane.” Id. at 218, 2 Cal.Rptr.3d 252, 72 P.3d 1222. Petitioner then added, “I should lose that in June and I'll start my main trial later in the year or early '93.” Id.
As the California Supreme Court concluded in affirming the jury's finding that Petitioner was competent to stand trial:
[T]he People below produced abundant evidence that contradicted the defense testimony, most of it coming from defendant's own mouth. For example, although Dr. Rosenthal opined that defendant believed the charge concerned only possession of a weapon, defendant himself remarked, “I didn't do no Taco Bell shootings and no Gourmet shootings and no cab shootings.” Defendant's statements support the inference that he fully recognized the magnitude of the charges he faced and the potential consequences, as well as counsel's unwillingness to seek an acquittal. “And this is a life or death, either I get life or I get death. It's just cut and dry. Either you get life or you get death and here are two people playing with your life. I need somebody who is serious that wants to see me victorious....” Defendant objected to the fact that Attorneys Najpaver and McGrew “tried to ... manipulate me to take life sentences for something I did not do.” At one Marsden hearing, defendant told the court “I want a public defender ... who I can work with, understand me.... I know I can't pick my own lawyer, but I'm saying if there is a conflict and my life is at stake.... I can't get my rights with the counsel who don't believe I'm innocent. He don't believe I'm innocent and he's addressed me as such.” Defendant also indicated he understood the nature of the competency hearing: “[I]t is a competency hearing to see whether or not I am sane.”
A Marsden hearing in California state court occurs when “a defendant requests substitute counsel.” People v. Sanchez, 53 Cal.4th 80, 90, 133 Cal.Rptr.3d 564, 264 P.3d 349 (2011) (citing People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970)).
Defendant's statements and conduct further showed he could assist counsel in the conduct of the defense. Although he did not cooperate with the attorney who was trying to arrange defendant's conviction for noncapital murder, he cooperated with Attorney Sawyer because he trusted her. He took her advice not to appear on television and he sought work to make a good impression on the jury. Defendant thus showed he was able to cooperate with counsel but sometimes refused to do so, largely to achieve a substitution of counsel. In an earlier proceeding described during the instant hearing, defendant remarked, “I know I acted like a zip-down fool in the courtroom. I don't want Mr. Denton as my attorney and I will not cooperate with him.” Defendant promised to cooperate and refrain from acting like a “zip-down fool” if he were granted a new attorney.
Furthermore, although defendant's outbursts did not comport with courtroom protocol, they did reflect his attempt to provide advice to counsel. For example, defendant complained that counsel failed to ask a witness who claimed to have been five feet from the smiling perpetrator whether there was anything unusual about the perpetrator's teeth, as defendant had missing teeth. We conclude there was substantial evidence from which the jury could rationally infer defendant's competence to stand trial.
Marks, 31 Cal.4th at 218–20, 2 Cal.Rptr.3d 252, 72 P.3d 1222 (alterations in original).
The Court therefore finds that even had defense counsel provided the neuropsychological test results to the two court-appointed psychiatrists, Drs. Gudiksen and Rosenthal, and also elicited from Petitioner's clinical psychologist, Dr. Stein, the opinion that Petitioner was incompetent to stand trial, the state's contrary evidence, especially Durbin's testimony and defendant's own documented statements and conduct, was sufficiently strong that Petitioner cannot show a reasonable probability the jury would have found Petitioner incompetent to stand trial.
As a result, the Court finds that the California Supreme Court's summary denial of this subclaim was neither contrary to, nor the result of an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court in Strickland and Richter. See 28 U.S.C. § 2254(d)(1). In addition, the decision was not based on an unreasonable determination of the facts. See id. § 2254(d)(2). Accordingly, this subclaim must be denied.
C. Third Subclaim: Inadequate Fact–Finding Procedures
1. Factual Summary
During the competency trial, the trial court made four evidentiary rulings that resulted in the exclusion of certain evidence that Petitioner contends was relevant to the issue of his competency to stand trial. First, when the defense attempted to show that Petitioner was unable to provide his attorneys with truthful information about either the crime at issue or his life while growing up, the trial court refused to admit the evidence on the ground that it is not “a function of competence for a client to tell a lawyer the truth.” (AG010441.) Second, in response to defense questioning about whether Petitioner had the ability to cooperate during testing, the trial court limited Dr. Stein's answer to the one occasion on which Dr. Stein was able to administer the test, thereby preventing the jury from learning that Petitioner had refused to be tested on two other occasions. (AG011384.) Third, the trial court did not allow Dr. Stein to answer the defense's question as to whether the ability to cooperate with neuropsychological testing was different from the ability to cooperate with his defense counsel. Finally, when Petitioner voiced disagreement with a witness's testimony about a statement Petitioner allegedly had made, the trial court, after asking Petitioner to be quiet, told the jury, “Mr. Marks' outburst is not evidence, unless he testifies.” (AG010784–85.) Petitioner contends that these rulings denied him a fair opportunity to demonstrate to the jury that he was not competent to stand trial. See Pet'r's MSJ at 23–30.
2. Applicable Supreme Court Precedent
Petitioner asserts that the clearly established federal law applicable to his subclaim is set forth in Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). In Panetti, a condemned inmate argued during his federal habeas corpus proceedings that he was incompetent to be executed, and the federal court stayed the proceedings so that the state court could determine whether he was in fact incompetent. The state court appointed two experts to examine the defendant, and they filed a report concluding that he was competent to be executed. The state court then closed the case without letting the inmate respond to the report. The U.S. Supreme Court explained that in competency determination proceedings, the Due Process Clause of the Fourteenth Amendment requires, at a minimum, that an inmate who makes a threshold showing of incompetency be provided “factfinding procedures” that are “adequate for reaching reasonably correct results.” Id. at 952, 954, 127 S.Ct. 2842 (internal quotation marks omitted). The U.S. Supreme Court further held that fact-finding procedures adequate for achieving reasonably correct results in a competency determination hearing involved at least some form of hearing in which the inmate had the “opportunity to submit expert evidence in response to the report filed by the court-appointed experts.” Id. at 951–52, 127 S.Ct. 2842. The U.S. Supreme Court explicitly reserved ruling on whether other procedures, such as the opportunity for discovery or for the cross-examination of witnesses, would be required. Id. at 952, 127 S.Ct. 2842.
Petitioner may rely on Panetti, a 2007 U.S. Supreme Court case, even though it had not yet been decided when the California Supreme Court summarily denied Petitioner's subclaim on March 16, 2005. This is so because Panetti was itself a post-AEDPA habeas case that merely explained the “clearly established law” of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), concerning the procedures for a competency determination to which a defendant is entitled. Panetti, 551 U.S. at 948, 127 S.Ct. 2842; see also Moses v. Payne, 555 F.3d 742, 751–52 (9th Cir.2009). Respondent does not argue otherwise.
3. Analysis
Petitioner argues that because the rulings by the trial court prevented him from introducing some evidence that was arguably relevant to the issue of his competency, the fact-finding procedures at his competency trial were inadequate for reaching a reasonably correct result as to his competency to stand trial. Pet'r's MSJ at 23, 36–37. Respondent counters that Petitioner confuses the opportunity to submit evidence with the trial court's rulings on whether to admit the evidence, and that, because Petitioner was provided the opportunity to submit expert psychiatric evidence, his competency proceedings did not violate the requirements set forth in Panetti. ECF No. 44 (“Opp'n to Pet'r's MSJ”) at 5–9.
Panetti is distinguishable from the present case. Petitioner does not dispute that he was given the “opportunity to submit expert evidence,” which is what Panetti requires. 551 U.S. at 951, 127 S.Ct. 2842. Unlike the defendant in Panetti, Petitioner was provided a hearing and did submit expert testimony as well as other evidence. As this Court has indicated above, the trial court held a month-long jury trial regarding the issue of competency. Having the opportunity to submit evidence does not mean that a court must admit all of the evidence submitted by the defendant. See, e.g., United States v. Waters, 627 F.3d 345, 354 (9th Cir.2010) (holding that evidentiary rulings by the trial court do not deprive defendant of a meaningful opportunity to present a complete defense as long as he is able to present the substance of his factual innocence theory).
In general, admission or exclusion of evidence in state court is not a matter for federal habeas review unless the admission or exclusion violates a particular constitutional guarantee or is so prejudicial that it results in a denial of due process. See Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (reiterating “that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”); Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir.1998) (“We have no authority to review alleged violations of a state's evidentiary rules in a federal habeas proceeding. Our role is limited to determining whether the admission of evidence rendered the trial so fundamentally unfair as to violate due process.” (citation omitted)).
Moreover, much of the evidence that Petitioner says was improperly excluded from his competency trial was in fact admitted in some form or another. For example, when Petitioner's defense counsel asked Najpaver, another of Petitioner's counsel who testified during the competency trial, whether Petitioner could provide his attorneys truthful information about the facts of his case or his life history, the trial court sustained a relevance objection (AG010428), stating that it is not “a function of competence for a client to tell a lawyer the truth” (AG010441). Shortly thereafter, however, Najpaver was allowed to respond to the following similar question: “Have you received information from Mr. Marks that later checked out to be accurate or inaccurate [?]” (AG010429.) In addition, evidence of Petitioner's earlier refusals to submit to neuropsychological testing was admitted when Dr. Stein testified that Petitioner did not submit to testing in October and December 1991 due to extreme agitation and bizarre behavior. (AG010927–28.) Contrary to Petitioner's assertion, then, the jury was not left “to speculate that Mr. Marks was able to comply with testing procedures any time that he chose.” Pet'r's MSJ at 29. Lastly, the trial court's admonishment to the jury that “Mr. Marks' outburst is not evidence, unless he testifies” was wholly proper. (AG010784–85.) The trial court was not instructing the jury to ignore the fact that Petitioner hade made an outburst. Rather, the trial court was instructing the jury to ignore the content of that outburst unless Petitioner took the stand and uttered the same. In any event, other evidence of Petitioner's disruptive behavior was considered by the jury, which heard testimony from the magistrate who had presided over Petitioner's preliminary hearing that Petitioner “act[ed] out” during that hearing and “seemed to be unable to control himself.” (AG010538.)
As a result, Petitioner cannot demonstrate that the particular evidence he wanted to submit would have altered the competency determination. Not telling the truth to one's attorney, refusing to submit to a certain psychiatric exam, and improperly voicing disagreement with a witness's testimony are not compelling indicia of incompetency, and Petitioner cites to no case law suggesting that they are. In the absence of such authority, Petitioner cannot demonstrate either that an error occurred or that any alleged error “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 638, 113 S.Ct. 1710.
Because Petitioner does not dispute that he was able to present the substance of his claim that he was incompetent to stand trial, Petitioner's contention that he was denied a meaningful opportunity to present evidence in support of that claim fails. Accordingly, Petitioner cannot establish that the fact-finding procedures at his competency trial were constitutionally inadequate under Panetti. The Court therefore finds that the California Supreme Court's summary denial of this subclaim was neither contrary to, nor the result of an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Additionally, Petitioner has not demonstrated that the California Supreme Court's decision was based on an unreasonable determination of the facts. See id. § 2254(d)(2). This subclaim must be denied.
D. Claim 2 Conclusion
For the foregoing reasons, the Court grants Respondent's motion for summary judgment as to Claim 2 and denies Petitioner's motion for summary judgment as to that claim.
II. Claim 3: Failure to Conduct a Second Competency Hearing
Respondent next moves for summary judgment on Petitioner's claim that the trial court's refusal to suspend Petitioner's trial proceedings and redetermine his competency denied him due process. Resp't's MSJ at 10–14. Respondent argues that Petitioner has failed to establish that the California Supreme Court's summary rejection of this claim was contrary to or an unreasonable application of U.S. Supreme Court precedent, or that the California Supreme Court's decision was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner cross-moves for summary judgment, contending that Respondent has failed to present affirmative evidence to controvert Petitioner's factual allegations and that those allegations entitle him to relief. Pet'r's MSJ at 37–66.
The “trial court” now refers to Judge Jeffrey Horner, the Alameda County Superior Court judge who presided over the guilt and penalty phases of Petitioner's capital murder trial.
A. Factual Summary
As explained in the analysis of Claim 2 above, a jury found Petitioner competent to stand trial on July 22, 1992. (AG001257.) On 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. As an example, counsel pointed out that a key piece of evidence in the case was a tape recording of Petitioner's statement to police. According to defense counsel, however, Petitioner not only refused to concede that the voice on the tape recording was his voice; he sincerely believed that it was not his voice. (AG011556–63.) Petitioner insisted that he did not make a tape recorded statement; that the transcripts had been altered; and that defense counsel, the prosecutor, and the trial court were engaged in a conspiracy against him. (AG011574.)
The state law applicable to Petitioner's motion 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, 3 Cal.Rptr.2d 677, 822 P.2d 385 (1992) (citations and internal quotation marks omitted). After reviewing the transcript of the 1992 competency trial, the trial court found on January 24, 1994, that Petitioner's circumstances at trial were not substantially different from his circumstances at that prior hearing, and that the new evidence he presented did not cast a serious doubt on the validity of the jury's prior finding that Petitioner was competent (AG011586–87 (relying on Kelly).)
On March 28, 1994, Petitioner moved to dismiss his attorneys and to represent himself, and Petitioner's counsel moved once again to have the trial court suspend the proceedings and conduct a hearing to determine Petitioner's competency. (AG014987.) Later that day, Petitioner spoke out of turn to disagree with a witness's testimony, and the trial court threatened repeatedly to have Petitioner removed from the courtroom if he continued to disrupt the proceedings. (AG015045–46, AG015090–93.)
On March 29, 1994, the trial court first denied Petitioner's motions to dismiss his attorneys and to represent himself. (AG015273, AG015279.) In support of the motion to suspend proceedings, defense counsel contended that Petitioner was unable to answer their questions or confer with them, and that Petitioner was firmly convinced that the prosecutor, trial court, and defense counsel had accepted bribes in his case. (AG015280–81.) Counsel also contended that Petitioner had changed drastically since the trial began, when they had meaningful conversations with him about the case, and that they believed there was a risk that the jury would “see Mr. Marks acting out and being removed” from the courtroom. (AG015283–84.) Upon being questioned by the trial court, Petitioner stated, “I'm mentally sound. I'm aware of, I'm aware of my—I'm not saying nothing else, because I already know I'm being treated unfairly. I'm not going to make ambiguous outbursts, this is a biased courtroom.” (AG015292.)
The trial court again denied the defense's section 1368 motion to suspend the proceedings. (AG015298 (relying on Kelly ).) The trial court stated that because there had been a previous competency hearing at which Petitioner had been found competent, suspension of the criminal proceedings was not required unless the court found that the circumstances had changed substantially or new evidence had surfaced to now cast serious doubt on the validity of the jury's previous finding of competency. The trial court also stated that it had reviewed the entire transcript of the 1992 competency hearing. The trial court noted that Petitioner's previous attorneys had made the same complaints during that hearing as defense counsel was making at trial; namely, lack of cooperation and differing views of the evidence and trial tactics. Applying the Kelly standard, the trial court found that: (1) Petitioner's circumstances had not substantially changed from his circumstances at the time of the 1992 competency determination; and (2) the new evidence Petitioner submitted did not cast a serious doubt on that determination. The trial court also noted that Petitioner's outbursts and his responses to the court's questions showed that Petitioner understood the nature of the proceedings as well as the significance of the evidence being introduced against him, and that Petitioner was able to recognize and understand weaknesses or flaws in that evidence. (AG015293–98.) Because Petitioner continued to disrupt the proceedings despite the trial court's repeated warnings, the trial court ultimately had Petitioner removed. (AG015228–30.)
On direct review in 2003, the California Supreme Court upheld the trial court's decision not to conduct an additional competency hearing, finding as follows:
[A]lthough defendant's outbursts did not comport with courtroom protocol, they did reflect his attempt to provide advice to counsel. For example, defendant complained that counsel failed to ask a witness who claimed to have been five feet from the smiling perpetrator whether there was anything unusual about the perpetrator's teeth, as defendant had missing teeth....
Defendant further contends that his conduct during trial warranted a further examination of his competency, and the trial court erred in failing to suspend the proceedings. However, once a defendant has been found to be competent, even bizarre statements and actions are not enough to require further inquiry. ( [People v. Marshall, 15 Cal.4th 1, 33, 61 Cal.Rptr.2d 84, 931 P.2d 262 (1997) ].) Reviewing courts give great deference to a trial court's decision whether to hold a competency hearing. “An appellate court is in no position to appraise a defendant's conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.” (Ibid.)
Marshall, which was decided after the trial court's 1994 denials of Petitioner's motions for a second competency hearing, adopts the same standard described above in Kelly, on which the trial court relied. See Marshall, 15 Cal.4th at 33, 61 Cal.Rptr.2d 84, 931 P.2d 262 (“When, as here, a competency hearing has already been held and the defendant was found to be competent to stand trial, a trial court is not required to conduct a second competency hearing unless it is presented with a substantial change of circumstances or with new evidence that gives rise to a serious doubt about the validity of the competency finding.” (internal quotation marks omitted)).
Moreover, defendant's most conspicuous outburst during trial amply proves his ability to understand the proceedings and assist counsel. When the prosecutor concluded his redirect examination of John Myers, defendant interrupted, “Your Honor, I object. This person stated it was not me, it was No. 6 who committed the shooting.... He did not even ask.” Discussion among the attorneys and the court revealed that Myers had selected a suspect other than defendant at a photographic lineup. The prosecutor recognized, however, there was a sound tactical reason for defense counsel's not asking Myers about his failure to select defendant: Myers had indicated “it was a toss up” between defendant and the “number six” individual; Myers finally chose the latter. Although there was a legitimate reason for not asking Myers about his selection at the lineup, defendant's comment reflected he comprehended not just the nature of the proceedings but the state of the People's case and its potential deficiencies. Defendant also demonstrated his ability to offer assistance to counsel, even if such assistance was neither solicited nor welcomed. FN4
FN4. The defense again moved for a competency hearing after defendant testified in the guilt phase. The motion was based in large part on defendant's frequent nonresponsiveness to the questions posed. As the trial court found, however, defendant strategically ignored the limited scope of questions and aggressively presented to the jury material that would either tend to raise a doubt about his guilt or engender sympathy for him.
The court considered this “an intentional and volitional and willful decision by him to go outside the scope of questions and place material before the jury that he perceived to be in his interests.”
Defendant was properly found competent to stand trial.
Marks, 31 Cal.4th at 220–21 & n. 4, 2 Cal.Rptr.3d 252, 72 P.3d 1222 (citations and internal quotation marks omitted).
B. Applicable Supreme Court Precedent
The clearly established federal law applicable to this claim is set out in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), and Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). In Pate, the U.S. Supreme Court held that if, at anytime during the trial, the trial court becomes aware of circumstances that would lead a reasonable person to have a “bona fide doubt” as to the defendant's competence, the trial court must suspend the proceedings and conduct a hearing to determine the defendant's competency. 383 U.S. at 385, 86 S.Ct. 836; accord Maxwell, 606 F.3d at 568. In Drope, moreover, the U.S. Supreme Court held that “[e]ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.” 420 U.S. at 181, 95 S.Ct. 896; accord Maxwell, 606 F.3d at 574.
C. Analysis
Petitioner contends that the California Supreme Court's determination that a second competency hearing was not required was contrary to or an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court, or based on an unreasonable determination of the facts. See Pet'r's MSJ at 54–65. Petitioner advances two arguments. First, Petitioner argues that California's standard for conducting a second competency hearing—i.e., that a court find either a “substantial change in circumstances” or “new evidence that gives rise to a serious doubt about the validity of the [prior] competency finding,” Marshall, 15 Cal.4th at 33, 61 Cal.Rptr.2d 84, 931 P.2d 262 (internal quotation marks omitted)—is more restrictive than the clearly established federal law counterpart, which requires that a state court be alert to “circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial,” Drope, 420 U.S. at 181, 95 S.Ct. 896. For that reason, Petitioner argues, the state law standard, upon which the California Supreme Court implicitly relied in affirming the trial court's denials of a second competency hearing, see Marks, 31 Cal.4th at 220–21, 2 Cal.Rptr.3d 252, 72 P.3d 1222 (quoting Marshall, 15 Cal.4th at 33, 61 Cal.Rptr.2d 84, 931 P.2d 262), is either contrary to, or the result of an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court in Pate and Drope. Pet'r's MSJ at 54–58. Because a state court's application of the “wrong legal framework” is “unworthy of AEDPA deference,” Milke v. Ryan, 711 F.3d 998, 1006–07 (9th Cir.2013), Petitioner contends that he is entitled to de novo review of Claim 3, see Pet'r's MSJ at 65.
In evaluating Petitioner's arguments, the Court “look[s] through” the California Supreme Court's March 16, 2005 summary denial of Claim 3 to the “the last reasoned state-court opinion on the claim at issue.” Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir.2012) (citing Ylst v. Nunnemaker, 501 U.S. 797, 804–06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). Here, that means reviewing the California Supreme Court's 2003 decision affirming Petitioner's conviction on direct appeal. Moreover, this Court notes that with respect to Claim 3, the California Supreme Court's summary denial contained an alternative basis for its ruling—namely, that Claim 3 was procedurally barred as repetitive of a claim previously rejected by the California Supreme Court on direct appeal. (AG023690 (citing In re Waltreus, 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001 (1965).) Because this Court fully considers Claim 3 on the merits, infra, it need not reach Petitioner's argument that the California Supreme Court's application of the Waltreus bar was itself unreasonable. See Pet'r's MSJ at 49–52.
Petitioner's first argument is without merit. It is true that when a “state court applies a legal standard that contradicts clearly established federal law,” a federal court may “review de novo the applicant's claims, applying the correct legal standard to determine whether the applicant is entitled to relief.” Castellanos v. Small, 766 F.3d 1137, 1146 (9th Cir.2014). There is no indication, however, that the standard set forth in Marshall and Kelly contradicts the clearly established federal law of Pate and Drope. Petitioner emphasizes the Ninth Circuit's statement that a federal court must “apply the same bona fide doubt standard to determine whether an additional competency hearing was required.” Pet'r's MSJ at 55 (quoting Maxwell, 606 F.3d at 568). Even assuming the Ninth Circuit's reading of Drope constitutes clearly established federal law under AEDPA, which is not entirely clear, California's requirements are not necessarily inconsistent with that principle. Nothing in Marshall and Kelly demands more than the raising of a “bona fide doubt” to trigger an additional competency hearing. Maxwell itself seemingly recognized as much, explaining that “once there is substantial new evidence of incompetency, a bona fide doubt is raised” warranting an additional competency hearing. 606 F.3d at 575 (citing de Kaplany v. Enomoto, 540 F.2d 975, 980–81 (9th Cir.1976)). Although the terminology differs—e.g., “serious doubt” compared to “bona fide doubt”—the two standards appear substantially the same.
Furthermore, the Ninth Circuit explained in another case: “California law requires that, after an initial finding of competency, a second hearing is required only ‘if the evidence discloses a substantial change of circumstances or new evidence is presented casting serious doubt on the validity of the prior finding.’ ” Gomez v. Harrington, 522 Fed.Appx. 393, 394 (9th Cir.2013) (quoting People v. Medina, 11 Cal.4th 694, 734, 47 Cal.Rptr.2d 165, 906 P.2d 2 (1995)). Although the parties in Gomez raised the issue, see No. 11–16961 (9th Cir.), Appellant's Br. at 41 n.13, the Ninth Circuit declined to find the California rule contrary to or an unreasonable application of clearly established U.S. Supreme Court precedent. Quite the opposite. The Ninth Circuit upheld the state court's denial of a second competency hearing “[i]n light of the deference due under AEDPA.” Gomez, 522 Fed.Appx. at 394. Thus, as Petitioner has not shown that the state court's reliance on California's standard for conducting a second competency hearing was contrary to or an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court, Petitioner's first argument fails. See Smith v. California, No. C 04–3190 RMW (PR), 2007 WL 2893765, at *6 (N.D.Cal. Sept. 28, 2007) (holding that “the state court's denial of a second competency hearing,” a denial premised on the Kelly standard, “was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent”); cf. Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (holding generally that California's procedures for determining the competency of criminal defendants are “constitutionally adequate.” (citing Drope, 420 U.S. at 172, 95 S.Ct. 896)).
Medina, in turn, cites to Kelly for that proposition.
Second, Petitioner argues that the evidence before the trial court was sufficient to establish a bona fide doubt as to Petitioner's competency to stand trial, and that the California Supreme Court's decision affirming the trial court's denial of an additional competency hearing was therefore based on an unreasonable determination of the facts. Pet'r's MSJ at 59–65. The question for this Court, then, is whether it was objectively unreasonable, in light of the evidence before the trial court at the time Petitioner requested that his competency be reassessed, for the trial court to have concluded that Petitioner had: (1) a rational, as well as a factual, understanding of the nature of the proceedings against him; and (2) the present ability to consult with his lawyer with a reasonable degree of rational understanding and to assist with the preparation and presentation of his defense. See Drope, 420 U.S. at 171–72, 95 S.Ct. 896.
During Petitioner's guilt phase trial, the state presented the testimony of two eyewitnesses to the shooting that took place at a Taco Bell restaurant. The witnesses picked Petitioner out of lineups, in part because of their memories of the shooter's unusual hair braids. On cross-examination, the defense attempted to point out inconsistencies between the witnesses' descriptions of the shooter's dark complexion and dark clothing with photographs of Petitioner wearing a light-colored top and having a medium complexion. On March 28, 1994, Petitioner spoke out of turn and disrupted the proceedings numerous times during the examinations of these two witnesses, as shown by the following three passages. First, Petitioner interrupted the proceedings when the trial court addressed the jurors regarding the photographs.
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 transferred.
THE COURT: Mr. Marks, please.
THE DEFENDANT: That was after I was taken to Oakland that was taken.
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].
DEFENSE COUNSEL: Your Honor, as to 8A, we enter into the stipulation that was taken shortly after the arrest. As to 8B and C, we'll enter into the stipulation that these are photographs of Mr. Marks taken on previous occasions, earlier occasions, not having to do with this incident.
(AG015045–46.)
Later that day, when his defense counsel was cross-examining a witness, Petitioner again interrupted the proceedings.
DEFENSE COUNSEL [MR. THEWS]: Thinking back to the night of the shooting, can you tell us what the man was wearing on the upper part of his body?
THE WITNESS [MS. HAYNES]: Not really. Okay. I'll put it this way, it looked like a dark blue jacket, but after I saw the gun, everything was black.
Q: Would your comment be the same as to the kind of pants he wore?
A: Dark.
Q: Just dark, that's it?
A: Just dark.
Q: When you say jacket, are you talking about the kind of a jacket that would fit over a shirt or something like that?
A: No, just like wearing a jean jacket.
Q: Like a Levy [sic] jean jacket?
A: Yes.
Q: Showing you people's 8A, do you recognize the person in that photograph?
A: Yes.
Q: Is that the person seated down to my right?
A: Yes.
Q: Look at the clothing on his upper body and tell me, is that what the shooter had on that night in the Taco Bell?
A: I can't really say.
Q: You can't say?
A: No.
Q: Would you say that that's in the form of a jean jacket?
A: No.
Q: Would you say it's dark blue?
A: No.
Q: Thank you. In your view of the shooter in the Taco Bell, could you ascertain whether or not he had any facial hair?
A: No, I don't remember that. I really didn't pay attention to his facial hair or even if he had any.
Q: Your mind was on other things?
A: My mind was definitely on other things.
DEFENSE COUNSEL: I have no further questions, Your Honor. Thank you, Miss Haynes.
THE COURT: Thank you, Mr. Thews. Mr. Burr [prosecutor].
THE DEFENDANT: This person came within five feet
THE COURT: Mr. Marks, I don't want to do this again. Mr. Marks, please keep quiet.
THE DEFENDANT: He keeps blotching his question.
THE COURT: Mr. Burr, you may proceed.
THE PROSECUTOR: Yes. Thank you.
(AG015086–88.)
After the state performed a short redirect examination, Petitioner again interrupted the proceedings during his counsel's recross of the witness:
DEFENSE COUNSEL: Directing your attention to 8A again, the photo of Mr. Marks, with the light colored jacket, when you say that's consistent
976 THE DEFENDANT: That's a shirt. That ain't no jacket. You're trying to insinuate
DEFENSE COUNSEL: Could we have a recess, please, Your Honor?
THE COURT: Let's complete the testimony of this witness, then I'll take a recess.
DEFENSE COUNSEL: All right. When you say that jacket is consistent with
THE DEFENDANT: That's a shirt, that's not a jacket. He's blotching
DEFENSE COUNSEL: Could we have a recess?
THE DEFENDANT: You need one. You need to question
THE COURT: Mr. Marks, if you don't remain quiet and let your attorney represent you here, I'm going to have you removed. I've told you this several times in several different questions. Now, please
THE DEFENDANT: Your Honor, you know, he's blotching these proceedings. This person came within five feet of [me] with a mustache. She hasn't stated that. He's insufficient as a counsel.
DEFENSE COUNSEL: Could we have a recess?
THE COURT: It looks like we need one.
THE DEFENDANT: I think he's 1368.
(AG015089–90 (emphasis added).)
After the jurors were excused, the following colloquy occurred:
THE COURT: The record will reflect that all of the jurors and the alternate jurors have left the courtroom and have gone to another floor of the courthouse, awaiting our summons.
Mr. Marks remains at counsel table, Mr. Thews and Mr. Wies [defense counsel] are both present, Mr. Burr is present, the witness has stepped out of the courtroom and is not present, the court staff is here.
Mr. Thews, you requested a recess and I agreed.
And I'm going to make this statement to you, Mr. Marks, you have disrupted these proceedings on a number of different occasions, over several different days, you have done so over my express warning and admonition that if you continue to disrupt the proceedings I would have you removed from the courtroom. Now, on several different occasions I had explained in some detail what I meant by that. I will do it one more time, and let me make absolutely clear what remedies are available to me if you continue to disrupt these proceedings. First of all, I do find that your behavior today was disruptive, it disrupted your own attorney, it disrupted the witness, it disrupted all phases of these proceedings and did so in a significant and substantial way. You have done this before. I have warned you many times to cease and desist from this conduct. I'm going to do it one more time. If you continue with behavior such as you exhibited just before I took the recess, I will have no recourse but to remove you from these proceedings. I want you to understand that I'm not given to idle threats. I'm telling you exactly what I will do if you continue to disrupt these proceedings.
Now, I want your assurance that you will cease and desist from this conduct. If you don't give me that assurance, I will consider removing you right now.
Now, will you desist from this disruptive behavior?
THE DEFENDANT: I give you my word, Your Honor, under oath that I won't do any disruptive misconduct, I will not voice my opinion anymore, I will not say anything else.
977 But I was just saying, if somebody came within five feet of you, you would know if they would have any facial hair. He's not questioning. As an attorney, Mr. Burr was so sufficient, as he went through the photographs, A, B, C and D
THE COURT: Mr. Marks, I'm not your attorney, obviously, but I'm
THE DEFENDANT: I'm not going to say anything else.
THE COURT: I'm going to tell you from my observation
THE DEFENDANT: I'm not saying anything else.
THE COURT: Fine. I want to address
THE DEFENDANT: She was openly see [sic] his mustache, Your Honor, five feet, she said, and right this five feet, she didn't see a mustache, he couldn't possibly even never mentioned that to her, Your Honor. He tried to make her force me in the jacket to make me appear guilty. That's the sweat shirt he keeps
THE COURT: Thank you, Mr. Marks.
(AG015090–92.)
The following day, on March 29, 1994, the trial court denied Petitioner's section 1368 motion to suspend criminal proceedings. (AG015298.) In doing so, the trial court could reasonably have inferred from the above passages that Petitioner's behavior was consistent with competency and an understanding of the proceedings against him. Petitioner apparently believed his attorney was not being sufficiently aggressive in attacking the witness for not noticing whether or not the shooter had facial hair, and Petitioner believed his attorney should have noted the distinction between whether he was wearing a light-colored shirt or a light-colored jacket in his booking photo. While Petitioner's outburst was not compatible with courtroom decorum, it does not clearly indicate incompetency. See Marks, 31 Cal.4th at 220, 2 Cal.Rptr.3d 252, 72 P.3d 1222 (“[A]lthough defendant's outbursts did not comport with courtroom protocol, they did reflect his attempt to provide advice to counsel.”). In fact, it is arguable that Petitioner's statements demonstrated a lucid understanding of the identity issues at stake.
The trial court could also have reasonably inferred from the circumstances that Petitioner disrupted the proceedings either to direct his counsel to make points he felt needed to be made, or to complain about his counsel's failure to do so. In discussing the colloquy between Petitioner and the trial court, the California Supreme Court found that Petitioner's comments “reflected he comprehended not just the nature of the proceedings but the state of the People's case and its potential deficiencies. Defendant also demonstrated his ability to offer assistance to counsel, even if such assistance was neither solicited nor welcomed.” Marks, 31 Cal.4th at 221, 2 Cal.Rptr.3d 252, 72 P.3d 1222. In light of Petitioner's comments, the jury's previous determination following an exhaustive hearing that Petitioner was competent, and the trial court's ability to observe Petitioner in person, this Court cannot say that the trial court was objectively unreasonable in finding no bona fide doubt had been raised as to Petitioner's competency to stand trial. See Drope, 420 U.S. at 179, 95 S.Ct. 896 (explaining that “a defendant's demeanor during trial may be such as to obviate the need for extensive reliance on psychiatric prediction concerning his capabilities” (internal quotation marks omitted)).
Nonetheless, Petitioner contends that the trial court should have had a bona fide doubt as to Petitioner's competency in light of the totality of the evidence before the trial court, which included not only Petitioner's comments and the prior competency determination, but also the following: (1) Petitioner engaged in so many outbursts that he eventually was removed from the courtroom; (2) defense counsel opined that Petitioner was incompetent; (3) Petitioner believed that the trial court, his attorneys, and the prosecution were engaged in a conspiracy against him; (4) when confronted with a tape recorded statement he had given, Petitioner stated emphatically that it was not his voice on the tape; (5) at the previous competency trial, all of the expert witnesses had testified that Petitioner was incompetent to stand trial; and (6) a judge in a separate criminal proceeding against Petitioner ordered Petitioner to be certified for a competency evaluation. The Court addresses each point in turn.
First, the fact that Petitioner interrupted the proceedings so often that he was removed may not have worked in his best interest, but his reasons for doing so—to correct what he thought was inaccurate evidence, and to complain about his attorney's failing to follow up on questions he felt would help his defense—do not suggest that Petitioner lacked a reasonable degree of rational understanding of the nature and object of the proceedings. See Davis v. Woodford, 384 F.3d 628, 645 (9th Cir.2004) (“Although there is little doubt that [habeas petitioner] was recalcitrant and acted in ways that were detrimental to his case, his interactions with the trial judge indicated that he understood what was at stake during the penalty phase and could make informed decisions.”). Accordingly, it would not have been unreasonable for the trial court to have given the fact that Petitioner engaged in many such outbursts little weight in determining whether it had a bona fide doubt as to Petitioner's competency to stand trial.
Second, although defense counsel may have the best informed view of a defendant's ability to participate in his defense, counsel's opinion is not determinative. See Miles v. Stainer, 108 F.3d 1109, 1113 (9th Cir.1997) (finding that even if defense counsel's failure to move for a competency hearing is evidence of competence, it is not determinative). Additionally, as the California Supreme Court found in its reasoned opinion, Petitioner's “most conspicuous outburst during trial amply proves his ability to understand the proceedings and assist counsel.” Marks, 31 Cal.4th at 221, 2 Cal.Rptr.3d 252, 72 P.3d 1222. The California Supreme Court also agreed with the trial court's finding that Petitioner, while on the stand, “strategically ignored the limited scope of questions and aggressively presented to the jury material that would either tend to raise a doubt about his guilt or engender sympathy for him.” Id. at 221 n. 4, 2 Cal.Rptr.3d 252, 72 P.3d 1222. For example, when asked by the prosecutor whether an officer had testified that Petitioner, while talking with that officer at the police station, had removed a rubber band from his hair so that his “hair fell down straight on his shoulders” as depicted in several photographs, Petitioner gave the following answer: “That would be a false allegation and false statement. Your chief witness, Robin Menefee, has stated my appearance in hair never changed.” (AG016132.) While the second part of Petitioner's answer was ruled nonresponsive, it reasonably could be interpreted as an attempt to cast doubt on testimony presented by the state. Furthermore, Petitioner stated shortly thereafter, “Your Honor, why is [the prosecutor] so sufficient, and my counsel will not present this evidence to the jury?” (AG016136.) Though nonresponsive to the question pending, Petitioner's answer could reasonably be interpreted as an attempt to curry favor with the jury. In other words, while defense counsel might have had a good faith belief that Petitioner was unable to assist in his defense, it was not unreasonable for the state court to have found otherwise, based on the record.
Third, while Petitioner's belief that the attorneys and trial court were conspiring to convict him could be characterized as irrational or paranoid, these beliefs do not suggest either an inability to rationally understand the nature of the proceedings or an inability to consult with and assist counsel. See, e.g., United States v. Marks, 530 F.3d 799, 814–15 (9th Cir.2008). While Marks dealt with a direct appeal from a federal conviction, the Ninth Circuit's discussion in that case is instructive here:
United States v. Marks involved a Richard Ernest Marks, not Petitioner.
In support of his argument that the district court should have ordered a competency hearing, Marks points to his courtroom demeanor, his “doggedness” in arguing that the district court had no jurisdiction over him, and his second appointed counsel's representation, in filing a motion for Marks to proceed pro se, that he had no relationship with Marks that could assist him in representing Marks. It is true that Marks sometimes was rude to the court, that he repeatedly argued that the court lacked jurisdiction over him, and that he refused to work with, and consider himself represented by, appointed counsel. However, the record demonstrates that these acts simply reflected Marks' claimed beliefs that the court lacked legal authority over him and could not be trusted to appoint effective and neutral counsel to help him.
While Marks' claimed beliefs may have been unorthodox and wrongheaded, they were not indicative of an inability to understand the proceedings against him or conduct his own defense.... Accordingly, we conclude that Marks' conduct does not constitute substantial evidence of incompetence to stand trial.
Marks, 530 F.3d at 814–15.
In addition, while Petitioner's beliefs may not have been wholly accurate, they were not wholly delusional: Petitioner was aware that his counsel took some steps toward negotiating a plea agreement, even though Petitioner was firm in his desire to go to trial. See Marks, 31 Cal.4th at 219, 2 Cal.Rptr.3d 252, 72 P.3d 1222. As such, it is not necessarily indicative of incompetency for Petitioner to have believed that his counsel and the prosecution were, at a minimum, in discussions to convict him, and it was not objectively unreasonable for the trial court to conclude that Petitioner's distrust in the fairness of the proceedings did not raise a bona fide doubt as to Petitioner's competency to stand trial.
Fourth, a person with a reasonable degree of rational understanding of the nature of the proceedings against him would understand, as Petitioner apparently did, that maintaining a defense of actual innocence requires that inculpatory evidence be explained in a way consistent with innocence. Petitioner's explanation as to the tape recording—that the person speaking on the tape was imitating his voice—may not have been believable, but in the absence of a better explanation it was not necessarily irrational. Furthermore, while considering whether a trial court should have held a competency hearing prior to or during the penalty phase of a defendant's capital trial, the Ninth Circuit found that even if a defendant acts in ways that are detrimental to his case, the requirement for a competency hearing is not necessarily triggered. See Davis, 384 F.3d at 645 (recognizing that the trial judge was in a key position to gauge whether a competency hearing was needed, and holding that the trial judge did not err in declining to hold a competency hearing either prior to or during the penalty phase of the trial). Accordingly, it would not have been unreasonable for the trial court in Petitioner's case to accord little weight to the fact that Petitioner offered an incredible explanation for inculpatory evidence in determining whether the trial court had a bona fide doubt as to Petitioner's competency to stand trial.
Fifth, the trial court was well aware that despite the testimony of two court-appointed psychiatrists during the 1992 competency trial that Petitioner was incompetent, a jury concluded that Petitioner was in fact competent. As this Court has discussed in the analysis of Claim 2, supra, the jury reached this conclusion after hearing all of the expert and lay evidence. In upholding the jury's competency determination, the California Supreme Court detailed the “abundant evidence” contradicting the expert testimony, finding that Petitioner's own statements and comments demonstrated that he could assist counsel in his defense. Marks, 31 Cal.4th at 219, 2 Cal.Rptr.3d 252, 72 P.3d 1222. For the reasons stated above, the California Supreme Court reasonably concluded that “there was substantial evidence from which the jury could rationally infer defendant's competence to stand trial.” Id. at 220, 2 Cal.Rptr.3d 252, 72 P.3d 1222.
Finally, Petitioner argues that his being referred for a competency assessment by another judge in a separate criminal proceeding demonstrates that a further competency hearing in his capital case was necessary. See Pet'r's MSJ at 39–40, 52–53. By way of background, Petitioner was charged with felony assault based on an altercation during his time at Santa Rita Jail. The judge in that matter (Judge Ronald Hyde of Livermore Municipal Court) transferred the matter to Judge Alfred Delucchi (the Alameda County Superior Court judge who had ordered the original competency evaluation in January 1992 in Petitioner's capital case). (AG022411.) The charges, were eventually dismissed and no competency hearing in the felony assault matter was held.
Petitioner maintains that the above facts mandated a further competency hearing in his capital case. However, Petitioner does not cite to, nor is the Court aware of, any U.S. Supreme Court case holding that a trial court's referral of a defendant for a competency hearing in a case that is later dismissed requires that an additional competency hearing be held in a separate criminal case involving that same defendant. Indeed, Petitioner cites no case law holding as much. While the Court is concerned that the prosecution may have sought dismissal of the assault charges in order to avoid a further competency hearing, there is simply no basis here for the Court to review that decision.
Further, the Court is not persuaded by Maxwell v. Roe, 606 F.3d 561 (9th Cir.2010), and Torres v. Prunty, 223 F.3d 1103 (9th Cir.2000), two cases cited by Petitioner in which the Ninth Circuit found the state courts' failure to hold a competency hearing unreasonable. Maxwell is factually distinguishable because the trial court in that case failed to hold a second competency hearing even after the petitioner had been involuntarily committed to a state psychiatric hospital following a suicide attempt, placed on a subsequent “14–day involuntary psychiatric hold” by two psychiatrists, and forced to miss a substantial portion of his trial as a result. 606 F.3d at 565–66, 571–73. Unlike here, “a jury that never saw Maxwell convicted him of first degree murder.” Id. at 566; see also Gonzales v. Walker, No. 02–02279 JSW, 2010 WL 3893577, at *19 (N.D.Cal. Sept. 30, 2010) (distinguishing Maxwell on similar grounds). Torres is likewise distinguishable because, in that case, the trial court failed to hold even a single competency hearing and thus “never addressed the question of whether Torres was competent to stand trial.” 223 F.3d at 1106; see also Gonzales, 2010 WL 3893577, at *20 (distinguishing Torres on similar grounds). Here, by contrast, Petitioner received a full jury trial on his competency.
In sum, because Petitioner behaved at trial as if he understood the nature and purpose of the proceedings against him and was capable in assisting in his defense, and because Petitioner's evidence to the contrary was not overwhelming, it was not unreasonable for the trial court to have determined that the totality of the evidence did not raise a bona fide doubt as to Petitioner's competence to stand trial. The Court therefore finds that the California Supreme Court's decision to affirm the trial court's rejection of Petitioner's claim was neither contrary to, nor the result of an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court in Pate and Drope. See 28 U.S.C. § 2254(d)(1). The Court also finds that the California Supreme Court's ruling was not based upon an unreasonable determination of the facts in light of the evidence before it. See id. § 2254(d)(2). The Court therefore grants Respondent's motion for summary judgment as to Petitioner's Claim 3 and denies Petitioner's cross-motion for summary judgment as to that claim.
III. Claim 5: Ineligibility for Execution Due to Intellectual Disability
In Claim 5, Respondent moves for summary judgment on Petitioner's claim that he meets the diagnostic criteria for intellectual disability and is therefore ineligible for a death sentence under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Resp't's MSJ at 14–18. Respondent argues that Petitioner has failed to establish that the California Supreme Court's summary rejection of this claim in 2010 was contrary to or an unreasonable application of clearly established U.S. Supreme Court precedent, or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner cross-moves for summary judgment on Claim 5, contending that the California Supreme Court's decision denying this claim was objectively unreasonable. Specifically, Petitioner maintains that at the May–June 2006 evidentiary hearing on this issue, Petitioner presented expert opinion testimony that he was intellectually disabled and Respondent failed to produce evidence to contradict his experts' conclusions. Pet'r's MSJ at 66–81.
A. Factual Summary
In response to the California Supreme Court's March 16, 2005 order to show cause why Petitioner's death sentence should not be vacated under Atkins, an evidentiary hearing was conducted by Judge Horner of the Alameda County Superior Court on May 17, 18, 22–24, 30, 31, and June 1, 5 and 6, 2006. Pet. at 15. At that hearing, counsel for Petitioner presented evidence of Petitioner's intellectual disability. In particular, the trial court considered the documentary evidence Petitioner had submitted to the California Supreme Court in support of his state habeas petition, including Petitioner's school records; military service records; prison records; correspondence; and dozens of declarations of lay witnesses who knew Petitioner, of experts who had evaluated Petitioner, and of attorneys who had represented Petitioner. (AG020049–53.) In addition, the trial court heard the live testimony of five defense witnesses and one witness for the state. All three of the defense's expert witnesses on intellectual disability—Dr. Ruben Gur, Dr. Nancy Cowardin, and Dr. George Woods—testified that Petitioner was intellectually disabled. (AG025612, AG025926, AG026123– 24.) The other two defense witnesses, Dr. Pablo Stewart and Dr. Erin Bigler, were also experts and testified respectively about Petitioner's medication and the scientific community's acceptance of the brain imaging procedures relied on by Dr. Gur. (AG028415.) The state's sole witness, Michael Richard, was Petitioner's first cousin, and he testified about Petitioner as a youth. (AG026609–27.) Importantly, the burden at the hearing was on Petitioner to show by a preponderance of the evidence that Petitioner suffered from (1) significantly subaverage general intellectual functioning prior to age eighteen; and (2) deficits in adaptive behavior that manifested prior to age eighteen. See Cal.Penal Code § 1376(a)–(b).
As indicated above, see supra note 12, Judge Horner also presided over Petitioner's 1994 guilt phase and penalty phase trials. As it did in the previous section, the Court will refer to Judge Horner as the “trial court” in this section.
As to Petitioner's general intellectual functioning before age eighteen, the evidence before the trial court was that Petitioner's intelligence quotient (“IQ”) was measured as 98 at age six, 95 at age seven, 80 at age eight, 86 at age ten, and 74 at age eleven. Pet. at 94–95. There was no evidence that Petitioner's IQ was tested between age eleven and age eighteen. The evidence also showed that Petitioner was required to repeat the second grade, and although Petitioner managed to graduate from high school, his cumulative grade point average of 1.71 on a 4.0 scale ranked him 280th out of 290 students. (AG020948, AG020951.) After graduation, Petitioner attended three different junior colleges over a span of thirteen years, but passed only thirty-seven quarter units of the 114 in which he enrolled, and received virtually all of his academic credit in pass/fail remedial classes and vocational courses. (AG020953–55.) As an adult, Petitioner's IQ was tested on five occasions: Petitioner scored 60 at age twenty-seven, 74 at age thirty-two, 65 at age thirty-three, 74 at age forty-six, and 72 at age forty-nine. (AG028434.)
As to Petitioner's deficits in adaptive behavior manifested before age eighteen, Petitioner relies on the declarations of three lay witnesses who knew Petitioner as a child. See Pet'r's MSJ at 70. For example, Jimmy D. Marks, Petitioner's younger brother, stated in his declaration:
Jimmie Lee and Sallie treated Delaney with kid gloves. He was babied because he was very sensitive and always took things to heart. Delaney was their pet. He needed extra encouragement from Jimmie Lee and Sallie. Delaney was treated differently even when we got into trouble together. Delaney cried more when he was in trouble. Jimmie Lee took me aside to tell me not to follow up behind Delaney because I could not be Delaney.
Petitioner's father and mother, respectively.
Even though Delaney was a lot more sensitive than I was, I was envious of him because he was more popular than I was. Delaney was happy go lucky. He had the smile and the hazel eyes while I had a gap in my teeth and plain brown eyes. I was the one who got suspended for getting caught in the girl's restroom at school. Delaney was a good guy and I was the bad guy the way our friends talked to our parents.
(AG022690–91.)
Steven Ford, a neighbor who knew Petitioner throughout elementary and high school, stated in his declaration:
Delaney was always a jokester. He was always talking and doing silly things to try and make people laugh.... Teachers were always telling him to be quiet or sit down. You heard his name all the time....
Delaney and his brothers were all loud and hyperactive. They usually traveled together. Delaney was the most outgoing of his next two younger brothers, Kenny and Jimmy. Jimmy tried the most to be like Delaney, but he was more annoying. Kenny was quieter. They were even more loud and hyper when they were together.
....
Delaney and his brothers were teased because they were small and Delaney was often forced to fight. It was the rule in the projects that you could not back down from anyone if you did not want to have to fight all the time. Delaney would not back down, but he often got the worst of the fights.
....
In high school, Delaney was just as much a class clown as he had been in elementary school. He still talked non-stop and made jokes. Half the time you could tell what he was talking about and half the time you could not. He was talking so much that you would tune him out or say something to him to get him to shut up. He was always being told to be quiet.
(AG022545–46, AG022551.)
Jude Bullock, another neighbor who was three years older than Petitioner, stated in his declaration:
Before joining the Navy, Delaney was like his brothers in the amount of energy he had. All of the Marks children loved to run. They all seemed to have energy that they needed to burn because they ran everywhere and played a lot in the neighborhood. My only problem with Delaney was that he talked so much. It was like he tried to make himself seem more together by talking and smiling to keep people from messing with him.
(AG022521.)
The state's only live witness, Richard, testified at the evidentiary hearing that he spent a couple of weeks each month in the Marks' household for a period of approximately ten years and that during this time Petitioner, as the oldest of the children, was larger, tougher, and better at sports than his siblings and was their leader. (AG026609–14, AG026622.) Richard testified further that Petitioner, who was Richard's first cousin, was good at fighting, and that there was always a normal relationship between Petitioner, his siblings, and their parents. (AG026614–15.) Richard also testified that he never personally saw any signs of intellectual disability in Petitioner. (AG026625.)
As an adult, Petitioner did not achieve any significant promotion during a two-year stint in the U.S. Navy, and although Petitioner was discharged honorably, he was deemed ineligible for reinstatement. (AG022485–90, AG022507–09, AG022607–09.) Following his discharge from the Navy, Petitioner suffered from drug addiction and was unable to maintain self-sufficiency as an adult. See Marks, 31 Cal.4th at 213, 2 Cal.Rptr.3d 252, 72 P.3d 1222 (“[Petitioner's] problems began after his discharge from the Navy, where he ‘lost himself’ through drugs.”). Moreover, Petitioner endured a plethora of “serious traumatic events” as an adult, “including possible head injuries as a result of a motor vehicle accident, the loss of his mother (with whom [Petitioner] had a particularly close relationship), his inability to attend his mother's funeral due to his incarceration, his incarceration in prison itself, his rape while in prison, ... and, of course, his personal commission of the violent murders and other crimes which resulted in his conviction and death sentence by verdict of jury.” (AG028435.)
During the penalty phase of Petitioner's capital murder trial in 1994, the defense made no attempt to argue and presented no evidence that Petitioner was intellectually disabled, even though prior to 2002, when Atkins was decided, that condition would still have been considered a factor mitigating against a death sentence. See, e.g., Williams, 529 U.S. at 371, 395–96, 120 S.Ct. 1495 (explaining that evidence of intellectual disability is “significant mitigating evidence” and finding defense counsel constitutionally ineffective for failing to introduce such evidence at the penalty phase of petitioner's capital murder trial). Instead, the defense's apparent strategy was to show that Petitioner, a good-natured, helpful youth, was raised under relatively normal circumstances but turned violent after experiencing a series of traumatic events later in life. To that end, the jury in 1994 heard testimony from seven individuals who knew Petitioner during his childhood: Elaine Marks Bell (Petitioner's sister), Bobbie Jane Redic (Petitioner's aunt), Lorraine Winn (Petitioner's cousin), Damon Marks (Petitioner's brother), and three women who had known Petitioner since his childhood or birth, Reverend Betty Williams, Effie Jones, and Willoris Childs. As the California Supreme Court noted on direct review, these witnesses “presented mostly consistent testimony” about Petitioner's childhood. Marks, 31 Cal.4th at 213, 2 Cal.Rptr.3d 252, 72 P.3d 1222. In short, they “described defendant as having grown up in a good family environment with religion, where there was no drug or alcohol abuse, no domestic violence, and with a father who encouraged education and hard work.” Id.
The penalty phase jury also heard testimony from Petitioner's daughter, Ralecia Marks, whose name is sometimes spelled “Relisha.” (AG017117.)
At Petitioner's Atkins hearing twelve years later, the same trial court that heard the live penalty phase testimony of these seven witnesses in 1994 compared that testimony to the declarations these witnesses filed in 2002 in support of Petitioner's state habeas petition. The 2002 declarations, according to the trial court, painted a very different picture of Petitioner's upbringing:
These declarations made a number of factual allegations regarding the circumstances of the defendant's growing up as a young child in the family home, including that the defendant Delaney Marks was regularly and severely beaten by both of his parents; that the defendant was regularly beaten by his siblings; that other siblings and friends of the defendant were beaten in the defendant's presence; that the defendant was forced to engage in fistfights with his siblings; that the defendant watched his mother being severely beaten by his father on frequent occasions; that the defendant was, at various times, thrown out of his home by his parents, was not allowed to return, and was abandoned by them; that the defendant suffered from acute food deprivation over a long period of time; that the defendant, on at least one occasion, was chased by his mother with a gun; and that both of the defendant's parents continually and regularly abused alcohol.
(AG028416–17.) Faced with contradictory evidence regarding Petitioner's home life from the live penalty phase testimony in 1994 and the declarations in 2002 from the same seven witnesses, the trial court made the credibility determination that those witnesses “were telling the truth when they testified at [Petitioner's] penalty phase trial in 1994.” (AG028419.) The trial court gave several reasons for its conclusion, including the fact that the seven witnesses had been subject to cross-examination in 1994 but only submitted declarations in 2002. (AG028417.) Moreover, despite having had every incentive to testify in 1994 about Petitioner's “abusive childhood and upbringing,” the seven witnesses did not mention what would have been “powerful evidence in mitigation.” (AG028421–22.) In addition, the trial court discredited the live testimony of Drs. Gur, Cowardin, and Woods, all of whom opined that Petitioner was intellectually disabled, in large part because these experts “relied very heavily” on the 2002 declarations of friends and family that the trial court had chosen to disbelieve. (AG028416, AG028424–25.)
On June 13, 2006, following a ten-day hearing and having reviewed all of the aforementioned evidence, the trial court issued a twenty-six-page order stating its conclusions. (AG028412–37.) In particular, the trial court concluded that Petitioner had failed to establish that prior to age eighteen he suffered from significantly subaverage general intellectual functioning or that Petitioner manifested deficits in adaptive functioning. The trial court, therefore, made the factual determination that Petitioner was not intellectually disabled under the meaning of Atkins. (AG028437.)
B. Applicable Supreme Court Precedent
Atkins establishes that “the Eighth and Fourteenth Amendments to the Constitution forbid the execution of persons with intellectual disability.” Hall, 134 S.Ct. at 1990; accord Brumfield v. Cain, 576 U.S. ––––, ––––, 2015 WL 2473376, at *3, 135 S.Ct. 2269, 192 L.Ed.2d 356 (2015). In so holding, the U.S. Supreme Court recognized that “[n]ot all people who claim to be [intellectually disabled] will be so impaired as to fall within the range of [intellectually disabled] offenders.” Atkins, 536 U.S. at 317, 122 S.Ct. 2242. Importantly, “Atkins did not provide definitive procedural or substantive guides for determining when a person who claims [intellectual disability] falls within the protection of the Eighth Amendment.” Hall, 134 S.Ct. at 1998 (internal quotation marks omitted). Rather, “the Supreme Court left to the states ‘the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.’ ” Moormann v. Schriro, 672 F.3d 644, 648 (9th Cir.2012) (quoting Atkins, 536 U.S. at 317, 122 S.Ct. 2242) (brackets omitted).
In response to the U.S. Supreme Court's decision in Atkins, California enacted Penal Code section 1376, defining intellectual disability as “the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before 18 years of age.” Cal.Penal Code § 1376(a); see In re Hawthorne, 35 Cal.4th 40, 44, 24 Cal.Rptr.3d 189, 105 P.3d 552 (2005). The California legislature derived this standard from clinical definitions cited in the Atkins decision. See Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242; Hawthorne, 35 Cal.4th at 47, 24 Cal.Rptr.3d 189, 105 P.3d 552 (noting that California's definition of intellectual disability generally conforms to “the clinical definitions referenced in Atkins ”). Intellectual disability is a question of fact based on state law, measured by an assessment of the individual's overall capacity, and based on consideration of all relevant evidence. Hawthorne, 35 Cal.4th at 49–50, 24 Cal.Rptr.3d 189, 105 P.3d 552. A court “shall not be bound by the opinion testimony of expert witnesses or by test results, but may weigh and consider all evidence bearing on the issue of [intellectual disability].” Id. at 50, 24 Cal.Rptr.3d 189, 105 P.3d 552 (internal quotation marks omitted).
In Atkins, the U.S. Supreme Court cited the American Psychiatric Association's clinical definition of intellectual disability, requiring “significantly subaverage general intellectual functioning ... that is accompanied by significant limitations in adaptive functioning” and the condition “must occur before age 18 years.” Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242 (quoting Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.2000)).
C. Analysis
Petitioner contends that the California Supreme Court's December 15, 2010 summary denial of his Atkins claim (AG028382) was both contrary to clearly established U.S. Supreme Court precedent and based upon an unreasonable determination of the facts in light of the evidence presented in Petitioner's state court proceedings. Pet'r's MSJ at 80. In considering Petitioner's arguments, the Court “look[s] through” any summary denial to the “the last reasoned state-court opinion on the claim at issue.” Ortiz, 704 F.3d at 1034. Here, that means the Court looks to the trial court's Findings and Judgment issued on June 13, 2006. (AG028412–37.)
1. Reliance on California Penal Code Section 1376
The first issue for this Court to address is whether the trial court's reliance on California Penal Code section 1376 was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court. Section 1376, as noted above, defines “intellectual disability” as “the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before 18 years of age.” Cal.Penal Code § 1376(a).
The Court finds that the trial court's reliance on section 1376 was not unreasonable because that provision's definition of intellectual disability generally “conform[s] to” “the clinical definitions referenced in Atkins.” Hawthorne, 35 Cal.4th at 47, 24 Cal.Rptr.3d 189, 105 P.3d 552; see Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242. Indeed, the clinical definitions to which Atkins refers “require not only subaverage intellectual functioning, but also significant limitations in adaptive skills ... that became manifest before age 18.” 536 U.S. at 318, 122 S.Ct. 2242. Section 1376 mirrors that language. Accordingly, the trial court's adjudication based on section 1376 was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court in Atkins . See 28 U.S.C. § 2254(d)(1).
California's statute is notably different from Florida's, which the U.S. Supreme Court held unconstitutional in 2014. See Hall, 134 S.Ct. at 2000–01. Florida's invalidated statute involved a bright-line rule, foreclosing further investigation into a capital defendant's alleged intellectual disability if he or she had an IQ score higher than 70. Id. at 1993–2000. California's statute, on the other hand, has no such IQ cutoff. See Cal.Penal Code § 1376(a).
The next issue for the Court to decide is whether the trial court's twin factual determinations—i.e., that Petitioner (1) did not suffer from significantly subaverage general intellectual functioning prior to age eighteen; and (2) did not manifest deficits in adaptive behavior prior to age eighteen—were unreasonable in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d)(2). The Court addresses each issue in turn.
2. Significantly Subaverage General Intellectual Functioning Before Age 18
The trial court, after a thorough evidentiary hearing that spanned ten days, examined the evidence as to Petitioner's significantly subaverage general intellectual functioning before age eighteen and concluded that:
Test result[s] which vary this widely, and which (while the defendant is under 18) barely dip into the range for borderline mental retardation on only one single occasion, cannot be considered very “powerful evidence” supporting a finding of mental retardation. Indeed, the test results while defendant is under 18, standing alone, would seem to support the contrary inference, that the defendant does not meet the statutory definition of mental retardation, with at least equal weight and equal convincing force.
(AG028434–35.)
Petitioner contends that this interpretation of his IQ test scores is unreasonable. First, Petitioner argues that the trial court unreasonably characterized Petitioner's age eleven IQ score of 74 as “into the range for borderline mental retardation.” (AG028434.) However, one of Petitioner's own experts, Dr. Cowardin, testified at the Atkins hearing that an IQ score of 74 indicated “borderline mental retardation.” (AG026014–15.) Petitioner argues next that because his IQ scores dropped from 98 to 74 by age eleven and he has never scored above 74 as an adult, his IQ prior to age eighteen was most likely 74. Petitioner also points out that an IQ score of 70–75 is within the range of significantly subaverage general intellectual functioning, according to the American Association on Intellectual and Developmental Disabilities. See Pet'r's MSJ at 66 n.11, 75–77; see also Hall, 134 S.Ct. at 1999 (noting that “an IQ between 70 and 75 or lower is typically considered the cutoff IQ score for the intellectual function prong of the [intellectual disability] definition” (quoting Atkins, 536 U.S. at 309 n. 5, 122 S.Ct. 2242) (ellipsis omitted)). Thus, rather than interpret Petitioner's IQ scores as varying “widely,” Petitioner contends that the trial court should have interpreted the scores as showing a precipitous drop between the ages of six and eleven, with the result that Petitioner suffered from significantly subaverage general intellectual functioning from that point onward.
Although the conclusion Petitioner draws from his IQ test scores may be reasonable, the fact that he can posit a reasonable interpretation of the evidence does not mean that any contrary interpretation of that evidence is objectively unreasonable under AEDPA. See Rice v. Collins, 546 U.S. 333, 341–42, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (“Reasonable minds reviewing the record might disagree about the [state court's factual finding], but on habeas review that does not suffice....”). Petitioner's IQ scores might support the conclusion that he suffered from subaverage general intellectual functioning before age eighteen, yet the legal standard for intellectual disability is not merely subaverage general intellectual functioning, but rather significantly subaverage general intellectual functioning. In the intellectual disability context, significantly subaverage general intellectual functioning means general intellectual functioning, as measured by IQ testing, within the bottom one to three percent of the general population. See Atkins v. Virginia, 536 U.S. 304, 309 n. 5, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); see also Hawthorne, 35 Cal.4th at 52, 24 Cal.Rptr.3d 189, 105 P.3d 552 (Chin, J., concurring) (explaining that “the term ‘significantly subaverage’ has been used by [intellectual disability] professionals to describe the level of impairment found in individuals whose performance on standardized intelligence tests places them two standard deviations below the mean; that is, in the lowest two and a half or three percent of the population”).
As the trial court pointed out, although Petitioner needed to repeat the second grade and his high school grade point average of 1.71 on a 4.0 scale ranked him 280th out of the 290 students in his high school class, he nevertheless managed to graduate. (AG028435–36.) Petitioner also appears to have skipped the fifth grade, and while several teachers expressed concern with Petitioner's progress, one teacher noted in eighth grade that Petitioner's “testing scores indicate ability.” (AG020944.) It was therefore not unreasonable for the trial court to find that an individual who graduated from high school on schedule and whose IQ tested at or above 80 four out of five times before age 18 possessed general intellectual functioning superior to the bottom three percent of the general population, especially considering that the individual ranked just above the bottom three percent of the students in his high school class who graduated. See McManus v. Neal, 779 F.3d 634, 654 (7th Cir.2015) (noting that while intellectually disabled people graduate from high school, a state court's determination that petitioner was not intellectually disabled under Atkins was not objectively unreasonable where the court relied on petitioner's graduation from high school as additional evidence of intellectual ability on top of petitioner's IQ scores).
A high school friend of Petitioner's who did not graduate stated in a declaration: “Because Delaney graduated, I thought he must have been smart in high school.” (AG022855.)
Petitioner also contends that the trial court gave insufficient weight to the fact that although Petitioner attended three different junior colleges over a span of thirteen years, he passed only thirty-seven quarter units of the 114 in which he enrolled and received virtually all of his academic credit in pass/fail remedial classes and vocational courses. ECF No. 45 (“Opp'n to Resp't's MSJ”) at 29. Because Petitioner was over eighteen when he took these classes, however, it would not have been unreasonable for the state court to give this evidence less weight on the issue of whether Petitioner's general intellectual functioning was significantly subaverage before he turned eighteen years of age. As the trial court reasonably found and concluded:
The fact also remains that [Petitioner] attended classes in a Junior College, where he passed some classes, dropped out or withdrew from other classes, over a 13 year period. He apparently never completed the curriculum at the Junior College. But the fact is that he attended—and despite the many distractions and obstacles which would arise over the years, including his own entry into the criminal justice system, he attended Junior College at various times spanning more than a decade. The fact is that he did pass some classes, including classes in basic skills in reading, mathematics, and writing, classes in typing, office management, physical education, and a language class in Swahili. This may not be a scholastic record which Dr. Cowardin, or the other experts, would consider as exemplary. The defendant was certainly never on any Dean's list. But, standing alone, it is not indicative of a person who is mentally retarded. And, in combination with the other evidence, it indicates that, for at least some time after he turned 18, the defendant retained, and attempted to better, some level of intellectual and academic achievement. Overall, this also does not support a finding of mental retardation.
(AG028436.)
Petitioner also contends that the trial court did not give sufficient weight to the fact that although Petitioner served in the U.S. Navy and received an honorable discharge, he was in the lower intelligence group of all enlisted men, unable to advance beyond a rank normally achieved before completion of basic training, and was deemed ineligible to return to active duty following his discharge. Pet'r's MSJ at 70–71. Again, it was not unreasonable for the trial court to give this evidence little weight, especially considering that Petitioner served in the Navy after he turned eighteen years of age. (AG021739.)
Petitioner was an adult (age twenty) when he was honorably discharged from the Navy. (AG021739.) Although Petitioner was not recommended for reenlistment (AG021747), he did receive a National Defense Service Medal (AG021739). Moreover, the Court notes that while Petitioner was in the Navy, he was charged with moving bombs, missiles, and other ordnance around the U.S.S. Nimitz, a nuclear attack carrier. (AG022862–63.)
The Court finds that the trial court's determination that Petitioner did not suffer from significantly subaverage general intellectual functioning before age eighteen was not unreasonable in light of the evidence before the trial court. The California Supreme Court's summary decision affirming the trial court was therefore not based on an unreasonable determination of the facts. As a result of this finding, the Court need not address Petitioner's arguments regarding the second element of the intellectual disability test: adaptive behavior deficits manifested before age eighteen. Out of an abundance of caution, however, the Court will do so.
3. Deficits in Adaptive Behavior Manifested Before Age 18
After presiding over the ten-day evidentiary hearing, the trial court found that any deficits in Petitioner's adaptive behavior manifested after he turned eighteen years of age. (AG028436.) In making this finding, the trial court relied heavily on the testimony of Michael Richard, Petitioner's first cousin, who, as indicated previously, was the state's sole witness who testified live during the Atkins hearing. (AG028422.) Richard testified that he had spent a great deal of time with Petitioner and Petitioner's family over a ten-year period while he and Petitioner were juveniles. Richard testified that Petitioner was the leader of his siblings and looked after them, had a normal relationship with them and his parents, could take care of himself in a fight, and was good at sports. (AG026609–15.) Critically, Richard testified that he never personally saw any signs of intellectual disability in Petitioner. (AG026625.) The trial court gave several reasons for crediting Richard's testimony, including the fact that Richard testified live in court, appeared to have no bias for or against Petitioner, was a person of sound character and judgment, and his testimony was subject to, and was not significantly weakened by, cross-examination. (AG028422–24.) Petitioner offers no persuasive reason to second guess the trial court's credibility determination regarding Richard's live testimony. See Jamerson v. Runnels, 713 F.3d 1218, 1225 (9th Cir.2013) (explaining that a federal court's review on habeas of a state trial court's credibility determinations is “doubly deferential” because “demeanor and credibility lies peculiarly within a trial judge's province” (internal quotation marks omitted)).
The trial court also relied heavily on live testimony given by several of Petitioner's friends and family members at the penalty phase of Petitioner's capital murder trial in 1994. As Atkins was decided in 2002, Petitioner was unable to claim during the penalty phase that he was categorically exempt from the death penalty on account of his intellectual disability. However, Petitioner was permitted to—and did—submit significant mitigating evidence during the penalty phase of his trial. Included in the evidence Petitioner was permitted to submit to the jury was:
factor (h), “whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect or the effects of intoxication” and .... factor (k) “any other circumstance which extenuates the gravity of the crime even though it is not a legal excise for the crime and any sympathetic or other aspect of the defendant's character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on trial. You must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle.”
(AG028421 (emphasis added) (citing CALJIC 8.85).)
As indicated previously, a host of mitigation witnesses testified in 1994 as to Petitioner's background and upbringing. On direct review, the California Supreme Court accurately summarized that testimony as follows:
Several other witnesses testified at the penalty phase, including defendant's daughter Relisha [sic] Marks, his sister Elaine Marks Bell, his aunt Bobbie Jane Redic, his cousin Lorraine Winn, his brother Damon Marks, and three women who had known defendant since his childhood or birth, Reverend Betty Williams, Effie Jones, and Willoris Childs, the grandmother of defendant's daughter. They presented mostly consistent testimony that described defendant as having grown up in a good family environment with religion, where there was no drug or alcohol abuse, no domestic violence, and with a father who encouraged education and hard work. Defendant was helpful to his family as a child. He had no more problems than the average child and was never in serious trouble.
Defendant's problems began after his discharge from the Navy, where he “lost himself” through drugs. “[I]t seem[ed] as if there had been [a] deterioration in [defendant's] thought processes,” as defendant was “talking off the wall.” Defendant's father disapproved of defendant's drug use, but defendant refused to listen to his father's advice. Because of defendant's trouble, his father did not want him at the family home, at the home of defendant's grandmother, or at the funeral of defendant's mother. Defendant had a close relationship with his mother, and his inability to attend her funeral may have contributed to his problems.
Defendant never hit his daughter (age 15 when she testified), or anyone else in her presence. She never saw him intoxicated and never had any problems with him. When he was not in prison, she saw him once or twice a week.
Marks, 31 Cal.4th at 212–13, 2 Cal.Rptr.3d 252, 72 P.3d 1222.
The witnesses mentioned by the California Supreme Court who testified and were subject to cross-examination at Petitioner's penalty phase trial also submitted declarations in 2002 in support of Petitioner's state habeas petition. As indicated above, the trial court found that those declarations contradicted the witnesses' 1994 testimony “in very significant and important respects.” (AG028417.) Petitioner concedes that two of the 1994 witnesses—Elaine Marks Bell and Lorraine Winn—submitted declarations in 2002 that contradicted their testimony at Petitioner's penalty phase. ECF No. 49 (“Pet'r's Reply”) at 32. Bell, Petitioner's sister, testified in 1994 that neither of her parents abused drugs or alcohol (AG017285–86), but declared in 2002 that her parents were substance abusers (AG022467). Winn, Petitioner's cousin, testified in 1994 that there was “never” any physical violence in the Marks household (AG017302), but declared in 2002 that she had witnessed domestic violence, including an attempted shooting of Petitioner by his mother (AG022927). Despite Petitioner's assertion to the contrary, see Pet'r's Reply at 32–33, these were not the only contradictions borne out by the record. For instance, Damon Marks, Petitioner's youngest brother, testified in 1994 that everybody in the family went to church growing up and that the Marks children had a father who supported them. (AG017136–37.) In his 2002 declaration, by contrast, Damon Marks declared that his parents did not attend church, that his father “was not a religious or church going person,” and that only his mother worked regularly to support the family. (AG022668–70.)
The trial court, which presided over the guilt and penalty phases of Petitioner's capital trial, remembered those witnesses testifying live in 1994 and, in light of the contradictions with the 2002 declarations, made the factual determination that the witnesses “were telling the truth when they testified at [Petitioner's] penalty phase trial in 1994.” (AG028418–19.) The trial court, which listened to and observed the witnesses' live testimony during Petitioner's penalty phase trial, was in the best position to make such a finding. On a cold record, and considering AEDPA's “doubly deferential” standard of review when it comes to state court credibility determinations, Jamerson, 713 F.3d at 1225, this Court sees no basis for disturbing the trial court's finding.
The Court notes one important consistency between the 1994 penalty phase testimony and the 2002 declarations: that Petitioner was a good-natured, helpful kid whose behavior changed dramatically after he returned from serving in the U.S. Navy as an adult and began to abuse drugs. Compare (AG017135, AG017281), with (AG022474–75, AG022677–79).
This factual determination was also critical to the trial court's evaluation of Petitioner's three expert witnesses, all of whom testified live that Petitioner was intellectually disabled. (AG025612, AG025926, AG026123–24.) The trial court ultimately found the experts less than credible because they each “relied heavily upon statements contained in the various 2002 declarations, from members of the family, neighbors, and members of the community, relating details of [Petitioner's] supposedly violent upbringing.” (AG028425.) However, those were the same 2002 declarations that the trial court chose not to credit insofar as they contradicted the 1994 penalty phase testimony. Especially concerning to the trial court was the fact that Dr. Gur, the defense's chief expert, did not even review the 1994 penalty phase testimony. (AG028425.) Considering that the trial court need “not be bound by the opinion testimony of expert witnesses or by test results, but may weigh and consider all evidence bearing on the issue of [intellectual disability],” Hawthorne, 35 Cal.4th at 50, 24 Cal.Rptr.3d 189, 105 P.3d 552 (internal quotation marks omitted), this Court cannot say that the trial court's decision to give less weight to Petitioner's experts was objectively unreasonable. Further, this Court finds that it was not unreasonable for the trial court to rely instead on the evidence of witnesses who, unlike the experts, knew Petitioner before he turned eighteen.
The trial court stated incorrectly that “none of the experts reviewed any of the testimony presented on [Petitioner's] behalf in the 1994 penalty trial.” (AG028425 (emphasis added).) Although neither Dr. Gur nor Dr. Cowardin reviewed the 1994 testimony (AG025817–18, AG025988), Dr. Woods testified that he had in fact reviewed that testimony but found “nothing inconsistent with mental retardation” (AG026371–75). This Court noticed a few other instances where the trial court either exaggerated or misstated the record. For instance, despite the trial court's assertion that Dr. Gur had described Petitioner's apparent desire to have a female lawyer represent him as “irrational” (AG028427), this Court found no support for that quotation in Dr. Gur's testimony (AG026218). Similarly, this Court did not locate in Dr. Gur's testimony the statement attributed to him by the trial court that Petitioner “should have had a social network to prevent [his eviction while in jail].” (AG028427.) The closest this Court could find was Dr. Gur's testimony that “someone in that age [i.e., twenty-nine years old] not to have anybody who could make sure his stuff is not thrown into the street does not have the kind of vocational, social, and occupational adjustment from a healthy individual.” (AG026240.) In this Court's judgment, however, these errors do not “fatally undermine” the trial court's ultimate factual finding that Petitioner was not intellectually disabled under Atkins. Taylor, 366 F.3d at 1001.
Petitioner advances several other arguments in support of his claim that the trial court's factual findings were objectively unreasonable. However, because Petitioner never adequately addresses the trial court's reliance on Richard's testimony and the 1994 testimony of Petitioner's friends and family, Petitioner fails to establish that the trial court's factual determination regarding deficits in Petitioner's adaptive behavior before age eighteen was unreasonable in light of the evidence presented at the state court proceedings. See 28 U.S.C. § 2254(d)(2). Moreover, although Petitioner contends that “objective lay ... observations made by individuals who knew [Petitioner] through all relevant periods of his life[ ] reveal that his childhood ... [was] marked by ... adaptive behavioral deficits in multiple areas,” Pet'r's MSJ at 73, the evidence he cites in support of this assertion do not necessarily reveal deficits in Petitioner's adaptive behavior. For example, Petitioner relies on the declarations quoted above of Jimmy D. Marks (Petitioner's younger brother), Steven Ford (Petitioner's neighbor growing up), and Jude Bullock (another neighbor growing up). See id. at 70. However, this declaration testimony could reasonably suggest that in growing up in a rough neighborhood, Petitioner learned how and when to fight and how to talk his way out of having to do so. (AG022545–46, AG022551.) The testimony suggests further that Petitioner was popular among his classmates and that he was portrayed by his parents to his siblings as an example of how they should conduct themselves. (AG022690–91.) While this testimony may not be inconsistent with deficits in adaptive behavior, it is hardly compelling proof of intellectual disability.
Lastly, Petitioner contends that the trial court gave insufficient weight to the fact that while Petitioner was in prison at age thirty-two, his IQ was determined to be 74, and he was diagnosed with “mental retardation to borderline.” (AG028263.) The trial court's determination that the California Department of Corrections' (“CDC”) diagnosis was entitled to less than substantial weight was based on the fact that the diagnosis was made after Petitioner had turned eighteen, yet no similar diagnosis was ever made before Petitioner had turned eighteen. (AG028434–35.) Because the standard for intellectual disability requires Petitioner to show deficits in his adaptive behavior that “manifested before 18 years of age,” Cal.Penal Code § 1376(a) (emphasis added), the Court finds that it was not unreasonable for the trial court to give less than substantial weight to the CDC's diagnosis when Petitioner was thirty-two years of age.
Nor was it unreasonable for the trial court, in determining that Petitioner did not manifest deficits in adaptive behavior prior to age eighteen, to give more weight to Richard's live testimony during the evidentiary hearing and the live 1994 penalty phase testimony of Petitioner's friends and family who knew Petitioner growing up, than to the opinions of experts who only examined Petitioner after the multiple traumas Petitioner endured as an adult and Petitioner's drug abuse as an adult. (AG028435 (trial court describing the list of “significant intervening traumatic events” Petitioner suffered as an adult, including head injuries from a car accident, the sudden loss of his mother with whom Petitioner was very close, his inability to attend his mother's funeral due to his incarceration, his incarceration in prison itself, his rape while in prison, and his drug and alcohol abuse).) Accordingly, the trial court's factual determination that Petitioner failed to establish he had deficits in adaptive behavior before the age of eighteen was not unreasonable in light of the evidence presented at Petitioner's Atkins hearing.
The Court is aware that on June 18, 2015, the U.S. Supreme Court found that a Louisiana state court's refusal to allow a death row inmate an evidentiary hearing under Atkins was “based on an unreasonable determination of the facts” under section 2254(d)(2). Brumfield v. Cain, 576 U.S. ––––, ––––, 2015 WL 2473376, at *3, 135 S.Ct. 2269, 192 L.Ed.2d 356 (2015). Brumfield is distinguishable from the instant case in several respects, most notably because the state court there dismissed the petitioner's Atkins claim “[w]ithout holding an evidentiary hearing.” Id. at 2275. Here, by contrast, the trial court held a ten-day evidentiary hearing on Petitioner's Atkins claim, reviewed thousands of pages of documentary evidence, listened to the live testimony of six witnesses (five of whom were defense experts), and issued a twenty-six-page order detailing the bases for its finding that Petitioner is not intellectually disabled. In addition, the petitioner in Brumfield, unlike Petitioner, had been “treated at psychiatric hospitals as a child” and “placed in special education classes at an early age.” Id. at 2272, 2280.
In summary, to prevail on federal habeas, Petitioner must establish that both of the trial court's factual findings—i.e., that Petitioner did not suffer from significantly below average general intellectual functioning prior to age eighteen, and that his deficits in adaptive behavior did not manifest before age eighteen—were objectively unreasonable in light of the evidence presented in the trial court proceedings. See 28 U.S.C. § 2254(d)(2). Under this deferential standard of review, and because Petitioner fails to establish that the California Supreme Court's summary affirmance of either of the trial court's factual findings was objectively unreasonable in light of the evidence presented to the trial court, the Court grants Respondent's motion for summary judgment as to Claim 5 and denies Petitioner's motion for summary judgment as to that claim.
CONCLUSION
For the foregoing reasons, Respondent's motion for summary judgment as to Claims 2, 3, and 5 in Petitioner's application for a writ of habeas corpus is hereby GRANTED, and Petitioner's motion for summary judgment as to those claims is hereby DENIED.