Marks v. Cline

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 12, 2021
• Docket: 20-3071
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 12, 2021 _________________________________ Christopher M. Wolpert Clerk of Court RICKEY B. MARKS,

Petitioner - Appellant,

v. No. 20-3071 (D.C. No. 5:18-CV-03065-HLT) SAM CLINE, (D. Kan.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY _________________________________

Before HARTZ, KELLY, and EID, Circuit Judges. _________________________________

Rickey B. Marks, a Kansas inmate appearing pro se, seeks a certificate of

appealability (“COA”) so that he may appeal the district court’s dismissal in part and

denial in part of his 28 U.S.C. § 2254 petition for habeas corpus. Marks v. Cline,

No. 5:18-CV-03065-HLT, 2020 WL 1812267, at *8 (D. Kan. Apr. 9, 2020). To obtain a

COA he must make “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on

the merits ... [t]he petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. McDaniel, 529 U.S. 473, 484 (2000). Where a claim has been denied on procedural

grounds, the petitioner must additionally demonstrate “that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id. Because

Marks has failed to make either showing, we deny his request for a COA.

I. BACKGROUND The parties are familiar with the facts and we need not restate them here. Suffice

it to say that a Kansas jury convicted Marks of first-degree murder for fatally stabbing his

wife, Rozeta, in 2008. At trial, Marks testified in his own defense. He admitted that he

stabbed Rozeta but claimed the incident was the result of a sudden argument and did not

involve premeditation. Marks requested, and received, a jury instruction on self-defense.

The court further instructed the jury on the lesser-included offenses of intentional murder

in the second degree, voluntary manslaughter, and involuntary manslaughter. After the

jury convicted him of first-degree murder, Marks appealed directly to the Kansas

Supreme Court, which affirmed his conviction. See State v. Marks, 298 P.3d 1102, 1107

(Kan. 2013).

Marks then initiated state post-conviction proceedings under Kan. Stat. Ann.

§ 60-1507, raising nine issues. A Kansas state district court held an evidentiary hearing,

considered all nine issues, and denied relief. The Kansas Court of Appeals (“KCOA”)

affirmed. Marks v. State, 395 P.3d 848, at *1 (Kan. Ct. App. 2017) (unpublished).

2 II. ANALYSIS To obtain relief on a § 2254 petition in federal court, a petitioner must first exhaust

all available remedies in state court. See 28 U.S.C. § 2254(b)(1)(A). The petitioner must

demonstrate cause and prejudice or a fundamental miscarriage of justice for those issues

defaulted in state court on an adequate and independent state procedural grounds.

Smallwood v. Gibson, 191 F.3d 1257, 1268 (10th Cir. 1999). A state procedural ground

is independent if it relies on state law, rather than federal law, id., and adequate if it was

“firmly established and regularly followed when the purported default occurred,”

McCracken v. Gibson, 268 F.3d 970, 976 (10th Cir. 2001) (internal quotation marks

omitted). For issues that a court does reach on the merits, a petitioner is not entitled to

relief unless the state court decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of

the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2).

In his amended petition, Marks raised five issues. He asserted that (1) his trial

counsel was constitutionally ineffective, (2) his trial was tainted by prosecutorial

misconduct, (3) the trial court denied his Sixth Amendment right to counsel when it

denied his request to substitute his third court-appointed attorney, (4) his appellate

counsel was constitutionally ineffective, and (5) improper closing arguments by the

prosecution amounted to structural error. The district court denied the petition,

concluding that some portions were procedurally barred, some portions were

3 unexhausted, and, for those portions that remained, Marks failed to demonstrate that the

KCOA decision was contrary to or involved an unreasonable application of clearly

established federal law, or that it involved an unreasonable determination of the facts in

light of the evidence presented in the Kansas proceeding. Given our standards of review,

the district court’s assessment of Marks’ claims is not reasonably debatable as we explain

below.

1. Effectiveness of Trial Counsel

Marks argues his state trial counsel was ineffective in five respects: (a – c) he did

not seek suppression of certain physical evidence (Marks’ cellphone, photographs

therein, and Marks’ clothes) which the arresting officers took without a warrant; (d) he

did not spend adequate time preparing for trial; and (e) he did not sufficiently investigate

a possible prior incident of violence involving Rozeta.

The district court did not reach the merits of subclaims (a) through (c) because

they were barred by adequate and independent state grounds: namely, Kansas’ rule that

arguments presented for the first time on appeal are waived, and its rule that “mere trial

errors” cannot be raised for the first time on collateral review. See State v. McCullough,

270 P.3d 1142, 1164 (Kan. 2012); Kan. Sup. Ct. R. 183(c)(3) (requiring exceptional

circumstances to raise trial errors affecting constitutional rights not raised on direct

appeal); Marks, 395 P.3d at *4 (applying both rules).

Citing State v. Frye, 277 P.3d 1091, 1095 (Kan. 2012), Marks argues that Kansas

courts do not regularly follow the preservation rule and therefore the rule cannot serve as

an adequate ground to bar review. Frye, though, held only that the preservation rule was

4 not jurisdictional, 277 P.3d at 1095, and a rule need not be jurisdictional to be regularly

followed.

Marks also argues that the KCOA violated his rights to equal protection by

applying the preservation rule in his case but not others. We do not consider this

argument because Marks did not raise it before the district court. See Simmat v. U.S.

Bureau of Prisons, 413 F.3d 1225, 1240 (10th Cir. 2005). Marks further argues the

procedural bar does not apply to these claims because, notwithstanding the state

procedural default, the KCOA also addressed them on the merits. But a state court

reaching the merits of a claim in an alternative holding, as this one did, does not nullify

the procedural bar. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989).

Finally, relying on Haywood v. Drown, 556 U.S. 729 (2009), Marks argues that all

state procedural bars are unconstitutional under the Supremacy Clause. But, while

Haywood held states cannot divest their courts of general jurisdiction to hear federal

claims, id. at 740–41, it did not do away with the doctrine of procedural default,

which the Supreme Court has continued to apply in habeas cases. See Davila v. Davis,

137 S. Ct. 2058, 2064 (2017). Given his procedural default, Marks has not established

cause and prejudice or a fundamental miscarriage of justice which would allow review of

such claims. See Smallwood, 191 F.3d at 1269.

The KCOA did reach the merits of subclaims (d) (insufficient time spent preparing

for trial) and (e) (failure to investigate a prior incident of violence involving Rozeta), so

the district court reviewed its decision under the deferential standards of § 2254(d). The

KCOA correctly identified the clearly established federal law for ineffective assistance

5 claims: the two-part test in Strickland v. Washington, 466 U.S. 668, 687 (1984), requiring

a claimant to show (1) that counsel’s performance fell below an objective standard of

reasonableness and (2) resulting prejudice. See Marks, 395 P.3d at *7 (applying

Strickland).

The KCOA rejected Marks’ ineffective assistance subclaim related to pretrial

preparation for several reasons. Trial counsel spent more time preparing for the trial than

Marks realized, Marks’ post-conviction counsel acknowledged “it did not appear to this

counsel anyway that [trial counsel]’s performance was in any way hindered or affected,”

and Marks failed to connect the allegedly inadequate preparation with any specific trial

errors. Id. at *8.

The KCOA also rejected Marks’ ineffective assistance subclaim related to the

prior incident with Rozeta. Even assuming deficient performance, the alleged incident

was remote in time and Marks conceded at an evidentiary hearing that Rozeta had never

been violent with him. Id. at *10. Marks therefore failed to show prejudice because he

could not show the alleged evidence, if it existed, was relevant or admissible. Id.

The district court’s conclusion that the KCOA applied the correct law and came to

reasonable conclusions is not reasonably debatable. Marks provides no persuasive basis

to upset these conclusions; he simply reiterates the substance of his ineffective assistance

allegations.

Marks also argues the district court erred in failing to consider the ineffective

assistance subclaims cumulatively. But cumulative error does not apply when none of

6 the claims presented involves error. United States v. Rivera, 900 F.2d 1462, 1471

(10th Cir. 1990) (en banc).

2. Prosecutorial Misconduct

In his second issue on appeal, Marks asserts prosecutorial misconduct violated his

right to due process. That misconduct allegedly consisted of using illegally seized

evidence and making improper statements in closing arguments. The district court

addressed the illegal-seizure argument in connection with Marks’ ineffective assistance

claims and addressed the improper-closing-statement argument in connection with

Marks’ claims of structural error. Both dispositions are not reasonably debatable as set

forth supra at II.1 and infra at II.5 so we need not consider these duplicative arguments

separately.

3. Denial of Request for Substitute Counsel

In his third issue on appeal, Marks argues the trial court violated his Sixth

Amendment right to counsel when it denied his third request for new counsel to substitute

for his court-appointed attorney. The state courts reached the merits of this claim during

his state habeas proceedings, so the district court reviewed it under the deferential

standards of § 2254(d).1 Marks’ trial counsel testified that in addition to time spent with

1 Marks argues that the decision of the KCOA should not be accorded deference for lack of Supreme Court precedent. Aplt. Br. at 8. But the KCOA applied Kansas state law, under which substitution of appointed counsel requires a showing of “justifiable dissatisfaction” with appointed counsel such as a conflict of interest, irreconcilable conflict, or a complete breakdown of communication. See State v. McGee, 126 P.3d 1110, 1113 (Kan. 2006). Marks, 395 P.3d at *6 (applying McGee). And this test is nearly identical to that under federal law. Compare United States v. Padilla, 819 F.2d 952, 955 (10th Cir. 1987) with McGee, 126 P.3d at 1113. 7 Marks, he worked on Marks’ case in his office and at home. Marks, 395 P.3d at *7.

Further, Marks’ trial counsel produced letters where he and Marks discussed specific

pieces of evidence and trial strategy. Id. The KCOA concluded, under these

circumstances, that the trial court did not abuse its discretion when it denied the motion

for substitute counsel because Marks failed to show a breakdown in communication,

conflict of interest, or irreconcilable conflict. Id. at *7–*8. The federal district court

concluded this determination was reasonable.

Marks’ appellate arguments on this issue repeat his arguments in connection with

his fourth and fifth claims of ineffective assistance of counsel. Aplt. Br. at 8. We reject

these arguments for the reasons set forth supra at II.1.

4. Effectiveness of Appellate Counsel

In his fourth issue on appeal, Marks argues his counsel on direct appeal was

constitutionally ineffective for not challenging the admission of his phone and clothing

into evidence. The district court did not reach this issue because of the procedural bar.

In an effort to avoid the procedural bar, Marks advances the same arguments he made in

connection with his claims of ineffective assistance of trial counsel. We reject those

arguments for the reasons set forth supra at II.1.

5. Structural Error from Improper Closing Argument

In his fifth issue on appeal, Marks argues the “state committed structural error by

giving the jury an erroneous definition of premeditation that improperly lowered the

state’s burden of proof.” Aplt. Br. at 9 (capitalization omitted). Specifically, he

8 challenges the prosecution’s statement during closing arguments that “intent can be

formed during the act itself.” See id.

The Kansas Supreme Court reviewed this statement on direct appeal and although

it determined that the statement was improper, it did not require reversal because it was

not flagrant and did not affect the trial’s outcome. Marks, 298 P.3d at 1111. The trial

court properly instructed the jury on the law of premeditation, and it instructed that

arguments of counsel are not evidence.

Before the state courts, Marks argued only that the prosecution’s statements were

improper and prejudicial. The Kansas Supreme Court agreed the statements were

improper but disagreed that they were prejudicial. Id. at 1111–12. In his federal habeas

petition, Marks argued for the first time that the prosecution’s statements amounted to

structural error. The federal district court’s conclusion that this claim is unexhausted and

procedurally barred is not reasonably debatable. Moreover, it is highly doubtful that an

isolated comment by a state prosecutor could constitute structural error, that is error that

renders a trial fundamentally unfair and not amenable to harmless error analysis. Marks,

2020 WL 1812267, at *4 n.2.

III. CONCLUSION For the foregoing reasons, we deny a COA and dismiss this appeal.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge