Marks v. Johnson

[2] UNITED STATES DISTRICT COURT [3] DISTRICT OF NEVADA [5] JOHN JOEY MARKS, Case No. 2:17-cv-01413-JCM-BNW [6] Petitioner, 7 ORDER v. [8] 9 CALVIN JOHNSON, et al., 10 Respondents. [12] 13 I. Summary 14 This action is a petition for writ of habeas corpus by John Joey Marks, an 15 individual incarcerated at Nevada’s High Desert State Prison. Marks is represented by 16 appointed counsel. The case is before the Court for resolution on its merits. The Court 17 will deny Marks’s petition and will deny him a certificate of appealability. 18 II. Background 19 On July 2, 2015, Marks was convicted, upon a guilty plea, in Nevada’s Eighth 20 Judicial District Court (Clark County), of robbery with use of a deadly weapon, and he 21 was sentenced, as a habitual offender, to 20 years in prison, with minimum parole 22 eligibility of 8 years. See Judgment of Conviction, Exh. 7 (ECF No. 29-7). Marks did not 23 appeal from the judgment of conviction. 24 Marks filed a pro se habeas petition in the state district court on March 30, 2016. 25 See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 14 (ECF No. 29-14). 26 The court denied Marks’s requests for appointment of counsel and for an evidentiary 27 hearing and denied his petition in a written order filed on August 9, 2016. See Findings 1 the Nevada Court of Appeals affirmed the denial of Marks’s petition on November 18, 2 2016. See Order of Affirmance, Exh. 40 (ECF No. 30-5). The court denied rehearing on 3 January 27, 2017. See Order Denying Rehearing, Exh. 42 (ECF No. 30-7). 4 This Court received a pro se petition for writ of habeas corpus from Marks, 5 initiating this action, on May 16, 2017. See Petition for Writ of Habeas Corpus (ECF No. 6 4). The Court granted Marks’s motion for appointment of counsel and appointed counsel 7 to represent him. See Order entered June 1, 2017 (ECF No. 3). With appointed counsel, 8 Marks filed a first amended petition on June 23, 2017 (ECF No. 7), and a second 9 amended petition on February 28, 2018 (ECF No. 20). In his second amended 10 petition—now his operative petition—Marks asserts the following grounds for relief: 11 1A. Marks’s guilty plea was not entered into knowingly, intelligently, or voluntarily, because of his low intellectual functioning, mental illness, and 12 traumatic brain injury. 13 1B. Marks’s guilty plea was not entered into knowingly, intelligently, or voluntarily, because his trial counsel placed undue pressure on him and 14 coerced him into accepting the State’s offer. 15 2. Marks was improperly sentenced as a habitual offender, because constitutionally invalid prior felony convictions were used to enhance his 16 sentence. 17 3A. Marks received ineffective assistance of his trial counsel because counsel advised him to plead guilty without a determination of his 18 competence. 19 3B. Marks received ineffective assistance of his trial counsel because counsel failed to adequately investigate his case. [20] 3C. Marks received ineffective assistance of his trial counsel because 21 counsel failed to challenge the prior convictions used to enhance his sentence. [22] 3D. Marks received ineffective assistance of his trial counsel because 23 counsel failed to consult with him regarding his right to appeal and failed to file a notice of appeal on his behalf. [24] 25 Second Amended Petition (ECF No. 20). 26 On August 29, 2018, Marks filed a motion for stay (ECF No. 36), conceding that 27 claims in his second amended petition were unexhausted in state court. Respondents 1 pending Marks’s further state-court proceedings. See Order entered September 19, 2 2018 (ECF No. 38). 3 Meanwhile, on April 13, 2018, Marks initiated a second state habeas action. See 4 Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 46 (ECF No. 30-11). The 5 state district court denied the petition in a written order filed on September 17, 2018. 6 See Findings of Fact, Conclusions of Law and Order, Exh. 66 (ECF No. 53-3). The 7 Nevada Court of Appeals affirmed on July 30, 2019, ruling that Marks’s petition was 8 procedurally barred. See Order of Affirmance, Exh. 62 (ECF No. 40-2). 9 The stay of this action was lifted on October 18, 2019. See Order entered 10 October 18, 2019 (ECF No. 41). Marks gave notice that further amendment of his 11 petition was unnecessary (ECF No. 42). 12 On July 17, 2020, Respondents filed a motion to dismiss (ECF No. 52), 13 contending that all Marks’s claims are barred by the procedural default doctrine. On 14 January 22, 2021, the Court denied the motion to dismiss, without prejudice to 15 Respondents asserting the procedural default defense in their answer. See Order 16 entered January 22, 2021 (ECF No. 63). 17 Respondents filed their answer on May 24, 2021 (ECF No. 70), and Marks filed 18 his reply on July 23, 2021 (ECF No. 72). 19 On May 27, 2022, the Court determined that supplemental briefing was called for 20 following the United States Supreme Court’s decision in Shinn v. Ramirez, 142 S. Ct. 21 1717 (2022); the Court granted the parties an opportunity to supplement their answer 22 and reply to address the effect of Ramirez in this case. See Order entered 23 May 27, 2022 (ECF No. 73). Respondents filed a supplement to their answer on 24 July 18, 2022 (ECF No. 79). Marks filed a supplemental reply on September 1, 2022 25 (ECF No. 84). 26 /// 27 /// 1 III. Discussion 2 A. Standard of Review [3] 28 U.S.C. § 2254 (d) (enacted as part of the Antiterrorism and Effective Death 4 Penalty Act of 1996 (AEDPA)) sets forth the standard of review generally applicable to 5 claims previously asserted and resolved on their merits in state court: 6 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with 7 respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ― [8] (1) resulted in a decision that was contrary to, or 9 involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the 10 United States; or 11 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the 12 evidence presented in the State court proceeding. [13] 28 U.S.C. § 2254 (d). A state court decision is contrary to clearly established Supreme 14 Court precedent, within the meaning of 28 U.S.C. § 2254 (d)(1), “if the state court 15 applies a rule that contradicts the governing law set forth in [the Supreme Court’s] 16 cases” or “if the state court confronts a set of facts that are materially indistinguishable 17 from a decision of [the Supreme Court] and nevertheless arrives at a result different 18 from [the Supreme Court’s] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) 19 (quoting Williams v. Taylor, 529 U.S. 362 , 405–06 (2000)). A state court decision is an 20 unreasonable application of clearly established Supreme Court precedent, within the 21 meaning of 28 U.S.C. § 2254 (d)(1), “if the state court identifies the correct governing 22 legal principle from [the Supreme Court’s] decisions but unreasonably applies that 23 principle to the facts of the prisoner’s case.” Lockyer, 538 U.S. at 75 (quoting Williams, [24] 529 U.S. at 413 ). The “unreasonable application” clause requires the state court 25 decision to be more than incorrect or erroneous; the state court’s application of clearly 26 established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 27 409). The analysis under section 2254(d) looks to the law that was clearly established 1 by United States Supreme Court precedent at the time of the state court’s decision. 2 Wiggins v. Smith, 539 U.S. 510, 520 (2003). 3 The Supreme Court has instructed that “[a] state court’s determination that a 4 claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 5 disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 6 U.S. 86 , 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The 7 Supreme Court has also instructed that “even a strong case for relief does not mean the 8 state court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. 9 at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (AEDPA standard is “a 10 difficult to meet and highly deferential standard for evaluating state-court rulings, which 11 demands that state-court decisions be given the benefit of the doubt” (internal quotation 12 marks and citations omitted)). 13 B. Procedural Default 14 In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails 15 to comply with the state’s procedural requirements in presenting his claims is barred by 16 the adequate and independent state ground doctrine from obtaining a writ of habeas 17 corpus in federal court. Coleman v. Thompson, 501 U.S. 722 , 731–32 (1991) (“Just as 18 in those cases in which a state prisoner fails to exhaust state remedies, a habeas 19 petitioner who has failed to meet the State’s procedural requirements for presenting his 20 federal claims has deprived the state courts of an opportunity to address those claims in 21 the first instance.”). Where such a procedural default constitutes an adequate and 22 independent state ground for denial of habeas corpus relief, the default may be excused 23 only if “a constitutional violation has probably resulted in the conviction of one who is 24 actually innocent,” or if the prisoner demonstrates cause for the default and prejudice 25 resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). 26 To demonstrate cause for a procedural default, the petitioner must “show that 27 some objective factor external to the defense impeded” his efforts to comply with the 1 impediment must have prevented the petitioner from raising the claim. See McCleskey 2 v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner 3 bears “the burden of showing not merely that the errors [complained of] constituted a 4 possibility of prejudice, but that they worked to his actual and substantial disadvantage, 5 infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis, [6] 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152 , 170 7 (1982)). 8 In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court held that ineffective 9 assistance of counsel, or the lack of counsel, in a state post-conviction proceeding, may 10 serve as cause, to overcome the procedural default of a claim of ineffective assistance 11 of trial counsel. In Martinez, the Supreme Court noted that it had previously held, in 12 Coleman, that “an attorney’s negligence in a postconviction proceeding does not 13 establish cause” to excuse a procedural default. Martinez, 566 U.S. at 15 . In Martinez, 14 however, the Supreme Court established an equitable exception to that rule, holding 15 that the absence or ineffective assistance of counsel at an initial-review collateral 16 proceeding may establish cause to excuse a petitioner’s procedural default of 17 substantial claims of ineffective assistance of trial counsel. See Martinez, 566 U.S. at 9 . 18 The Court described “initial-review collateral proceedings” as “collateral proceedings 19 which provide the first occasion to raise a claim of ineffective assistance at trial.” Id. 20 at 8. 21 In their motion to dismiss (ECF No. 52), Respondents asserted that all the claims 22 in Marks’s second amended habeas petition are procedurally defaulted. Marks, in turn, 23 argued that he can show cause and prejudice to overcome the procedural defaults on 24 account of his intellectual disability, which, according to Marks, rendered him unable to 25 comply with State procedural requirements, and, with respect to his claims of ineffective 26 assistance of trial counsel, under Martinez, because he did not have counsel in his first 27 state habeas action. See Opposition to Motion to Dismiss (ECF No. 56). The Court 1 claims, such that the procedural default issues would be better considered in 2 conjunction with the merits of the claims. The Court, therefore, denied the motion to 3 dismiss without prejudice to Respondents asserting procedural default as a defense to 4 Marks’s claims in their answer. See Order entered January 22, 2021 (ECF No. 63). 5 C. Ramirez and 28 U.S.C. § 2254 (e)(2) 6 In Shinn v. Ramirez, 142 S.Ct. 1718 (2022), the Supreme Court held that under [7] 28 U.S.C. § 2254 (e)(2), “a federal habeas court may not conduct an evidentiary hearing 8 or otherwise consider evidence beyond the state-court record based on ineffective 9 assistance of state postconviction counsel.” Ramirez, 142 S.Ct. at 1734. Section 10 2254(e)(2) applies when the petitioner “has failed to develop the factual basis of a claim 11 in State court proceedings.” 28 U.S.C. § 2254 (e)(2). Such failure “is not established 12 unless there is a lack of diligence, or some greater fault, attributable to the prisoner or 13 the prisoner’s counsel.” Ramirez, 142 S.Ct. at 1735. The Ramirez Court pointed out 14 that, under longstanding authority, a prisoner bears the risk of attorney error unless 15 counsel provides constitutionally ineffective assistance, and since there is no 16 constitutional right to counsel in state postconviction proceedings, “a prisoner ordinarily 17 must ‘bea[r] responsibility’ for all attorney errors during those proceedings.” Id. (quoting 18 Coleman, 501 U.S. at 754 ; Williams, 529 U.S. at 432 ). “Among those errors,” the Court 19 explained, “a state prisoner is responsible for counsel’s negligent failure to develop the 20 state postconviction record.” Id. Therefore, the Court held that in such a case, where the 21 petitioner’s postconviction counsel negligently failed to develop the factual basis of a 22 claim, § 2254(e)(2) applies, and a federal court may order an evidentiary hearing, or 23 otherwise expand the state-court record, only if the petitioner satisfies § 2254(e)(2)’s 24 stringent requirements. Id. Under § 2254(e)(2), a district court cannot hold an 25 evidentiary hearing unless (1) the claim relies on either a new rule of constitutional law 26 made retroactive by the Supreme Court to cases on collateral review or a factual 27 predicate that could not have been previously discovered through due diligence and 1 (2) the facts underlying the claim would establish by clear and convincing evidence that 2 but for constitutional error, no reasonable factfinder would have found the applicant 3 guilty. 28 U.S.C. § 2254 (e)(2). 4 In his supplemental reply, Marks argues that Ramirez did not disturb Martinez’s 5 holding that a petitioner may overcome the procedural default of a claim of ineffective 6 assistance of trial counsel by showing that he was without counsel in his state habeas 7 action, and that Ramirez did not involve the analysis of whether such a prisoner, who 8 was pro se in his state habeas action, failed to develop the factual basis for a claim 9 within the meaning of § 2254(e)(2). See Supplemental Reply (ECF No. 84), pp. 2–6. 10 The Court agrees: Ramirez involved the question whether a petitioner failed to develop 11 the factual basis of a claim in State court proceedings within the meaning of 12 § 2254(e)(2) where his counsel in those proceedings performed ineffectively; Ramirez 13 did not involve, and its holding does not affect, the question whether a petitioner like 14 Marks, who was pro se in his state habeas action, failed to develop the factual basis of 15 a claim in that action within the meaning of § 2254(e)(2). 16 In their supplemental briefing, the parties go on to disagree about whether Marks 17 failed, within the meaning of § 2254(e)(2), to develop the factual basis of his claims in 18 his first state habeas action. See Supplement to Respondents’ Answer (ECF No. 79), 19 pp. 6–8; Supplemental Reply (ECF No. 84), pp. 6–9. The Court determines, however, 20 that Marks was not at fault for not developing the factual basis of his claims in his first 21 state habeas action, that he was diligent in attempting to do so, and that, therefore, he 22 did not fail to do so within the meaning of § 2254(e)(2). In his petition in his first state 23 habeas action, Marks alleged that he suffered from mental illness and/or cognitive 24 deficits, that he was illiterate, and that he could not develop the factual basis of his 25 claims without counsel. See Petition for Writ of Habeas Corpus (Post-Conviction), 26 Exh. 14 (ECF No. 29-14); see also Transcript of Proceedings, May 11, 2016, Exh. 21 27 (ECF No. 29-21) (Marks’s sister, Helen Marks, informing court that Marks is “mentally 1 counsel in that action, but the state district court denied his requests, and he was forced 2 to proceed pro se. See Motion to Appoint Counsel, Exh. 12 (ECF No. 29-12); Notice of 3 Motion, Exh. 13 (ECF No. 29-13); Petition for Writ of Habeas Corpus (Post-Conviction), 4 Exh. 14 (ECF No. 29-14, pp. 8, 23–24, 30–31); Transcript of Proceedings, June 6, 5 2016, Exh. 23 (ECF No. 29-23), pp. 8–9 (Deputy Public Defender, conveying wishes of 6 Marks’s family, requesting appointment of counsel for Marks); Motion to Appoint 7 Counsel, Exh. 24 (ECF No. 29-24); Notice of Motion, Exh. 25 (ECF No. 29-25); Court 8 Minutes, July 11, 2016, Exh. 27 (ECF No. 29-27); Notice of Appeal, Exh. 28 (ECF No. 9 29-28) (appealing, in part, from denial of motion for appointment of counsel); Findings of 10 Fact, Conclusions of Law and Order, Exh. 30 (ECF No. 29-30), p. 7; Notice of Appeal, 11 Exh. 31 (ECF No. 29-31) (again, appealing, in part, from denial of motion for 12 appointment of counsel); Order Denying Defendant’s Motion to Appoint Counsel, Exh. 13 32 (ECF No. 29-32). Marks also requested an evidentiary hearing. See Petition for Writ 14 of Habeas Corpus (Post-Conviction), Exh. 14 (ECF No. 29-14, pp. 8, 23–24, 30–31). He 15 stated in his petition, in connection with his request for an evidentiary hearing: 16 The petitioner also requests to be appointed new counsel and an Evidentiary Hearing to cross examine his prior attorney in regards to her 17 failure to investigate the petitioner’s competency and mental stability by a psychological evaluation. The petitioner is not able to read or write and is 18 in need of appointed counsel to effectively do that. 19 Id. (ECF No. 29-14 at 23–24). The Court finds that, under all the circumstances as 20 reflected in the record of Marks’s first state habeas action, Marks was diligent in 21 requesting counsel and an evidentiary hearing and was not at fault for not being able to 22 develop the factual basis for his claims in that action. Therefore, the Court determines 23 that 28 U.S.C. § 2254 (e)(2) and Ramirez do not preclude Marks from presenting 24 evidence not developed in state court. 25 D. Ineffective Assistance of Counsel – Legal Standards 26 In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court 27 established a two-prong test for claims of ineffective assistance of counsel: the 1 objective standard of reasonableness,” and (2) that the attorney’s deficient performance 2 prejudiced the defendant such that “there is a reasonable probability that, but for 3 counsel’s unprofessional errors, the result of the proceeding would have been different.” 4 Strickland, 466 U.S. at 688, 694 . A court considering a claim of ineffective assistance of 5 counsel must apply a “strong presumption” that counsel’s representation was within the 6 “wide range” of reasonable professional assistance. Id. at 689 . The petitioner’s burden 7 is to show “that counsel made errors so serious that counsel was not functioning as the 8 ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687 . When the 9 claim is ineffective assistance of counsel in the context of a guilty plea, the Strickland 10 prejudice prong requires a petitioner to demonstrate “that there is a reasonable 11 probability that, but for counsel’s errors, he would not have pleaded guilty and would 12 have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). In analyzing a 13 claim of ineffective assistance of counsel under Strickland, a court may first consider 14 either the question of deficient performance or the question of prejudice; if the petitioner 15 fails to satisfy one element of the claim, the court need not consider the other. See 16 Strickland, 466 U.S. at 697 . 17 Where a state court previously adjudicated a claim of ineffective assistance of 18 counsel under Strickland, establishing that the decision was unreasonable is especially 19 difficult. See Harrington, 562 U.S. at 104–05. In Harrington, the Supreme Court 20 instructed: 21 Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards 22 created by Strickland and § 2254(d) are both highly deferential, [Strickland, 466 U.S. at 689 ]; Lindh v. Murphy, 521 U.S. 320, 333, n. 7 , [23] 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, [Knowles v. Mirzayance, 556 U.S. 111 , 123 24 (2009)]. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123 , 129 S.Ct. at 1420 . 25 Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under 26 § 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable 27 argument that counsel satisfied Strickland’s deferential standard. 1 Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987 , 994–95 2 (2010) (double deference required with respect to state court adjudications of Strickland 3 claims). 4 E. Knowing, Intelligent and Voluntary Nature of Guilty Plea 5 1. Alleged Low Intellectual Functioning, Mental Illness and Traumatic Brain Injury (Grounds 1A and 3A) [6] 7 In Ground 1A, Marks claims that his federal constitutional rights were violated 8 because his guilty plea was not entered into knowingly, intelligently and voluntarily, as a 9 result of his “low intellectual functioning, mental illness and traumatic brain injury.” 10 Second Amended Petition (ECF No. 20), pp. 5–10. In Ground 3A, Marks claims that his 11 federal constitutional rights were violated as a result of ineffective assistance of counsel 12 because his trial counsel “advised him to plead guilty without a determination of his 13 competence.” Id. at 14–19. 14 Marks did not assert in his first state habeas action the substantive claim in 15 Ground 1A, that his guilty plea was not knowing, intelligent and voluntary on account of 16 his low intellectual functioning, mental illness and traumatic brain injury. See Petition for 17 Writ of Habeas Corpus (Post-Conviction), Exh. 14 (ECF No. 29-14); Appellant’s 18 Opening Brief, Exh. 34 (ECF No. 29-34); Order of Affirmance, Exh. 40 (ECF No. 30-5). 19 That claim was first asserted in state court in Marks’s second state habeas action, and 20 the state courts ruled it procedurally barred in that case. See Petition for Writ of Habeas 21 Corpus (Post-Conviction), Exh. 46 (ECF No. 30-11); Findings of Fact, Conclusions of 22 Law and Order, Exh. 66 (ECF No. 53-3); Order of Affirmance, Exh. 62 (ECF No. 40-2). 23 The substantive claim in Ground 1A is therefore subject to denial as procedurally 24 defaulted unless Marks can show cause and prejudice relative to the procedural default. 25 In his first state habeas action, Marks did assert a claim similar to the claim of 26 ineffective assistance of trial counsel in Ground 3A. See Petition for Writ of Habeas 27 Corpus (Post-Conviction), Exh. 14 (ECF No. 29-14). The state district court denied relief 1 …. The district court found the record was devoid of any indication Marks was incompetent prior to and during the entry of his plea. Marks 2 informed the district court of his reading and writing disability and stated counsel had explained the contents of the written guilty plea agreement to 3 him. Marks’ alleged mental health issues did not necessarily render him incompetent to participate in the criminal proceedings. [4] * * * [5] …. The factual findings contained in the written order are supported 6 by the record and we conclude the district court did not err by denying Marks’ petition without appointing counsel. See NRS 34.750(1); Strickland 7 v. Washington, 466 U.S. 668, 687 (1984); Lader v. Warden, 121 Nev. 682, 686 , 120 P.3d 1164, 1166 (2005); Molina v. State, 120 Nev. 185, 192 , 87 8 P.3d 533, 538 (2004); Riker v. State, 111 Nev. 1316, 1325 , 905 P.2d 706 , 711–12 (1995). [9] 10 Order of Affirmance, Exh. 40, pp. 2–3 (ECF No. 30-5, pp. 3–4). 11 The federal constitution requires that a criminal defendant’s guilty plea must be 12 knowing, intelligent and voluntary. See Boykin v. Alabama, 395 U.S. 238 , 242–43 13 (1969); Brady v. United States, 397 U.S. 742, 747 (1970). “The standard was and 14 remains whether the plea represents a voluntary and intelligent choice among the 15 alternative courses of action open to the defendant.” Parke v. Raley, 506 U.S. 20 , 29 16 (1992) (citations and quotation marks omitted). A plea represents a voluntary and 17 intelligent choice among the defendant’s alternative courses of action where the record 18 shows that the defendant voluntarily waived his right to a jury trial, his right to confront 19 his accusers and his privilege against compulsory self-incrimination. Id.; Boykin, 395 20 U.S. at 242–43. 21 In justice court, at a hearing on April 22, 2015, at which Marks waived a 22 preliminary hearing and informed the court that he would enter a plea agreement and 23 plead guilty to robbery with use of a deadly weapon, the following exchange occurred: 24 MS. WESTMORELAND [Marks’s counsel]: Your Honor, we are going to go ahead and waive him up. He’s going to plead guilty to robbery 25 with use of a deadly weapon. He is going to stipulate to a large habitual stipulated 10-to-25 years. [26] Just, for the record, there is a possibility we may work something 27 out, but for right now, that is the current offer, as well as the State will not THE COURT: I mean I have no problem sending it up. What is 1 happening with his parole hold? 2 MS. WESTMORELAND: He’s already up there. 3 THE COURT: So this is going to have to run consecutive? 4 MS. WESTMORELAND: Right. I explained to him it's mandatory by the federal statute to be consecutive. [5] THE COURT: Okay, all right. I want to make sure we have a clean 6 record. 7 Sir, do you understand the offer? 8 THE DEFENDANT [Marks]: Yes, sir, I do. 9 THE COURT: Okay, did you have a chance to talk to your attorney about that? [10] THE DEFENDANT: Absolutely, sir. [11] THE COURT: Okay, do you wish to accept it? [12] THE DEFENDANT: Yes, sir, I wish to accept it. [13] THE COURT: Same thing as everybody else, I’m going to send 14 you up to the District Court. 15 Once you get up there, you get a copy of the actual Guilty Plea Agreement. Once you read that document and sign that document, that’s 16 when it becomes official. 17 THE DEFENDANT: Yes, sir. 18 THE COURT: If you change your mind between now and then, you will simply fight your case up in District Court. [19] Do you have any questions about that? [20] THE DEFENDANT: No, sir. [21] 22 Reporter’s Transcript, April 22, 2015, Exh. 5, pp. 2–4 (ECF No. 8-5, pp. 3–5). 23 Marks signed the guilty plea agreement on May 4, 2015. See Guilty Plea 24 Agreement, Exh. 7 (ECF No. 8-7). In the guilty plea agreement, Marks agreed to plead 25 guilty to robbery with use of a deadly weapon, and the parties stipulated that he would 26 be sentenced under Nevada’s “small habitual criminal” statute (NRS 207.010) to 8 to 20 27 years in prison, to run consecutive to his sentence in another case. Id. at 1 (ECF No. 81 7, p. 2). The guilty plea agreement listed the rights Marks was giving up by pleading 2 guilty. Id. at 4–5 (ECF No. 8-7, pp. 5–6). The guilty plea agreement also stated: 3 I have discussed the elements of all of the original charge(s) against me with my attorney and I understand the nature of the charge(s) 4 against me. 5 I understand that the State would have to prove each element of the charge(s) against me at trial. [6] I have discussed with my attorney any possible defenses, defense 7 strategies and circumstances which might be in my favor. 8 All of the foregoing elements, consequences, rights, and waiver of rights have been thoroughly explained to me by my attorney. [9] I believe that pleading guilty and accepting this plea bargain is in 10 my best interest, and that a trial would be contrary to my best interest. 11 I am signing this agreement voluntarily, after consultation with my attorney, and I am not acting under duress or coercion or by virtue of any 12 promises of leniency, except for those set forth in this agreement. 13 I am not now under the influence of any intoxicating liquor, a controlled substance or other drug which would in any manner impair my 14 ability to comprehend or understand this agreement or the proceedings surrounding my entry of this plea. [15] My attorney has answered all my questions regarding this guilty 16 plea agreement and its consequences to my satisfaction and I am satisfied with the services provided by my attorney. [17] 18 Id. at 5–6 (ECF No. 8-7, pp. 6–7). Additionally, the guilty plea agreement included a 19 certificate of counsel, signed by Marks’s counsel, which included the following: 20 1. I have fully explained to the Defendant the allegations contained in the charge(s) to which guilty pleas are being entered. [21] 2. I have advised the Defendant of the penalties for each charge and 22 the restitution that the Defendant may be ordered to pay. 23 * * * 24 4. All pleas of guilty offered by the Defendant pursuant to this agreement are consistent with the facts known to me and are made 25 with my advice to the Defendant. 26 5. To the best of my knowledge and belief, the Defendant: 27 a. Is competent and understands the charges and the 1 b. Executed this agreement and will enter all guilty pleas pursuant hereto voluntarily, and [2] c. Was not under the influence of intoxicating liquor, a 3 controlled substance or other drug at the time I consulted with the Defendant as certified in paragraphs 1 and 2 above. [4] 5 Id. at 7 (ECF No. 8-7, p. 8). 6 On that same day, May 4, 2015, Marks entered his guilty plea. Recorder’s 7 Transcript, May 4, 2015, Exh. 8 (ECF No. 8-8). Before accepting Marks’s plea, the 8 district court judge canvassed Marks as follows: 9 THE COURT: …. I do have a guilty plea agreement before me. It’s my understanding this defendant is going to plead guilty to robbery with 10 use of a deadly weapon, category B felony. Parties stipulate to small habitual treatment pursuant to NRS 207.010 with a sentence of eight to 11 twenty years in the Nevada Department of Corrections consecutive to his parole case. State will have no opposition to the dismissal of 15F04524X 12 after sentencing. Is that correct, State? 13 MS. CRAGGS [prosecutor]: Yes, your Honor. 14 THE COURT: Anything to add, counsel? 15 MS. WESTMORELAND [Marks’s counsel]: No, your Honor. 16 THE COURT: Is that your understanding, sir? 17 THE DEFENDANT [Marks]: Yes, your Honor. 18 THE COURT: What is your true name? 19 THE DEFENDANT: John Marks. 20 THE COURT: How old are you, sir? 21 THE DEFENDANT: I'm 48 years old. 22 THE COURT: How far did you go in school? 23 THE DEFENDANT: Fifth grade. 24 THE COURT: So you read, write, and understand the English language? [25] THE DEFENDANT: I understand the English language. I have a 26 problem reading and writing. I have a disability. 27 THE COURT: All right. Do you understand that you’re being THE DEFENDANT: Yes, ma’am. [1] THE COURT: How do you plead to that charge? [2] THE DEFENDANT: Guilty, ma’am. [3] THE COURT: Is anybody forcing you to plead guilty? [4] THE DEFENDANT: No, ma'am. [5] THE COURT: Are you pleading guilty of your own free will? [6] THE DEFENDANT: Yes, ma’am. [7] THE COURT: Do you understand as a consequence of your plea 8 the Court must sentence you to the Nevada Department of Corrections for a term not less than one year, not more than—I'm sorry. Not less than two 9 years, not more than 15 years, plus a consecutive term of not less than one year and not more than 15 years for the deadly weapon 10 enhancement; do you understand that, sir? 11 THE DEFENDANT: Yes, your Honor. 12 THE COURT: Do you understand that if you are sentenced under the small habitual criminal enhancement the Court must sentence you to a 13 term not less than five years, not more than 20 years, in the Nevada Department of Corrections? [14] THE DEFENDANT: Yes, I understand that. [15] THE COURT: Do you understand that you’ll be required to pay an 16 administrative assessment fee? 17 THE DEFENDANT: Yes, your Honor. 18 THE COURT: Do you understand this is a nonprobationable offense? [19] THE DEFENDANT: Yes, your Honor, I understand. [20] THE COURT: Do you understand that sentencing is strictly up to 21 the Court so nobody can promise you leniency or special treatment? 22 THE DEFENDANT: Yes, I understand, your Honor. 23 THE COURT: I have the original of your guilty plea agreement. Did you read through it? [24] THE DEFENDANT: Yes, your Honor. [25] THE COURT: Did you understand it? [26] THE DEFENDANT: Yes. My lawyer explained everything 27 to me. Yes, your Honor. 1 THE DEFENDANT: Yes, your Honor. 2 THE COURT: Showing you page six, is this your signature? 3 THE DEFENDANT: Yes, your Honor. 4 THE COURT: Did you sign it freely— 5 THE DEFENDANT: Yes. 6 THE COURT: —and voluntarily? 7 THE DEFENDANT: Yes, I did. 8 THE COURT: Do you understand by pleading guilty you’re giving up the constitutional rights listed in this agreement? [9] THE DEFENDANT: Yes, your Honor. [10] THE COURT: Do you understand that if you’re not a United States 11 citizen you may be deported based upon this guilty plea? 12 THE DEFENDANT: Oh, yes, your Honor, I understand. 13 THE COURT: Did you discuss your case and your rights with your attorney? [14] THE DEFENDANT: Yes, your Honor, I did. [15] THE COURT: Do you have any questions regarding your rights or 16 this negotiation? 17 THE DEFENDANT: No, your Honor. 18 THE COURT: Are you pleading guilty because in truth and in fact on or about March 16th, 2015, here in Clark County, Nevada, you willfully, 19 unlawfully, feloniously did take personal property, that being a food [card], from Rene Williams and/or Shawn Robinson, or in their presence by 20 means of force, or violence, or fear of injury to them, without their consent and against their wills, and you used a deadly weapon, that being a 21 firearm? 22 THE DEFENDANT: Yes, your Honor. 23 THE COURT: Court accepts your plea as being freely and voluntarily entered into. [24] 25 Id. at 2–6 (ECF No. 8-8, pp. 3–7). 26 “Solemn declarations in open court carry a strong presumption of verity.” 27 Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also United States v. Kaczynski, 239 1 carry “substantial weight”). Marks stated in court, without reservation, that he 2 understood the rights he was waiving and the consequences of his plea, and that he 3 was voluntarily pleading guilty. There was no indication to the contrary during either the 4 canvass in the justice court or the canvass in the state district court. Rather, Marks 5 answered the judges’ questions appropriately and lucidly, and indicated that he 6 knowingly, intelligently and voluntarily entered into the plea agreement and was 7 pleading guilty. See Tanner v. McDaniel, 493 F.3d 1135, 1146 (9th Cir.), cert. denied, [8] 552 U.S. 1068 (2007) (record of the plea hearing indicated that defendant “lucidly and 9 voluntarily decided to pleaded guilty” despite alleged depression); United States v. 10 Elmer, 395 Fed. App’x 401, 403 (9th Cir. 2010), cert. denied, 562 U.S. 1160 (2011) 11 (“Elmer’s claim that her plea was not knowing and voluntary is contradicted by the 12 record of the plea colloquy itself. The transcript reflects she understood the charges 13 against her and the consequences of her plea, was able to respond appropriately to 14 questions by the court, and was able to voice any concerns she had during the 15 hearing.”). The district court judge observed Marks at the plea hearing, gave no 16 indication that there was any reason to believe that Marks did not understand the 17 proceedings, and accepted his plea. “[F]indings made by the judge accepting the plea 18 constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge, [19] 431 U.S. at 74 . 20 Given this record, it was reasonable for the Nevada Court of Appeals to affirm 21 the denial of relief on Marks’s claim that his counsel was ineffective for advising him to 22 enter the plea agreement and plead guilty without a determination of his competence. 23 There was no evidence presented in Marks’s first state habeas action contradicting the 24 indications in the record that Marks’s plea was knowing, intelligent and voluntary. 25 Marks presents, in support of this claim of ineffective assistance of trial counsel, 26 evidence not presented in his first state habeas action. This new evidence includes: the 27 report of a neuropsychological evaluation of Marks conducted on November 22, 2017, 1 February 8, 2018, declaration of Marks’s sister, Helen Marks (Exh. 58 (ECF No. 21-11)); 2 medical/psychological records and court records from proceedings prior to the events 3 that gave rise to this case (Exhs. 39, 40, 41, 42, 43 44, 45, 46, 47, 48, 49 (ECF Nos. 21 4 and 22) (ECF No. 22 filed under seal)); and other records from around the time of the 5 events in this case and subsequent to those events tending to show that Marks suffers 6 from low intellectual functioning, mental illness and traumatic brain injury (Exhs. 50, 51, 7 53, 54, 55, 56, 59 (ECF Nos. 21 and 22) (exhibits at ECF No. 22 filed under seal)). 8 The parties agree that Marks’s presentation of the new evidence changes his 9 claim of ineffective assistance of counsel, such that, as presented now in this case, it is 10 a different claim from what was asserted in state court in Marks’s first state habeas 11 action. See Answer (ECF No. 70), p. 17 (“Marks failed to raise this claim in his first state 12 habeas petition.”); Reply (ECF No. 72), pp. 1–2. Marks asserted this claim, supported 13 by the new evidence, in his second state habeas action, but in that action the claim was 14 ruled procedurally barred. Therefore, the claim, as now presented, is subject to the 15 procedural default doctrine. Because Marks was not represented by counsel in his first 16 state habeas action, Martinez applies, and Marks satisfies the first part of the Martinez 17 analysis, in that the lack of counsel in Marks’s first state habeas action functions as 18 cause relative to the procedural default. The issue whether Marks can overcome the 19 procedural default of this ineffective assistance of counsel claim, therefore, comes down 20 to the question of prejudice, that is, whether the claim is substantial. See Martinez, 566 21 U.S. at 9. 22 In her report, Dr. Jones-Forrester does not opine on the question whether 23 Marks’s plea in 2015 was knowing, intelligent and voluntary. See Neuropsychological 24 Evaluation, Exh. 57 (ECF No. 22-14) (filed under seal). Rather, Dr. Jones-Forrester 25 states that her evaluation was requested “to assist in understanding [Marks’s] 26 neurocognitive and psychological functioning, as well as to examine his developmental 27 and psychosocial history to determine any clinical factors that may be pertinent to his 1 intellectual and mental-health issues, recounting her examination and testing of Marks, 2 and concluding that he suffers from low intellectual functioning and neurocognitive 3 deficits, Dr. Jones-Forrester states: 4 As noted in the understanding of legal charges and proceedings section on page one of the present report, John was noted to have 5 significant comprehension difficulties, clearly struggles with adequately understanding legal information, and is easily confused and overwhelmed. 6 While he has good rapport with his defense attorneys, his poor comprehension will make it difficult for him to identify when he needs 7 clarification of legal concepts and will also lead him to easily fail to appreciate the consequences of misunderstanding legal information. He 8 identified his charges as robbery with possession of a firearm, but was unable to identify the range of potential penalties related to his charges, 9 had a clear misunderstanding of court proceedings, and had a very concrete understanding of the roles played by various members of the 10 legal community. Additionally, his ability to clearly understand, follow, and appropriately navigate court procedural rules and deadlines will be very 11 compromised by his mild intellectual disability, illiteracy, and poor comprehension, all of which pose significant functional difficulties for him. 12 Ultimately, I am concerned that the above intellectual and neurocognitive deficits will pose a barrier to his ability to reasonably and rationally 13 understand legal proceedings, and to fully and actively cooperate in his defense with a reasonable degree of rational understanding. Each of the 14 above neurocognitive deficits are expected to be lifelong and are not amenable to restoration. John has been found permanently incompetent in 15 the past, and this is strongly consistent with his current presentation. Additionally, in a 01/05/01 Forensic Competency Evaluation, Dr. Paglini 16 recommended that John be referred for neuropsychological evaluation and to neurology to further examine his significant cognitive deficits, but 17 this does not appear to have been completed prior to the current neuropsychological evaluation. It is hoped that the present 18 neuropsychological evaluation provided here will be of assistance for the court in determining how his intellectual disability and deficits across 19 neurocognitive domains may impact his postconviction writ of habeas corpus. [20] 21 Id. at 8–9. Dr. Jones-Forrester makes no reference to Marks’s entry of his guilty plea in 22 2015, and she does not provide any analysis of whether that guilty plea could have 23 been, or was, knowing, intelligent and voluntary. Rather, her evaluation focuses on 24 Marks’s competence only in a more general sense and, for the most part, at a later time. 25 Dr. Jones-Forrester’s evaluation, while it has some marginal relevance to the question 26 of the knowing, intelligent and voluntary nature of Marks’s guilty plea, is largely 27 impertinent to that question, and it provides only minimal support for Marks’s claim. 1 The same goes for the rest of the new evidence Marks presents, including the 2 declaration of Marks’s sister (Exh. 58 (ECF No. 21-11)): while the new evidence may 3 show that he suffers from low intellectual functioning and mental illness, has suffered 4 traumatic brain injury, and has been found incompetent at some times and in some 5 contexts over the last two decades, Marks’s evidence does not show that his guilty plea 6 could not have been, or was not, knowing, intelligent and voluntary. 7 The issue whether Marks can overcome the procedural default of the ineffective 8 assistance of counsel claim in Ground 3A turns on the question of prejudice—that is, is 9 Marks’s ineffective assistance of counsel claim, as supported by the new evidence, a 10 substantial claim? The Court finds that it is not. While Marks presents evidence that 11 tends to show that he suffers from low intellectual functioning and mental illness, that he 12 has suffered traumatic brain injury, and that he has been found incompetent in the past, 13 none of those factors necessarily indicates that his guilty plea could not have been, or 14 was not, knowing, intelligent and voluntary, or that his counsel should not have advised 15 him to enter that plea without a determination of his competence. Marks does not show 16 prejudice resulting from his not asserting this claim, as now presented, in his first state 17 habeas action, so he does not overcome the procedural default of the claim. The 18 ineffective assistance of counsel claim in Ground 3A will be denied as procedurally 19 defaulted. 20 The Court comes to the same conclusion with respect to the substantive claim in 21 Ground 1A, that his guilty plea was not knowing, intelligent and voluntary. The Court 22 does not reach the question whether Marks establishes cause for the procedural default 23 of that claim on account of low intellectual functioning, mental illness or traumatic brain 24 injury; the Court determines that, whether or not he can show such cause, he does not 25 show prejudice, as the claim, as now presented, is not substantial. The claim in Ground 26 1A will be denied as procedurally defaulted. [27] 1 2. Alleged Coercion by Trial Counsel (Ground 1B) 2 In Ground 1B, Marks claims that his federal constitutional rights were violated 3 because his guilty plea was not entered into knowingly, intelligently and voluntarily, 4 because his trial counsel placed undue pressure on him and coerced him into accepting 5 the State’s offer. Second Amended Petition (ECF No. 20), pp. 10–12. 6 Marks did not assert this claim in his first state habeas action. See Petition for 7 Writ of Habeas Corpus (Post-Conviction), Exh. 14 (ECF No. 29-14); Appellant’s 8 Opening Brief, Exh. 34 (ECF No. 29-34); Order of Affirmance, Exh. 40 (ECF No. 30-5). 9 This claim was first asserted in state court in Marks’s second state habeas action, and 10 the state courts ruled it procedurally barred. See Petition for Writ of Habeas Corpus 11 (Post-Conviction), Exh. 46 (ECF No. 30-11); Findings of Fact, Conclusions of Law and 12 Order, Exh. 66 (ECF No. 53-3); Order of Affirmance, Exh. 62 (ECF No. 40-2). The claim 13 in Ground 1B is therefore subject to denial as procedurally defaulted unless Marks can 14 show cause and prejudice relative to the procedural default. 15 Marks supports this claim with much the same new evidence that he submits in 16 support of Ground 1A, that is, evidence that he suffers from low intellectual functioning 17 and mental illness, that he has suffered traumatic brain injury, and that he has been 18 found incompetent in the past. See Second Amended Petition (ECF No. 20), pp. 10–12; 19 Reply (ECF No. 72), pp. 12–14. 20 More specifically, Marks points out that Dr. Jones-Forrester stated in her report 21 that his “[a]daptive functioning deficits in the social domain include long-term 22 dependence on others…, being excessively trusting and vulnerable, and lacking self23 protective skills.” See Second Amended Petition (ECF No. 20), p. 11; Reply (ECF No. 24 72), p. 13 (quoting Neuropsychological Evaluation, Exh. 57 (ECF No. 22-14), p. 6 (filed 25 under seal)). That comment in Dr. Jones-Forrester’s report suggests that Marks might 26 have been, to some extent, vulnerable to coercion by his counsel, but it is not evidence 27 that his counsel did in fact improperly coerce him to plead guilty. Marks points to no 1 Furthermore, here again, Marks’s claim is contrary to his representations in the 2 plea agreement and in court. The plea agreement stated: 3 I am signing this agreement voluntarily, after consultation with my attorney, and I am not acting under duress or coercion or by virtue of any 4 promises of leniency, except for those set forth in this agreement. 5 Guilty Plea Agreement, Exh. 7, p. 5 (ECF No. 8-7, p. 6). And, in the canvass in the state 6 district court, the following exchanges occurred: 7 THE COURT: Is anybody forcing you to plead guilty? 8 THE DEFENDANT [Marks]: No, ma'am. 9 THE COURT: Are you pleading guilty of your own free will? 10 THE DEFENDANT: Yes, ma’am. 11 * * * 12 THE COURT: Did you sign it freely— 13 THE DEFENDANT: Yes. 14 THE COURT: —and voluntarily? 15 THE DEFENDANT: Yes, I did. 16 Recorder’s Transcript, May 4, 2015, Exh. 8, pp. 4–5 (ECF No. 8-8, pp. 5–6). Again, 17 “[s]olemn declarations in open court carry a strong presumption of verity.” Blackledge, [18] 431 U.S. at 74 ; see also Kaczynski, 239 F.3d at 1114–15. The Court determines that 19 the claim in Ground 1B is insubstantial within the meaning of Martinez, and Marks, 20 therefore, does not overcome the procedural default of the claim. The Claim in 21 Ground 1B is procedurally defaulted, and it will be denied on that ground. 22 The Court comes to the same conclusions if Grounds 1A and 1B are considered 23 together as one claim. Taken as one claim, the overall claim in Ground 1 that Marks’s 24 guilty plea was not knowing, intelligent and voluntary, as presented in this action, is not 25 substantial, and is subject to denial as procedurally defaulted. 26 F. Prior Felonies Used to Enhance Sentence (Grounds 2 and 3C) 27 In Ground 2, Marks claims that his federal constitutional rights were violated 1 invalid prior felony convictions were used to enhance his sentence. Second Amended 2 Petition (ECF No. 20), pp. 12–14. And, in Ground 3C, Marks claims he received 3 ineffective assistance of his trial counsel, because his counsel failed to challenge the 4 prior convictions used to enhance his sentence. Id. at 20–21. 5 Marks did not assert either of these claims in his first state habeas action. See 6 Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 14 (ECF No. 29-14); 7 Appellant’s Opening Brief, Exh. 34 (ECF No. 29-34); Order of Affirmance, Exh. 40 (ECF 8 No. 30-5). These claims were first asserted in state court in Marks’s second state 9 habeas action, and the state courts ruled them procedurally barred. See Petition for Writ 10 of Habeas Corpus (Post-Conviction), Exh. 46 (ECF No. 30-11); Findings of Fact, 11 Conclusions of Law and Order, Exh. 66 (ECF No. 53-3); Order of Affirmance, Exh. 62 12 (ECF No. 40-2). The claims in Grounds 2 and 3C are therefore subject to denial as 13 procedurally defaulted unless Marks can show cause and prejudice relative to the 14 procedural defaults. 15 The Court determines that Marks cannot show prejudice relative to the 16 procedural default of the claims in Grounds 2 and 3C, because the claims are not 17 substantial. 18 Under Nevada law, a certified copy of a felony conviction is prima facie evidence 19 of a prior conviction for purposes of adjudication of a defendant as a habitual criminal. 20 See NRS 207.016(5). And, also under Nevada law, for purposes of habitual criminal 21 sentencing, a criminal defendant may not challenge the validity of a prior conviction. 22 See NRS 207.016(3). 23 In Lackawanna County Dist. Att’y v. Coss, 532 U.S. 394 (2001), the Supreme 24 Court ruled that, in limited circumstances, a state prisoner may, through a federal 25 habeas petition, challenge a prior conviction used to enhance a sentence the petitioner 26 is currently serving. Coss, 532 U.S. at 403–06. Specifically, the Court ruled that a 27 habeas petitioner may challenge a prior conviction used to enhance a current sentence 1 appoint counsel in violation of the Sixth Amendment under Gideon v. Wainwright, 372 2 U.S. 335 (1963); or (2) the petitioner cannot be faulted for failing to obtain a timely 3 review of a constitutional claim regarding the prior conviction, either because the state 4 courts, without justification, refused to rule on the constitutional claim, or because the 5 petitioner uncovered “compelling evidence” of his innocence after the time for review of 6 the prior conviction expired and such evidence could not have been discovered in time 7 to support a timely challenge to the prior conviction. See Coss, 532 U.S. at 403–06. 8 Marks does not make a showing that this case fits within either of the exceptions 9 described in Coss. Marks does not allege that his constitutional right to appointment of 10 counsel was violated in either of the cases resulting in the prior convictions used to 11 enhance his sentence. See Second Amended Petition (ECF No. 20), pp. 12–14; Reply 12 (ECF No. 72), pp. 14–18. With respect to the second of the exceptions described in 13 Coss—newly discovered evidence—Marks argues: 14 Here, this is the first and only available forum for Marks to challenge the constitutionality of his prior convictions. His challenge to the 15 convictions used to enhance his sentence are based on an expert report written by Dr. Jones-Forrester, who found Marks’ intellectual disability to 16 be a life-long challenge to his ability to assist in his defense and understand legal proceedings. This is newly discovered and presented 17 evidence. Thus, this is the first time Marks could challenge the constitutionality of his prior convictions, which enhanced his sentence. [18] Reply (ECF No. 72), p. 17. The Court finds this argument to be without merit. [19] Dr. Jones-Forrester’s report provides no substantial support for Marks’s contention that [20] his prior convictions were unconstitutional. Furthermore, Marks does not demonstrate [21] that he could not have challenged his prior convictions in post-judgment actions in state [22] court, or why he could not have been examined by an expert like Dr. Jones-Forrester in [23] support of such challenges in such cases. The claim in Ground 2 is insubstantial, Marks [24] cannot show prejudice with respect to the procedural default of the claim, and the claim [25] will be denied as procedurally defaulted. [26] Regarding the ineffective assistance of counsel claim in Ground 3C, given that [27] state law precluded a challenge to Marks’s prior convictions, and given that there is no 1 showing that the gateway to such challenges under Coss was available, it was not 2 unreasonable for Marks’s trial counsel to refrain from attempting to challenge those prior 3 convictions, and Marks cannot show Strickland prejudice. This claim too, is 4 insubstantial; Marks cannot show prejudice with respect to the procedural default. The 5 claim in Ground 3C will be denied as procedurally defaulted. 6 G. Trial Counsel’s Investigation (Ground 3B) 7 In Ground 3B, Marks claims that his federal constitutional rights were violated on 8 account of ineffective assistance of his trial counsel because counsel failed to 9 adequately investigate his case. Second Amended Petition (ECF No. 20), pp. 19–20. 10 Marks asserted this claim in his first state habeas action. See Petition for Writ of 11 Habeas Corpus (Post-Conviction), Exh. 14, pp. 17–22 (ECF No. 29-14, pp. 25–30); 12 Appellant’s Opening Brief, Exh. 34 (ECF No. 29-34); Order of Affirmance, Exh. 40, p. 2 13 (ECF No. 30-5, p. 3). On the appeal in that action, the Nevada Court of Appeals ruled 14 as follows: 15 Marks’ claims that a more thorough investigation would have shown he was not attempting to rob the victims and the witnesses were unreliable 16 and untrustworthy were belied by the record. And Marks failed to show how a better investigation would have made a more favorable outcome 17 probable. 18 * * * 19 The factual findings contained in the written order are supported by the record and we conclude the district court did not err by denying Marks’ 20 petition without appointing counsel. See NRS 34.750(1); Strickland v. Washington, 466 U.S. 668, 687 (1984); Lader v. Warden, 121 Nev. 682 , 21 686, 120 P.3d 1164, 1166 (2005); Molina v. State, 120 Nev. 185, 192 , 87 R3d 533, 538 (2004); Riker v. State, 111 Nev. 1316, 1325 , 905 P.2d 706 , 22 711-12 (1995). 23 Order of Affirmance, Exh. 40, pp. 2–3 (ECF No. 30-5, pp. 3–4). 24 Applying the AEDPA standard of review, the Court determines that the Nevada 25 Court of Appeals’ ruling was reasonable. Marks’s claim was wholly conclusory; he did 26 not in state court make any showing what further investigation would have uncovered 27 that would have warranted Marks declining to enter the plea agreement. A fair-minded 1 failed to investigate further or that he was prejudiced. The Court will deny Marks habeas 2 corpus relief on the claim in Ground 3B. 3 H. Trial Counsel’s Alleged Failure to Advise Marks Regarding Appeal (Ground 3D) [4] 5 In Ground 3D, Marks claims that his federal constitutional rights were violated on 6 account of ineffective assistance of his trial counsel because his counsel failed to 7 consult with him regarding his right to appeal and failed to file a notice of appeal on his 8 behalf. Second Amended Petition (ECF No. 20), pp. 21–22. 9 Marks did not assert this claim in his first state habeas action. See Petition for 10 Writ of Habeas Corpus (Post-Conviction), Exh. 14 (ECF No. 29-14); Appellant’s 11 Opening Brief, Exh. 34 (ECF No. 29-34); Order of Affirmance, Exh. 40 (ECF No. 30-5). 12 This claim was first asserted in state court in Marks’s second state habeas action, and 13 the state courts ruled it procedurally barred. See Petition for Writ of Habeas Corpus 14 (Post-Conviction), Exh. 46 (ECF No. 30-11); Findings of Fact, Conclusions of Law and 15 Order, Exh. 66 (ECF No. 53-3); Order of Affirmance, Exh. 62 (ECF No. 40-2). The claim 16 in Ground 3D is therefore subject to denial as procedurally defaulted unless Marks can 17 show cause and prejudice relative to the procedural default. 18 The Strickland “test applies to claims ... that counsel was constitutionally 19 ineffective for failing to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470 , 477 20 (2000). In order to satisfy the first prong, the petitioner must make one of the following 21 showings: (1) that counsel “fail[ed] to follow the defendant’s express instructions with 22 respect to an appeal”; (2) that “a rational defendant would want to appeal” and counsel 23 did not consult with the defendant about appealing; or (3) that the defendant 24 “reasonably demonstrated to counsel that he was interested in appealing” and counsel 25 did not consult with the defendant. Id. at 478, 480 . The Flores-Ortega Court “reject[ed] a 26 bright-line rule that counsel must always consult with the defendant regarding an 27 appeal.” Id. at 480 . 1 Marks does not claim that he expressly instructed his counsel to initiate an 2 appeal or that he reasonably demonstrated to his counsel that he was interested in 3 appealing. See Second Amended Petition (ECF No. 20), pp. 21–22; Reply (ECF No. 4 72), pp. 28–29. He does argue, as follows, that, under the circumstances, his counsel 5 should have known that a rational defendant would have wanted to appeal: 6 Here, any rational defendant would want to appeal. Marks was sentenced to 8-20 years. Additionally, he’s been found incompetent 7 multiple times and was incompetent when he entered the guilty plea in the instant case (see [Grounds 1A and 3A] incorporated here); therefore, he 8 had [nonfrivolous] grounds for appeal. 9 Reply (ECF No. 72), p. 29. However, Marks’s claims that he was “incompetent when he 10 entered the guilty plea,” in Grounds 1A and 3A, are based on evidence from outside the 11 trial court record; Marks could not have properly asserted such claims on a direct 12 appeal. See Tabish v. State, 119 Nev. 293 , 312 n.53, 72 P.3d 584 , 596 n.53 (2003); 13 Hooper v. State, 95 Nev. 924, 926 , 604 P.2d 115, 116 (1979) (“Matters outside the 14 record on appeal may not be considered by an appellate court.”). Marks does not point 15 to any nonfrivolous ground for appeal that could have been asserted on a direct appeal 16 from his conviction. 17 Furthermore, in considering whether it was apparent that a rational defendant 18 would have wanted to appeal, the fact that Marks pleaded guilty is “a highly relevant 19 factor,” because it “reduces the scope of potentially appealable issues,” and because it 20 “may indicate that the defendant seeks an end to judicial proceedings.” Flores-Ortega, [21] 528 U.S. at 480 . 22 The plea agreement signed by Marks stated: [23] By entering my plea of guilty, I understand that I am waiving and 24 forever giving up the following rights and privileges: 25 * * * 26 6. The right to appeal the conviction with the assistance of an attorney, either appointed or retained, unless specifically reserved in [27] writing and agreed upon as provided in NRS 174.035(3). I understand this conviction, including any challenge based upon reasonable constitutional, [1] jurisdictional or other grounds that challenge the legality of the 2 proceedings as stated in NRS 177.015(4). However, I remain free to challenge my conviction through other post-conviction remedies including 3 a habeas corpus petition pursuant to NRS Chapter 34. 4 Guilty Plea Agreement, Exh. 7, pp. 4–5 (ECF No. 8-7, pp. 5–6). Marks told the state 5 district court judge that his counsel explained to him everything in the plea agreement 6 and that he understood it. See Recorder’s Transcript, May 4, 2015, Exh. 8, p. 5 (ECF 7 No. 8-8, p. 6). This is further reason why Marks’s counsel would not have believed that 8 a rational defendant would wish to appeal under the circumstances. 9 This claim is not substantial. Marks does not overcome the procedural default of 10 the claim under Martinez. Ground 3D will be denied as procedurally defaulted. 11 I. Certificate of Appealability 12 The standard for the issuance of a certificate of appealability requires a 13 “substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253 (c). The 14 Supreme Court has interpreted 28 U.S.C. § 2253 (c) as follows: 15 Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The 16 petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The 17 issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as 18 follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 19 COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the 20 denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. [21] 22 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074 , 23 1077–79 (9th Cir. 2000). 24 Applying the standard articulated in Slack, the Court finds that a certificate of 25 appealability is unwarranted. The Court will deny Marks a certificate of appealability. 26 /// 27 /// 1 || IV. Conclusion 2 IT IS THEREFORE HEREBY ORDERED that Petitioner's Second Amended 3 || Petition for Writ of Habeas Corpus (ECF No. 20) is DENIED. 4 IT IS FURTHER ORDERED that Petitioner is denied a certificate of appealability. 5 IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter 6 || judgment accordingly and close this case. [7] 8 DATED October 21, 2022. [9] 10 ee ites ©. Maltan JAMES C. MAHAN 11 UNITED STATES DISTRICT JUDGE