Marks v. Cline ( 2021 )

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This order is not binding precedent except under the doctrines of law of the case,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
9