[00:00:07] Speaker 05:
Good morning, everyone, and welcome to the Ninth Circuit in Phoenix.

[00:00:11] Speaker 05:
I'm very pleased to be here with my colleagues, judges Tashima and Hawkins.

[00:00:16] Speaker 05:
And we've got five, let's see, four matters for argument today.

[00:00:22] Speaker 05:
A number of matters have been submitted.

[00:00:23] Speaker 05:
Before we get started, something I always say is that in the Ninth Circuit, there is no extra credit or bonus points for using all of your time.

[00:00:33] Speaker 05:
So if you've made your points,

[00:00:36] Speaker 05:
and the bench is quiet, it's okay to sit down.

[00:00:40] Speaker 05:
No issues with that whatsoever.

[00:00:43] Speaker 05:
And with that in mind, I'll go ahead and call the first matter, Marks versus Johnson.

[00:00:53] Speaker 00:
Good morning, Your Honors.

[00:00:57] Speaker 00:
May it please the court, Kimberly Sandberg with the Federal Public Defender's Office on behalf of John Marks.

[00:01:03] Speaker 00:
Can the court hear me okay?

[00:01:04] Speaker 05:
Yes.

[00:01:04] Speaker 00:
Okay.

[00:01:05] Speaker 00:
I would like to reserve two minutes of my time and I will keep an eye on the clock.

[00:01:08] Speaker 05:
Very well.

[00:01:10] Speaker 00:
Your honors, today I would like to focus my argument on the second claim in the brief.

[00:01:14] Speaker 00:
And that claim is whether Marks can overcome the procedural default of the ineffective assistance of counsel claim by showing cause and prejudice under Martinez v. Ryan.

[00:01:25] Speaker 00:
And I submit that Marx can make that showing here and that he overcomes the procedural default of that claim.

[00:01:32] Speaker 00:
I'll begin with cause, and I'll be very brief.

[00:01:35] Speaker 00:
Marx shows cause.

[00:01:37] Speaker 00:
Under Martinez, if a petitioner was pro se or without counsel during state habeas proceedings, he is able to show cause.

[00:01:45] Speaker 00:
Under Martinez, Marx did not have counsel during state habeas proceedings, and respondents have even agreed in their briefing that he shows cause.

[00:01:53] Speaker 00:
So the real question is whether he can show prejudice to overcome the procedural default of the IAC claim.

[00:02:00] Speaker 00:
Now to show prejudice, he merely needs to show that this claim has some merit.

[00:02:04] Speaker 00:
or that it is substantial.

[00:02:06] Speaker 00:
He does not have to show that he will ultimately prevail on the merits of this ineffective assistance of counsel claim, but he merely needs to show that the claim is substantial, and I submit that he can show that this claim is substantial.

[00:02:20] Speaker 00:
He can make a substantial showing that his attorney's failure to request a competency evaluation or to investigate his mental health issues was deficient performance,

[00:02:31] Speaker 00:
And he can show prejudice and that he was incompetent when he pled guilty.

[00:02:36] Speaker 00:
And therefore his plea was not knowing voluntary.

[00:02:39] Speaker 04:
Let me client is sort of a frequent flyer in the criminal justice system.

[00:02:44] Speaker 04:
Would you admit?

[00:02:44] Speaker 04:
Absolutely.

[00:02:46] Speaker 04:
Yes.

[00:02:46] Speaker 04:
And on at least two occasions, uh, mental health experts who first thought he was not competent later concluded that he was.

[00:02:59] Speaker 04:
And at least one of those experts was pretty sure he was malingering.

[00:03:04] Speaker 00:
That's true, Your Honor.

[00:03:05] Speaker 00:
And that really is a big issue in this case, is back in 2010, 2011, there's this issue of, was John Marks malingering?

[00:03:15] Speaker 00:
But I would like to address that in two ways, if I can.

[00:03:20] Speaker 00:
I think the second way is probably really the crux of the matter, but I think I would like to touch on something that's important before we get to my second point.

[00:03:29] Speaker 00:
It's true that some of the evaluators who found him incompetent then changed their opinion.

[00:03:35] Speaker 00:
It was after hearing some jail calls between him and his family.

[00:03:39] Speaker 00:
But I would like to point out to this court that at least one of the evaluators who found Marx incompetent then heard the jail calls and still found him incompetent.

[00:03:49] Speaker 00:
I point that out because while the jail calls don't sound great as they're written in the reports of the evaluators, it's a subjective opinion of these doctors.

[00:04:01] Speaker 00:
So there was at least one evaluator who found him incompetent, heard the jail calls, and then still found Marks incompetent despite what was said on these jail calls between him and his family.

[00:04:12] Speaker 00:
Now I wish we had these jail calls, we don't, it's not for lack of trying, but I would urge this court to remember that it is the subjective interpretation of the evaluators.

[00:04:23] Speaker 00:
Now the second way I'd like to respond to that is that, let's just say hypothetically, and I'm not conceding this, but let's say hypothetically Marks was malingering and was competent in 2011.

[00:04:35] Speaker 00:
That does not equal competence in 2015.

[00:04:38] Speaker 00:
These are two different time periods, and Marx was going through something very different in 2015 than he was in 2011.

[00:04:46] Speaker 00:
So in 2015, we know that Marx was intellectually disabled.

[00:04:50] Speaker 00:
He always has been.

[00:04:51] Speaker 00:
This is a lifelong intellectual disability.

[00:04:54] Speaker 00:
In 2001, his IQ was, his full-scale IQ was 60.

[00:04:58] Speaker 00:
In 2017, 16 years later, his full-scale IQ was 64.

[00:05:03] Speaker 00:
So we know that his IQ is somewhere between 60 and 64 over a 16-year period.

[00:05:09] Speaker 00:
He had also been on social security for an intellectual disability since at least 2001.

[00:05:13] Speaker 00:
And so we know he's intellectually disabled.

[00:05:17] Speaker 00:
But in addition, in 2015, he was going through a complete mental health crisis.

[00:05:23] Speaker 00:
And the medical records leading up to his arrest show that.

[00:05:28] Speaker 00:
And then the records from the Clark County

[00:05:31] Speaker 00:
jail show that he was never medicated.

[00:05:34] Speaker 03:
Would you tell me what you mean when you say a complete mental health crisis?

[00:05:39] Speaker 00:
Yes.

[00:05:40] Speaker 00:
If I can, I'll walk the court through what was going on with Mr. Marks prior to his arrest and prior to his guilty plea.

[00:05:46] Speaker 00:
So he was arrested in March of 2015.

[00:05:49] Speaker 00:
Starting in January of 2015, two months before he was arrested, he was in and out of psychiatric hospitals nonstop for two months.

[00:06:01] Speaker 00:
So beginning in January, he was involuntarily admitted to a psychiatric hospital.

[00:06:06] Speaker 00:
He was held for medical stabilization.

[00:06:09] Speaker 00:
He was deemed to have schizophrenia, auditory hallucinations, and he was also deemed to have cognitive deficits.

[00:06:15] Speaker 00:
Once he was stabilized, he was able to leave that hospital.

[00:06:21] Speaker 00:
Less than a week later, he was involuntarily admitted to another psychiatric facility where he was held for medical stabilization.

[00:06:28] Speaker 00:
Once he was stabilized,

[00:06:30] Speaker 00:
he was discharged.

[00:06:31] Speaker 00:
And this went on and on and on.

[00:06:33] Speaker 00:
For two months, he was admitted five times involuntarily as a danger to himself or others.

[00:06:40] Speaker 00:
And in this two-month period, there was really only about a week at a time that he would be out of a psychiatric facility, and then he would be readmitted, put back on his medication, stabilized, and discharged.

[00:06:54] Speaker 00:
At the end of February of 2015 was his final discharge,

[00:06:58] Speaker 00:
And then in March 6, 2015, he was arrested.

[00:07:01] Speaker 00:
Upon arrest, he started immediately crying.

[00:07:06] Speaker 00:
And he asked the police officer if he could speak to his doctor, not a lawyer.

[00:07:10] Speaker 00:
He started crying and asked to speak to his doctor.

[00:07:14] Speaker 00:
Then when the officer asked him questions about this, he began babbling incoherently.

[00:07:19] Speaker 00:
So this is obviously a man going through a complete mental breakdown.

[00:07:25] Speaker 00:
Once he was booked into the jail,

[00:07:27] Speaker 00:
He had a violent outburst in booking for no reason.

[00:07:32] Speaker 00:
He began fighting another inmate and he was put in disciplinary custody.

[00:07:37] Speaker 00:
He was jailed for two months before he pled guilty.

[00:07:39] Speaker 00:
He was never once seen by a psychiatrist during that time, even though he was asking to be put back on his psych medication.

[00:07:48] Speaker 00:
So he pled guilty, never having seen a psychiatrist.

[00:07:52] Speaker 00:
He was sentenced never having seen a psychiatrist.

[00:07:55] Speaker 00:
And then after sentencing is the first time at the jail that he was seen by a psychiatrist.

[00:08:01] Speaker 00:
And when he was seen by that psychiatrist, he was put on psychiatric medication.

[00:08:06] Speaker 00:
Back to my original point, even though he was, again, hypothetically, let's say he was competent in 2011, let's say he was malingering in 2011, that does not equal competence in 2015 when he was an intellectually disabled man going through a complete mental health breakdown.

[00:08:24] Speaker 05:
A quick question for you on the standard review.

[00:08:26] Speaker 05:
So for the IAC claim prejudice, are you saying it's de novo review or are you saying, or do we have to apply EDPA?

[00:08:33] Speaker 00:
No, no, this is de novo review.

[00:08:35] Speaker 00:
This is about the procedural default.

[00:08:36] Speaker 00:
There is no merits ruling on this claim.

[00:08:39] Speaker 05:
On the IAC prejudice that the state courts have not ruled on that?

[00:08:42] Speaker 05:
Correct.

[00:08:44] Speaker 00:
Okay.

[00:08:44] Speaker 00:
And, Your Honors, I see that I'm at the two-minute mark.

[00:08:47] Speaker 00:
Thank you.

[00:08:47] Speaker 05:
You got it.

[00:09:03] Speaker 01:
Good morning, Your Honors.

[00:09:04] Speaker 01:
My name is Jerry Lynn Hardcastle from the Attorney General's Office of the State of Nevada, and I represent the respondents in this matter.

[00:09:12] Speaker 01:
And like my colleague, I'd like to start with the IAC claim.

[00:09:16] Speaker 01:
As Ms.

[00:09:17] Speaker 01:
Sandberg said, we do agree that Mr. Martinez, or that, I apologize, that Mr. Marks shows cause under Martinez to overcome the procedural default because he was not represented by counsel.

[00:09:30] Speaker 01:
However, we disagree

[00:09:33] Speaker 01:
with Mr. Marks in that this claim is not substantial.

[00:09:38] Speaker 01:
The evidence before this court shows that Mr. Marks was malingering.

[00:09:46] Speaker 01:
There were medical, mental health experts that said he was definitely malingering.

[00:09:51] Speaker 01:
Current?

[00:09:54] Speaker 01:
Current evaluations that said that?

[00:09:57] Speaker 01:
They were the evaluations from

[00:10:00] Speaker 01:
from 2010-2011 when he was last before the court.

[00:10:06] Speaker 01:
Council in this case, in the underlying case, did not seek a competency evaluation and according to this court's standard in Davis v. Woodford, or I apologize your honor, Woodford v. Williams, the court is not required to conduct

[00:10:29] Speaker 01:
a competency evaluation unless there is a bona fide doubt.

[00:10:34] Speaker 01:
And council silence on the matter of competency also goes towards

[00:10:42] Speaker 01:
whether there is a bona fide doubt.

[00:10:44] Speaker 01:
Here, counsel did not have a bona fide doubt that he was competent.

[00:10:51] Speaker 01:
Mr. Mark's demeanor in conversations with counsel did not indicate that she needed to seek competency evaluation of Mr. Mark's.

[00:11:04] Speaker 01:
My opposing counsel argues that competency in 2011 does not equal competency in 2015.

[00:11:13] Speaker 01:
However, the record does not show that Mr. Marks was incompetent in 2015.

[00:11:23] Speaker 01:
Counsel points to Mr. Marks being in and out of psychiatric hospitals in January, but as counsel concedes,

[00:11:34] Speaker 01:
he was stabilized and released.

[00:11:38] Speaker 01:
Counsel also points to Mr. Marks crying after being arrested and asking to speak to a doctor.

[00:11:46] Speaker 01:
The record shows from the arrest reports that Mr. Marks started crying, he became upset, said that he was in a lot of trouble now, and he asked to speak to a doctor.

[00:12:01] Speaker 01:
This is not an indication

[00:12:04] Speaker 01:
of incompetency.

[00:12:06] Speaker 01:
Apparently Mr. Marks would prefer to speak to a doctor than to a lawyer at that time.

[00:12:13] Speaker 01:
Crying upon arrest certainly doesn't indicate incompetency.

[00:12:18] Speaker 01:
I'm sure he's not the first individual to be arrested, especially given his long criminal history record, and to start crying.

[00:12:28] Speaker 04:
What did his trial defense counsel

[00:12:32] Speaker 04:
say about not seeking an evaluation before a plea was entered?

[00:12:40] Speaker 01:
Well, because this is a Martinez claim, there was never an evidentiary hearing on the matter, so counsel has not testified to that.

[00:12:48] Speaker 01:
So we don't know.

[00:12:50] Speaker 01:
Correct.

[00:12:50] Speaker 01:
We don't know.

[00:12:51] Speaker 01:
And Mr. Marks fails to overcome the presumption that counsel acted reasonably here.

[00:13:01] Speaker 04:
Given his history, why wouldn't reasonably competent trial defense counsel have sought an evaluation?

[00:13:11] Speaker 04:
What harm would have occurred by requesting such an evaluation?

[00:13:18] Speaker 01:
Your Honor, there would have been no harm in requesting it as far as why counsel didn't request the hearing.

[00:13:25] Speaker 04:
You know, in law school, I had this professor that used to use the Latin phrase, a fortiori.

[00:13:31] Speaker 04:
which means even more so.

[00:13:34] Speaker 04:
Doesn't the fact that no harm would result argue in favor of saying that counsel should have?

[00:13:45] Speaker 01:
Even if it does, Your Honor, Mr. Marks, besides showing deficient performance, must also show prejudice.

[00:13:55] Speaker 01:
Here, that is an insubstantial claim because Marks does not show prejudice.

[00:14:01] Speaker 01:
However, there's also no evidence in the record that counsel was aware of Mark's prior competency hearings.

[00:14:12] Speaker 04:
What does that say about his competency?

[00:14:16] Speaker 01:
About counsel's competency?

[00:14:19] Speaker 01:
Yeah.

[00:14:19] Speaker 01:
Well, Your Honor, there's no case law that puts an obligation upon a criminal defense attorney to investigate the defendant's prior cases.

[00:14:33] Speaker 05:
I think, counsel, I want to make sure we're keeping the two buckets separate here.

[00:14:36] Speaker 05:
I think we all agree that cause, you concede cause.

[00:14:41] Speaker 05:
So the question is, is that what is the evidence that he, in fact, was not competent, correct?

[00:14:48] Speaker 05:
That's really our inquiry here.

[00:14:49] Speaker 05:
Not whether the lawyer should have done something.

[00:14:50] Speaker 05:
The lawyer didn't do it.

[00:14:51] Speaker 05:
We all agree the lawyer didn't do it.

[00:14:53] Speaker 05:
So the inquiry here is what is there in the record to suggest that he was not competent when he entered the plea?

[00:15:00] Speaker 05:
Is that what we're looking at here?

[00:15:01] Speaker 01:
Yes.

[00:15:03] Speaker 01:
Mr. Marks, besides showing deficient performance, must show prejudice, and he has not shown that he was incompetent when he entered a plea.

[00:15:12] Speaker 05:
And for that point, I take it you would point us to, for example, the change of plea hearing?

[00:15:19] Speaker 01:
Yes, Your Honor.

[00:15:20] Speaker 05:
Correct.

[00:15:21] Speaker 05:
Again, so we're clear here.

[00:15:22] Speaker 05:
When we look at whether someone was competent at the time they entered their plea, the first place we usually look to is the transcript of the change of plea hearing.

[00:15:31] Speaker 05:
And did the defendant answer the questions, and did it seem to be competent?

[00:15:35] Speaker 01:
Yes, you did.

[00:15:36] Speaker 01:
There is nothing in the record, nothing in Mr. Mark's demeanor, in his answers.

[00:15:43] Speaker 01:
Nothing shows that he was incompetent, that he didn't understand the proceedings, or as the U.S.

[00:15:51] Speaker 01:
Supreme Court has established, there is nothing that shows he was not able

[00:15:56] Speaker 01:
able to consider the alternative choices among him.

[00:16:00] Speaker 05:
So you would point us to the change of plea hearing, correct?

[00:16:02] Speaker 01:
Yes, Your Honor.

[00:16:03] Speaker 05:
You'd point us to the arraignment or the, I'm sorry, the waiver of the preliminary.

[00:16:08] Speaker 05:
He answered some questions there, correct?

[00:16:10] Speaker 01:
Yes.

[00:16:10] Speaker 05:
Is there anything else you'd point us to to show like where he actually demonstrated competency?

[00:16:17] Speaker 01:
Well, yes, Your Honor, we can look to the prior indications of competency, where he was found to be malingering, overwhelmingly found to be malingering.

[00:16:31] Speaker 01:
And yes, that is the evaluator's subjective opinion, but that's why we have those evaluators, to make those subjective opinions, to make recommendations to the court.

[00:16:43] Speaker 01:
And then the court would ultimately have

[00:16:47] Speaker 01:
have decided whether he was incompetent had such a hearing been sought.

[00:16:54] Speaker 01:
But because of the overwhelming evidence against Mr. Marks, he cannot show prejudice because he can't show that but for counsel's error, he would not have entered a guilty plea.

[00:17:10] Speaker 02:
What about, I think, you know, I think this is the case.

[00:17:15] Speaker 02:
When it's put under questioning,

[00:17:17] Speaker 02:
He asked for a doctor, which is unusual, most competent defense would ask for a lawyer.

[00:17:26] Speaker 02:
Is there any significance to that?

[00:17:29] Speaker 01:
Your Honor, I don't believe there is significance to that.

[00:17:32] Speaker 01:
As Ms.

[00:17:32] Speaker 01:
Sandberg pointed out, he had been in psychiatric hospitals, and of course he was stabilized before released, but there is

[00:17:42] Speaker 01:
a likelihood that he had a better relationship with doctors, that he had built a relationship of trust with doctors, whereas at that time he didn't have a relationship of trust with a certain attorney.

[00:17:55] Speaker 01:
Also, it's possible that that was malingering as well.

[00:18:00] Speaker 01:
You know, the doctors overwhelmingly concluded that he was malingering and that he feigned incompetence for the purpose of a secondary gain.

[00:18:13] Speaker 05:
Okay, so your point is to the transcripts I mentioned, maybe the sentencing transcript, and then there's this history, you would say, that whenever he kind of gets cornered, he says he's incompetent.

[00:18:26] Speaker 05:
And we can kind of look at that past to try to review the transcripts.

[00:18:29] Speaker 05:
I just want to make sure I understand your argument, because I'm going to be asking opposing counsel why you're right or why you're wrong.

[00:18:35] Speaker 01:
Correct, Your Honor.

[00:18:36] Speaker 01:
And the other issue is the January 2000

[00:18:41] Speaker 01:
15 psychiatric hospital records are not the best evidence of Mr. Marks' competence.

[00:18:52] Speaker 01:
The respondents do not dispute that Mr. Marks has low intellectual functioning or that he's had mental health issues.

[00:19:01] Speaker 01:
But the records from the psychiatric hospital do not state whether he was incompetent to proceed in a legal matter, nor could they, because that is an entirely different analysis.

[00:19:17] Speaker 01:
Your honors, if there are no further questions, I see that my time is expiring.

[00:19:24] Speaker 01:
And ask that this court affirm.

[00:19:26] Speaker 05:
Thank you, counsel.

[00:19:27] Speaker 01:
Thank you.

[00:19:36] Speaker 00:
Your Honors, I'll address respondent's argument that Mr. Marks cannot show prejudice.

[00:19:42] Speaker 00:
I argue there's a reasonable probability that he was not competent when he pled guilty.

[00:19:48] Speaker 00:
First, I'd like to address this sense that he answered questions in transcripts on the record.

[00:19:55] Speaker 00:
There's only one transcript of Mr. Marks answering questions, and that's when he pled guilty.

[00:20:01] Speaker 00:
The waiver of preliminary hearing was not done on the record.

[00:20:04] Speaker 00:
That was simply a signature.

[00:20:06] Speaker 00:
The transcript where he pled guilty is, I want to say, I don't remember exactly, but approximately two pages long.

[00:20:14] Speaker 00:
He answers yes or no questions, and he even tells the court at one point that he has a fifth grade education, and he says that he has some intellectual problems.

[00:20:26] Speaker 00:
Now, the court at that point, we would hope, would ask some more probing questions, but the court did not do that.

[00:20:31] Speaker 00:
It was a litany of yes or nos.

[00:20:33] Speaker 05:
Let me just jump in, counsel, because I have a transcript here

[00:20:36] Speaker 05:
of the waiver of prelim, April 22, 2015.

[00:20:39] Speaker 05:
And it looks like the defendant's being asked questions.

[00:20:45] Speaker 05:
I just want to make sure.

[00:20:45] Speaker 05:
ER 1123 through 26.

[00:20:52] Speaker 05:
Ask if do you waive?

[00:20:53] Speaker 05:
Do you understand what's going on?

[00:20:54] Speaker 05:
Do you have any questions?

[00:20:56] Speaker 05:
Did you talk to your lawyer?

[00:20:57] Speaker 00:
Your Honor, I apologize.

[00:20:58] Speaker 00:
That is correct.

[00:20:59] Speaker 00:
That is correct.

[00:21:00] Speaker 00:
No, continue.

[00:21:04] Speaker 00:
So those two transcripts, again, they're very short.

[00:21:08] Speaker 00:
We hardly hear from Mr. Marks ever in this record.

[00:21:12] Speaker 00:
Now, as to respondents' argument that these psychiatric visits before his arrest didn't deem him incompetent, of course they didn't.

[00:21:22] Speaker 00:
They were not competency evaluators.

[00:21:25] Speaker 00:
But what they did note was that he was in a state of psychosis, and the psychiatrist, without prompting, did note his cognitive deficits.

[00:21:35] Speaker 00:
They were not there to evaluate him for competency.

[00:21:38] Speaker 00:
Of course, he wasn't facing criminal charges at that time.

[00:21:41] Speaker 00:
But they were there to evaluate him.

[00:21:43] Speaker 00:
And unprompted, numerous psychologists noted that he had cognitive deficits, that he had an inability to really give a good historical past, and that his knowledge was very limited.

[00:21:55] Speaker 00:
He was not malingering.

[00:21:56] Speaker 00:
He wasn't facing charges during this time.

[00:21:58] Speaker 00:
He wasn't faking it.

[00:21:59] Speaker 00:
There was no reason for him to do this.

[00:22:01] Speaker 00:
He was being involuntarily admitted in and out of psychiatric facilities just prior to arrest.

[00:22:07] Speaker 00:
And then upon arrest and upon being jailed before his guilty plea, he never once was seen by a psychiatrist.

[00:22:15] Speaker 00:
He wasn't seen by a psychiatrist until after sentencing.

[00:22:18] Speaker 00:
I submit that this all shows a reasonable probability that he was not competent when he pled guilty, at least such that it shows that this claim is substantial and that Marx overcomes the procedural default.

[00:22:29] Speaker 00:
I ask that this court find that he overcome the procedural default and grant

[00:22:35] Speaker 00:
the petition in his favor or if this court feels that more factual finding is necessary to remand to the district court for an evidentiary hearing.

[00:22:44] Speaker 05:
Thank you very much, counsel.

[00:22:45] Speaker 05:
Thank you both for your briefing and argument.

[00:22:46] Speaker 05:
This matter is submitted.