                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 17 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SAMUEL ISAAC MARQUEZ,                            No.   16-15634

              Petitioner-Appellant,              D.C. No.
                                                 3:08-cv-00647-LRH-VPC
 v.

JO GENTRY, Warden and ATTORNEY                   MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                     Argued and Submitted December 6, 2017
                            San Francisco, California

Before: GRABER and N.R. SMITH, Circuit Judges, and ZIPPS,** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
       Samuel Marquez appeals the district court’s denial of habeas corpus relief

for his jury conviction for first-degree murder with a deadly weapon. We have

jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

       1. The district court did not err in denying Marquez’s claim that the Nevada

state district court’s refusal to give an insanity instruction1 violated his due process

rights. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), habeas

relief for a state court judgment may only be granted if the adjudication “resulted

in a decision that was contrary to, or involved an unreasonable application of,

clearly established federal law, as determined by the Supreme Court of the United

States” or “resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the state court proceeding.” 28

U.S.C. § 2254(d); see also Harrington v. Richter, 562 U.S. 86, 100 (2011). Neither

is present in this case.

       There is no federal right to present an insanity defense. Medina v.California,

505 U.S. 437, 449 (1992); Clark v. Arizona, 548 U.S. 735, 752 n.20 (2006). Thus,

we are bound by the decisions of state courts interpreting the state law affirmative

defense of insanity. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Gilmore v.


       1
         We decline to address Marquez’s claim regarding a diminished capacity
instruction as the Certificate of Appealability did not grant him a right to appeal
that issue. 28 U.S.C. § 2253(c)(3); Ninth Rule 22-1(e).
                                            2
Taylor, 508 U.S. 333, 342 (1993) (“[I]nstructions that contain errors of state law

may not form the basis for federal habeas relief.”); Bradshaw v. Richey, 546 U.S.

74, 76 (2005). Further, the extent of the right to present a “complete defense”

under federal law does not extend to “restrictions imposed on a defendant’s ability

to present an affirmative defense,” but only the “exclusion of evidence” and the

“testimony of defense witnesses.” Gilmore, 508 U.S. at 343-44; see also Estelle,

502 U.S. at 71-72 (“[T]he fact that the instruction was allegedly incorrect under

state law is not a basis for habeas relief.”).2 As such, there was no “unreasonable

application” of clearly established federal law, nor an unreasonable determination

of the facts. 28 U.S.C. § 2254(d). The Nevada Supreme Court held that the state


      2
         The dissent makes three errors. First, the dissent cites Bradley v. Duncan,
315 F.3d 1091 (9th Cir. 2002), as controlling precedent. Bradley neither cites nor
examines the United States Supreme Court precedent directly on point, namely
Estelle, 502 U.S. at 71-72, and Gilmore, 508 U.S. at 343-44. As required in habeas
review, we must follow the Supreme Court’s precedent to resolve this case. 28
U.S.C. § 2254(d) (requiring a state court decision that was “an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” for habeas review (emphasis added)); Harrington, 562
U.S. at 100. Second, both United States v. Johnson, 459 F.3d 990 (9th Cir. 2006),
and the primary case relied upon by the Bradley panel, Mathews v. United States,
485 U.S. 58 (1988), are direct appeals from a federal district court, not habeas
cases reviewing: (1) a state trial; or (2) the applicability of a state defense not
recognized in federal law. Finally, Bradley used a pre-AEDPA case, Conde v.
Henry, 198 F.3d 734 (9th Cir. 1999), to justify its use of Mathews, a non-habeas
case. See Bradley, 315 F.3d at 1098. Thus, we must instead follow the mandatory
requirements in 28 U.S.C. § 2254(d) and adhere to United States Supreme Court
precedent for resolution of this case.
                                          3
district court properly refused to give the insanity instruction under Nevada law,

and we are bound by that determination.

      2. The district court did not err in denying Marquez’s ineffective assistance

of counsel claim. Under the AEDPA’s “doubly” highly deferential review for

deficient performance claims, Harrington, 562 U.S. at 105, Marquez’s counsel did

not perform “below an objective standard of reasonableness,” nor was counsel’s

performance prejudicial to Marquez, id. at 104.

      “An attorney undoubtedly has a duty to consult with the client regarding

important decisions, including questions of overarching defense strategy,” however

such an obligation “does not require counsel to obtain the defendant’s consent to

every tactical decision.” Florida v. Nixon, 543 U.S. 175, 187 (2004) (internal

citations and quotation marks omitted). Marquez’s argument only establishes that

counsel may not have conferred with him just before the closing statement.

However, Marquez and his counsel may have established an overall defense

strategy at an earlier time. Counsel’s closing statement was clearly in concert with

the opening statement and reflected the overall defense strategy. Moreover, when

the state district court denied Marquez’s attempt to get an instruction on insanity, it

was not objectively unreasonable, nor prejudicial, to argue for second-degree




                                           4
murder in light of the overwhelming evidence, including security footage and a

voluntary confession, that Marquez had committed the charged crime.

      AFFIRMED.




                                        5
                                                                               FILED
Marquez v. Gentry, No. 16-15634
                                                                                JAN 17 2018
GRABER, Circuit Judge, concurring in part and dissenting in part:           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


      I concur in part and dissent in part. I agree with the majority that the district

court did not err in denying Petitioner’s ineffective assistance of counsel claim, but

I part ways with the majority with respect to the jury instruction issue.

      Every criminal defendant has the right to a meaningful opportunity to

present a complete defense. California v. Trombetta, 467 U.S. 479, 485 (1984).

As we explained in Bradley v. Duncan, 315 F.3d 1091, 1099 (9th Cir. 2002), that

right "would be empty if it did not entail the further right to an instruction that

allowed the jury to consider the defense." (Internal quotation marks omitted.)

Accordingly, we have held consistently that a criminal defendant has a federal

constitutional right to have the jury instructed according to his or her theory of the

case if the theory has "some foundation in evidence." United States v. Johnson,

459 F.3d 990, 992 (9th Cir. 2006) (internal quotation marks omitted).

      Here, Petitioner presented some evidence supporting his insanity defense.1

      1
          Under Nevada law, to qualify as being legally insane, a person

      must be in a delusional state such that he cannot know or understand
      the nature and capacity of his act, or his delusion must be such that he
      cannot appreciate the wrongfulness of his act, that is, that the act is not
      authorized by law. So, if a jury believes he was suffering from a
      delusional state, and if the facts as he believed them to be in his
      delusional state would justify his actions, he is insane and entitled to
                                                                          (continued...)
For example, Dr. Chambers testified that, at the time of the alleged offense,

Petitioner was laboring under the delusion that an apparition would kill him if he

did not do as it wanted. Dr. Chambers further testified that Petitioner did not

consider "right and wrong" when he acted; rather, Petitioner "did what he did out

of fear and out of self preservation."

      The majority, relying on Gilmore v. Taylor, 508 U.S. 333, 342 (1993), and

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991), asserts that the right to present a

complete defense does not, under clearly established federal law, include the right

to present an affirmative defense. But Bradley, which we decided after Gilmore, is

to the contrary. There, we held that the trial court’s failure to instruct the jury on

an affirmative defense (entrapment) violated the defendant’s federal constitutional

right to present a complete defense. Bradley, 315 F.3d at 1098–99. That failure,

we held, amounted to a violation of "clearly established federal law." Id. at 1100

(emphasis added).

      The cases on which the majority relies predate our decision in Bradley. The

majority has not identified—and nor is there—any "intervening higher authority"



      1
       (...continued)
      acquittal.

Finger v. State, 27 P.3d 66, 84–85 (Nev. 2001).
                                            2
that would permit us to revisit the matter. Miller v. Gammie, 335 F.3d 889, 900

(9th Cir. 2003) (en banc). We are thus bound by Bradley’s holding that there is a

clearly established federal right to a jury instruction on an affirmative defense,

provided that the defense has some foundation in evidence. Id. Indeed, we may

not fail to follow that holding even if we were convinced that Bradley was wrongly

decided or poorly reasoned. Nat’l Fed’n of the Blind v. United Airlines Inc., 813

F.3d 718, 728 (9th Cir. 2016).2

      The majority further suggests that Bradley does not apply here because

AEDPA limits our review to only Supreme Court precedent. True, 28 U.S.C.

§ 2254(d) requires us to determine whether there was "an unreasonable application

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



      2
         The majority correctly points out that Bradley did not cite the cases that the
majority considers most relevant; rather, Bradley relied on Mathews v. United
States, 485 U.S. 58, 63 (1988), California v. Trombetta, 467 U.S. 479, 485 (1984),
and Williams v. Taylor, 529 U.S. 362, 407 (2000). Bradley, 315 F.3d at 1098,
1099, 1101. But the Bradley court also cited Barker v. Yukins, 199 F.3d 867,
875–76 (6th Cir. 1999), cert. denied, 530 U.S. 1229 (2000), in which the Sixth
Circuit had applied Trombetta and other Supreme Court cases to find, under
AEDPA, a due process violation in the context of a state court’s error in instructing
a Michigan jury with respect to a claim of self-defense under Michigan law.
Bradley, 315 F.3d at 1099. Whatever Supreme Court cases Bradley cited, though,
the court held that clearly established Supreme Court law requires a jury
instruction on an affirmative defense if the defense is supported by evidence. And,
as noted, we must follow Bradley’s on-point holding even if we disagree with that
panel’s reasoning.
                                           3
United States." (Emphasis added.) But, as the Supreme Court has explained, "an

appellate panel may, in accordance with its usual law-of-the-circuit procedures,

look to circuit precedent to ascertain whether it has already held that the particular

point in issue is clearly established by Supreme Court precedent." Marshall v.

Rodgers, 569 U.S. 58, 64 (2013) (per curiam).

      Finally, I agree with the majority that there is no free-standing federal right

to present an insanity defense specifically. But there is a clearly established federal

constitutional right to a jury instruction on "any recognized defense for which there

exists evidence sufficient for a reasonable jury to find in [the defendant’s] favor."

Bradley, 315 F.3d at 1098 (emphasis added) (quoting Mathews v. United States,

485 U.S. 58, 63 (1988)). We have framed that right broadly to include any

recognized defense. Id. That is, the right does not depend on the nature of the

particular defense asserted. Because Nevada provides an affirmative defense of

insanity, the Federal Constitution requires an instruction when some evidence

supports that defense. I therefore respectfully dissent as to Petitioner’s claim

regarding his proposed jury instruction.




                                           4
