Mark John Crowder v. James Key

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK JOHN CROWDER,
Petitioner-Appellant,
v.
JAMES KEY,
Respondent-Appellee.
No. 21-35192
D.C. No. 4:20-cv-05087-SMJ
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Submitted December 7, 2021**
Seattle, Washington
Before: McKEOWN, CHRISTEN, and BADE, Circuit Judges.
Appellant Mark John Crowder appeals the district court’s denial of his
habeas corpus petition based on his claim of prosecutorial misconduct. He also
FILED
DEC 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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challenges the district court’s denial of an evidentiary hearing. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court’s order.
We review de novo a district court’s denial of a federal habeas petition, Kipp
v. Davis, 971 F.3d 939, 948 (9th Cir. 2020), and a district court’s conclusion that
“the state court’s denial of relief was based on [an] adequate and independent state
rule of procedure,” Scott v. Schriro, 567 F.3d 573, 580 (9th Cir. 2009) (per
curiam). Where the state court reached a decision on the merits, we may not grant
relief unless the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “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). We review a district court’s denial of an
evidentiary hearing for abuse of discretion. Stewart v. Cate, 757 F.3d 929, 934
(9th Cir. 2014).
1. The district court relied on a procedural bar to deny Crowder’s
petition because the state court concluded that Crowder waived his claim by failing
to object at trial. Crowder contends the state court “merely and erroneously”
deemed his prosecutorial misconduct claim “waived.” Appellee did not assert the
procedural bar as a defense, but the district court retained discretion to consider the
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issue “sua sponte to further the interests of comity, federalism, and judicial
efficiency.”1 Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998).
“[A] federal court will not review the merits of claims . . . that a state court
declined to hear because the prisoner failed to abide by a state procedural rule”
unless the petitioner shows cause and prejudice. Martinez v. Ryan, 566 U.S. 1,
9–10 (2012). The state procedural rule must be “a nonfederal ground adequate to
support the judgment” and “firmly established and consistently followed” by the
state courts. Id. at 9. Although our court has not yet decided whether Washington
state courts’ rule regarding waiver for counsel’s failure to object to procedural
misconduct is an adequate state bar, our precedent supports that it likely is. See
Kibler v. Walters, 220 F.3d 1151, 1153–54 (9th Cir. 2000) (A state procedural rule
is “adequate” and “independent” where the state court “specifically relied on its
procedural rule”; the “rule is well established in case law”; “and no authority has
1 We have previously declined to rely on a procedural bar where the defense
was raised for the first time on appeal, see, e.g., Franklin v. Johnson, 290 F.3d
1223, 1233 (9th Cir. 2002), and the petitioner had no “opportunity to attempt to
persuade the district court of the cause for his default and any prejudice,” Windham
v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998). But here, the parties were on
notice of the relevant procedural bar because the state courts and district court
expressly relied on procedural grounds to deny relief to Crowder. Therefore, we
too rely on the procedural bar. Cf. Coleman v. Thompson, 501 U.S. 722, 732
(1991) (“The independent and adequate state ground doctrine ensures that the
States’ interest in correcting their own mistakes is respected in all federal habeas
cases.”).
3

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been cited indicating that the rule has been inconsistently applied.”); cf.
Cavanaugh v. Kincheloe, 877 F.2d 1443, 1447–48 (9th Cir. 1989) (holding
Washington state’s rule regarding a failure to object to a lack of proper foundation
to admit prior convictions was procedural bar to review of underlying federal
constitutional claim). The waiver rule invoked by the state court here appears to be
well-established in Washington case law. See, e.g., State v. Loughbom, 470 P.3d
499, 505 (Wash. 2020). It is also independent because it does not require that state
courts rely on or inquire into federal law. See Coleman, 501 U.S. at 734–35.
Crowder does not demonstrate, or cite any authority to suggest, that the rule is
inconsistently applied. Accordingly, we may affirm the district court’s judgment
pursuant to the procedural bar doctrine alone.
2. We consider the merits of Crowder’s petition because both parties
fully briefed the issues. A prosecutor’s comments violate a defendant’s
constitutional rights only if the “comments so infected the trial with unfairness as
to make the resulting conviction a denial of due process.” Darden v. Wainwright,
477 U.S. 168, 181 (1986) (internal quotation marks omitted). “But such
misconduct ‘rises to the level of Darden error only if there is a reasonable
probability that it rendered the trial fundamentally unfair.’” Ford v. Peery, 999
4

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F.3d 1214, 1224 (9th Cir. 2021) (quoting Deck v. Jenkins, 814 F.3d 954, 985 (9th
Cir. 2016)).
In its alternative ruling, the state appellate court assessed the prosecutor’s
alleged misconduct “in the context of the total argument, the issues in the case, the
evidence, and the instructions given to the jury” to decide whether the conduct
“resulted in prejudice that had a substantial likelihood of affecting the verdict.”
Crowder only argues that state court’s decision was an unreasonable application of
Supreme Court precedent because, in his view, the alleged misconduct satisfies the
“plain error” standard. The state court’s decision was consistent with Darden
because it considered whether Crowder demonstrated a likelihood that the alleged
misconduct substantially influenced the jury. Thus, it was not an unreasonable
application of clearly established federal law. See § 2254(d)(1). The state court
determinations were also objectively reasonable in light of the evidence Crowder
presented. See Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004) (citing §
2254(d)(2) and explaining “a decision adjudicated on the merits in a state
court . . . will not be overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state-court proceeding” (internal quotation
marks omitted)).
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Last, Crowder contends he should have been afforded an evidentiary
hearing. Crowder was entitled to a hearing if it would enable him to prove “factual
allegations, which, if true, would entitle [him] to federal habeas relief.” Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). The state court accepted Crowder’s factual
allegations as true and concluded the alleged conduct fell short of conduct giving
rise to a meritorious prosecutorial misconduct claim. Crowder fails to demonstrate
how a hearing would result in factual allegations entitling him to relief.
Accordingly, we affirm the district court’s denial of Crowder’s request for an
evidentiary hearing.
AFFIRMED.
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