Crowder v. Key, No. 4:2020cv05087 - Document 8 (E.D. Wash. 2021)

Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER. The Court certifies that the applicant has made a substantial showing of the denial of a constitutional right. A certificate of appealability is therefore GRANTED. This file is CLOSED. Signed by Judge Salvador Mendoza, Jr. (LTR, Case Administrator)

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Crowder v. Key Doc. 8 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1451 Page 1 of 17 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Mar 01, 2021 2 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 MARK JOHN CROWDER, No. 4:20-cv-05087-SMJ 5 Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER 6 v. 7 JAMES KEY, 8 Respondent. 9 10 Before the Court is an application for a writ of habeas corpus under 28 U.S.C. 11 § 2254 by Mark John Crowder, a person in custody pursuant to a conviction 12 adjudicated in Washington State court. See generally ECF No. 1. In 2014, a Benton 13 County jury convicted Crowder of first degree rape. ECF No. 5-1, Ex. 1. The Benton 14 County Superior Court afterward sentenced him to a term of confinement totaling 15 360 months to life. Id. Crowder has since exhausted his state court remedies, and 16 timely petitioned this Court. ECF No. 4 at 3–5. 17 Crowder presents two grounds for federal habeas relief: (1) ineffective 18 assistance of counsel and (2) prosecutorial misconduct. ECF No. 1 at 5–15. He also 19 asks this Court to conduct an evidentiary hearing. ECF Nos. 1, 6. Having reviewed 20 the briefing, relevant legal authorities, and record in this matter, this Court ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 1 Dockets.Justia.com Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1452 Page 2 of 17 1 concludes Crowder’s claims fail to satisfy 28 U.S.C. § 2254(d). It thus denies his 2 application for a writ of habeas corpus and request for an evidentiary hearing. BACKGROUND 3 The Washington Court of Appeals summarized the relevant facts in its 4 5 decision on Crowder’s Personal Restraint Petition (PRP):1 Two juvenile males, S.I. and Z.H., met Mr. Crowder while out walking on a July night. Mr. Crowder initially invited the two males to join him in setting off some fireworks. They then attended a nearby bonfire, where they drank vodka shots. Z.H. suggested inviting 14-year-old I.D. to join the group. After exchanging text messages, I.D. agreed to come out. She snuck out of her house through a window and Mr. Crowder picked her up in his Jeep. I.D. had never met Mr. Crowder before. Back at the bonfire, S.I. fell asleep and Z.H. passed out. I.D. was starting to get tired when Mr. Crowder came up behind her, pulled her head back, and tried to pour vodka down her throat. Angered, I.D. got up and started to head home. As she walked by the Jeep, Mr. Crowder grabbed I.D. and turned her around. I.D. told Mr. Crowder to let her go. He did not. Mr. Crowder removed a gun from his pocket and ordered I.D. to undress and get into the back of his Jeep. He held the gun up against I.D.’s head and pulled back the trigger. At this point, I.D. complied with Mr. Crowder’s demands. Once inside the Jeep, Mr. Crowder raped I.D. The assault lasted approximately an hour. Eventually I.D. was able to get up, clothe herself, and run home. She snuck back in through the window and disclosed the rape several days later. At this point, the police began an investigation. I.D. identified Mr. Crowder from a live lineup after identifying his residence and his Jeep. Five days after the assault, law enforcement executed a search warrant at Mr. Crowder’s house. During the search, police found several firearms, including a revolver. I.D. identified it as 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1 20 The Washington Court of Appeals provided a similar summary of the relevant facts on direct appeal. See generally State v. Crowder, 385 P.3d 275, 277–78 (Wash. Ct. App. 2016). ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 2 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1453 Page 3 of 17 12 the same gun used by Mr. Crowder. The gun was never test fired. The State charged Mr. Crowder with rape in the first degree with a firearm enhancement and a special allegation that the victim was under the age of 15, or in the alternative, rape of a child in the third degree, as well as with two counts of distribution of a controlled substance to a person under the age of 18. At trial, Mr. Crowder’s counsel attacked I.D.’s credibility on cross-examination by asking why she delayed in reporting the rape and pointing out inconsistencies between her trial testimony and earlier statements, including whether S.I. and/or Z.H. were in Mr. Crowder’s Jeep when he picked I.D. up, how much vodka Mr. Crowder poured in I.D.’s mouth, and the respective positions of I.D. and Mr. Crowder during the rape. The defense theory was that although Mr. Crowder was with I.D. and the two boys on the night in question, he never raped I.D. The jury convicted Mr. Crowder of the offenses against him as charged. He received a sentence of 360 months to life. On appeal, this court affirmed Mr. Crowder’s rape conviction in full but reversed his convictions for distribution of controlled substances. The Washington Supreme Court denied petitions for review filed by Mr. Crowder and the State, and the mandate issued on May 10, 2017. An order dismissing the distribution charges was entered by the trial court on July 27, 2017. Mr. Crowder filed this timely personal restraint petition on May 10, 2018. 13 ECF No. 5-1, Ex. 2 (containing In re Pers. Restraint of Crowder, 9 Wash. App. 2d 14 1083 (2019) (unpublished)). The Washington Court of Appeals denied his PRP, 15 determining Crowder failed to (1) show actual and substantial prejudice resulting 16 from the alleged constitutional errors and (2) raise a material fact issue requiring a 17 reference hearing.2 See generally id. Crowder sought discretionary review in the 1 2 3 4 5 6 7 8 9 10 11 18 2 19 20 Under Washington law, appellate courts “have three available options when reviewing a personal restraint petition: (1) dismiss the petition, (2) transfer the petition to a superior court for a full determination on the merits or a reference hearing, or (3) grant the petition.” In re Pers. Restraint of Yates, 296 P.3d 872, 880 (Wash. 2013); see also RAP 16.11(b), 16.12. “Dismissal is necessary ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 3 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1454 Page 4 of 17 1 Washington Supreme Court, but the Commissioner determined Crowder’s petition 2 did not merit review under the relevant Rules of Appellate Procedure (RAP). See 3 ECF No. 5-1, Ex. 23. The RAPs narrow the Washington Supreme Court’s 4 discretionary review of a decision terminating review to only cases satisfying 5 particular criteria. See generally RAP 13.4(b). Crowder moved to modify the 6 Commissioner’s Ruling Denying Review, but a panel composed of five Justices 7 summarily denied Crowder’s motion. ECF No. 5-1, Ex. 24. 8 9 10 Crowder then timely applied for a writ of habeas corpus in this Court. ECF No. 1; ECF No. 4 at 5. JURISDICTION 11 “A district court shall entertain an application for a writ of habeas corpus in 12 behalf of a person in custody pursuant to the judgment of a State court only on the 13 ground that he is in custody in violation of the Constitution or laws or treaties of the 14 United States.” 28 U.S.C. § 2254(a). A jury convicted Crowder of first degree rape, 15 and the state superior court sentenced him to a term of confinement totaling 360 16 months to life. ECF No. 5-1, Ex. 1. Crowder is currently confined at the Airway 17 Heights Corrections Center in Airway Heights, Washington. Crowder claims that 18 19 20 where a petitioner fails to make a prima facie showing of actual prejudice for alleged constitutional errors.” Id. “A [reference or evidentiary] hearing is appropriate where the petitioner makes the required prima facie showing ‘but the merits of the contentions cannot be determined solely on the record.’” Id. at 880 –81 (quoting In re Pers. Restraint of Hews, 660 P.2d 263, 268 (Wash. 1983)). ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 4 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1455 Page 5 of 17 1 he suffered violations of his rights under the United States Constitution and the 2 conviction challenged stems from a state court in the Eastern District of 3 Washington. ECF No. 1 at 5–15; ECF No. 5-1, Ex. 1. For these reasons, this Court 4 has jurisdiction to entertain Crowder’s application for a writ of habeas corpus. STANDARD OF REVIEW 5 6 This Court considers Crowder’s application for a writ of habeas corpus under 7 the standards in the Antiterrorism and Effective Death Penalty Act of 1996 8 (“AEDPA”) and applies a “‘highly deferential standard for evaluating state-court 9 rulings.’” See Balbuena v. Sullivan, 980 F.3d 619, 628 (9th Cir. 2020) (quoting 10 Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)); 28 U.S.C. §§ 2244(b), 11 2254(d). 12 Under AEDPA, federal courts may grant habeas corpus relief only when the 13 state court’s ruling was (1) “contrary to, or involved an unreasonable application 14 of, clearly established Federal law, as determined by the Supreme Court of the 15 United States,” or (2) “based on an unreasonable determination of the facts in light 16 of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), 17 (2). 18 A state court decision is “‘contrary to’ clearly established federal law if it 19 contradicts governing law in Supreme Court cases, or if it reaches a different result 20 than Supreme Court precedent when considering materially indistinguishable ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 5 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1456 Page 6 of 17 1 facts.” Balbuena, 980 F.3d at 628. A state court decision constitutes “an 2 unreasonable application of clearly established federal law if it identifies the correct 3 governing legal rule but applies it unreasonably to the facts of the case.” Id. (internal 4 quotation marks and citation omitted). “The unreasonable application clause 5 requires the state court decision to be more than incorrect or erroneous; it must be 6 objectively unreasonable.” Id. (internal quotation marks and citation omitted); 7 Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is 8 not whether a federal court believes the state court’s determination was incorrect 9 but whether that determination was unreasonable—a substantially higher 10 threshold.”). “[R]eview under § 2254(d)(1) is limited to the record that was before 11 the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 12 U.S. 170, 181 (2011). The applicant bears the burden of establishing that the state 13 court’s decision is either “contrary to,” or an “unreasonable application” of, United 14 States Supreme Court precedent. See Lambert v. Blodgett, 393 F.3d 943, 969 n.16 15 (9th Cir. 2004) (“In state collateral litigation, as well as federal habeas proceedings, 16 it is the petitioner who bears the burden of proving his case.”). 17 Federal courts must presume correct a state court’s determination of a factual 18 issue. 28 U.S.C. § 2254(e)(1). “Under § 2254(d)(2), a state court’s factual 19 determinations are not ‘unreasonable merely because the federal habeas court 20 would have reached a different conclusion in the first instance.’” Balbuena, 980 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 6 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1457 Page 7 of 17 1 F.3d at 628–29 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Even if 2 “[r]easonable minds reviewing the record might disagree” about a factual finding, 3 that is not enough to supplant the state court’s finding. Id. at 629 (quoting Rice v. 4 Collins, 546 U.S. 333, 341–42 (2006)). “The applicant shall have the burden of 5 rebutting the presumption of correctness by clear and convincing evidence.” 28 6 U.S.C. § 2254(e)(1). 7 When applying these standards to an applicant’s claims, courts must consider 8 the last reasoned state court decision. Id. (citing Martinez v. Cate, 903 F.3d 982, 9 991 (9th Cir. 2018)). That said, when reviewing their claims under Section 2254(d), 10 courts may “look through” a state court of last resort’s summary denial of a petition 11 for discretionary review. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); Brumfield 12 v. Cain, 576 U.S. 305, 313 (2015) (citing Johnson v. Williams, 568 U.S. 289, 297 13 n.1 (2013) and Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991)). 14 DISCUSSION 15 To begin with, Crowder claims this Court should not “look through” the 16 Washington Supreme Court’s summary denial of his petition for discretionary 17 review to the last reasoned decision terminating review—that is, the Washington 18 Court of Appeals opinion denying his PRP. ECF No. 6 at 4–8. This Court disagrees. 19 When a state court of last resort denies a request for discretionary review, a 20 “federal court should ‘look through’ the unexplained decision to the last related ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 7 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1458 Page 8 of 17 1 state-court decision that does provide a relevant rationale.” Wilson, 138 S. Ct. at 2 1192. Courts “should then presume that the unexplained decision adopted the same 3 reasoning.” Id. That said, “the State may rebut the presumption by showing that the 4 unexplained affirmance relied or most likely did rely on different grounds than the 5 lower state court’s decision, such as alternative grounds for affirmance that were 6 briefed or argued to the state supreme court or obvious in the record it reviewed.” 7 Id. 8 The Washington Supreme Court Commissioner’s Ruling Denying Review 9 does not constitute a final reasoned decision on the merits. The ruling simply 10 outlines the Commissioner’s reasoning on why Crowder’s petition did not satisfy 11 the criteria for acceptance of review by the Supreme Court under the RAPs. See 12 ECF No. 5-1, Ex. 23; see also RAP 13.4(b) (governing Discretionary Review of 13 Decision Terminating Review). When presented with Crowder’s motion to modify 14 the Commissioner’s Ruling Denying Review, a department of the Washington 15 Supreme Court summarily denied his motion. See ECF No. 5-1, Ex. 24. 16 So, consistent with United States Supreme Court precedent, this Court will 17 “look through” the Washington Supreme Court’s summary denial of Crowder’s 18 petition for discretionary review and examine the Washington Court of Appeal’s 19 opinion denying his PRP, the last reasoned state-court decision on the merits 20 terminating review of his ineffective assistance of counsel and prosecutorial ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 8 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 1 misconduct claims. See Wilson, 138 S. Ct. at 1192. 2 A. PageID.1459 Page 9 of 17 Ineffective Assistance of Counsel 3 Crowder first claims he was denied his federal constitutional right to effective 4 assistance of counsel when counsel failed to investigate and call reputation 5 witnesses. ECF No. 1 at 5–14. This Court disagrees. 6 Strickland v. Washington, 466 U.S. 668 (1984), sets forth the governing 7 standard for courts addressing ineffective assistance claims. To prevail on such a 8 claim, a petitioner must show that: (1) “counsel’s representation fell below an 9 objective standard of reasonableness,” and (2) “there is a reasonable probability 10 that, but for counsel’s unprofessional errors, the result of the proceeding would have 11 been different.” Id. at 688, 694, superseded on other grounds by Antiterrorism and 12 Effective Death Penalty Act of 1966, Pub. L. No. 104-132, 110 Stat. 124. 13 But when reviewing a habeas petition, “[t]he pivotal question is whether the 14 state court’s application of the Strickland standard was unreasonable.” Harrington 15 v. Richter, 562 U.S. 86, 101 (2011) (emphasis added). The Supreme Court has 16 clarified that this inquiry is “different from asking whether defense counsel’s 17 performance fell below Strickland’s standard.” Id. Reviewing federal courts must 18 grant state courts “a deference and latitude that are not in operation when the case 19 involves review under the Strickland standard itself.” Id. 20 “Under § 2254(d), a habeas court must determine what arguments or theories ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 9 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1460 Page 10 of 17 1 supported or . . . could have supported, the state court’s decision; and then it must 2 ask whether it is possible fairminded jurists could disagree that those arguments or 3 theories are inconsistent with the holding in a prior decision of this Court.” Id. at 4 102. “[E]ven a strong case for relief does not mean the state court’s contrary 5 conclusion was unreasonable.” Id. “As a condition for obtaining habeas corpus from 6 a federal court, a state prisoner must show that the state court’s ruling on the claim 7 being presented in federal court was so lacking in justification that there was an 8 error well understood and comprehended in existing law beyond any possibility for 9 fairminded disagreement.” Id. at 103. 10 In his PRP, Crowder claimed that his attorney failed to interview or present 11 any reputation witnesses, despite being told about these potential witnesses. ECF 12 No. 5-1, Ex. 2. Crowder submitted declarations from fifteen individuals (all family 13 members) who were willing to testify as to his sexual propriety. Id. He argued that 14 failing to investigate reputation evidence in a rape case constitutes ineffective 15 assistance of counsel. Id. He also claimed a reference hearing was necessary to 16 determine whether counsel’s decision not to pursue the potential reputation 17 evidence was strategic. Id. 18 The Washington Court of Appeals determined there was no need for a 19 reference hearing to determine whether trial counsel was informed about these 20 witnesses or whether counsel’s inaction was strategic, as Crowder failed to show ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 10 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1461 Page 11 of 17 1 that the evidence was admissible or that it would have likely created a different trial 2 outcome if admitted. Id. The declarations provided by Crowder’s family members, 3 it held, were inadmissible under the relevant Washington Rules of Evidence. Id. 4 Even assuming a trial court might admit the reputation evidence, the court 5 determined Crowder failed to show how this reputation evidence, offered 6 exclusively from his family members, would likely have changed the jury’s verdict. 7 Id. 8 A state court’s interpretation of state law—here, the Washington State Rules 9 of Evidence—binds a federal court sitting in habeas corpus. See Bradshaw v. 10 Richey, 546 U.S. 74, 76 (2005). “Strickland . . . calls for an inquiry into the objective 11 reasonableness of counsel’s performance, not counsel’s subjective state of mind.” 12 Harrington, 562 U.S. at 110. Because the evidence was inadmissible under state 13 law, counsel’s decision not to offer the evidence was neither deficient nor 14 prejudicial. Moreover, because a state trial court should have excluded the evidence 15 under the relevant evidentiary rules, there is no reasonable probability that the 16 evidence could have affected the jury’s verdict. 17 This Court thus concludes the state court’s application of the Strickland 18 standard was not unreasonable. See Harrington, 562 U.S. at 101. Fairminded jurists 19 could disagree about the admissibility of the evidence and, even assuming the 20 evidence’s admissibility, jurists could also disagree about whether the reputation ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 11 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1462 Page 12 of 17 1 evidence, offered exclusively from his family members, would likely have changed 2 the jury’s verdict. See id. at 101–102. 3 The Washington Court of Appeals decision was neither contrary to, nor an 4 unreasonable application of, clearly established Supreme Court precedent. See 28 5 U.S.C. § 2254(d)(1). Nor was it based on an unreasonable determination of the 6 facts. See 28 U.S.C. § 2254(d)(2). For these reasons, Crowder is not entitled to 7 habeas relief under AEDPA on his ineffective assistance of counsel claim. 8 B. Prosecutorial Misconduct 9 Crowder next claims the prosecutor’s conduct during trial denied him his 10 federal constitutional right to due process and a fair trial. ECF No. 1 at 14–19. 11 Again, this Court disagrees. 12 “[A] discretionary state procedural rule can serve as an adequate ground to 13 bar federal habeas review.” Beard v. Kindler, 558 U.S. 53, 60 (2009). Under the 14 doctrine of procedural default, “a federal court will not review the merits of claims, 15 including constitutional claims, that a state court declined to hear because the 16 prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 17 (2012). “A state court’s invocation of a procedural rule to deny a prisoner’s claims 18 precludes federal review of the claims if, among other requisites, the state 19 procedural rule is a nonfederal ground adequate to support the judgment and the 20 rule is firmly established and consistently followed.” Id. “Moreover, a state court ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 12 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1463 Page 13 of 17 1 need not fear reaching the merits of a federal claim in an alternative holding.” 2 Harris v. Reed, 489 U.S. 255, 264 n.10 (1989). The procedural bar still applies 3 despite a state court’s decision reaching the merits of a federal claim if the state 4 court also invoked an independent state procedural rule as a separate basis for its 5 decision. Id. That said, “[a] prisoner may obtain federal review of a defaulted claim 6 by showing cause for the default and prejudice from a violation of federal law.” 7 Martinez, 566 U.S. at 10. 8 Crowder claims that the prosecutor engaged in blatant theatrics, which denied 9 him a fair trial. ECF No. 1 at 14. He supported the claims in his PRP with two 10 declarations—one from his wife and one from his attorney, both of which accused 11 the prosecutor of making faces and gesticulations expressing her disdain for 12 Crowder. ECF No. 5-1, Ex. 2 at 11. The State rebutted their declarations with a 13 declaration from Detective Scott Runge, who sat with the prosecutor during the 14 trial. Id. at 12. He declared she did not engage in the alleged conduct. Id. 15 In either event, the Washington Court of Appeals held that Crowder waived 16 his prosecutorial misconduct claim by failing to object at trial. Id. at 10, 12 (“A 17 defendant who fails to object to the State’s improper act at trial waives any error, 18 unless the act was so flagrant and ill-intentioned that an instruction could not have 19 cured the resulting prejudice.”) (citing State v. Thorgerson, 172 Wn.2d 438, 443, 20 258 P.3d 43 (2011)). It then addressed the merits, determining that he failed to show ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 13 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1464 Page 14 of 17 1 that the alleged conduct was so flagrant and ill-intentioned that a curative 2 instruction could not have obviated the resulting prejudice. Id. 3 Waiver of his claims by failing to object at trial serves as an independent state 4 ground barring federal habeas review. Beard, 558 U.S. at 60. And Crowder has 5 shown neither cause for the default nor prejudice. See Martinez, 566 U.S. at 10. 6 Counsel deliberately opted not to object to any of the prosecutor’s alleged conduct 7 at trial. And his declaration describing the prosecutor’s alleged conduct conveys 8 that he observed the alleged conduct yet failed to do anything about it. 9 The Washington Court of Appeals decision was neither contrary to, nor an 10 unreasonable application of, clearly established Supreme Court precedent. See 28 11 U.S.C. § 2254(d)(1). Nor was it based on an unreasonable determination of the 12 facts. See 28 U.S.C. § 2254(d)(2). For these reasons, Crowder is not entitled to 13 habeas relief under AEDPA on his prosecutorial misconduct claim. 14 C. Request for Evidentiary Hearing 15 Crowder argues the Washington Court of Appeals unreasonably denied his 16 request for a reference hearing and asks this Court to conduct such a hearing. But 17 because Crowder has not overcome the stringent limitations of Section 2254(d), this 18 Court denies his request for an evidentiary hearing. 19 “In deciding whether to grant an evidentiary hearing, a federal court must 20 consider whether such a hearing could enable an applicant to prove the petition’s ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 14 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1465 Page 15 of 17 1 factual allegations, which, if true, would entitle the applicant to federal habeas 2 relief.” Schriro, 550 U.S. at 474. Still, “AEDPA bars most evidentiary hearings if 3 the applicant ‘failed’ to develop the factual basis for the claim in state court.” Kemp 4 v. Ryan, 638 F.3d 1245, 1258 (9th Cir. 2011) (citing 28 U.S.C. § 2254(e)(1)). In 5 this context, “‘fail’ connotes some omission, fault, or negligence on the part of the 6 person who has failed to do something.” Williams v. Taylor, 529 U.S. 420, 431 7 (2000). “Under the opening clause of § 2254(e)(2), a failure to develop the factual 8 basis of a claim is not established unless there is lack of diligence, or some greater 9 fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 432. “Diligence 10 will require in the usual case that the prisoner, at a minimum, seek an evidentiary 11 hearing in state court in the manner prescribed by state law.” Id. at 437. 12 Crowder sought a reference hearing as required by state law, but the 13 Washington Court of Appeals denied his request because he failed to show that the 14 reputation evidence was admissible or that it would have likely created a different 15 trial outcome if it had been admitted. See ECF No. 5-1, Ex. 2. 16 In Cullen, the United States Supreme Court held “[i]f a claim has been 17 adjudicated on the merits by a state court, a federal habeas petitioner must overcome 18 the limitation of § 2254(d)(1) on the record that was before that state court.” 563 19 U.S. at 185. The Court reaffirmed that a district court must consider the deferential 20 standards in Section 2254 when deciding whether to hold an evidentiary hearing. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 15 Case 4:20-cv-05087-SMJ ECF No. 8 filed 03/01/21 PageID.1466 Page 16 of 17 1 Id. at 183 (quoting Schriro, 550 U.S. at 474). “In practical effect, . . . this means 2 that when the state-court record ‘precludes habeas relief’ under the limitations of § 3 2254(d), a district court is ‘not required to hold an evidentiary hearing.’” Id. 4 (quoting Schriro, 550 U.S. at 474). Here, the state-court record precludes habeas 5 relief under Section 2254(d), and so this Court declines to grant Crowder’s request 6 for an evidentiary hearing. 7 D. Certificate of Appealability 8 Rule 11(a) of the Federal Rules Governing Section 2254 and 2255 9 Proceedings require this Court to issue or deny a certificate of appealability when 10 it issues its final order. A certificate of appealability should issue if the petitioner 11 makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 12 2253(c)(3). A certificate of appealability is appropriate, for example, when 13 reasonable jurists could debate whether the petition should have been resolved 14 differently. Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). Although this Court 15 concludes Crowder has failed to show that the state court’s decision was contrary 16 to, or involved an unreasonable application of, clearly established Federal law, as 17 determined by the Supreme Court of the United States, reasonable jurists could 18 debate the merits of his ineffective assistance of counsel and prosecutorial 19 misconduct claims. Thus, a certificate of appealability will issue. 20 // ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 16 Case 4:20-cv-05087-SMJ 3 filed 03/01/21 PageID.1467 Page 17 of 17 CONCLUSION 1 2 ECF No. 8 The Washington State Court of Appeals committed no error and so Crowder is not entitled to habeas relief under AEDPA. 4 Accordingly, IT IS HEREBY ORDERED: 5 1. Petitioner Mark John Crowder’s Petition for Writ of Habeas Corpus By A State Prisoner, ECF No. 1, is DENIED. 6 7 2. All pending motions are DENIED AS MOOT. 8 3. The Clerk’s Office is directed to ENTER JUDGMENT. 9 4. The Clerk’s Office is directed to CLOSE this file. 10 5. The Court certifies that the applicant has made a substantial showing 11 of the denial of a constitutional right. See 28 U.S.C. § 2253(c); Fed. R. 12 App. P. 22(b). A certificate of appealability is therefore GRANTED. 13 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and 14 15 provide a copy to counsel for Petitioner. DATED this 1st day of March 2021. 16 17 ________________________ SALVADOR MENDOZA, JR. United States District Judge 18 19 20 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER – 17

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