Crew v. Ratliff

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 27, 2026
• Docket: 24-5728
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 27 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARK CHRISTOPHER CREW, No. 24-5728 D.C. No. Petitioner-Appellant, 4:12-cv-04259-YGR v. MEMORANDUM*

KATHLEEN N. RATLIFF, Acting Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted March 9, 2026 San Francisco, California

Before: H.A. THOMAS and JOHNSTONE, Circuit Judges, and LEFKOW,

District Judge.**

Mark Christopher Crew appeals the district court’s denial of his 28 U.S.C.

§ 2254 application for a writ of habeas corpus. He challenges his 1989 murder

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. conviction under California’s financial gain special circumstance, Cal. Penal Code

§ 190.2(a)(1), which elevates his crime to a capital offense.1 We have jurisdiction

under 28 U.S.C. §§ 1291, 2253. We affirm.

We review the denial of a habeas petition de novo and the district court’s

underlying findings of fact for clear error. Hogan v. Bean, 140 F.4th 1001, 1016

(9th Cir. 2025). Under § 2254(d), federal courts may grant habeas relief only

where the underlying state court “decision [] was (1) contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) . . . 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)(1)–(2); see also Ochoa v. Davis, 16 F.4th 1314,

1325 (9th Cir. 2021). “We apply this highly deferential standard [of review] to the

last reasoned state court decision on the merits.” Bejarano v. Reubart, 136 F.4th

873, 886 (9th Cir. 2025). Here, the last reasoned state court decision on the merits

is People v. Crew, 74 P.3d 820 (Cal. 2003), which affirmed Crew’s conviction

under the special circumstance.

1. The California Supreme Court did not unreasonably apply clearly

established federal law. Crew argues that the Court violated his due process rights

as set forth in Bouie v. City of Columbia, 378 U.S. 347 (1964), when it

1 In 2024, Crew was resentenced to life in prison without the possibility of parole.

2 24-5728 retroactively applied People v. Howard, 749 P.2d 279 (Cal. 1988), and denied his

claim that he was entitled to the limiting construction set forth in People v.

Bigelow, 691 P.2d 994 (Cal. 1984).2

Bouie held that the fair-notice requirement of due process is violated when a

defendant is convicted based on the retroactive application of an unforeseeable

judicial expansion of statutory language that is “indefensible by reference to the

law which had been expressed prior to the conduct in issue.” 378 U.S. at 354

(citation modified). The law expressed prior to Crew’s offense in 1982 was the

plain language of the financial gain special circumstance. See Cal. Penal Code

§ 190.2(a)(1) (1978) (“The murder was intentional and carried out for financial

gain.”). The California Supreme Court construed that language in 1988, holding

that “the relevant inquiry is whether the defendant committed the murder in the

expectation that he would thereby obtain the desired financial gain.” Howard, 749

P.2d at 298. Howard distinguished Bigelow on the basis that, unlike the defendant

in Bigelow, the defendant in Howard was not accused of more than one special

2 The California Supreme Court sought “to minimize those cases in which multiple circumstances will apply to the same conduct” and issued the following limiting construction for the financial gain special circumstance: “[T]he financial gain special circumstance applies only when the victim’s death is the consideration for, or an essential prerequisite to the financial gain sought by the defendant.” Bigelow, 691 P.2d at 1006.

3 24-5728 circumstance. See id.3 Howard did not expand, but rather squarely addressed, the

plain language of the financial gain special circumstance, language that, as Howard

explains, needs no “further refinement” when it is the sole special circumstance

alleged. Id. This situation is not analogous to Bouie, where the state supreme court

unexpectedly expanded “narrow and precise statutory language” that, as written,

did not reach the defendants’ conduct. 378 U.S. at 352. In short, Howard did not

depart from the statute in a manner that denied Crew fair notice, so Bouie

retroactivity concerns do not exist here.

Nor was Bouie implicated because, as Crew argues, the interpretation of the

statute in Bigelow was foreseeable at the time of his offense due to the statute’s

vagueness. Even if we assume that Bigelow was foreseeable, nothing in Bouie

states that a later-issued foreseeable judicial limitation, e.g., Bigelow, must be

applied retroactively. See Bouie, 378 U.S. at 352; see also Bradshaw v. Richey, 546

U.S. 74, 78 (2005) (explaining that a case decided after an offense “has no bearing

on whether the law at the time of the charged conduct was clear enough to provide

fair notice”). And we have previously held that the financial gain special

circumstance is not unconstitutionally vague on its face. See Noguera v. Davis, 5

3 “Bigelow’s final articulation of the scope of the provision must be viewed in terms of the problem it sought to correct[,]” namely, the need to prevent juries from finding true, due to unavoidable overlap, multiple special circumstances based on the same conduct. Howard, 749 P.2d at 298.

4 24-5728 F.4th 1020, 1052–54 (9th Cir. 2021).

2. The California Supreme Court did not unreasonably apply federal law or

make an unreasonable determination of the facts with respect to the special

circumstance. Under Jackson v. Virginia, we review the record evidence for

whether “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” 443 U.S. 307, 319 (1979). The evidence

showed that the same month Crew married Nancy Andrade and professed plans to

move with her, he also proposed to another woman, which is circumstantial

evidence that he did not intend to stay with Andrade. Crew encouraged Andrade to

cash out her bank accounts, telling her that he knew how to avoid paying capital

gains taxes on those funds. Later, he had Andrade’s cash converted into a cashier’s

check and opened a joint account under his and Andrade’s name into which he

deposited Andrade’s money. He also sold her vehicles and other personal items.

Based on this evidence, a reasonable jury could conclude that Crew murdered

Andrade with the expectation of financial gain. Cf. Howard, 749 P.2d at 298.

AFFIRMED.

5 24-5728