United States District Court, N.D. California
Gonzalez Rogers United States District Court Judge
Mark Christopher Crew, a California capital prisoner
currently incarcerated at San Quentin State Prison, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. On December 6, 2013, through his appointed
counsel, Petitioner filed a second amended petition with
forty-seven fully exhausted claims. Respondent Ron Davis
filed an answer on October 3, 2014 and Petitioner replied on
May 29, 2015.
the size of the petition, the parties agreed to proceed to a
merits resolution on twenty-five record-based claims in three
rounds of no more than nine claims. This Order decides the
first round of record-based claims. Petitioner filed his
first opening brief, addressing claims 8, 10-11, 13, 23, 33,
37, and 38 on April 4, 2016. Respondent filed an answer on
May 4, and Petitioner filed a reply on May 19, 2016. The
Court determines that these claims are suitable for decision
without oral argument. Having reviewed the parties'
papers and the record, and having carefully considered the
relevant legal authorities, the Court Denies claims 8, 10-11,
13, 23, 33, and 37, and Denies Without Prejudice claim 38.
Statement of Facts
following facts are taken from the October 29, 2003 opinion
of the California Supreme Court on direct appeal from the
jury verdict. This summary is presumed correct. Hernandez
v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir.2002); 28
U.S.C. § 2254(e)(1).
Defendant met Nancy Jo Wilhelmi Andrade (Nancy), a nurse, at
the Saddle Rack bar in San Jose in 1981, shortly after
Nancy's divorce. Nancy owned a purebred horse and a Ford
pickup truck. Nancy and defendant were romantically involved
until November or December of 1981, after which they did not
see each other until April of 1982, when they resumed the
In January 1982, when Nancy and defendant were not
romantically involved, Nancy and her friend Darlene Bryant
planned a trip across the United States for the summer, and
that spring Nancy bought a yellow Corvette for the trip. In
May 1982, Richard Elander, one of defendant's best
friends, began work at a ranch in Utah run by Richard Glade.
Before Elander left for Utah, defendant had talked to him
about killing Nancy during a trip across the country. While
in Utah, Elander asked Glade about carrying a body into the
wilderness of the Utah mountains. Disturbed by the
conversation, Glade fired Elander.
Defendant asked Nancy to move to Greer, South Carolina, where
defendant's mother and stepfather lived. When Nancy
replied she did not want to move so far away unless married,
defendant agreed to marry her. The wedding took place on June
The marriage soon floundered. Nancy was living with Darlene
at the latter's home, but defendant was rarely there.
Nancy twice saw defendant with some women at the Saddle Rack
bar. She told several friends she was thinking of an
annulment of the marriage.
Defendant had been romantically involved with Lisa Moody, to
whom he proposed marriage in June 1982, the same month he
married Nancy. Defendant and Moody did not set a date for the
In July 1982, defendant and his friend Richard Elander moved
to Greer, South Carolina, where they stayed with
defendant's parents and started a truck service business.
That same month, Nancy and her friend Darlene took their
planned vacation trip across the country. They stopped in
Greer, South Carolina, and Nancy spent the night with
After Nancy's visit to South Carolina, defendant and his
stepfather, Bergin Mosteller, decided to return to California
to kill Nancy. Defendant discussed with Elander different
ways of killing her, including suffocation, hitting her with
a large wrench, and “bleeding her in the shower so she
wouldn't make any mess.” They also discussed
leaving her body in the Utah wilderness, where they could
bury her or “hang her in a tree, let the bears eat
After returning to California in early August 1982, Nancy
often spoke on the telephone with defendant. She decided to
move to South Carolina in an effort to make the marriage
work, and she began to make arrangements to do so. She gave
custody of her two children from a prior marriage to their
father and closed out her bank account, obtaining $10, 500 in
cash and a money order for $2, 500. When Deborah Nordman, one
of Nancy's friends, remarked that Nancy might be left in
the desert during the trip with defendant to South Carolina,
Nancy replied, “If you don't hear from me in two
weeks, send the police.”
On August 21, 1982, defendant and his stepfather came to
Darlene's house, where Nancy was living, in a station
wagon pulling a horse trailer. They loaded Nancy's
belongings into the trailer and picked up Nancy's horse
from a stable in Gilroy. The plan was for Mosteller to drive
the station wagon to Texas, where he would leave the horse
with relatives. Nancy and defendant would follow in
Nancy's Corvette and truck. They would leave the truck in
Texas, where defendant's friend, Richard Elander, would
retrieve the truck, the horse, and Nancy's belongings and
take them all to South Carolina. Nancy and defendant would
then leave Texas in Nancy's Corvette to go on a two-week
honeymoon. Mosteller, however, never went to Texas. He
boarded the horse in a stable in San Jose, drove to Nevada,
and finally flew to South Carolina.
On August 23, Nancy and defendant went to Nancy's
parents' home in Santa Cruz, California, where they
picked up Nancy's dog and some of her belongings,
including a microwave, stereo components still in the
original cartons, and personal documents. That same day,
Nancy and defendant ostensibly left for South Carolina.
That same night, however, defendant checked into a Motel 6 in
Fremont, California, where he registered to stay for two
nights. The next day, he arrived at the home of Lisa Moody,
the woman who had accepted defendant's marriage proposal
shortly after his marriage to Nancy. Over the next two days,
defendant gave Lisa a stereo and a microwave, took her to see
a horse in a San Jose stable, and arranged for her to convert
$5, 000 in cash into a cashier's check payable to Bergin
Mosteller, defendant's stepfather.
On August 28, 1982, defendant and Lisa left for South
Carolina in a pickup truck with a horse in a trailer. They
stopped in Texas, where they stayed at defendant's
grandmother's house for a couple of days. While there,
defendant became upset and agitated after receiving a phone
call. After defendant and Lisa arrived in Greer, South
Carolina, defendant opened a bank account in which he
deposited Nancy's $2, 500 money order. Elander and
Mosteller sold Nancy's clothing and possessions at a flea
market for about $500, burned her documents in a backyard,
and sold the horse trailer and Nancy's horse.
Defendant and Lisa returned to San Jose in mid-September.
Defendant then sold Nancy's truck for $4, 200, giving the
purchaser a certificate of title with Nancy's forged
signature. On October 13, 1982, defendant told Lisa that the
phone call he received in Texas while they were at his
grandmother's house was about a woman who loved him and
was telling people in South Carolina she was going to marry
him. According to defendant, the woman went to the head of
the Mafia in Arizona to complain about defendant, but the
Mafia killed her instead. Defendant told Lisa that he was
forced to dispose of the body to avoid being blamed for the
woman's death, and that he buried it in his friend Bruce
Gant's backyard. The phone call defendant had received in
Texas was actually from Gant who told him that the
“body was beginning to stink.” That same day,
defendant returned to South Carolina in Nancy's Corvette.
Richard Elander testified under a grant of immunity. He said
that on the day defendant and Lisa arrived in Greer, South
Carolina, defendant told him the details of Nancy's
killing. According to Elander, after defendant and Nancy left
San Jose, California, they stopped and walked up a hillside
into the woods. While Nancy and defendant were sitting on the
hillside talking, defendant shot her in the back of the head
and rolled the body down a ravine where he covered it with
blankets. Defendant then drove one of the cars to Bruce
Gant's house in Campbell, California. Defendant and Gant
returned to the scene and retrieved the other vehicle.
The next evening, defendant and Gant got drunk and returned
to the site where defendant had shot Nancy. When defendant
walked down to her body, it had moved. Defendant
“freaked out, ” ran back to the truck, and told
Gant. Gant went down the ravine where he tried to strangle
Nancy and break her neck. He eventually cut off Nancy's
head. Defendant told Elander that they put Nancy's body
in a 55- gallon drum filled with cement and buried it in
Gant's backyard. They put her head in a five-gallon
bucket filled with cement and threw it off the Dumbarton
Bridge between Alameda and San Mateo Counties, California.
A few days after defendant returned to South Carolina,
Elander testified, he sold Nancy's Corvette to Marion
Mitchell. When Mitchell repeatedly asked for title to the
car, Elander told him that defendant had killed his wife by
shooting her, cutting off her head, putting the body in a
barrel filled with concrete, and burying it in a backyard.
Elander then forged defendant's signature on a bill of
sale and gave it to Mitchell.
In January 1983, defendant made arrangements to stay in
Connecticut with Jeanne Meskell, with whom he previously had
a relationship. While there, defendant told Meskell that he
had killed a girl, that she was in two pieces in two drums
filled with cement, and that one drum was in the San
Francisco Bay and one was in a backyard. In March 1983, the
San Jose police searched Bruce Gant's house, where they
recovered a Tiffany lamp identical to one of Nancy's. A
search of Gant's yard with steel probes in March 1983 and
again in 1984 did not reveal anything. Nancy's body was
The defense at the guilt phase consisted primarily of
challenges to the credibility of the prosecution witnesses.
The defense introduced evidence that Elander was an
untrustworthy drug addict who had engaged in “lying
contests” with defendant and that a woman with blonde
hair and a dog had come to the San Jose stable with
defendant. Because Nancy had blonde hair and owned a dog, the
evidence was introduced to try to show that Nancy was aware
that Mosteller had taken her horse to the San Jose stable.
The defense also introduced evidence to raise doubts over the
burial of Nancy's body in Gant's backyard in
Campbell, California. San Jose Police Officer Demowski
testified that officers searched Gant's backyard three
times without finding Nancy's body. District attorney
investigator Ronald McCurdy testified that he could not find
any records tying Gant to the crime or the disposal of the
1. Prosecution case The prosecution did not introduce any
additional evidence in its case in chief at the penalty
2. Defense case The parties stipulated defendant had no prior
Defendant's father, William Crew, testified that
defendant was born in Fort Worth, Texas in 1954. The family
moved to Novato, California, in 1957 and to Petaluma,
California, in 1966. During this time, defendant did well in
school and was involved in sports. Defendant was never
physically abused as a child.
Defendant's parents began to experience marital
difficulties. His mother became noncommunicative and
withdrawn. In 1969, defendant's parents divorced;
defendant and his father moved to San Jose. Defendant
continued to do well in school.
In 1970, when defendant was 15 years old, defendant's
father married Barbara Martin. Defendant did not get along
with his stepmother and one of her three children. When
defendant's father and stepmother bought a home, his
stepmother's children were each given a bedroom while
defendant had to sleep on a couch. Defendant's grades in
school began to decline. When he was 17 years old, defendant
quit high school and joined the Army.
Defendant did well in the Army. He became a squad leader in
charge of 12 to 14 men, rose to the rank of sergeant, and
became the driver for Colonel Donald Pearce, the base
commander. While he was in the Army, defendant married Patty,
his high school girlfriend, and they had one daughter. When a
friend and fellow-enlistee, James Gilbert, was getting in
trouble because of his drinking, defendant showed concern and
compassion for him. Before his honorable discharge from the
Army in 1976, defendant and Patty divorced.
Thereafter, defendant married Debra Lunde and they moved to
Minnesota. When his marriage to Debra ended in 1981,
defendant moved to Texas, where he lived with and took care
of his grandmother, Irene Watson, who was suffering from
cataracts. In 1978, defendant returned to California, where
he worked as a truck driver and attended junior college. He
then became involved with Emily Bates, whom he treated well.
Part of the testimony of two witnesses, Richard Elander and
Kathy Harper, actually given during their guilt phase
testimony, was referenced at the penalty phase as well as
mitigating evidence about defendant's background. That
testimony consisted of Elander's testimony that defendant
protected and cared for him when Elander was a young man
strung out on drugs. And Kathy Harper testified that when she
was financially destitute, defendant moved in with her and
provided financial support for her and her son.
Emily Bates testified at the penalty phase that she had a
relationship with defendant in 1977 and again in 1980.
Defendant treated her well.
Defendant's father, William Crew, asked the jury to spare
his son's life because as an intelligent and capable
person he could lead a productive life in prison by doing
Defendant's grandmother, Irene Watson, testified that
defendant took care of her for two or three months in 1981
when she was in ill health.
James Gilbert, defendant's friend whom defendant had
helped while they were in the Army, described defendant as a
caring and generous person.
Colonel Pearce, the base commander for whom defendant was the
assigned driver while in the Army, said that defendant was
intelligent, dependable, full of common sense, and mature. He
described defendant as a top soldier. In his view, defendant
should not be put to death because he could lead a productive
life in prison by, for instance, teaching auto repair.
The defense also presented evidence from three Santa Clara
County Sheriff's Deputies (Ron Yount, Toby Council, and
Donald Varnado) who had daily contact with defendant during
the four years he spent in the Santa Clara jail awaiting
trial. According to them, defendant interacted well with
prisoners and staff. Deputy Varnado mentioned that defendant
prevented trouble by telling him about a plan by male inmates
to overpower a female officer. All three deputies were of the
view that if sentenced to life in prison, defendant could
lead a productive life by helping other inmates and doing
Jerry Enomoto, the former head of the California Department
of Corrections and an expert on prisons, expressed the view
that defendant would not be a high security risk in prison.
His opinion was not changed by defendant's alleged
participation in a 1985 escape attempt, because it involved
an unsupervised outdoor area and was based on informant
statements; because the district attorney concluded there was
insufficient evidence to prosecute defendant; and because the
plan did not involve weapons, violence, or the taking of
Clinton Williams, an informant, testified that in 1985, while
in the county jail with defendant, the latter discussed an
escape plan, which involved cutting a hole in the surrounding
fence. Defendant said he wanted to escape because he thought
he would be found guilty of the first degree murder of a
woman whose body was buried in an orchard outside California.
People v. Crew, 31 Cal.4th 822, 828-34 (2003).
was convicted by a jury of one count of murder and the jury
found true a special circumstance allegation that the murder
was carried out for financial gain. CT 2272, AG 2353. The
jury sentenced Petitioner to death. CT 2300, AG 2394.
filed a motion for modification of his sentence in the trial
court. RT 5158-82, AG 10861-85. The trial court granted the
motion, citing, “‘1) a lack of any prior criminal
activity involving violence or the threat to use force or
violence; [¶] 2) the absence of any prior felony
conviction; [¶] 3) the defendant's background;
[¶] 4) the defendant's interpersonal relationships;
[¶] 5) the defendant's custodial conduct; and
[¶] 6) the testimony of Jerry Enomoto, an expert witness
regarding the Department of Corrections.'”
People v. Crew (“Crew II”), 1
Cal.App.4th 1591, 1598 (6th Dist. 1991). The court sentenced
Petitioner to life without the possibility of parole.
Id. It also imposed the aggravated term on
Petitioner's grand theft conviction. RT 5182, AG 10885.
state appealed the trial court's ruling, arguing that the
trial judge improperly compared the facts of Petitioner's
case with those of other capital cases over which he had
presided. Crew II, 1 Cal.App.4th at 1595. The
California Court of Appeal found that the trial court's
“substantial reliance on the facts of those others
cases in ruling on the section 190.4(e) motion was
unauthorized and therefore erroneous.” Id. at
1604. Accordingly, it vacated the judgment and remanded the
case to the trial court for “the limited purpose of
redetermining the automatic modification motion pursuant to
section 190.4(e).” Id. at ...