Rukes v. State of Montana et al

Filing 59

ORDER DENYING RESPONDENTS' 41 MOTION FOR STAY PENDING APPEAL. Signed by Magistrate Judge Jeremiah C. Lynch on 9/30/2014. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
Cause No. CV 13-116-M-JCL

JACK NORMAN RUKES,
Petitioner,

ORDER DENYING RESPONDENTS’
MOTION FOR STAY PENDING
APPEAL

vs.
MARTIN FRINK; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

This matter came before the Court on Petitioner Rukes’s application for writ
of habeas corpus under 28 U.S.C. § 2254. On March 11, 2014, based on the
parties’ written consent, see Consents (Doc. 27-1, 27-2), the case was assigned to
the undersigned for all purposes, including entry of judgment and post-judgment
proceedings, 28 U.S.C. § 636(c). Judgment was entered on May 23, 2014.
In view of the recent amendment of the judgment, see Order Granting Relief
Under Fed. R. Civ. P. 60(b) (Doc. 57), the State renews its motion for stay pending
appeal (Docs. 56, 41). The briefs originally filed by both parties (Docs. 42, 43, 45)
have been deemed resubmitted, Order Granting Rule 60 Relief at 3, and are
considered here.
I. Background
Rukes was granted relief on his claim of misconduct by the bailiff.
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Immediately before the jury began its deliberations, a juror innocently asked the
bailiff “who that guy was that was sitting behind the defendant.” The bailiff told
the entire assembled jury “that was the guard for Mr. Rukes.” Nothing else is
known, because the trial court had already excused the jurors before telling the
parties what the bailiff did. The prosecutor opined that any error was “probably
harmless.” When defense counsel attempted to explain why he thought the error
might have been harmful – including reference to the possibility that one juror saw
Rukes accompanied by the guard even in the bathroom – the trial court cut defense
counsel off.
New counsel appointed on appeal filed an Anders brief.1 She not only failed
to point out that the State had the burden of proving the error harmless beyond
reasonable doubt, see Fry v. Pliler, 551 U.S. 112, 116 (2007) (citing Chapman v.
California, 386 U.S. 18, 24 (1967)), but she also opined that Rukes could not carry
his burden of showing prejudice. The Montana Supreme Court accepted the Anders
brief and dismissed the appeal without discussion.
Rukes filed a postconviction petition, alleging, inter alia, that trial counsel
was ineffective because he did not move for a new trial based on the bailiff’s
misconduct. The Montana Supreme Court held that it had decided on direct appeal
that Rukes failed to establish prejudice, so counsel could not have been ineffective.
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Mont. Code Ann. § 46-8-103(2); Anders v. California, 386 U.S. 738, 744 (1967).

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Rukes v. State, 297 P.3d 1195, 1198 ¶ 20 (Mont. 2013).
The facts of the bailiff’s conduct, sparse as they are in the record, are
undisputed. The State’s motion for stay does not rely on any claim that the
Montana Supreme Court’s decision on direct review was reasonable and so was
owed deference under 28 U.S.C. § 2254(d). It argues instead that Rukes failed to
show the bailiff’s misconduct had “a substantial and injurious effect” under the
standard of Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). See also Fry, 551
U.S. at 121-22.
II. Analysis
District courts consider four factors in determining whether to impose a stay
pending appeal:
(1)

whether the party seeking a stay has made a strong showing that it is
likely to succeed on the merits;

(2)

whether the applicant will be irreparably injured absent a stay;

(3)

whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and

(4)

where the public interest lies.

Haggard v. Curry, 631 F.3d 931, 934-35 (9th Cir. 2010) (per curiam).
A. Likelihood of Success on the Merits
The first factor is the most important. “[T]here is a presumption of release
from custody of a successful habeas petitioner pending appeal.” Haggard, 631
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F.3d at 934 (citing Hilton v. Braunskill, 481 U.S. 770, 774 (1987)).
The State argues it is likely to succeed on appeal because Rukes’s acquittal
on two other counts demonstrates the bailiff’s remark did not convince the jury that
Rukes was a dangerous person. Rukes was convicted on two counts in which his
wife was the victim and acquitted on two counts in which his daughter and her
friend, respectively, were the alleged victims. Br. in Supp. (Doc. 42) at 5. One can
simply, and just as soundly, turn the State’s argument around. The jury’s acquittal
on two counts might mean it would not have been persuaded beyond reasonable
doubt on any count – or on aggravated assault, as opposed to simple assault,
against Mrs. Rukes – were it not for the bailiff’s misconduct. The State’s argument
is persuasive only to those who already agree with it.
More fundamentally, the State begs the question by relying on a jury’s
verdicts in an attempt to demonstrate why those verdicts must have been entered
free of the taint of unconstitutional conduct. To answer the question, all the
evidence presented at trial, including the verdicts, and all the facts and
circumstances, including the bailiff’s communication, must be considered.
Against the trial record, the State continues to characterize the case as one of
“overwhelming” evidence. All of the State’s constructions of the evidence
presented at trial are reasonable. See Br. in Supp. at 9-14. But not a single one is
free of contest or question. The State is not entitled to construe the evidence in
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favor of the verdict, because “the harmless-error inquiry is entirely distinct from a
sufficiency-of-the-evidence inquiry.” United States v. Lane, 474 U.S. 438, 450
n.13 (1986) (internal quotation marks omitted) (cited in Brecht v. Abrahamson,
507 U.S. 619, 623 (1993)). Thus, while the State is correct, for example, that the
jurors were permitted to infer Rukes’s intent “from his acts and the facts and
circumstances of the offense,” Br. in Supp. at 13, it is not correct to say “Rukes’
intent is inferred from his acts and the facts and circumstances of the offense,” id.
(emphasis added). A reasonable juror could instead simply believe Rukes’s
testimony that he had no intent to harm Norma. A reasonable juror could infer that
Rukes did not see any outward sign that she was, to a high degree of probability,
experiencing a reasonable apprehension of serious bodily injury. Mont. Code Ann.
§§ 45-2-103, -5-202(1) (2007); Trial Tr. at 322:24-323:19; Order Granting One
Claim at 20-21. This is not a matter of speculation but of considering what
reasonable inferences a reasonable juror could draw from the evidence. As the
Supreme Court puts it, the State is not entitled to prevail merely because a
reviewing court finds “the sense of guilt comes strongly from the record”:
[T]he question is not were [the jurors] right in their judgment,
regardless of the error or its effect upon the verdict. It is rather what
effect the error had or reasonably may be taken to have had upon the
jury’s decision. The crucial thing is the impact of the thing done
wrong on the minds of other men, not on one’s own, in the total
setting.
This must take account of what the error meant to them, not
singled out and standing alone, but in relation to all else that
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happened. And one must judge others’ reactions not by his own, but
with allowance for how others might react and not be regarded
generally as acting without reason. This is the important difference,
but one easy to ignore when the sense of guilt comes strongly from
the record.
If, when all is said and done, the [reviewing court’s] conviction
is sure that the error did not influence the jury, or had but very slight
effect, the verdict and the judgment should stand . . . . But if one
cannot say, with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error, it is impossible to
conclude that substantial rights were not affected. The inquiry cannot
be merely whether there was enough to support the result, apart from
the phase affected by the error. It is rather, even so, whether the error
itself had substantial influence. If so, or if one is left in grave doubt,
the conviction cannot stand.
Kotteakos v. United States, 328 U.S. 750, 764 (1946) (internal citations omitted),
followed in Brecht, 507 U.S. at 623. Restated, “[i]f the record is so evenly balanced
that a ‘conscientious judge is in grave doubt as to the harmlessness of an error,’ the
petitioner must prevail.” Deck v. Jenkins, No. 13-55130, slip op. at 15, 2014 WL
4800349 (9th Cir. Sept. 29, 2014) (quoting O’Neal v. McAninch, 513 U.S. 324, 437
(1995)).
In order to convict Rukes of aggravated assault, each of the twelve jurors
had to find Norma Rukes’s testimony not merely more credible than Rukes’s
testimony but credible enough to support conviction beyond reasonable doubt.
Norma’s testimony was indeed compelling and persuasive. But a rational juror
could have retained reasonable doubt at the close of all the evidence. See Order
Granting One Claim (Doc. 35) at 4-6; see also, e.g., Long v. Johnson, 736 F.3d
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891, 892-95 & nn.2, 3, 5-8 (9th Cir. 2013) (describing, in a sufficiency of the
evidence case, evidence about which appellate panel harbored reasonable doubt);
id. at 896-97. A case that must be resolved based on what the only two
participating witnesses say happened, in the absence of other witnesses’
corroboration and unambiguous physical evidence, may well be a case featuring
“evidence beyond reasonable doubt.” It is not a case of “overwhelming evidence.”
Because the State consistently mistakes the open nature of the inquiry
described in Kotteakos, it fails to persuade the Court that it has a “reasonable
probability” or a “fair prospect” of success on appeal. The first factor weighs
against a stay.
B. Irreparable Injury
“[I]f the State establishes that there is a risk that the prisoner will pose a
danger to the public if released, the court may take that factor into consideration in
determining whether or not to enlarge him.” Hilton v. Braunskill, 481 U.S. 770,
777 (1987). The State contends that Rukes – despite having no prior criminal
history – is dangerous: “In light of the seriousness of the charged offense of
aggravated assault, the admissions Rukes made at his first trial, and his threatening
to kill Norma, Rukes’ bail will be a substantial amount.” Reply (Doc. 45) at 4. But
the State also opines that the state trial judge “is the best judge of Rukes’ character
and the threat he poses to the general public.” Id. at 5. And the state trial judge
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released Rukes on conditions without any bond. See Order Setting Conditions
(Doc. 4-4) at 1, State v. Rukes, No. DC 09-284 (Mont. 4th Jud. Dist. June 30,
2014).
If the State renews proceedings in the trial court after Rukes’s release from
custody on the unconstitutional judgment, it will have an opportunity to argue
again to the state trial court that Rukes should remain under State supervision or in
custody pending trial. Cf. Irvin v. Dowd, 366 U.S. 717, 728-29 (1961); Harvest v.
Castro, 531 F.3d 737, 750 n.9 (9th Cir. 2008). At this point, it does not make a
sufficient showing that irreparable injury is likely to occur if Rukes is released.
This factor weighs against a stay.
C. Substantial Injury to Another Party
The Court has already decided that Rukes has been in custody for the last
four and a half years on a judgment that was unconstitutionally obtained because
one or more reasonable jurors might have retained reasonable doubt were it not for
the bailiff’s misconduct. Being held in custody on an unconstitutional judgment is
injury that can only be repaired by release and a new trial. This factor weighs
against a stay.
D. Public Interest
The State asserts the final factor weighs in its favor because the trial judge
“is the best judge of Rukes’ character and the threat he poses to the general
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public.” Reply (Doc. 45) at 5. The State bases this argument on what the trial judge
did at sentencing. Id. What the trial judge did at sentencing was based on the jury’s
verdict at trial. That verdict is in question here.
At any rate, the trial judge released Rukes without bond, requiring him to
“remain on supervision in Michigan or Montana” on standard conditions. Order at
1-2, State v. Rukes, Cause No. DC-09-284 (Mont. 4th Jud. Dist. June 30, 2014)
(Doc. 46-4). The State has means available to provide Mrs. Rukes with the security
she requires pending a new trial. And, ultimately, whether Mrs. Rukes has reason
to fear Rukes is better resolved by a new trial than by a stay pending appeal. This
factor weighs against a stay.
E. Conclusion
None of the factors weigh in favor of a stay.

Based on the foregoing, the Court enters the following:
ORDER
The State’s renewed motion for stay pending appeal (Doc. 41) is DENIED.
DATED this 30th day of September, 2014.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

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