Ruffin v. Director Nevada Department of Corrections et al

Filing 57

ORDER re Unexhausted Claims. Petitioner shall have 21 days from entry of this order within which to file a motion for dismissal without prejudice of the entire petition, for partial dismissal only of the unexhausted claims and/or other appropriate r elief. Petitioner's motion 56 for decision is granted to the extent consistent with the action taken. The entire petition, as amended, will be dismissed without prejudice for lack of complete exhaustion if a motion and/or the required verification is not timely filed. Signed by Judge Roger L. Hunt on 6/13/11. (Copies have been distributed pursuant to the NEF - ECS, cc: Kevin Ruffin)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8

KEVIN TYRONE RUFFIN,
9
Petitioner,

2:07-cv-00721-RLH-PAL

10
11

vs.

ORDER

12
13
14

DIRECTOR NEVADA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.

15
16

This represented habeas matter under 28 U.S.C. § 2254 comes before the Court for

17

consideration of the exhaustion issues briefed in the answer (#53) and reply (#54). In an

18

effort to expedite a final resolution fo the case, the Court directed respondents to present any

19

remaining procedural defenses in the answer together with their response on the merits. #52.

20

The matter also is before the Court on petitioner’s motion (#56) for decision.
Background

21
22

Petitioner Kevin Ruffin seeks to set aside his September 28, 2005, amended Nevada

23

state court judgment of conviction, pursuant to a jury verdict, of burglary and larceny from the

24

person with an adjudication as a habitual criminal. He is serving two concurrent life sentences

25

with the possibility of parole after ten years. The original judgment of conviction was filed on

26

June 13, 2000.

27

The charges arose from two pickpocketing incidents in Las Vegas -- one on February

28

7, 1999, in an elevator at the Bellagio Hotel and Casino (the “Bellagio”) and another on

1

February 18, 1999, in an elevator at the New York-New York Hotel and Casino (the “New

2

York-New York”). In the single trial, the jury hung on the Bellagio counts, and those counts

3

later were dismissed. The jury found Ruffin guilty of the two counts arising from the New

4

York-New York incident.

5

Petitioner challenged the original June 13, 2000, judgment of conviction, sentence,

6

and/or habitual criminal adjudication on direct appeal, a post-judgment motion to modify

7

sentence, and a state post-conviction petition. The Supreme Court of Nevada affirmed on

8

direct appeal. On the appeal from the denial of the motion to modify sentence and the state

9

petition, the state supreme court affirmed in part and vacated and remanded the habitual

10

criminal adjudication. The state supreme court vacated the habitual criminal adjudication and

11

sentence and remanded for a de novo resentencing proceeding because the state district

12

court clerk was not able to locate the exhibits from the prior sentencing.1

13

Following a de novo resentencing, an amended judgment of conviction was entered

14

on July 12, 2005, and thereafter was amended on September 28, 2005, to include credit for

15

time served. The Supreme Court of Nevada affirmed on a second direct appeal, on April 6,

16

2007. Petitioner thereafter proceeded to federal court without first pursuing any other state

17

judicial remedies subsequent to the second direct appeal.2
Governing Law

18
19

Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust his state court

20

remedies on a claim before presenting that claim to the federal courts. To satisfy this

21

exhaustion requirement, the claim must have been fairly presented to the state courts

22

completely through to the highest court available, in this case the Supreme Court of Nevada.

23

E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)(en banc); Vang v. Nevada, 329

24

F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the specific

25

federal constitutional guarantee and also must state the facts that entitle the petitioner to relief

26
27

1

See #36-38, Exhs. 48, 69 & 110.

28

2

See #38, Exhs. 125, 131 & 145.

-2-

1

on the federal constitutional claim. E.g., Shumway v. Payne, 223 F.3d 983, 987 (9th Cir.

2

2000). That is, fair presentation requires that the petitioner present the state courts with both

3

the operative facts and the federal legal theory upon which his claim is based. E.g., Castillo

4

v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement insures that the

5

state courts, as a matter of federal-state comity, will have the first opportunity to pass upon

6

and correct alleged violations of federal constitutional guarantees. See,e.g., Coleman v.

7

Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991).

8

Under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), a mixed

9

petition presenting both exhausted and unexhausted claims must be dismissed without

10

prejudice unless the petitioner dismisses the unexhausted claims or seeks other appropriate

11

relief.
Discussion

12
13

Ground 1: Batson Claim

14

In Ground 1, petitioner presents a Batson3 claim, alleging that the prosecution struck

15

the sole black juror on the jury venire because of her race, denying petitioner, who also is

16

black, equal protection of the laws in violation of the Fourteenth Amendment.

17

Under the jury selection procedure used in the state district court, the venire consisted

18

initially of 35 prospective jurors, who were questioned by the court collectively. The clerk

19

thereafter called up 23 prospective jurors from the venire in a random and non-alphabetical

20

order. The venire members then were questioned individually in open court in the presence

21

of the rest of the venire. During both the collective and individual questioning, selected

22

prospective jurors were excused for cause along the way based upon their responses. After

23

23 prospective jurors had been individually questioned without being excused for cause, the

24

State and the defense then exercised up to five peremptory challenges each. The bailiff

25

would hand the jury venire list to one side then the other, starting with the State, until each

26

side had either exercised or waived five peremptory challenges. The first 13 of the venire

27
28

3

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

-3-

1

members called, in the order called, who neither had been excused for cause nor were struck

2

by a peremptory challenge were seated as the jury and alternate.4

3

Ms. Avan Wilson was the sole African-American prospective juror in the venire. She

4

was, in order, the fourth prospective juror called of those had been called but who had not

5

been excused for cause prior to the peremptory challenges.5

6

After the bailiff handed the jury list with the strikes up to the bench, the state district

7

court started reading the names of the prospective jurors who were being excused after the

8

peremptory challenges. However, the court, apparently sua sponte as the transcript reads,

9

then stopped and recessed the proceeding for a conference in chambers.6

10

The following on-the-record exchange occurred in chambers:

11

THE COURT:

Okay. Mr. Hehn [for the State], there is only
one African-American prospective juror on
this panel and you have chosen to exercise
a peremptory challenge on that. I have to
have a non-racial reason or reasons – --

MR. HEHN:

Sure.

THE COURT:

– – why you are challenging.

MR. HEHN:

Absolutely. She stated, when she was
talking with Mr. Walton [for the defense], that
his face was very familiar, that I felt as
though she laughed immaturely and
inappropriately while he was talking with her,
which indicated to me that she was trying to
kind of curry favor with him. And also she
stated that she had a baby sitting problem
immediately after 5 o’clock, and I felt as
though that would interfere with her ability to
deliberate if we adjourned and they start
deliberating, which would maybe take them
past 5 o’clock, she would just throw an
answer rather than actually deliberate.

THE COURT:

Okay. Mr. Walton, I’m going to – I think

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

4

See,e.g., #35, Ex. 36, at 7-8, 13, 18, 21, 24 & 34; #36, Ex. 38, at 148-49.

27

5

See #35, Ex. 36, at 45-50.

28

6

See #35, Ex. 36, at 149.

-4-

those are legitimate reasons and for those
reasons I’m not going to preclude him from
challenging her. You may put anything on
the record that you wish.

1
2
3

MR. WALTON:

Yes, Judge. I declare for the record that
that’s not a sufficient race-neutral for [sic]
reason for excluding the only prospective
black panel member and I’d like my
objection to be noted for the record.

THE COURT:

They are noted for the record. Thank you
very much. That will be it.

4
5
6
7
8

#36, Ex. 38, at 149-50.

9

The foregoing was the entirety of the argument presented in the state district court on

10

the Batson issue, which appears from the transcript to have been raised sua sponte by the

11

court rather than initially by the defense. Other than the conclusory statement that the State

12

had not given a sufficient race-neutral reason, the defense did not specifically challenge the

13

factual assertions made by the State. Nor did the defense seek to argue that other facts

14

demonstrated that the reasons given by the State were merely pretextual.

15

The state district court thereupon reconvened the matter, excused the rest of the struck

16

prospective jurors, and had the jury sworn. Avan Wilson was the second prospective juror

17

of the 23 called – vis-à-vis the order in which they were called by the clerk – who was struck

18

by a party.7 The record does not reflect which side struck which prospective jurors other than

19

Wilson. Nor does the record reflect the order in which the prospective jurors were struck as

20

the list was passed back and forth between the State and defense. For example, the record

21

does not reflect whether the State struck Wilson with its first, last, or an intermediate

22

peremptory challenge. There is no suggestion in the record that counsel were required to go

23

down the jury list in order when exercising their peremptory challenges.

24

On direct appeal, petitioner alleged that the State’s exercise of a peremptory challenge

25

as to prospective juror Wilson deprived him of equal protection of the laws pursuant to

26
27
7

28

The only other prospective juror who was struck who preceded W ilson in the order that the 23 were
called by the clerk was Joanne Silvernail. Com pare #35, Ex. 36, at 36-40, with #36, Ex. 38, at 149.

-5-

1

Batson. Petitioner contended that the State’s explanation for the strike did not present an

2

adequate race-neutral explanation. Petitioner argued specifically:
Not liking how a prospective juror laughed and resorting to
the non-issue of the trial going past five o’clock (which the trial
judge had indicated would not happen) were nothing more than
pretextual excuses for eliminating the only African-American from
the jury.

3
4
5
6
7
8

#36. Ex. 61, at 8-9.
Petitioner presented no other factual basis in his direct appeal brief for concluding that
the State’s reasons were inadequate. The claim presented was rejected on the merits.8

9

On federal habeas review, petitioner, among other arguments, maintained for the first

10

time that the State’s reliance upon Wilson’s baby sitting issue was pretextual because the

11

State had not struck two other prospective jurors who had allegedly similar scheduling issues.

12

The other two jurors were: (1) Lisa Scarpati, who was the prospective juror called by the clerk

13

immediately after Wilson and the third juror on the jury in that order; and (2) Diane Hill, who

14

was the sixteenth remaining prospective juror in the order called by the clerk who had not

15

been excused for cause and the ninth juror on the jury in that order.9 Both Scarpati and Hill

16

were seated on the jury. In federal court, Ruffin has sought to establish that the State’s

17

reliance upon the baby sitting issue was pretextual by undertaking what the parties have

18

described as a comparative analysis of the answers given by the struck Wilson to the answers

19

given by Scarpati and Hill, who were not struck by either party.

20

Respondents contend that the claim presented in the second amended petition is not

21

fully exhausted because petitioner presents this comparative analysis that was not presented

22

to the state supreme court in the direct appeal briefing. That is, in Ground 1, petitioner

23

compares voir dire responses by the black juror upon which the State relied in its explanation

24
25
26
27
28

8

#37, Ex. 69, at 1-2.

9

The alternate was selected from am ong the thirteen through an essentially random process. See
#36, Ex. 38, at 152. In Ruffin’s case, the seventh juror of the final thirteen was selected as the alternate. Hill
is listed as the tenth juror on the final jury list. #35, Ex. 37. However, Hill was the ninth of the jurors excluding
the alternate.

-6-

1

for striking the juror to allegedly similar responses by non-minority jurors who were not struck

2

by the State. Respondents contend that petitioner’s reliance upon this comparative analysis

3

in Ground 1 renders the claim as presented on federal review unexhausted.

4

The question is a debatable one. However, at bottom, the Court is not persuaded that

5

the additional factual argument provided by petitioner on federal habeas review – directed to

6

the same record that was before the state courts – renders the claim unexhausted. Reliance

7

upon additional factual material that does not fundamentally alter the legal claim considered

8

by the state courts does not render a claim unexhausted. See,e.g., Vasquez v. Hillery, 474

9

U.S. 254, 260, 106 S.Ct. 617, 621-22, 88 L.Ed.2d 598 (1986); Lopez v. Schriro, 491 F.3d

10

1029, 1040 (9th Cir. 2007). The Court has concerns as to conducting AEDPA review of a

11

state court merits adjudication based upon factual arguments that were not presented to the

12

state courts, particularly as to a Batson claim.10 However, the Court holds under current

13

precedent that the claim is exhausted.

14
15

Ground 1 therefore is exhausted.
Ground 2: Effective Assistance of Trial Counsel – Voir Dire

16

In Ground 2, petitioner alleges in the main11 that he was denied effective assistance

17

of counsel in violation of the Sixth and Fourteenth Amendments when trial counsel failed to

18

object during voir dire to the state trial court’s reference to petitioner’s alias.

19
20
21
22
23
24
25
26
27
28

10

A substantial tension exists between the pre-AEDPA exhaustion holding in Vasquez v. Hillery and
the Suprem e Court’s recent AEDPA holding in Cullen v. Pinholster, 131 S.Ct. 1388 (2011), that review of a
m erits determ ination by a state court is restricted to the record before the state courts. That is, new evidence
m ight not render a federal claim unexhausted under Vasquez v. Hillery, but the federal court nonetheless
would be precluded from considering the new evidence under Cullen v. Pinholster in applying 28 U.S.C. §
2254(d). In this instance, Ground 1 is based upon facts that were in the state court record when the Batson
claim was adjudicated by the state courts on the m erits. Following Cullen v. Pinholster, a question rem ains
as to whether AEDPA review allows the federal court to consider factual argum ents not presented to the state
courts even based upon the existing state court record. However, the situation presented here at least is not
one where new evidence is being presented for the first tim e in federal court that was not even present in the
state record. See also Haney v. Adams, ___ F.3d ___, 2011 W L 2040962 (9 th Cir., May 26, 2011)(requiring
contem poraneous Batson objection so that, inter alia, the prosecutor m ay respond based upon his current
perceptions and the trial judge can evaluate the prosecutor’s dem eanor and credibility sim ilarly based upon
the judge’s current perceptions).
11

The allegation that petitioner was denied due process under the Fifth Am endm ent is surplusage.

-7-

1

The state district court asked the venire at the beginning of voir dire whether they were

2

acquainted with “the Defendant, Kevin Tyrone Ruffin, also known as Michael Simmons.”

3

Prospective juror Vicky Wells thereafter expressed a concern – during the individual

4

questioning before the entire venire -- that she would not be able to put out of her mind the

5

fact that Ruffin had an alias. She stated that “I only know of one reason why someone would

6

have an alias.” After a series of questions seeking to determine whether she could put the

7

matter of the alias out of her mind as a juror, the state trial court excused Wells. Thereafter,

8

at the very end of the day when the court was releasing the venire until the next morning,

9

prospective juror Cindy Joseph echoed Wells’ concern as to the alias. Joseph had not been

10

individually questioned prior to that point. After determining that Joseph also was unable to

11

put the matter out of her mind as a juror, the court excused Joseph.12

12

When petitioner presented an at least related claim13 of ineffective assistance of trial

13

counsel in the state courts, he pointed only to the statements by prospective juror Wells and

14

not those of prospective juror Joseph in seeking to demonstrate prejudice.14 On federal

15

habeas review, he relies upon the statements of both Wells and Joseph in order to establish

16

prejudice.

17

As with the discussion above of Ground 1, the Court is not persuaded that the

18

additional factual argument provided by petitioner on federal habeas review – directed to the

19

same record that was before the state courts – fundamentally alters the claim that was

20

exhausted. While the Court similarly has concerns about conducting AEDPA review of a

21

claim based upon a factual argument not presented to the state courts, the Court holds under

22

current precedent that the claim is exhausted.

23

Ground 2 therefore is exhausted.

24
25
26
27
28

12

#35, Ex. 36, at 5, 72-74 & 99-100.

13

Respondents’ exhaustion objection is directed only to the fact that petitioner refers also to Joseph
on federal habeas review.
14

#37, Ex. 82, at 5-7.

-8-

1

Ground 3: Effective Assistance – Bellagio Videotape Testimony

2

In Ground 3, petitioner alleges in the main15 that he was denied effective assistance

3

of counsel in violation of the Sixth and Fourteenth Amendments when trial counsel failed to

4

object to references in the State’s opening statement, witness testimony and closing

5

argument to a videotape from the Bellagio that was ruled inadmissible late in the trial.16

6
7

Ruffin claimed in state court that counsel was ineffective for failing to object to the
testimony of witnesses who referred to the tape that later was ruled inadmissible.17

8

Respondents contend that Ground 3 is not exhausted to the extent that petitioner

9

bases the ground on claims that counsel was ineffective for failing to object to the references

10

to the videotape in the State’s opening statement and closing argument. Petitioner relies

11

again on Vasquez v. Hillery, supra, for the proposition that the additional allegations do not

12

fundamentally alter the legal claim presented to the state courts.

13

Here, the Court is persuaded that petitioner’s assertion of the additional claims does

14

more than merely provide additional factual allegations that do not fundamentally alter the

15

legal claim presented to the state courts. Claims that trial counsel should have objected to

16

opening statements and closing argument are different claims from a claim that trial counsel

17

should have objected to testimony. Moreover, petitioner maintains in the second amended

18

petition that trial counsel should have objected to what is alleged to be “prosecutorial

19

misconduct” by the State in its opening statement and closing argument.18 Clearly, petitioner

20

has fundamentally altered the legal claim presented to the state courts.

21

Ground 3 therefore is not exhausted to the extent that petitioner alleges that he was

22

denied effective assistance of counsel when trial counsel failed to object to references in the

23

State’s opening statement and closing argument about the Bellagio videotape.

24
25

15

See note 11, supra.

26

16

#49, at 17-20.

27

17

#37, Ex. 82, at 13-15.

28

18

#49, at 19, line 9.

-9-

1

Ground 4: Admission of Bellagio Evidence

2

In Ground 4, petitioner alleges that he was denied rights to due process and a fair trial

3

in violation of the Fifth, Sixth and Fourteenth Amendments when evidence about the Bellagio

4

incident was introduced, as it allegedly constituted improper propensity evidence as to a crime

5

that the State was unable to prove was committed by Ruffin.19

6
7

Respondents contend that Ground 4 is not exhausted because, inter alia, petitioner did
not fairly present a federal constitutional claim on direct appeal.

8

In the claim presented on direct appeal, petitioner neither articulated federal

9

constitutional doctrine supporting a federal claim nor cited case law applying a legal analysis

10

for a federal constitutional claim. Petitioner instead argued that the trial court committed

11

prejudicial error in handling a jury inquiry about the Bellagio evidence during deliberations.

12

In the concluding paragraph, petitioner asserted that the court’s action “amounted to an abuse

13

of discretion and deprived Defendant of his right to a fair trial under the due process clause

14

of the Fifth Amendment to the United States Constitution.”20 Such conclusory references to

15

“due process” and a “right to a fair trial,” detached from any articulated federal legal theory

16

or citation to apposite cases applying a federal constitutional legal analysis, are not sufficient

17

to fairly present a constitutional claim, including a claim under the Due Process Clause.21 Any

18

federal claim corresponding to Ground 4 clearly was not exhausted on direct appeal.

19

Petitioner further urges that an ineffective assistance claim and a cumulative error

20

claim presented on state post-conviction review exhausted the independent substantive

21
22
23
24
25
26
27
28

19

#49, at 20-22.

20

#36, Ex. 61, at 9-14.

21

See,e.g., Fields v. W addington, 401 F.3d 1018, 1021 (9th Cir. 2005)(m ention of the “federal
Constitution” and “due process” did not exhaust a claim , inter alia, that the trial court violated petitioner’s
federal Fourteenth Am endm ent right to due process by failing to provide him personally with a copy of an
am ended inform ation); Castillo, 399 F.3d at 999-1002 (statem ent that im proper adm ission of evidence denied
petitioner a fair trial in violation of the United States Constitution and blanket concluding statem ent in brief that
alleged gross violations of petitioner’s Fifth, Sixth, and Fourteenth Am endm ent rights required a new trial
consistent with due process of law did not exhaust claim that trial court denied petitioner due process by
adm itting videotaped interrogation); Shumway, 223 F.3d at 987 (naked reference to “due process” did not
exhaust claim that redaction of portions of statem ent to police violated petitioner’s right to due process).

-10-

1

claims in Ground 4. However, petitioner identified only the direct appeal brief as the basis for

2

exhaustion of Ground 4 in the second amended petition.22 Petitioner may not “sandbag”

3

respondents by raising a different basis for exhaustion of a ground in the reply, and further

4

amendment of the petition instead would be required. Any such amendment would be futile

5

in this case. Neither a claim of ineffective assistance of counsel nor a cumulative error claim

6

exhausts an underlying independent substantive claim. Petitioner never presented the

7

independent substantive claims in Ground 4 as independent substantive claims based upon

8

federal constitutional law.

9
10

Ground 4 therefore is not exhausted.23
Ground 5: Effective Assistance – Identification Testimony

11

In Ground 5, petitioner alleges in the main24 that he was denied effective assistance

12

of counsel in violation of the Sixth and Fourteenth Amendments when trial counsel failed to

13

object to allegedly unreliable identification testimony by State witnesses Diana Stubenrauch,

14

Dan Smolinski, and Dolores Harris.

15

Respondents contend that Ground 5 is not exhausted because, inter alia, petitioner did

16

not present claims to the state courts that trial counsel was ineffective for failing to object to

17

the identification testimony of State witnesses Smolinski and Harris.

18

Indisputably, the claim that petitioner presented in state court was based exclusively

19

upon alleged unreliable identification testimony by Stubenrauch. The counseled state post-

20

conviction petition discusses only Stubenrauch’s identification testimony. #37, Ex. 82, at 4-5.

21
22

22

23

23

24
25
26
27
28

#49, at 20, lines 11-13.

The Court further is not persuaded that all aspects of Ground 4 – i.e., the sam e legal claim s – were
fairly presented to the state courts on direct appeal. Petitioner has not m erely supplied additional factual
allegations but has fundam entally altered the claim presented to the state courts. In any event, even if
Ground 4 had been fully exhausted and adjudicated on the m erits by the state courts, the claim s therein
would face a steep uphill struggle on AEDPA review. See Alberni v. McDaniel, 458 F.3d 860 (9 th Cir. 2006)
(state court determ ination that due process was not violated by the introduction of propensity evidence was
not an objectively unreasonable application of clearly established federal law at the tim e of the state court
decision, given that the Suprem e Court had expressly reserved the issue).
24

See note 11, supra.

-11-

1

Federal habeas counsel focuses instead, however, not upon the factual basis

2

presented to the state courts but instead on the listing of the claim in the table of contents and

3

in the subject heading for the claim. The table of contents refers to “Failure to File Pretrial

4

Motions” and, under that heading, “Motion for Lineup or in Alternative to Suppress Suggestive

5

Identification of Petitioner.” The subject heading – which immediately precedes factual and

6

legal argument discussing Stubenrauch’s identification testimony – similarly states: “Motion

7

for Lineup or in the Alternative to Suppress the Suggestive Identification of Petitioner.”

8

Counsel urges that this topic listing and subject heading “presented a broader claim” and

9

“could be fairly understood to encompass any of the suggestive identifications that were

10

introduced against Ruffin at his trial.”25

11

This argument is frivolous. It is established law that the petitioner must present both

12

the federal legal theory and the operative facts upon which his claim is based to fairly exhaust

13

the claim. Castillo, supra. A generic table of contents listing and a generic subject heading

14

present no operative facts. The only operative facts presented by petitioner – immediately

15

after the above-referenced subject heading – concerned Stubenrauch’s identification

16

testimony and not that of any other witness. It is beyond any rational dispute that petitioner

17

did not exhaust claims that trial counsel was ineffective for failing to challenge identification

18

testimony by Smolinski and Harris.

19

Petitioner further urges that the state courts considered a broader claim when they

20

described the claim that they were rejecting in generic terms. The Supreme Court of Nevada,

21

for example, listed a number of claims that it was denying, stating: “In his petition, Ruffin also

22

contended that his trial counsel was ineffective for failing: (1) to file a number of different

23

pretrial motions, including motions to suppress in-court identification of appellant . . . .”26 This

24

argument is frivolous as well. The state supreme court was referring to the claims petitioner

25

presented “[i]n his petition,” which included no claims alleging that trial counsel was ineffective

26
27

25

#54, at 32.

28

26

#38, Ex. 110, at 4.

-12-

1

for failing to challenge identification testimony by Smolinski and Harris. The state courts are

2

not required to repeat every jot and tittle of the entire state petition in describing the claims

3

that are being rejected at the risk of expanding petitioner’s claims if they instead use generic

4

language when referring to the claims being denied. Petitioner’s argument is frivolous.

5

Also frivolous is the argument that the claims are exhausted because Ruffin referred

6

to the Smolinski identification in connection with a claim that counsel was ineffective for failing

7

to investigate a convenience store videotape. Petitioner must present both the federal legal

8

theory and the operative facts supporting each claim. Ruffin did not present the legal theory

9

that counsel was ineffective for failing to challenge identification testimony together with the

10

facts of Smolinski’s identification in the same claim. The exhaustion requirement is not

11

satisfied in a mix-and-match, smorgasbord fashion. Fair presentation demands that the state

12

courts be presented with the same legal claims based on the same facts.

13

Presenting claims that counsel was ineffective for not challenging identification

14

testimony by Smolinski and Harris fundamentally alters the claim presented to the state

15

courts.

16

Stubenrauch, which constituted the operative facts presented to the state courts as to this

17

claim. It is quite another to present allegations regarding identification testimony by entirely

18

different witnesses not argued to the state courts as to this claim. Ruffin gave the state courts

19

fair notice that he was claiming ineffective assistance only based upon the failure to challenge

20

Stubenrauch’s identification testimony.

21
22

It is one thing to add allegations pertaining to the identification testimony of

Ground 5 therefore is unexhausted to the extent that petitioner claims that counsel was
ineffective for failing to challenge the identification testimony of Smolinski and Harris.

23

Ground 5 also is unexhausted to the extent that petitioner claims that counsel was

24

ineffective for failing to object to Stubenrauch’s testimony identifying Ruffin in the surveillance

25

videotape as inadmissible lay opinion.27 Petitioner has not responded to respondents’

26

argument in this regard and has not demonstrated that this distinct legal claim was exhausted.

27
28

27

#49, at 24, lines 10-15.

-13-

1

Ground 6: Effective Assistance – Circle K Videotape

2

In Ground 6, petitioner alleges in the main28 that he was denied effective assistance

3

of counsel in violation of the Sixth and Fourteenth Amendments when trial counsel failed to

4

object to conduct any pretrial investigation regarding the Circle K videotape. According to the

5

pleadings, the convenience store manager, Dan Smolinski, testified that, after a charge was

6

made on the New York-New York victim’s credit card at his store, he reviewed a surveillance

7

videotape alleged to be of the transaction. He testified that he recognized Ruffin on the

8

videotape from prior visits to the store. Smolinski testified that he gave the videotape to the

9

police. In the second amended petition, petitioner alleges that responses to federal discovery

10

demonstrate that the police never obtained such a videotape. He thus alleges for the first

11

time that pretrial investigation would have revealed that the videotape never existed and that

12

Smolinski’s associated testimony thus could have been excluded at trial based upon this fact.

13

In the state petition, Ruffin alleged that he was denied effective assistance of counsel

14

because trial counsel “did not take steps to prevent or minimize the harmful effects of the

15

introduction of testimony surrounding the Circle K video by failing to compel discovery prior

16

to trial, and/or upon inaction by the District Attorney’s office, failing to move for dismissal

17

based on the non-production or disappearance of this critical evidence.” Based on the trial

18

testimony of Smolinski and Detective Carolyn Wolfe, petitioner alleged that the videotape

19

initially had been provided to the police. Based on the inability of the State to produce the

20

tape based upon a post-trial, pre-sentencing subpoena, petitioner alleged that the tape

21

thereafter had been lost.

22

“adequately prepared and litigated the issue,” he could have obtained a ruling that the

23

evidence must be presumed to be unfavorable to the State. #37, Ex. 82, at 7-10.

Petitioner accordingly contended that if trial counsel had

24

Respondents contend that federal Ground 6 is unexhausted because: (1) Ruffin “now

25

relies on ‘new’ evidence which was never presented to the state courts;” and (2) petitioner’s

26
27
28

28

See note 11 supra. The sam e point applies to the allegation that the ineffective assistance of
counsel deprived petitioner of his right to a fair trial. Such surplusage is unnecessary and arguably tends to
invite a challenge to the exhaustion of the “right to a fair trial” legal theory.

-14-

1

claim in the state court was that counsel failed “to seek dismissal or an instruction that lost

2

evidence was favorable to the defendant” but now claims “that the videotape never existed

3

and that pre-trial investigation would have revealed that fact.”29

4
5

The exhaustion issue as to Ground 6 is a close one, particularly after the Supreme
Court’s intervening decision in Cullen v. Pinholster, 131 S.Ct. 1388 (2011).

6

As the Court noted above in the discussion as to Ground 1, substantial tension exists

7

between the pre-AEDPA exhaustion holding in Vasquez v. Hillery, supra, and the Supreme

8

Court's recent AEDPA decision in Cullen v. Pinholster. In Vasquez v. Hillery, the Court held

9

that new facts that do not fundamentally alter a claim do not render the claim unexhausted.

10

In Cullen v. Pinholster, the Court held that review of a merits determination by a state court

11

is restricted to the record before the state courts, so long as the state court decision is entitled

12

to deference under the 28 U.S.C. § 2254(d) standard of review. Accordingly, if the pre-

13

AEDPA holding in Vasquez v. Hillery remains good law, new evidence potentially might not

14

render a federal claim unexhausted, yet the federal court would be precluded from

15

considering the new evidence under Cullen v. Pinholster when applying 28 U.S.C. § 2254(d).

16

The Ninth Circuit reaffirmed its adherence to the rule in Vasquez v. Hillery in, inter alia,

17

its en banc decision in Pinholster v. Ayers, 590 F.3d 964 (9th Cir. 2009), which was overturned

18

on the merits in Cullen v. Pinholster. See 590 F.3d at 669. The Supreme Court did not

19

reach, much less overturn, the en banc court’s holding on the exhaustion issue. See 131

20

S.Ct. at 1402 n.11. It thus would appear that, for the present, the Ninth Circuit’s post-AEDPA

21

reliance upon the rule in Vasquez v. Hillery remains good law within the Circuit.

22

The Ninth Circuit’s en banc decision in Pinholster relied upon the prior Ninth Circuit

23

decision in Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Pinholster cited Weaver for

24

the proposition that, under the rule stated in Vasquez v. Hillery, the federal court should not

25
26
27
28

29

#53, at 46-47. Petitioner m aintains that respondents concede that Ground 6 is exhausted except
for the fact that Ruffin now relies on new evidence. #54, at 43. Respondent do indeed start their argum ent
with the statem ent that the claim “would be exhausted except for” the fact that Ruffin relies on new evidence.
#53, at 45. Respondents ultim ately, however, argue further that the legal claim presented in federal court is
not the sam e claim as the claim that was presented in state court. See #53, at 46-47.

-15-

1

engage in “unwarranted hairsplitting” where the legal claim remained the same but the precise

2

factual predicate changed after factual development in federal court. 590 F.3d at 669. In

3

Weaver, the petitioner asserted a claim of bailiff misconduct in the state courts, based upon

4

the allegation that the bailiff told the jury that it could not adjourn for the night without reaching

5

a verdict. After a federal evidentiary hearing, the district court found that the bailiff engaged

6

in misconduct by instead telling the jury that it needed to reach a verdict on all counts. The

7

Ninth Circuit rejected the respondents’ exhaustion argument as “unwarranted hairsplitting”

8

given that the petitioner had argued that he was subjected to bailiff misconduct that had a

9

coercive impact upon the jury deliberations.

10

Similarly, in the present case, petitioner has claimed – consistently throughout – that

11

if trial counsel had pursued the matter of the Circle K videotape before trial, he would have

12

been able to limit or eliminate the impact of Smolinski’s associated testimony. While the

13

question is a close one, the Court accordingly holds that Ground 6 is exhausted. The new

14

evidence may be considered on federal habeas review, however, only if the state court’s

15

rejection of the corresponding claim was either contrary to or an unreasonable application of

16

clearly established federal law or was based upon an unreasonable determination of fact in

17

light of the evidence before the state courts. Cullen v. Pinholster, supra. For the moment,

18

the Court leaves that determination to another, albeit not very distant, day.30

19
20

Ground 6 therefore is exhausted.
Ground 7:

21

In Ground 7, petitioner alleges in the main31 that he was denied effective assistance

22

of counsel in violation of the Sixth and Fourteenth Amendments when trial counsel failed to

23

conduct investigation that would have produced exculpatory evidence. Petitioner alleges, in

24

particular, that trial counsel: (1) failed to interview witnesses Dan Smolinski, Dolores Harris,

25
26
27
28

30

The Court first m ust give petitioner an opportunity to m ake an election as to the relief to request visà-vis the unexhausted claim s.
31

See note 11, supra.

-16-

1

and Diana Stubenrauch, which would have enabled counsel to either exclude their

2

identification testimony entirely or at least impeach the witnesses; (2) failed to interview

3

Ruffin’s alleged accomplices, Kimberly Meeks and Wanda Duncan, to discover that Meeks

4

allegedly would have testified that she did not know Ruffin and that she never rented a car

5

with Duncan; (3) failed to develop any witnesses for the defense, such as a New York-New

6

York casino bell captain who potentially could have disputed Stubenrauch’s identification of

7

Ruffin as the black male on the elevator; and (4) failed to retain an identification expert who

8

allegedly could have demonstrated that the identifications made by Stubenrauch, Smolinski,

9

and Harris were inherently untrustworthy.32

10

In principal part, respondents challenge the exhaustion of the first two parts above.

11

The Court is persuaded that, with the exception of investigation as to Dan Smolinski

12

as to the Circle K videotape as discussed as to Ground 6, which is addressed under that

13

ground, the first two parts of Ground 7 described above are not exhausted. Petitioner points

14

to his claim in state Ground 2 that counsel was ineffective for not, inter alia, “interviewing all

15

state witnesses prior to trial.”33 However, again, petitioner must fairly present both the

16

operative facts and the legal theory supporting his claim to the state courts. Castillo, supra.

17

Presenting a claim in federal court as to the failure to interview particular witnesses and the

18

resulting prejudice therefrom does indeed fundamentally alter an only conclusory claim

19

presented in the state courts. The conclusory claim in the – counseled – state petition did not

20

present the state courts with any operative factual allegations of any degree of specificity as

21

to the failure to interview witnesses other than that the New York-New York bell captain had

22

not been interviewed and that he “could have been a defense witness in the case.”34 A claim

23

devoid of any factual particulars, particularly as to the prejudice element, remains conclusory

24

even when presented by counsel with accompanying legal argument.

25
26

32

#49, at 29-31.

27

33

#37, Ex. 82, at 10.

28

34

#37, Ex. 82, at 10-11.

-17-

1

Petitioner’s reliance upon factual allegations in other claims in the state petition to

2

show full exhaustion of federal Ground 7 again is misplaced. Petitioner must fairly present

3

the state courts with both the operative facts and the federal legal theory supporting his claim.

4

The federal exhaustion requirement again is not satisfied in a mix-and-match, smorgasbord

5

fashion under which claims are exhausted so long as the facts and legal theory are articulated

6

somewhere in the state petition, albeit not together in the same claim.

7

Ground 7 therefore is unexhausted to the extent that petitioner claims that trial counsel

8

was ineffective for failing: (1) to interview witnesses Dan Smolinski,35 Dolores Harris, and

9

Diana Stubenrauch, to enable counsel to either exclude their identification testimony entirely

10

or at least impeach the witnesses; (2) to interview Ruffin’s alleged accomplices, Kimberly

11

Meeks and Wanda Duncan, to discover that Meeks allegedly would have testified that she did

12

not know Ruffin and that she never rented a car with Duncan.

13
14
15

Grounds 8, 9 & 10
Respondents raise no exhaustion issues as to Grounds 8, 9 & 10.
Grounds 11 & 12

16

Grounds 11 and 12 involve similar exhaustion issues.

17

In Ground 11, petitioner alleges in the main36 that he was denied effective assistance

18

of counsel in violation of the Sixth and Fourteenth Amendments when appellate counsel failed

19

to argue that sentencing him as a habitual criminal to life with the possibility of parole

20

constituted excessive punishment in violation of the Eighth and Fourteenth Amendments.37

21

In Ground 12, petitioner alleges that his sentencing as a habitual criminal denied him

22

due process of law in violation of the Fifth and Fourteenth Amendments because the state

23

district court: (a) made no specific finding that he deserved to be declared a habitual criminal

24

or that it was just and proper to do so; (b) failed to state the reason why a habitual criminal

25
26

35

Sm olinski’s testim ony specifically regarding the Circle K videotape is addressed under Ground 6.

27

36

See note 11, supra.

28

37

#49, at 39-40.

-18-

1

sentence was appropriate; and (c) sentenced him as a habitual criminal “without the

2

necessary paperwork.”38

3

On the direct appeal from the original June 13, 2000, judgment of conviction, Ruffin’s

4

appellate counsel did not challenge the habitual criminal adjudication. The Supreme Court

5

of Nevada affirmed the conviction on direct appeal on November 19, 2001.39

6

In March 2002, petitioner filed a motion to modify sentence. He presented claims

7

therein, inter alia, that he was denied due process because the state district court made no

8

specific finding that it was just and proper to adjudicate him a habitual criminal and sentenced

9

him as a habitual criminal based upon uncertified documents.40

10

In December 2002, petitioner filed a state post-conviction petition. He presented, inter

11

alia, a claim therein that he was denied effective assistance of counsel when appellate

12

counsel failed to argue that sentencing him as a habitual criminal to two consecutive

13

sentences of life with the possibility of parole, after ten years on each sentence, constituted

14

cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

15

Petitioner specifically argued:
. . . . Even one habitual criminal adjudication, with life on
parole, would surely discourage any type of repeat behavior, once
paroled after ten years on a single pick-pocketing offense,
however even imposition of one adjudication was an abuse of
discretion. Two consecutive life sentences for pick-pocketing
constitutes cruel and unusual punishment.

16
17
18
19
20
21
22
23

#37, Ex. 82, at 20-21.
The Supreme Court of Nevada consolidated the appeals from the denials of the motion
and petition. The state district court clerk, however, was unable to locate the exhibits filed
with the habitual criminal adjudication in response to the state high court’s directives. In its
June 8, 2004, written decision, the state supreme court found and proceeded as follows:

24
25
26

38

#49, at 40-41.

27

39

#36-37, Exhs. 48, 61 & 69.

28

40

#37, Ex. 72.

-19-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

. . . . The records transmitted to this court in response to
[its] directives reveal that at Ruffin’s sentencing hearing the State
presented the district court with copies of Ruffin’s prior judgments
of conviction. The records before this court, however, do not
contain copies of those prior judgments of conviction. Nor does
it appear that these documents are presently part of the records
maintained by the clerk of the district court.
The Office of the Clark County Clerk has informed the
clerk of this court that it is unable to locate any of these
documents and is “at a loss as to what might have happened to
these exhibits.” The State has informed this court that it can only
locate in its internal files some of the prior judgments of conviction
originally presented as evidence below. Although the State has
submitted copies of the available judgments directly to this court
under seal, the documents have not been reviewed or
authenticated by appellant or the district court.
Without a complete record containing copies of the prior
judgments of conviction admitted into evidence and relied upon
by the district court in adjudicating Ruffin a habitual criminal, we
are unable to conduct a meaningful review of the district court’s
orders resolving the claims Ruffin presented below attacking his
habitual criminal adjudication.[FN3] Under these circumstances,
we have concluded that Ruffin’s sentence must be vacated, and
this matter must be reversed in part and remanded for a new
sentencing hearing . . . in which the State, in its discretion, may
again seek habitual criminal adjudication.[FN4] . . . . In light of
our conclusions in this respect, we dismiss as moot Ruffin’s
appeal . . . from the district court’s order denying his motion to
modify his sentence.
[FN3] See Lopez v. State, 105 Nev. 68, 84-85, 769
P.2d 1276, 1287 (1989) (recognizing that
“meaningful, effective appellate review depends
upon the availability of an accurate record covering
lower court proceedings relevant to the issues on
appeal”); Daniel v. State, 119 Nev. ___, ___, 78
P.3d 890, 897 (2003).
[FN4] This court’s prior decisions in [citations
omitted] are distinguishable. Here, the State filed
a timely notice of intent to seek habitual criminal
adjudication and presented the district court with
copies of prior judgments of conviction at Ruffin’s
sentencing hearing.
For reasons unknown,
however, these documents have been lost or
misplaced through no apparent fault of the State.
#38, Ex. 110, at 3-4 (emphasis added).

27

The state supreme court of course could dismiss the entire appeal from the order

28

denying Ruffin’s motion to modify his sentence as moot because that appeal concerned only
-20-

1

issues involving the habitual criminal adjudication. The appeal from the order denying the

2

post-conviction petition, in contrast, concerned other issues in addition to the claims of

3

ineffective assistance of counsel regarding the habitual criminal adjudication. After discussing

4

the non-sentencing claims, the state high court affirmed “that portion of the district court’s

5

order denying the allegations of effective assistance in Ruffin’s petition unrelated to the

6

habitual criminal adjudication.” The court noted that it “express[ed] no view respecting the

7

validity of the district court’s prior habitual criminal adjudication” and that any appeal from the

8

decision on remand should be docketed “as a new and separate matter.”41

9

On remand, the state district court appointed counsel for petitioner and held a new

10

sentencing proceeding. At the second sentencing, the district court adjudged Ruffin a

11

habitual criminal. The court sentenced Ruffin to two life sentences with the benefit of parole

12

after ten years. However, the court ordered the sentences to run concurrently rather than

13

consecutively. An intervening amended judgment of conviction was entered on July 12, 2005,

14

and an amended judgment was entered on September 28, 2005, providing credit for time

15

served.42

16

Petitioner appealed and was represented by counsel on the appeal. The appellate

17

counsel on this second direct appeal of right did not raise any claims corresponding to the

18

claims now presented in federal Ground 12. The Supreme Court of Nevada rejected the

19

claims presented on the second direct appeal and affirmed, on April 6, 2007.43

20

Less than two months thereafter, petitioner proceeded directly to federal court with the

21

present action without seeking any further relief in the state courts. He in particular did not

22

file a state post-conviction petition presenting any claims of ineffective assistance of counsel

23

challenging the performance of the different appellate counsel on the second direct appeal.

24

That second direct appeal of right had challenged an intervening judgment of conviction that

25
26

41

#38, Ex. 110, at 6 & 7 n. 13 (em phasis added).

27

42

#38, Exhs. 122, 125 & 131.

28

43

#38, Exhs. 142 & 145.

-21-

1

imposed a different sentence that had been entered following a different sentencing hearing,

2

one that had been conducted on a wholly de novo basis before a different sentencing judge.

3

In the answer, respondents contended initially that the only similar claims presented

4

to the state courts – directed to the habitual criminal adjudication and sentence under the

5

original judgment of conviction – became moot when the original sentence was vacated for

6

a new sentencing hearing. Respondents contended further that if petitioner instead was

7

seeking to pursue the claims as a challenge to the intervening judgment of conviction, the

8

claims were not exhausted because petitioner never had challenged the intervening judgment

9

of conviction on that basis.

10

Petitioner confirmed in the reply that he indeed is seeking to pursue the claims in

11

federal court as a challenge to the habitual criminal adjudication made and sentence rendered

12

in the second sentencing hearing.

13

Petitioner contends, first, that he fairly presented the legal theory and operative facts

14

of the ineffective assistance claim on the appeal from the denial of the motion to modify

15

sentence and state post-conviction petition. He urges that “[t]he fact that the Nevada

16

Supreme Court failed to reach the issue on appeal should not affect the exhaustion analysis.”

17

He maintains that the state supreme court could not “unexhaust” the claim.44

18

This argument is without merit.

19

Petitioner clearly never challenged the intervening September 28, 2005, amended

20

judgment of conviction based on the claims in federal Grounds 11 and 12. The claims that

21

petitioner presented in the state courts pertained to an earlier habitual criminal adjudication

22

and sentence under an earlier June 13, 2000, judgment as to which the sentence was

23

vacated by the state supreme court. Petitioner never attacked the September 28, 2005,

24

amended judgment of conviction, which imposed a different sentence after a second de novo

25

sentencing hearing before a different judge, on the basis of the claims in federal Grounds 11

26

and 12.

27
28

44

#54, at 66 & 70.

-22-

1

Indeed, no reviewing court hearing the second direct appeal reasonably could have

2

concluded that petitioner still was – sub silentio – pursuing the claims in Grounds 11 and 12

3

on that appeal.

4

As for the claim of ineffective assistance of appellate counsel in Ground 11, such a

5

claim could not even have been properly pursued in a direct appeal rather than a state post-

6

conviction petition. Further, petitioner argued in the prior state post-conviction petition that

7

appellate counsel on the first direct appeal was ineffective for failing to argue that while one

8

sentence of life with the possibility of parole after ten years was an abuse of discretion, two

9

such consecutive sentences was cruel and unusual punishment. Petitioner never has

10

presented the state courts with the argument that the concurrent sentences that he

11

presently is serving constitute not only an abuse of discretion but also cruel and unusual

12

punishment. Petitioner never has claimed in the state courts that appellate counsel on the

13

second direct appeal – which was directed to the intervening judgment of conviction under

14

which he currently is in custody – was ineffective for failing to raise an Eighth Amendment

15

challenge to the lesser sentence that he currently is serving.45

16

As for the substantive claims in Ground 12, an earlier moot claim that errors -- such

17

as the first judge’s alleged failure to make required findings on the record – were made at the

18

first sentencing hearing on a later-vacated sentence hardly placed the state supreme court

19

on notice that claims were being made that the second judge at the second – de novo –

20

sentencing hearing committed the same alleged errors.

21

These simply were claims that could have been – but were not – presented to the state

22

courts as a challenge to the second sentence under the intervening judgment after the

23

second, entirely de novo, sentencing proceeding.

24
25
26
27
28

45

Petitioner seeks to m inim ize the change in sentencing by stating that the only difference is that the
court im posed the sentences concurrently rather than consecutively. #54, at 66 n.31. A sentence with
eligibility for consideration for a noninstitutional parole after only ten years rather than twenty is a different –
and m arkedly less onerous – sentence. An argum ent that the consecutive sentencing under a subsequently
vacated sentence constituted cruel and unusual punishm ent did not at all necessarily extend to later
concurrent sentencing on an intervening judgm ent as to which this issue never was raised vis-à-vis an
ineffective assistance claim .

-23-

1

Petitioner urges, second, that it would have been futile to raise the claims in Ground

2

12 on the second direct appeal and the claims in Ground 11 in a later state petition. He

3

contends that it would have been futile to raise the claims in Ground 12 on the second direct

4

appeal because the state supreme court allegedly already had rejected the same argument

5

in Hughes v. State, 116 Nev. 327, 996 P.2d 890 (Nev. 2000). Petitioner contends that it

6

would have been futile to raise the claim of ineffective assistance of counsel in Ground 11 as

7

to appellate counsel on the second direct appeal in a later post-conviction petition because

8

the state supreme court rejected his other substantive claims on the second direct appeal.

9

As petitioner acknowledges, both the United States Supreme Court and the Ninth

10

Circuit have sharply criticized the concept that alleged futility could excuse a failure to raise

11

a federal constitutional claim where a petitioner had available state judicial procedural

12

avenues to present the claim.

13

In Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Supreme

14

Court rejected the same basic futility argument that Ruffin advances as to Ground 12 when

15

presented as cause for a failure to object at trial:

16
17
18
19
20

If a defendant perceives a constitutional claim and believes
it may find favor in the federal courts, he may not bypass the
state courts simply because he thinks they will be unsympathetic
to the claim. Even a state court that has previously rejected a
constitutional argument may decide, upon reflection, that the
contention is valid.
456 U.S. at 130, 102 S.Ct. at 1573.

21

Thereafter, in Noltie v. Peterson, 9 F.3d 802 (9th Cir. 1993), the Ninth Circuit

22

questioned whether a futility exception remained viable following Engle v. Isaac. 9 F.3d at

23

805-06. The Noltie panel stopped short of explicitly overruling its prior futility-exception

24

decision in Sweet v. Cupp, 640 F.2d 233 (9th Cir. 1981), however, because the exception

25

would not have been satisfied in Noltie in any event. Id.

26

Petitioner acknowledges these decisions but points to dicta in the intervening decision

27

in Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). In Lynce, Justice

28

Stevens’ majority opinion for the Court included the following footnote:
-24-

9

Petitioner did not advance his ex post facto claim in state
court. In the District Court respondents challenged his failure to
exhaust his state remedies, but do not appear to have raised the
exhaustion issue in the Court of Appeals; nor have they raised it
in this Court. Presumably they are satisfied, as we are, that
exhaustion would have been futile. The Florida Supreme Court,
in Dugger v. Rodrick, 584 So.2d 2 (1991), held that retrospective
application of the provisional credits statute's offense-based
exclusion did not violate the Ex Post Facto Clause. The court
reasoned that overcrowding credits, unlike basic gain-time or
incentive gain-time, were merely “procedural” and did not create
any substantive rights. Relying on Dugger, the Florida Supreme
Court held in Griffin v. Singletary, 638 So.2d 500 (1994), that
cancellation of provisional credits actually awarded to a prisoner
did not violate the Ex Post Facto Clause. Respondents have not
suggested any reason why the Florida courts would have decided
petitioner's case differently.

10

519 U.S. at 436 n.4, 117 S.Ct. at 893 n.4. The Lynce opinion did not cite Engle or seek to

11

reconcile its dictum – in a case where the State had not challenged exhaustion on appeal or

12

certiorari review – with the holding in Engle. The Lynce opinion did not cite any prior Supreme

13

Court authority in a Section 2254 case holding – Engle notwithstanding – that such a futility

14

exception existed.

1
2
3
4
5
6
7
8

15

As a general rule, the Supreme Court will not read futility or other exceptions into

16

statutory exhaustion requirements where Congress specifically has mandated exhaustion.

17

See,e.g., Booth v. Churner, 532 U.S. 731, 741 n.6, 121 S.Ct. 1819, 1825 n.6, 149 L.Ed.2d

18

958 (2001); McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 1086, 117 L.Ed.2d 291

19

(1992). In 28 U.S.C. § 2254(b) and (c), Congress provided numerous specific rules regarding

20

exhaustion of state judicial remedies. Section 2254(c), in particular, provides that a habeas

21

petitioner “shall not be deemed to have exhausted the remedies available in the courts of the

22

State, within the meaning of this section, if he has the right under the law of the State to raise,

23

by any available procedure, the question presented.” Congress did not provide for an

24

exception to the statutory exhaustion requirements of § 2254(b) and (c) based upon alleged

25

“futility” where a petitioner has “the right under the law of the State to raise, by any available

26

procedure, the question presented.” Petitioner clearly could have raised the claims in Ground

27

12 on the second direct appeal and the claims in Ground 11 in a following state post-

28

conviction petition challenging the effectiveness of counsel on the second direct appeal.
-25-

1

This Court thus is not sanguine that the Lynce dicta provides a viable basis for ignoring

2

the clear holding in Engle, the established rule against reading a futility exception into

3

statutory exhaustion requirements, and the fact that the clear and particularized

4

Congressionally-mandated exhaustion requirement in § 2254(b) and (c) does not provide for

5

a futility exception where state procedural avenues are available to present a constitutional

6

claim.46

7

With regard to the claim of sentencing court error in Ground 12, the Court will follow

8

the holding of Engle rather than the dicta in Lynce. Under Engle, Ruffin “may not bypass the

9

state courts simply because he thinks they will be unsympathetic to the claim,” given that

10

“[e]ven a state court that has previously rejected a constitutional argument may decide, upon

11

reflection, that the contention is valid.” 456 U.S. at 130, 102 S.Ct. at 1573.47

12

Petitioner’s futility argument is even weaker as to the ineffective assistance claim in

13

Ground 11. Petitioner urges that merely because the state supreme court rejected other

14

challenges to his habitual criminal adjudication on the second direct appeal, it was futile for

15

him to file a state post-conviction petition presenting the ineffective assistance claim. On the

16

second direct appeal, the state supreme court rejected claims: (a) that the adjudication of

17

habitual criminal status by a judge rather than a jury violated Apprendi v. New Jersey, 530

18

U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (b) that the district court abused its

19

discretion under state law in adjudicating him a habitual criminal; and (c) that the resentencing

20

violated the Double Jeopardy Clause.48 Nothing in the rejection of these claims compelled

21

a rejection of an entirely distinct claim that counsel on the second direct appeal was

22
23
24
25
26
27
28

46

The sam e holds true as to petitioner’s rem aining citations. There is no Suprem e Court case
squarely addressing the issue and holding – on a contested exhaustion defense – that a viable futility
exception exists in Section 2254 cases where Congress’ clearly-delineated statutory exhaustion rules
otherwise would require exhaustion due to the availability of state procedural avenues to raise a claim .
47

Petitioner suggests that the Suprem e Court of Nevada stated in Hughes, supra, that it will not follow
clearly established federal law. The state suprem e court m ade no such declaration in Hughes. The state
high court instead concluded that the Ninth Circuit had m isread Nevada state decisions on a subsidiary
question of Nevada state law. The state suprem e court rem ains the final arbiter of Nevada state law.
48

#38, Ex. 145.

-26-

1

ineffective for failing to argue that the sentence imposed was excessive under the Eighth

2

Amendment. Even if, arguendo, a viable futility exception exists to the Congressionally-

3

mandated exhaustion requirement in § 2254, petitioner clearly has not demonstrated futility

4

of exhaustion as to Ground 11.

5

Grounds 11 and 12 therefore are not exhausted.

6

Remaining Matters

7

The motion (#56) for decision will be granted to the extent consistent with the action

8

taken herein. The Court notes in this regard that Local Rule LR 7-6(b) provides for the

9

procedure in this Court with regard to matters under submission. The Court is not persuaded

10

that the time periods delineated in the Circuit Advisory Committee Note to Ninth Circuit Rule

11

25-2 – regarding various proceedings in the appellate court – properly serve as guidelines vis-

12

à-vis proceedings in this court of first impression. Over and above an overall effort to move

13

all cases as expeditiously as possible, the federal district courts are subject to the reporting

14

requirements of the Civil Justice Reform Act (CJRA). Petitioner of course may file any motion

15

felt to be warranted under the circumstances. However, counsel normally can rest assured

16

that after the Court has sought to expedite the case in an effort to meet a semiannual CJRA

17

reporting deadline but has missed that deadline and then another, the Court very much is

18

aware of the case but has been unable to issue a decision any sooner.

19

As petitioner notes, the age of the case is a concern, which includes the Court’s delay

20

in being able to reach and resolve the exhaustion issues addressed herein. Counsel for both

21

petitioner and respondents accordingly should seek an extension of the deadlines established

22

herein only in the most extraordinary of circumstances. The Court still is seeking to resolve

23

all aspects of the case at the very latest before the next CJRA deadline, which in this instance

24

is September 30, 2011. The Court thus will be seeking to resolve the matter of petitioner’s

25

election as to the relief to be requested as to the unexhausted claims expeditiously before,

26

if necessary, then moving promptly thereafter to the merits issues in the pleadings on file.

27

Such merits review includes consideration of the request for an evidentiary hearing.

28

////
-27-

1
2

IT THEREFORE IS ORDERED that the Court holds that the following claims (the
“unexhausted claims”) are not exhausted:
(1)

3

Ground 3 to the extent that petitioner alleges that

4

trial counsel was ineffective for failing to object to

5

references in the State’s opening statement and

6

closing argument about the Bellagio videotape;

7

(2)

Ground 4 in its entirety;

8

(3)

Ground 5 to the extent that petitioner claims that

9

trial counsel was ineffective for failing: (a) to

10

challenge the identification testimony of Dan

11

Smolinski and Dolores Harris; and (b) to object to

12

Diana Stubenrauch’s testimony identifying Ruffin in

13

the surveillance video as inadmissible lay opinion;
(4)

14

Ground 7 to the extent that petitioner claims that

15

trial counsel was ineffective for failing: (a) to

16

interview witnesses Dan Smolinski, Dolores Harris,

17

and Diana Stubenrauch, to enable counsel to either

18

exclude their identification testimony entirely or at

19

least impeach the witnesses; and (b) to interview

20

Ruffin’s alleged accomplices, Kimberly Meeks and

21

Wanda Duncan, to discover that Meeks allegedly

22

would have testified that she did not know Ruffin

23

and that she never rented a car with Duncan; and
(5)

24

Grounds 11 and 12 in their entirety.

25

IT FURTHER IS ORDERED that petitioner shall have twenty-one (21) days from entry

26

of this order within which to file a motion for dismissal without prejudice of the entire petition,

27

for partial dismissal only of the unexhausted claims, and/or for other appropriate relief.

28

////
-28-

1

IT FURTHER IS ORDERED that any motion filed must contain or be accompanied by,

2

either contemporaneously or via a document filed within ten (10) days thereafter, a signed

3

declaration by petitioner under penalty of perjury pursuant to 28 U.S.C. § 1746 that he has

4

conferred with his counsel in this matter regarding his options, that he has read the motion,

5

and that he has authorized that the relief sought therein be requested from the Court.

6

IT FURTHER IS ORDERED that respondents shall have fourteen (14) days to file a

7

response to any such motion filed, running from the filing of the declaration, and petitioner

8

shall have seven (7) calendar days to file a reply, including any intermediate weekends or

9

holidays except for the last such day.

10
11
12
13
14
15
16

IT FURTHER IS ORDERED that petitioner’s motion (#56) for decision is GRANTED
to the extent consistent with the action taken herein.
The entire petition, as amended, will be dismissed without prejudice for lack of
complete exhaustion if a motion and/or the required verification is not timely filed.
Extension of the deadlines established herein will be considered in only the most
extraordinary of circumstances.
DATED: June 13, 2011.

17
18
19
20

_________________________________
ROGER L. HUNT
United States District Judge

21
22
23
24
25
26
27
28
-29-