Ruffin v. Director Nevada Department of Corrections et al

Filing 65

ORDER Granting 58 Petitioner's Motion for Partial Dismissal without prejudice for lack of exhaustion. Signed by Judge Roger L. Hunt on 7/28/11. (Copies have been distributed pursuant to the NEF - EDS)

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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 17 18 19 20 Following upon petitioner's motion (#58) for partial dismissal in this represented habeas matter under 28 U.S.C. § 2254, which motion has not been opposed, IT IS ORDERED that petitioner's motion (#58) is GRANTED and that the following claims are DISMISSED without prejudice for lack of exhaustion: (1) Ground 3 to the extent that petitioner alleges that 21 trial counsel was ineffective for failing to object to 22 references in the State’s opening statement and 23 closing argument about the Bellagio videotape; 24 (2) Ground 4 in its entirety; 25 (3) Ground 5 to the extent that petitioner claims that 26 trial counsel was ineffective for failing: (a) to 27 challenge the identification testimony of Dan 28 Smolinski and Dolores Harris; and (b) to object to 1 Diana Stubenrauch’s testimony identifying Ruffin in 2 the surveillance video as inadmissible lay opinion; 3 (4) Ground 7 to the extent that petitioner claims that 4 trial counsel was ineffective for failing: (a) to 5 interview witnesses Dan Smolinski, Dolores Harris, 6 and Diana Stubenrauch, to enable counsel to either 7 exclude their identification testimony entirely or at 8 least impeach the witnesses; and (b) to interview 9 Ruffin’s alleged accomplices, Kimberly Meeks and 10 Wanda Duncan, to discover that Meeks allegedly 11 would have testified that she did not know Ruffin 12 and that she never rented a car with Duncan; and 13 (5) Grounds 11 and 12 in their entirety. 14 The Court is endeavouring to issue an order on the remaining claims in the petition, 15 including regarding the request for an evidentiary hearing, as promptly as possible, following 16 upon the completion of the recent supplemental briefing. 17 DATED: July 28, 2011. 18 19 20 21 _________________________________ ROGER L. HUNT United States District Judge 22 23 24 25 26 27 28 -2-

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