Ruffin v. Director Nevada Department of Corrections et al
Filing
81
ORDER denying Respondent's 68 Motion for Reconsideration. Signed by Judge Roger L. Hunt on 9/6/11. (Copies have been distributed pursuant to the NEF - ECS)
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 on
17
respondents’ motion (#68) for reconsideration as to the Court’s recent order scheduling an
18
evidentiary hearing on the remaining claims of ineffective assistance of trial counsel in
19
Grounds 2, 3, 5, 6 and 7.
20
21
22
23
24
25
26
27
28
The Court held, in the course of ordering an evidentiary hearing, that these claims were
subject to de novo review, pursuant to the following analysis:
The Supreme Court of Nevada rejected the corresponding
claims presented on state post-conviction review on the following
grounds:
We have carefully reviewed each of the
above allegations and conclude that Ruffin failed to
show that, but for his trial counsel’s alleged errors,
the results of the trial would have been different. In
reaching this conclusion, we note that sufficient
evidence supported Ruffin’s conviction. This
evidence included:
the testimony of Diana
Stubenrauch, the victim, who positively identified
Ruffin as being on an elevator with her prior to her
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
wallet disappearing; a security surveillance video
corroborating Mrs. Stubenrauch’s testimony; the
testimony of Dan Smolinksi linking Ruffin to the
possession and attempted use of Mrs.
Stubenrauch’s credit card; and considerable other
circumstantial evidence. We also note that this
court considered the prejudicial impact of the jury’s
exposure to testimony concerning the Bellagio
security surveillance video on direct appeal and
determined that the issue was without merit. . . . .
#38, Ex. 110, at 5 (emphasis added)(citation footnotes omitted).
The state supreme court’s decision on these claims was
contrary to clearly established federal law as determined by the
United States Supreme Court.
As discussed, supra, a petitioner seeking to establish
ineffective assistance of counsel must demonstrate both deficient
performance and resulting prejudice. On the prejudice prong,
under Strickland and its progeny, a petitioner must demonstrate
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Id.
A reasonable probability requires a
“substantial,” not just a “conceivable,” likelihood of a different
result. Pinholster, 131 S.Ct. at 1403.
What a “reasonable probability” requires under Strickland
decidedly is not a probability that is more probable than not.
See,e.g., Cooper-Smith v. Palmateer, 397 F.3d 1236, 1243 (9th
Cir. 2005). In the present case, the Supreme Court of Nevada
applied precisely such a more probable than not standard. The
state high court required Ruffin to demonstrate that but for
counsel’s errors, “the results of the trial would have been
different.” Petitioner was not required under Strickland, however,
to demonstrate that the result of his trial “would have been
different” but for counsel’s alleged errors. He instead was
required to demonstrate a probability only “sufficient to undermine
confidence in the outcome.” The state supreme court’s
application of a more-probable-than-not prejudice standard
rendered its decision contrary to clearly established Supreme
Court precedent. Cooper-Smith, supra. This Court accordingly
must review the claims of ineffective assistance of trial counsel de
novo. Id.
26
The Court additionally would note that the state supreme
court’s reliance upon the sufficiency of the evidence as a basis for
concluding that petitioner could not demonstrate prejudice
begged the question as to many claims.
27
.....
25
28
This Court need not consider, however, whether the
-2-
Nevada Supreme Court’s application of Strickland was an
objectively unreasonable one, however. The state supreme
court’s decision in all events was contrary to Strickland because
the court misstated the governing standard for determining
prejudice. Cooper-Smith, supra. As stated above, the Court thus
reviews petitioner’s claims of ineffective assistance of trial
counsel de novo.
1
2
3
4
5
#66, at 37-39.
6
Respondents contend that the Court misapplied the 2005 Ninth Circuit decision in
7
Cooper-Smith and misread the Nevada Supreme Court’s decision as applying a more-
8
probable-than-not causation standard when the state high court did not use those words.
9
Respondents contend that this Court’s decision is contrary to the 2002 United States
10
Supreme Court decision in Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d
11
279 (2002). Respondents maintain that the Visciotti decision establishes that this Court
12
improperly presumed that the state supreme court misapplied Strickland merely “because the
13
Nevada Supreme Court only spelled-out part of the test for prejudice.”1
14
The Court is not persuaded.
15
In Visciotti, the United States Supreme Court’s discussion clearly establishes that the
16
California Supreme Court expressly stated the correct standard of prejudice under Strickland:
17
The California Supreme Court began its analysis of the
prejudice inquiry by setting forth the “reasonable probability”
criterion, with a citation of the relevant passage in Strickland; and
it proceeded to state that “[t]he question we must answer is
whether there is a reasonable probability that, but for
counsel's errors and omissions, the sentencing authority would
have found that the balance of aggravating and mitigating factors
did not warrant imposition of the death penalty,” again with a
citation of Strickland. In re Visciotti, 14 Cal.4th, at 352, 58
Cal.Rptr.2d, at 817, 926 P.2d, at 1003 (citing Strickland, supra, at
696, 104 S.Ct. 2052). Twice, the court framed its inquiry as
turning on whether there was a “reasonable probability” that
the sentencing jury would have reached a more favorable
penalty-phase verdict. 14 Cal.4th, at 352, 353, 58 Cal.Rptr.2d,
at 817, 818, 926 P.2d, at 1003, 1004. The following passage,
moreover, was central to the California Supreme Court's analysis:
18
19
20
21
22
23
24
25
“In In re Fields, [51 Cal.3d 1063, 275 Cal.Rptr. 384,
800 P.2d 862 (1990)] (3)27 we addressed the
26
27
28
1
#68, at 2.
-3-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
process by which the court assesses prejudice at
the penalty phase of a capital trial at which counsel
was, allegedly, incompetent in failing to present
mitigating evidence: ‘What kind of evidentiary
showing will undermine confidence in the
outcome of a penalty trial that has resulted in a
death verdict? Strickland (3)27 and the cases it
cites offer some guidance. United States v. Agurs[,
427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)]
(3)27, the first case cited by Strickland, spoke of
evidence which raised a reasonable doubt,
although not necessarily of such character as to
create a substantial likelihood of acquittal .... United
States v. Valenzuela-Bernal[, 458 U.S. 858, 102
S.Ct. 3440, 73 L.Ed.2d 1193 (1982)] ..., the second
case cited by Strickland, referred to evidence which
is “material and favorable ... in ways not merely
cumulative....” ’ ” Id., at 353-354, 58 Cal.Rptr.2d, at
818, 926 P.2d, at 1004.
“Undermin[ing] confidence in the outcome” is exactly
Strickland's description of what is meant by the “reasonable
probability” standard. “A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, supra, at 694, 104 S.Ct. 2052.
537 U.S. at 22-23, 123 S.Ct. at 359 (bold emphasis added).
15
In Visciotti, the state supreme court stated the correct standard of prejudice not merely
16
once, but instead multiple times. The United States Supreme Court held in Visciotti that the
17
federal court of appeals erred in concluding that the state supreme court’s decision was
18
contrary to clearly established federal law merely because the state supreme court used a
19
shorter, less precise statement of the prejudice standard in other portions of its opinion. See,
20
537 U.S. at 23-24, 123 S.Ct. at 359-60.
21
In the present case, in contrast, the state supreme court did not state the correct
22
standard of prejudice prior to its application of an incorrect standard to the claims of
23
ineffective assistance of trial counsel. The state high court rejected petitioner’s claims of
24
ineffective assistance of trial counsel because “Ruffin failed to show that, but for his trial
25
counsel’s alleged errors, the results of the trial would have been different.” The state
26
supreme court could not have more clearly misstated – or more clearly misapplied – the
27
governing standard. The Nevada Supreme Court’s incorrect statement of the prejudice
28
standard – without a prior statement of the standard in the opinion reflecting that the state
-4-
1
supreme court was applying the correct standard – renders the 2002 Visciotti decision
2
inapposite.
3
Respondents urge that Visciotti establishes a rule under which the state supreme court
4
is presumed to have applied the proper standard where: (1) the court cites Strickland; (2) the
5
court quotes language directly from Strickland concerning the applicable standard for
6
prejudice; and (3) cites a state law case that more fully set forth the Strickland standard. As
7
discussed above, Visciotti did not hold that the mere citation to Strickland overcomes a state
8
supreme court’s incorrect statement of the Strickland standard in its opinion. The state court
9
in Visciotti properly fully stated the governing Strickland prejudice standard in its opinion
10
multiple times. In this case, the Supreme Court of Nevada instead applied the wrong
11
standard. Moreover, the state court decision to which respondents refer, Kirksey v. State, 112
12
Nev. 980, 923 P.3d 1102 (1996), is cited later in the order in the discussion of petitioner’s
13
claim of ineffective assistance of appellate counsel, and the Supreme Court of Nevada cited
14
to a different portion of Kirksey than respondents now cite in their briefing.2 The state high
15
court’s decision in this case thus arguably does not satisfy even the test advanced by
16
respondents, which in truth was never articulated in Visciotti. In all events, respondents cite
17
no apposite authority establishing that a failure to apply the correct standard in the text of an
18
opinion is remedied by a citation to prior cases that do not make the same error.
19
Respondents further urge that this Court should look to the state trial court’s allegedly
20
correct statement of the Strickland standard to overcome the state supreme court’s
21
application of an incorrect standard. Respondents rely on decisions from other contexts in
22
which a state high court adopted the reasoning of the trial court. In this case, however, the
23
Supreme Court of Nevada neither adopted the reasoning of the trial court in this regard nor
24
rendered a summary denial that left the state district court’s decision as the last reasoned
25
decision in the case. The Nevada Supreme Court’s decision instead was the last reasoned
26
27
28
2
Compare #38, Ex. 110, at 6 n.10 with #68, at 5. The Woodford state court decision actually cited by
the Supreme Court of Nevada in its discussion of the claim of ineffective assistance of trial counsel did not
fully state the Strickland standard.
-5-
1
decision in the case, and under established law, that is the decision to which review is
2
directed on federal habeas review. The state supreme court’s application of an incorrect
3
standard is not remedied by the alleged lack of a similar error in the trial court.
4
Respondents additionally urge that the Court should look to other published decisions
5
by the Supreme Court of Nevada properly stating and applying the Strickland standard. The
6
decision under review, however, is the Nevada Supreme Court’s adjudication in Ruffin’s case.
7
Respondents essentially posit that so long as the state supreme court did not make the same
8
error in some other case not currently under review, the state high court’s application of an
9
incorrect standard in this case should be disregarded. Even AEDPA review is not that
10
deferential.
11
The incorrect prejudice standard applied by the Supreme Court of Nevada in the
12
present case is in substance identical to the incorrect prejudice standard applied in Cooper-
13
Smith. In the 2005 Cooper-Smith decision, the last reasoned state court decision rejected the
14
claim of ineffective assistance based upon a “more probable than not” standard for
15
demonstrating prejudice. Respondents urge that the “words ‘more likely than not’ or ‘more
16
probable than not’ simply do not appear anywhere in the Nevada Supreme Court’s order.”3
17
Respondents’ argument that this standard did not require more-probable-than-not causation
18
is unpersuasive. Requiring petitioner to show that but for the error the result would have been
19
different clearly was not requiring petitioner to show that it was less likely than not that the
20
error affected the outcome.
21
Moreover, the Court remains less than sanguine that the state supreme court’s
22
application of Strickland was an objectively reasonable one. Inter alia, responding to claims
23
that counsel should have acted to secure the exclusion of evidence with the observation that
24
the challenged evidence was sufficient to convict is circular reasoning that arguably
25
transcends ordinary appellate error. The Court leaves that issue to another day, however, as
26
the state supreme court’s decision was contrary to clearly established federal law.
27
28
3
#68, at 2 (emphasis in original).
-6-
1
2
3
4
The motion for reconsideration therefore will be denied. The evidentiary hearing will
proceed forward as scheduled.4
IT THEREFORE IS ORDERED that respondents’ motion (#68) for reconsideration is
DENIED.
DATED: September 6, 2011.
5
6
7
_________________________________
ROGER L. HUNT
United States District Judge
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
The Court notes in passing that Pinholster – by its own express terms – does not categorically bar
the holding of a federal evidentiary hearing. See 131 S.Ct. at 1411 n.20. What Pinholster precludes is the
reliance on the evidence developed in federal court if the state court decision ultimately withstands deferential
AEDPA review.
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?