Ruffin v. Dir. Nev. Dep't of Corr.

• Decision Date: 04 August 2011
• Docket Number: 2:07-cv-00721-RLH-PAL
• Parties: KEVIN TYRONE RUFFIN, Petitioner, v. DIRECTOR NEVADA DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada

KEVIN TYRONE RUFFIN, Petitioner,

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

2:07-cv-00721-RLH-PAL

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DATED: August 4, 2011

ORDER

This represented habeas matter under 28 U.S.C. § 2254 is before the Court for a decision with regard to the remaining grounds in the second amended petition (#49).

Background

Petitioner Kevin Ruffin seeks to set aside his September 28, 2005, amended Nevada state court judgment of conviction, pursuant to a jury verdict in 2000, of burglary and larceny from the person with an adjudication as a habitual criminal. He is serving two concurrent life sentences with the possibility of parole after ten years.

The charges arose from two pickpocketing incidents in Las Vegas -- one on February 7, 1999, in an elevator at the Bellagio Hotel and Casino (the "Bellagio") and another on February 18, 1999, in an elevator at the New York-New York Hotel and Casino (the "New York-New York"). In the single trial, the jury hung on the Bellagio counts, and those counts later were dismissed. The jury found Ruffin guilty of the two counts arising from the New York-New York incident.

Petitioner challenged the original June 13, 2000, judgment of conviction, sentence, and/or habitual criminal adjudication on direct appeal, in a post-judgment motion to modify sentence, and in a state post-conviction petition. The Supreme Court of Nevada affirmed on direct appeal. On the appeal from the denial of the motion to modify sentence and the state petition, the state supreme court affirmed in part and vacated and remanded the habitual criminal adjudication. The state supreme court vacated the habitual criminal adjudication and sentence and remanded for a de novo resentencing proceeding because the state district court clerk was not able to locate the copies of the prior convictions from the sentencing.¹

Following a de novo resentencing, an amended judgment of conviction was entered on July 12, 2005, and thereafter was amended again on September 28, 2005, to include credit for time served. The Supreme Court of Nevada affirmed on a second direct appeal, on April 6, 2007. Petitioner thereafter proceeded to federal court without first pursuing any other state judicial remedies subsequent to the second direct appeal.²

Standard of Review on the Merits

The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential" standard for evaluating state-court rulings that is "difficult to meet" and "which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that the state court decision was incorrect. 131 S.Ct. at 1411. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the state court decision: (1) was either contrary to or involved an unreasonable application of clearly established law as determined by the United States Supreme Court as of the time of the state court decision and based on the record presented to the state courts; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 131 S.Ct. at 1398-1401.

A state court decision is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003). A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, "[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." 540 U.S. at 16, 124 S.Ct. at 11. For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.

A decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." E.g., Mitchell, 540 U.S. at 18, 124 S.Ct. at 12; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).

To the extent that the state court's factual findings are challenged, the "unreasonable determination of fact" clause of Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts "must be particularly deferential" to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was "clearly erroneous." 393 F.3d at 973. Rather, AEDPA requires substantially more deference:

. . . . [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.

Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence.

The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Pinholster, 131 S.Ct. at 1398.

Discussion

Ground 1: Batson Claim

In Ground 1, petitioner presents a Batson³ claim, alleging that the prosecution struck the sole black juror on the jury venire because of her race, denying petitioner, who also is black, equal protection of the laws in violation of the Fourteenth Amendment.⁴

Under the jury selection procedure used in the state district court, the venire consisted initially of 35 prospective jurors, who were questioned by the court collectively. The clerk thereafter called up 23 prospective jurors from the venire in a random and non-alphabetical order. The venire members then were questioned individually in open court in the presence of the rest of the venire. During both the collective and individual questioning, selected prospective jurors were excused for cause along the way based upon their responses. After 23 prospective jurors had been individually questioned without being excused for cause, the State and the defense then exercised up to five peremptory challenges each. The bailiff would hand the jury venire list to one side then the other, starting with the State, until each side had either exercised or waived five peremptory challenges. The first 13 of the these 23 venire members, in the order called initially, who were not struck by a peremptory challenge were seated as the jury and alternate.⁵

Ms. Avan Wilson was the sole African-American prospective juror in the venire. She was, in order, the fourth prospective juror called of those who had not been excused for cause prior to the peremptory challenges. See #35, Ex. 36, at 45-50.

After the bailiff handed the jury list with the strikes up to the bench, the state district court started reading the names of the prospective jurors who were being excused after the peremptory challenges. However, the court, apparently sua sponte as the transcript reads, then stopped and recessed the proceeding for a conference in chambers.⁶

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

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 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.

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.

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

The foregoing was the entirety of the argument presented in the state district court on the Batson issue, which appears from the transcript to have been raised sua sponte by the court rather than initially by the defense. Other than the conclusory statement that the State had not given a sufficient race-neutral reason, the defense did not specifically challenge the factual assertions made by the State. Nor did the defense seek to argue that other facts demonstrated that the reasons...