Ruiz v. Norris

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON and WOLLMAN; RICHARD S. ARNOLD
• Citation: Ruiz v. Norris, 71 F.3d 1404 (8th Cir. 1996)
• Decision Date: 28 February 1996
• Docket Number: 94-3403EA,Nos. 94-3402E,s. 94-3402E
• Parties: Paul RUIZ, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee. Earl VAN DENTON, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

Page 1404

71 F.3d 1404

Paul RUIZ, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

Earl VAN DENTON, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

Nos. 94-3402EA, 94-3403EA.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 14, 1995.

Decided Dec. 11, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Feb.

28, 1996. ^*

Herbert C. Rule, III, Little Rock, Arkansas, argued, for appellant Paul Ruiz.

Ray Hartenstein, Little Rock, Arkansas, argued for appellant Earl Van Denton.

Clint Miller, Acting Deputy Attorney General, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON and WOLLMAN, Circuit Judges.

RICHARD S. ARNOLD, Chief Judge.

The habeas corpus petitions of Paul Ruiz and Earl Van Denton, both of whom are under sentence of death, are once again before us. Ruiz and Denton have been convicted of capital murder and sentenced to die for the killing of Marvin Ritchie, Town Marshal of the Town of Magazine, Arkansas, and Opal James, an employee of the Corps of Engineers of the United States Army. The killings took place in 1977. Ruiz and Denton have been tried three times, and a brief account of the prior proceedings in these cases is necessary to put in context the issues presented on the present appeal.

The first trial took place in Logan County, Arkansas, and resulted in the conviction of both defendants and the imposition of sentences of death. These first convictions occurred in 1978. They were reversed by the Supreme Court of Arkansas on the ground of error in denying a motion for change of venue based on pervasive pretrial publicity. Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979). After a change of venue to Conway County, Arkansas, the appellants were again tried, convicted, and sentenced to death. After proceedings in the state courts, the nature of which is summarized in prior opinions of this Court, we upheld the convictions but set aside the sentence because one of the aggravating circumstances found by the jury with respect to both appellants--that the murder was committed for pecuniary gain--duplicated one of the elements of the underlying capital felony murders, murder committed in the course of a robbery. Ruiz v. Lockhart, 806 F.2d 158 (8th Cir.1986). ¹

Thereafter, in response to our decision in Ruiz, the State of Arkansas undertook proceedings to retry the question of the penalty to be imposed on Ruiz and Denton. This retrial again resulted in sentences of death, which were affirmed by the Supreme Court of Arkansas. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989). The petitions for habeas corpus now before us on appeal followed.

The District Court, ² for reasons given in a comprehensive opinion, dismissed the petitions. Ruiz v. Norris, 868 F.Supp. 1471 (E.D.Ark.1994). Ruiz and Denton now appeal, raising a number of grounds for attacking their sentences, as well as one ground of attack on the underlying convictions. Having considered all of the arguments with the care appropriate to a case of this gravity, we now affirm. We shall discuss each of the grounds in turn.

I.

We begin with one of the six issues which Ruiz and Denton raise jointly--that the District Court abused its discretion by refusing to hold an evidentiary hearing on their ineffective-assistance-of-counsel claim. According to the petitioners, the District Court rushed to judgment on their ineffective-assistance claim. They argue that during the habeas process below, the Court indicated that an evidentiary hearing would be held on this issue, and then refused to hold the hearing. They also argue that they were not given a sufficient amount of time to develop the evidence necessary to demonstrate ineffective assistance of counsel.

Our review of the District Court's choice to decide the petitioners' ineffective-assistance claim without a hearing is for abuse of discretion. Nachtigall v. Class, 48 F.3d 1076, 1079 (8th Cir.1995). We give de novo review, however, to the Court's holding that the petitioners' ineffective-assistance claim lacked merit. Sloan v. Delo, 54 F.3d 1371, 1383 (8th Cir.1995).

Generally, a district court should hold an evidentiary hearing "if the facts are in dispute or if a fair evidentiary hearing was not conducted in state court." Ferguson v. Jones, 905 F.2d 211, 214 (8th Cir.1990). This is not true in all cases. For example, an evidentiary hearing is unnecessary and not required in cases "where the petitioner's allegations, even if true, fail to state a claim upon which habeas relief can be granted." Amos v. State, 849 F.2d 1070, 1072 (8th Cir.) cert. denied, 488 U.S. 861, 109 S.Ct. 159, 102 L.Ed.2d 130 (1988). We think that this is just such a case for the reasons discussed below.

The petitioners cite an array of alleged trial errors attributed to counsel, including: (1) failure to persist in a request for a severance; (2) failure to raise a Batson-like objection to co-counsel's use of peremptory challenges to strike black jurors; (3) reliance on the same psychologist to evaluate both petitioners; (4) failure to challenge the sua sponte excusals of a large number of petit jurors; (5) failure to strike juror Elmer Guinn; (6) failure to present mitigation testimony at the sentencing stage from Ruiz's family; and (7) failure to present psychological testimony at the sentencing stage. The District Court considered each of the alleged errors in its opinion and found them to be without merit or procedurally barred:

Petitioners have presented this Court with no specific examples of incidents at trial where trial counsel failed to exercise the customary skill and diligence that a competent attorney would have exercised under similar conditions. Petitioners have presented this Court with no specific arguments that, but for trial counsel's ineffectiveness, the outcome of their trial would have been different.

868 F.Supp. at 1557. After a careful review of the record and consideration of each of the alleged trial errors, we agree with the District Court's conclusion for the reasons so ably given in its opinion.

We cannot agree with the petitioners' assertion that the District Court rushed to judgment by dismissing their ineffective-assistance claim without holding an evidentiary hearing. A chronological sketch of the habeas proceeding is helpful in putting the Court's August 22, 1994, order dismissing the claim into perspective. This petition for habeas relief, the second for these petitioners, had been under consideration by the District Court since its filing on August 17, 1989. As amended, it raised twenty-one points of error. Three years of investigation, briefing, and supplemental briefing followed. On May 14, 1994, Ruiz's counsel from the beginning was replaced by his current counsel, and additional investigation and briefing followed. The District Court set July 22, 1994, as the final date for filing pleadings. The petitioners filed no additional pleadings setting forth evidence and legal arguments relating to their ineffective-assistance claim. App. 712.

On August 3, 1994, the District Court filed an 87-page Memorandum Opinion and Order dismissing the habeas petition and concluding that the petitioners' claims of ineffective assistance were unsubstantiated and conclusory. 868 F.Supp. at 1557. The petitioners filed a Motion for Re-Hearing and requested an evidentiary hearing on August 12. App. 658. The District Court then granted the petitioners an opportunity to present their claims in appropriate form by August 22, 1994. In response to the Court's order, the petitioners filed a pleading captioned "Statement of Fact Issues, Witnesses And Expected Testimony Requiring An Evidentiary Hearing." App. 694. On the basis of the supplemented record before it, the District Court concluded that the petitioners "fail[ed] to allege factual issues which would require an evidentiary hearing." App. 721. We agree. The latest filing did not contain a clear offer of proof on any factual issue material to the claim of ineffective assistance of counsel.

We have outlined the history of this habeas petition to underscore the level of attention and patience afforded these petitioners by the District Court. We acknowledge that a potential conflict of interest existed in that Mr. Cambiano had served as trial counsel and habeas counsel for Ruiz, and that this conflict contributed to the petitioners' delay in raising this claim. But we are convinced that petitioners had ample opportunity to suggest issues of fact going to the question of ineffective assistance that would require an evidentiary hearing. This crime was committed in 1977. The present habeas petition was filed in 1989. There has hardly been a rush to judgment.

II.

Next, we consider Ruiz's and Denton's claim that one of the aggravating circumstances presented to the jury duplicates an element of the death-eligible homicides presented to the jury--murder committed in the course of a kidnapping, and murder committed in the course of a robbery. During the sentencing phase the jury was asked to consider several aggravating circumstances, including that "the murder was committed for the purpose of avoiding or preventing an arrest." The petitioners now claim that it was error for the court to submit this circumstance to the jury because it duplicates an element of the underlying offenses of kidnapping ³ and robbery. ⁴ They maintain that the statute as thus applied fails to perform the constitutionally required narrowing function. See Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).

This argument is simply a revised version of the argument successfully advanced by the petitioners in their preceding habeas petition, based on our holding in Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). See supra note 1. Since that time, the law has changed in response to the...