Ruiz v. Norris, PB-C-89-395.

Citation868 F. Supp. 1471
Decision Date02 August 1994
Docket NumberNo. PB-C-89-395.,PB-C-89-395.
PartiesPaul RUIZ and Earl Van Denton v. Larry NORRIS, Director Arkansas Department of Correction.
CourtU.S. District Court — Eastern District of Arkansas

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E. Alvin Schay, Arkansas Death Penalty Resource Center, Inc.; Ray E. Hartenstein; Herbert C. Rule, III, Rose Law Firm, Little Rock, AR, and Mark S. Cambiano, Cambiano Law Firm, Morrilton, AR, for plaintiffs.

Clint E. Miller, Atty. General's Office, Little Rock, AR, for defendant.

MEMORANDUM OPINION AND ORDER

EISELE, District Judge.

BACKGROUND

While this habeas proceeding has now been pending for five years, the underlying case is much older. As noted by the Arkansas Supreme Court in its last decision, "this capital murder case has followed a long and torturous path."

Early in 1977, petitioners Ruiz and Denton were imprisoned in the Oklahoma State Prison in McAlister — Ruiz for armed robbery and Denton for murder. On June 23, 1977, they disappeared from a work crew. They were seen near the town of Magazine in Logan County, Arkansas on the morning of June 29, in a car with Louisiana license plates. The Arkansas Supreme Court described what happened next:

When the marshall of Magazine, Marvin Ritchie, and two employees of the Corp of Engineers, David Small and Opal James, who were working in Logan County, were found to be missing, a search party was organized and that afternoon two were found handcuffed together in the trunk of Ritchie's car. Marvin Ritchie was dead and David Small was critically wounded. Ritchie had been shot in the back of the head and Small through the chest. Small survived to provide essential testimony against the appellants at all three trials. Two days later, the body of Opal James was found in a remote section of Montgomery County.

On August 25, 1977, felony informations were filed in the Circuit Court of Logan County, Arkansas, charging Ruiz and Denton with the capital murders of Marvin Ritchie and Opal James. Their trial in Logan County started on April 27, 1978. They were convicted and sentenced to death by electrocution. On appeal to the Arkansas Supreme Court, these convictions were reversed upon a holding that the trial court erred in denying a motion for a change of venue because of pervasive pre-trial publicity. Ruiz and Denton 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 by a jury, convicted and sentenced to death by electrocution. This sentence, imposed on October 3, 1979, was affirmed by the Arkansas Supreme Court and certiorari was denied by the U.S. Supreme Court. Ruiz and Denton v. State, 273 Ark. 94, 617 S.W.2d 6, cert. denied 454 U.S. 1093, 102 S.Ct. 659, 70 L.Ed.2d 631 (1981). State postconviction remedies were pursued and exhausted. Ruiz and Denton v. State, 275 Ark. 410, 630 S.W.2d 44 (1982), cert. denied 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).

After exhausting their remedies in state court, Ruiz and Denton filed a petition for federal habeas corpus relief in the U.S. District Court for the Eastern District of Arkansas. That petition was denied. Petitioners then appealed to the U.S. Court of Appeals for the Eighth Circuit where the judgment of the district court was reversed on the basis of that court's decision in Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985) which held that "death qualified" juries are unconstitutional. Ruiz v. Lockhart 754 F.2d 254 (8th Cir.1985). The state then appealed to the U.S. Supreme Court which granted certiorari and vacated the decision of the Eighth Circuit on the basis of Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), which upheld the constitutionality of "death qualified juries." The case was remanded to the Eighth Circuit for reconsideration. The Eighth Circuit reconsidered and again reversed the U.S. District Court, this time upon the ground of "double counting" under Collins v. Lockhart, 754 F.2d 258 (8th Cir.). The "double counting" issue had been reserved by petitioners but not dealt with earlier by the Eighth Circuit in view of its reversal on the Grigsby issue. The Eighth Circuit upheld the validity of petitioners' convictions but vacated their death sentences because of the use of pecuniary gain as an aggravating circumstance where robbery was an element of the underlying capital crime. The state concedes that its failure to appeal this decision to the Eighth Circuit was attributable to a miscalculation of the time permitted for such appeal.1 The state was given a reasonable time to either retry the issue of punishment or reduce petitioners' sentences to life without parole. After remand, on March 5, 1987, the U.S. District Court for the Eastern District of Arkansas entered such a judgment.

On August 17, 1987, petitioners' new trial of the penalty phase of their capital murder convictions commenced.2 The jury found in favor of the death penalty and on August 26, 1987, Ruiz and Denton were again sentenced to death. Petitioners appealed their convictions to the Arkansas Supreme Court asserting some nineteen errors. The Arkansas Supreme Court found no merit in those arguments and affirmed the death penalties imposed.

On July 20, 1989, Paul Ruiz filed a petition under 28 U.S.C. § 2254 for writ of habeas corpus. By letter dated July 14, 1989, Mr. Earl Van Denton joined in, and adopted, the petition filed by Mr. Ruiz. Thus began this habeas proceeding.

On August 17, 1989, petitioners Paul Ruiz and Earl Van Denton filed their "First Amended Petition for a Writ of Habeas Corpus on Behalf of Persons in State Custody, 28 U.S.C. § 2254 and Brief in Support Thereof." This 112 page pleading was filed by attorney Mark S. Cambiano on behalf of Mr. Ruiz and by attorney Ray Hartenstein on behalf of Mr. Earl Van Denton. The amended Petition raises twenty-one separate issues.

On July 23, 1990, after filing various related pleadings, the parties agreed to stipulate as to the factual issues and submit the legal issues by briefs. The original briefing continued into late 1991. On September 23, 1991, the petitioners filed a "motion for appointment of investigator."

Mr. Mark Cambiano represented Mr. Ruiz and Mr. Robert S. Irwin represented Mr. Denton in the state trial court and for the state appeals. After the Arkansas Supreme Court affirmed those sentences it allowed Mr. Irwin to withdraw as Mr. Denton's attorney.

When Mr. Ruiz filed his habeas petition he requested that Mr. Cambiano be appointed to represent him in connection with that matter. No objection was filed by the state or Mr. Denton. Mr. Denton then wrote asking to adopt the petition filed by Mr. Ruiz and specifically requested that the court appoint Mr. Ray Hartenstein to represent him in the habeas proceeding. The court granted the request of both Mr. Ruiz and Mr. Denton and, as a consequence, Mr. Cambiano and Mr. Hartenstein represented petitioners in this habeas proceeding until March, 1994.

On March 10, 1994, the Court had a telephone conference with the attorneys for the petitioners and the respondent. It noted that Mr. Denton's attorney, Mr. Hartenstein, had not represented him during the state court proceeding. However, it also noted that Mr. Ruiz continued in this habeas proceeding with the same attorney, Mr. Cambiano, who had represented him throughout the state court proceedings. And the Court further pointed out that one of the issues argued by both petitioners was the "ineffective assistance of counsel." Although the state had not raised the issue, the Court, after discussing the matter with all three attorneys (Mr. Cambiano, Mr. Hartenstein and Mr. Clint Miller of the Arkansas Attorney General's Office) concluded that it would be best if Mr. Cambiano were relieved and a new attorney appointed to represent Mr. Ruiz in this habeas proceeding. Mr. Cambiano readily agreed.

On March 11, 1994, Mr. Herbert Rule was appointed to represent Mr. Ruiz. A new briefing schedule was ordered. After several extensions of time at the separate requests of petitioners and the respondent, the Court set July 22, 1994 as the final date for the parties to submit additional briefing and argument.

No additional filings or briefing were filed by the July 22, 1994 deadline, or thereafter. Therefore, all issues are ready for final disposition.

The captions found below for the points argued by petitioners are, for the most part, taken verbatim from their petition and briefs. We use their language so that any reviewing court may correlate this Court's discussion and analysis with petitioners' own summary of the issue or issues raised and also with the most recent opinion of the Arkansas Supreme Court.

The Court will attempt to make its discussion of most of the issues as "self-contained" as possible. This will result in a great deal of repetition but will avoid to some extent the necessity for "back-referencing" in order to understand or follow the separate discussions.

I. THE RESENTENCING TRIAL OF THE PETITIONERS VIOLATED THE EX POST FACTO PROVISIONS OF THE UNITED STATES AND ARKANSAS CONSTITUTIONS AND DENIED PETITIONERS DUE PROCESS AND EQUAL PROTECTION OF THE LAWS

Petitioners contend that the resentencing statute, codified at Ark.Stat.Ann. § 5-4-616, which limits the retrial of cases remanded solely for sentencing phase error to a retrial of the penalty phase only, was unconstitutionally applied to petitioners. Enacted in 1983, the statute in question specifically states that it is to apply retroactively to any defendant sentenced to death after January 1, 1974. Prior to the enactment of this statute, upon a finding of reversible error at the sentencing phase, petitioners would have been retried on both guilt and penalty issues. Petitioners contend that the retroactive application of the 1983 ...

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