-PAL Ruffin v. Director Nevada Department of Corrections et al, No. 2:2007cv00721 - Document 81 (D. Nev. 2011)
Court Description: 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)
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-PAL Ruffin v. Director Nevada Department of Corrections et al Doc. 81 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 ORDER vs. 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 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: 22 23 24 25 26 27 28 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 Dockets.Justia.com 1 2 3 4 5 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. . . . . 6 #38, Ex. 110, at 5 (emphasis added)(citation footnotes omitted). 7 8 The state supreme court’s decision on these claims was contrary to clearly established federal law as determined by the United States Supreme Court. 9 10 11 12 13 14 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. 15 16 17 18 19 20 21 22 23 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. 24 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-
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