1

The Honorable Elmo B. Hunter, Senior United States District

Judge for the Western District of Missouri.

___________

No. 95-1884

___________

Huntley Ruff, *

*

Appellant, * Appeal from the United States

* District Court for the Western

v. * District of Missouri.

*

Bill Armontrout, *

*

Appellee. *

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 Submitted: January 11, 1996

 Filed: February 27, 1996 ___________

Before WOLLMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges. ___________

BEAM, Circuit Judge.

Appellant Huntley Ruff brought a petition for habeas corpus

following convictions for forcible rape, sodomy, robbery, and armed

criminal action. The district court1 denied relief. Because all

of Ruff's claims are either procedurally barred or lack merit, we

affirm. 

I. BACKGROUND

This habeas petition has been before us once before. In that

instance, the state appealed the district court's grant of habeas

relief based upon the prosecution's withholding of exculpatory

evidence in violation of Brady v. Maryland. 373 U.S. 83 (1963).

We reversed, Ruff v. Armontrout, 993 F.2d 639 (8th Cir. 1993) (Ruff

I), and remanded for consideration of the remainder of Ruff's
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Ruff also twice filed for state postconviction relief

pursuant to Missouri Supreme Court Rule 27.26 (repealed, effective

January 1, 1988). Ruff was denied postconviction relief by the

state trial court and the appellate court. Ruff then filed this

action for federal habeas corpus relief. 

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habeas petition. On remand, the district court denied habeas

corpus relief. Ruff appeals. 

The relevant facts are largely set out in our prior opinion in

this matter and will be repeated here only to the extent necessary.

In 1985, Ruff was convicted of forcible rape, sodomy, robbery, and

armed criminal action. Ruff directly appealed his conviction to

the Missouri Court of Appeals, which affirmed.2 However, before

the Missouri court rendered its decision, the United States Supreme

Court decided Batson v. Kentucky, 476 U.S. 79 (1986), which held

that the race-based exclusion of potential jurors through the use

of peremptory challenges violates the Equal Protection Clause of

the United States Constitution. Id. at 86. Less than one year

later, the Supreme Court decided Griffith v. Kentucky, 479 U.S. 314

(1987), which held that Batson applies "retroactively to all cases,

state or federal, pending on direct review or not yet final" at the

time of the Batson decision. Griffith, 479 U.S. at 328. Because

Ruff's direct appeal was still pending when Batson was decided,

Batson applies to this case.

 

II. DISCUSSION

Ruff claims, inter alia, that his convictions were returned by

an unconstitutionally empaneled jury in violation of Batson v.

Kentucky. In support of this claim, Ruff, who is African-American,

argues that the prosecution used its peremptory challenges in a

racially discriminatory manner against the African-American members

of the jury venire. Ruff did not raise this constitutional claim

at trial or on direct appeal. Thus, the claim has been waived.

Wright v. Nix, 928 F.2d 270, 272 (8th Cir.), cert. denied, 502 U.S.
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838 (1991). Ruff is, therefore, procedurally barred from raising

the jury composition claim on federal habeas absent a showing of

cause and prejudice or a showing of actual innocence. See

McCleskey v. Zant, 499 U.S. 467, 493 (1991); Wainwright v. Sykes,

433 U.S. 72, 87 (1977). Because Ruff adduced no evidence of actual

innocence, we need only discuss the cause and prejudice standard.

Ruff I, 993 F.2d at 642; Appellant's Addendum at 25. 

 

In considering whether Ruff has shown cause for his procedural

default, we must determine whether some objective factor external

to the defense prevented him from presenting or developing the

factual or legal basis of his claim. Murray v. Carrier, 477 U.S.

478, 488 (1986). A novel legal theory can constitute cause to

excuse a procedural default. Id. at 489-90. However, "the

standard is a strict one--the constitutional claim must be `so

novel that its legal basis is not reasonably available to

counsel.'" Heffernan v. Norris, 48 F.3d 331, 333 (8th Cir. 1995)

(quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). Ruff argues that

the jury composition claim was novel at the time of trial because

Batson had not yet been decided, and that this novelty is cause for

his failure to object to the jury composition at trial and on

direct appeal. We disagree. 

Clearly, the legal theory on which Batson was based was not

novel within the meaning of Reed. "Far from being novel, the legal

framework for a discrimination claim under Swain had been in place

for over twenty years" at the time Ruff was selecting his jury

panel. Byrd v. Armontrout, 880 F.2d 1, 7 n.6 (8th Cir. 1989),

cert. denied, 494 U.S. 1019 (1990). Admittedly, the Swain standard

required proof of systematic exclusion of racial minorities from

jury panels over a period of time, and therefore imposed a more

difficult burden on a defendant than does the Batson standard. See

Swain v. Alabama, 380 U.S. 202 (1965). However, the underlying

theory that the exclusion of minorities from juries could violate

the Fourteenth Amendment's Equal Protection Clause was common to
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The United States Supreme Court's discussion in Batson v.

Kentucky includes an extensive survey of the case law which

provided the foundation for the Court's decision. See, e.g., Batson, 476 U.S. at 85-88. The Court stated that "[m]ore than a

century ago, the Court decided that the State denies a black

defendant equal protection of the laws when it puts him on trial

before a jury from which members of his race have been purposefully

excluded." Id. at 85 (citing Strauder v. West Virginia, 100 U.S.

303 (1880)). A legal theory in existence for over one hundred

years is clearly not "novel."

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both Swain and Batson.3 The jury composition theory was available;

counsel chose not to use it. Consequently, Ruff has not shown a

novel legal theory as cause to excuse his procedural default.

Ineffective assistance of counsel can also constitute cause to

excuse a procedural default. Carrier, 477 U.S. at 488; Randolph v.

Delo, 952 F.2d 243, 246 (8th Cir. 1991), cert. denied, 504 U.S. 920

(1992). Ruff claims his counsel rendered ineffective assistance in

failing to object to the prosecution's use of peremptory challenges

at trial. Ruff claims this ineffective assistance is cause for his

omission of the Batson argument at trial. To prevail on this

claim, Ruff must show that his counsel's failure to raise the

Batson claim was deficient performance and resulted in prejudice so

as to undermine our confidence in the outcome of his trial.

Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining

whether counsel's performance was deficient, we must "judge the

reasonableness of counsel's challenged conduct on the facts of the

particular case, viewed as of the time of counsel's conduct." Id.

at 690. The standard is highly deferential.

 

Under this standard, Ruff's counsel was not ineffective.

Although the theory on which Batson was based was certainly

available at the time of jury selection here, Batson itself had not

yet been decided. Failure to anticipate a change in existing law

does not amount to ineffective assistance of counsel. Johnson v.

Armontrout, 923 F.2d 107, 108 (8th Cir.), cert. denied, 502 U.S.

831 (1991). Counsel need not raise every single conceivable
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Even if we found that Ruff did not procedurally default on

the jury composition claim at trial, we would still find that he is

barred from raising the claim now, on federal habeas. Ruff had the

chance to build a record on the jury composition claim in his state

postconviction proceedings and failed to do so. See Keeney v.

Tamayo-Reyes, 504 U.S. 1, 5-6 (1992) (cause and prejudice rule

applies to failure to develop claim factually because such failure

is equivalent to failing to assert claim procedurally); Bolder v.

Armontrout, 921 F.2d 1359, 1364 (8th Cir. 1990), cert. denied, 502

U.S. 850 (1991). 

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argument to defeat a claim of ineffective assistance of counsel.

In light of the circumstances at the time of trial, we cannot say

that counsel's failure to raise the Batson issue fell below "the

deferential standard of reasonableness established in Strickland."

Randolph, 952 F.2d at 246; see also Johnson, 923 F.2d at 108 n.3.

Consequently, Ruff has not shown ineffective assistance of counsel

as cause to excuse his procedural default.

Because Ruff has not shown cause for his procedural default on

the jury composition claim, we need not reach the issue of

prejudice.4 We have considered the remainder of Ruff's arguments

and find them to be without merit.

 

III. CONCLUSION

Because Ruff failed to satisfy the cause and prejudice

standard to overcome the procedural default on his jury composition

claim, we affirm the district court's denial of habeas corpus

relief. 
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.