_________________________

Nos. 94-3402EA, 94-3403EA

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_____________ *

*

No. 94-3402EA *

_____________ *

*

Paul Ruiz, *

*

Appellant, *

*

v. *

*

*

Larry Norris, Director, *

Arkansas Department of *

Correction, *

* On Appeal from the United

Appellee. * States District Court

* for the Eastern District

* of Arkansas.

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*

No. 94-3403EA *

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*

Earl Van Denton, *

*

Appellant, *

*

v. *

*

*

Larry Norris, Director, *

Arkansas Department of *

Correction, *

*

Appellee. *

___________

 Submitted: September 14, 1995

 Filed: December 11, 1995

___________
 In Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert.

1

denied, 474 U.S. 1013 (1985), we held that the aggravating

circumstance of murder for pecuniary gain was, by hypothesis,

duplicative of one of the elements of the offense of murder

committed in the course of a

robbery. This aggravating factor, in the view of the Collins

court, thus failed to perform its function, essential under the

Eighth Amendment, of narrowing the class of murderers eligible for

the death penalty. Our later decision in Ruiz was based on the

authority of Collins. Later, in Perry v. Lockhart, 871 F.2d 1384

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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
(8th Cir. 1989), we held that the intervening decision of the

Supreme Court of the United States in Lowenfield v. Phelps, 484

U.S. 231 (1988), had effectively overruled our decision in Collins.

Our decision in Ruiz, however, had long since become final and

required that Ruiz and Denton be given a new sentencing hearing,

notwithstanding the fact that Collins was no longer the law of this

Circuit.

 The Hon. Garnett Thomas Eisele, United States District Judge 2

for the Eastern District of Arkansas.

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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, for reasons given in a comprehensive opinion,

2

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
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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' ineffectiveassistance 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 (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 (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:
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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 ineffectiveassistance 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
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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
 The kidnapping instruction submitted to the jury read as

3

follows: 

You are further instructed that the

Arkansas Statutes further provide that a

person commits the offense of kidnapping if

without consent, he restrains another person

so as to interfere substantially with his

liberty with the purpose of using such person

as a shield or hostage or to facilitate the

commission of any felony or flight thereafter.

App. 464-65.

 The robbery instruction submitted to the jury read as

4

follows:

You are instructed that the Arkansas

Statutes provide that a person commits robbery

if with the purpose of committing a theft or

resisting apprehension immediately thereafter

he employs or threatens to immediately employ

physical force upon another.

App. 464.

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it was error for the court to submit this circumstance to the jury because

it duplicates an element of the underlying offenses of kidnapping and

3

robbery. They maintain that the statute as thus applied fails to perform 4

the constitutionally required narrowing function. See Zant v. Stephens,

462 U.S. 862 (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 (1985). See supra note 1. Since that

time, the law has changed in response to the Supreme Court's holding in

Lowenfield v. Phelps, 484 U.S. 231 (1988). Today, Perry v. Lockhart, 871

F.2d 1384 (8th Cir.), cert. denied, 493 U.S. 959 (1989), which was

instructed by Lowenfield, is the law of this Circuit, see Lockhart v.

Fretwell, 113 S. Ct. 838, 843-44 (1993) (assuming but not holding that

Perry was correctly decided), and Perry controls this claim. See Fretwell,

113 S. Ct. at 844
 The jury was instructed as follows: 5

Paul Ruiz and Earl Van Denton are charged with

the offense of capital murder. To sustain

this charge, the State must prove the

following things beyond a reasonable doubt:

Count one, first. That Paul Ruiz and Earl Van

Denton committed or attempted to commit the

crimes of robbery or kidnapping or both. Two,

that in the course of it and in fervor of that

crime or crimes or an immediate flight

therefrom Paul Ruiz and Earl Van Denton caused

the death of Marvin Ritchie or Opal James

under circumstances manifesting an extreme

indifference to the value of human life or

count two, first, that with the premeditated

and deliberate purpose of causing the death of any person, Paul

Ruiz and Earl Van Denton caused the death of Marvin Ritchie and

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(discussing the retroactive application of Perry). In Perry, we held that

Arkansas's capital-murder statute had sufficiently narrowed the "class of

death eligible murderers from all other murderers" by "defin[ing] a

specific group of crimes as capital murder eligible for the death penalty."

871 F.2d at 1393. Thus, the fact that one or more of the aggravating

circumstances considered by the jury may duplicate an element of the

robbery or kidnapping homicides eligible for the death penalty, does not

render Arkansas's death-penalty scheme unconstitutional or violate the

petitioners' rights.

The petitioners urge us to reconsider Perry. We may not do so. See

Snell v. Lockhart, 14 F.3d 1289, 1305 (8th Cir.), cert. denied, 115 S. Ct.

419 (1994). This panel is "not at liberty to overrule the established law

of the circuit." Ibid.

III.

Ruiz and Denton also allege that the trial court committed

constitutional error at the guilt phase of their second trial by submitting

multiple theories of guilt to the jury without instructing the jurors that

they must reach a unanimous verdict on at least one of the various theories

advanced by the State. They 5
Opal James. Second, that those deaths were caused in the course of

the same criminal episode.

. . .

As a part of count one of the charge of

capital murder, the State contends that the

death of Marvin Ritchie and Opal James

occurred during the commission or attempted

commission of the crimes of robbery,

kidnapping, or both by Paul Ruiz and Earl Van

Denton, or in immediate flight from the

commission of either one or both of these

crimes.

To prove robbery, the State must prove beyond

a reasonable doubt that, with the purpose of

committing a theft, Paul Ruiz and Earl Van

Denton employed or threatened to employ

physical force upon another.

. . .

To prove kidnapping, the State must prove

beyond a reasonable doubt first, that Paul

Ruiz and Earl Van Denton did without consent

of Marvin Ritchie, Opal James, and David

Small, or any of them restrain all or any of

them so as to interfere substantially with his

liberty. And second, that Paul Ruiz and Earl

Van Denton restrained Marvin Ritchie and Opal

James and David Small or any of them with the

purpose of A., using either of them as a

shield or hostage; B., facilitating the

commission of robbery or flight therefrom --

thereafter; C., inflicting physical injury on

any of them; D., terrorizing any of them.

App. 524-26.

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maintain that the trial court's failure to give the unanimity instruction

is particularly egregious in this case because it involved two defendants,

multiple victims, multiple crimes, and the use of a general verdict form.

The District Court refused to grant relief, stating that the claim had not

been properly raised in
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state court, and, in the alternative, that the claim had been raised in the

first federal habeas proceeding, rejected at the trial level, and,

apparently, not pursued at the appellate level. 868 F. Supp. at 1504.

Ruiz and Denton failed to raise this claim on the direct appeal from

their second trial, or during their state postconviction proceedings.

Thus, the claim is procedurally defaulted. A district court need not

consider the merits of a procedurally defaulted claim. Dandridge v.

Lockhart, 36 F.3d 773, 774 (8th Cir. 1994), cert. denied, 115 S. Ct. 1257

(1995). 

In an effort to avoid the procedural bar, Ruiz and Denton contend

that the general-verdict/unanimity issue is in effect the equivalent of

their severance claim, which was advanced on direct appeal, in state

postconviction proceedings, and in their first habeas. Even if we agreed

with Ruiz's and Denton's characterization of this issue, which we do not,

it would still fail as a successive claim. The District Court considering

the petitioners' first habeas petition addressed the severance claim on the

merits and decided it against Ruiz and Denton. Then, on appeal to this

Court, the argument was not raised.

It is axiomatic that a district court may dismiss a successive habeas

petition "asserting identical grounds for relief raised and decided

adversely on the merits in an earlier petition." Olds v. Armontrout, 919

F.2d 1331, 1332 (8th Cir. 1990), cert. denied, 500 U.S. 908 (1991).

Because the severance issue was raised in the petitioners' first habeas

petition and rejected by the District Court at that time, the District

Court did not abuse its discretion by dismissing the instant claim as

successive. 

It is true that a district court may hear a successive claim, without

a showing of cause and prejudice, "when required to do so by the `ends of

justice.'" Schlup v. Delo, 115 S. Ct. 851, 863
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(1995) (quoting Sanders v. United States, 373 U.S. 1, 15 (1963)). But the

"ends of justice" require review of procedurally barred, abusive, or

successive claims only in the narrowest type of case -- when a fundamental

miscarriage of justice would otherwise result. Id. at 864; see also

McCleskey v. Zant, 499 U.S. 467, 495 (1991) ("the exception to cause for

fundamental miscarriages of justice gives meaningful content to the

otherwise unexplained `ends of justice' inquiry"). The miscarriage-ofjustice exception allows a successive claim to be heard if the petitioner

can "show that 'a constitutional violation has probably resulted in the

conviction of one who is actually innocent.'" Schlup, 115 S. Ct. at 867

(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). 

Ruiz and Denton do not assert that they are actually innocent of the

crime. Instead they offer an explanation for their failure to advance this

claim, or something close to it, in the appeal of their first habeas

petition. According to the petitioners, their post-conviction counsel did

not pursue this claim vigorously during the appeal of their first habeas

petition because other issues presented a greater likelihood of success,

and another claim, in fact, resulted in habeas relief. They contend that

failure to pursue the instant claim at the appellate level should be

excused. 

We are not persuaded that Ruiz and Denton had no incentive to raise

this issue during consideration of their previous habeas petition before

this Court. After considering Ruiz's and Denton's previous petition, we

initially granted relief from the conviction on the authority of Grigsby

v. Mabry, 758 F.2d 226 (8th Cir. 1985) (en banc), rev'd sub nom. Lockhart

v. McCree, 476 U.S. 162 (1986). Ruiz v. Lockhart, 754 F.2d 254 (8th Cir.

1985). The Supreme Court subsequently reversed Grigsby, Lockhart v.

McCree, supra, vacated our holding in Ruiz's and Denton's cases, and

remanded the cases for reconsideration in light of McCree. Lockhart v.

Ruiz, 476 U.S. 1112 (1986). Upon reconsideration we affirmed Ruiz's and

Denton's convictions, but reversed their sentences on the authority of our
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holding in Collins, supra.

Ruiz and Denton were aware at the time of remand from the Supreme

Court that the validity of their convictions was once again being

considered, and that their reliance on Grigsby had been undermined by the

Supreme Court's decision in McCree. They do not claim that a motion was

filed with this court for supplemental briefing on this unanimity claim,

and our records indicate that no such motion was made. See Pollard v.

Delo, 28 F.3d 887, 889 (8th Cir.) (recognizing that a critical part of

appellate counsel's job is the "`winnowing of the issues to eliminate a

sure loser.'" (quoting Horne v. Trickey, 895 F.2d 497, 500 (8th Cir.

1990))), cert. denied, 115 S. Ct. 518 (1994). We believe that the remand

to this Court provided Ruiz and Denton with ample opportunity to request

supplemental briefing, and to present the issue they now advance. Thus,

the issue may not be considered on its merits now. We have considered

Denton's argument that his first habeas counsel was ineffective, but there

is no constitutional right to counsel on collateral review, and appointment

of counsel in death-penalty habeas cases was discretionary when the first

habeas petition was filed. See Coleman v. Thompson, 501 U.S. 722 (1991)

(ineffectiveness of postconviction counsel cannot be "cause"). 

IV.

Ruiz and Denton raise several additional claims in this appeal. They

argue that the resentencing verdict forms limited the jury's consideration

of mitigating evidence. See Mills v. Maryland, 486 U.S. 367 (1988). They

also argue that the District Court erred by refusing to hold an evidentiary

hearing on the sua sponte dismissal, for failure to meet statutory

qualifications, of a large number of veniremen. Finally, Ruiz,

individually, argues that a severance should have been granted at the 1989

sentencing trial due to a Batson v. Kentucky, 476 U.S. 78 (1986),

violation. 
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The District Court addressed each of these arguments comprehensively.

We affirm and adopt the District Court's reasoning.

The judgment is affirmed.

A true copy.

Attest:

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