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

_________________________

_____________ * * 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.

_____________ * * No. 94-3403EA *

_____________ * * Earl Van Denton, * * Appellant, * * v. * * * Larry Norris, Director, * Arkansas Department of * Correction, * * Appellee. *

___________ Submitted: September 14, 1995 Filed: December 11, 1995

___________

### I n Collins v. Lockhart , 754 F.2d 258 (8th Cir.), cert
. 1 

### den ied , 474 U.S. 1013 (1985), we held that the aggravatin g circumstance of murder for pecuniary gain was, by hypothesis , duplicative of one of the elements of the offense of murde r committed in the course of a robbery. This aggravating factor, in the view of the Collin s court, thus failed to perform its function, essential under th e Eighth Amendment, of narrowingthe class of murderers eligible for the death penalty. Our later decision in Ruiz was based on th e authority of Collins . Later, in Perry v. Lockhart , 871 F.2d 1384
-2- Before RICHARD S. ARNOLD, Chief Judge, JOHN R. G IBSON and WOLLMAN, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.

The hab eas corpus petitions of Paul Ruiz and Earl Van Denton, bot h of whom are under sentence of death, are once again before us. Ruiz and Denton have been conv icted of capital murder and sentenced to die for the killing of Marvin Ritchie, Town Marshal of the T own of Magazine, Arkansas, and Opal James, an employee of the Corps of Engi neers 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 presen ted on the present appeal.

The firs t trial took place in Logan County, Arkansas, and resulte d inthe conviction of both defendants and the imposition of sentences o f 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 A rk. 875, 582 S.W.2d 915 (1979). After a change of venue to Conwa y County, Arkansas, the appellants were again tried, convicted, and sentence d to death. After proceedings in the state courts, the nature of which is summarized in prior o pinions of this Court, we upheld the convictions but set aside the sentenc e because one of the aggravating circumstances found by the jury with respect to both appellants - that the murder was committe d for pecuni ary gain - duplicated one of the elements of the underlyin g capital felony murders, murder committed in the course of a robbery. Ruiz v. Lockhart , 806 F.2d 158 (8th Cir. 1986). 1

### (8thCir. 1989), we held that the intervening decision of th e

Supreme Court of the United States in Lowenfield v. Phelps , 48 4 U.S. 231 (1988), had effectively overruled our decision in C ollins

. Our decision in Ruiz , however, had long since become final an d 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. Ga rnett Thomas Eisele, United States District Judge 2 

### for the Eastern District of Arkansas.
-3- The reafter, in response to our decision in Ruiz , the State o f Arkansas undertook pr oceedings to retry the question of the penalty to be imposedon Ruiz and Denton. This retrial again resulted in sentences of dea th, which were affirmed by the Supreme Court of Arkansas. Ruiz v

. Sta te , 299 Ark. 144, 772 S.W.2d 297 (1989). The petitions for habea s corpus now before us on appeal followed.

Th e District Court, for reasons given in a comprehensive opinion , 2 dismissedthe petitions. Ruiz v. Norris , 868 F. Supp. 1471 (E.D. Ark

. 1994). R uiz and Denton now appeal, raising a number of grounds fo r attackin g their sentences, as well as one ground of attack on th e underlying convictions. Having considered all of the arguments with the
care appro priate to a case of this gravity, we now affirm. We shal l discuss each of the grounds in turn.

I.

We begin with one of the six issues which Ruiz and Denton rais e jointly-- that the District Court abused its discretion by refusing t o holdan evidentiary hearing on their ineffective-assistance-of-counse l claim. According to the petitioners, the District Court rushed to judgmen t on their ineffective-assistance

### -4-

cla im. They argue that during the habeas process below, the Cour t indicated that an evidentiary hearing would be held on this issue, and the n refusedto hold the hearing. They also argue that they were not given a sufficient amount of time to develop the evidenc e necessary to demonstrate ineffective assistance of counsel.

Our review of the District Court's c hoice to decide the petitioners' ineffective-assistance claim without a hearing i s 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 "i f the facts are in dispute or if a fair evidentiary hearing was not conducte d in state court." Ferguson v. Jones , 905 F.2d 211, 214 (1990). This is no t 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 petit ioners 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 o f peremptorychallenges to strike black jurors; (3) reliance on the sam e psychologist to evaluate both petitioners; (4) failure to challenge the su a sponte excusals of a large number of petit jurors; (5) failure to strike juror Elmer Guinn; (6) failure to present mitigation testimony at th e senten cing stage from Ruiz's family; and (7) failure to presen t psycho logical testimony at the sentencing stage. The District Cour t considered each of th e alleged errors in its opinion and found them to be without merit or procedurally barred:

### -5- Petitioners hav e presented this Court with no specific examples of incide nts at trial where trial counsel failed to exercise the customary skill and diligence that a competent attorney would hav e exer cisedunder similar conditions. Petitioner s have presented this Court with no specifi c ar guments that, but for trial counsel' s ine ffectiveness, the outcome of their trial woul d have been different.

86 8 F. Supp. at 1557. After a careful review of the record an d
cons iderationof each of the alleged trial errors, we agree with th e District Court's conc lusion for the reasons so ably given in its opinion.

We cannot agree with the petitioners' assertion that the Distric t Court rushed to judgm ent by dismissing their ineffective-assistance claim without holding an evidentiary hearing. A chronological sketch of th e habeas proceeding is helpful in putting the Cour t's August 22, 1994, order dismissing the claim into perspective. This petition for habeas relief, the sec ond for these petitioners, had been under consideration by th e District Court since its filing on August 17, 19 89. As amended, it raised twenty-one points of error. Three years of investigation, briefing, and supplemental briefingfollowed. On May 14, 1994, Ruiz's counsel from the beginning was replaced by his current counsel, and additional investigatio n and briefing followed. The District Court set J uly 22, 1994, as the final date for filing plead ings. The petitioners filed no additional pleadings setting forth evidenc e and legal arguments relating to their ineffectiveassistance claim. App. 712.

On Au gust 3, 1994, the District Court filed an 87-page Memorandu m Opinionand Order dismissing the habeas petition and concluding that the peti tioners' claims of ineffective assistance were unsubstantiated an d conclusory. 868 F. Supp. at 1557. The

### -6-

petiti oners filed a Motion for Re-Hearing and requested an evidentiar y hearing o n August 12. App. 658. The District Court then granted th e petitioners an opport unity to present their claims in appropriate form by August 22, 1994. In response to the Court's order, the petitioners filed
a plea ding captioned "Statement of Fact Issues, Witnesses And Expecte d TestimonyRequiring An Evidentiary Hearing." App. 694. On the basis of the supplemented record before it, the District Court concluded that the petiti oners "fail[ed] to allege factual issues which would require a n evidenti aryhearing." App. 721. We agree. The latest filing did no t 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 underscor e the lev el of attention and patience afforded these petitioners by th e Distric t Court. We acknowledge that a potential conflict of interes t existed in that Mr. Cambiano had served as trial counsel and habeas counse l for Ruiz, and that th is conflict contributed to the petitioners' delay in rais ing this claim. But we are convinced that petitioners had ampl e opportunity to suggest issues of fact going to t he question of ineffective assista nce that would require an evidentiary hearing. This crime wa s committed in 1977. T he present habeas petition was filed in 1989. There has hardly been a rush to judgment.

II.

Next, w e consider Ruiz's and Denton's claim that one of th e aggravating circumstances presented to the jury duplicates an element of the death-eligible ho micides presented to the jury -- murder committed in the cours e of a kidnapping, and murder committed in the course of a robb ery. During the sentencing phase the jury was asked to conside r several aggravating circumstances, including that "the murder was committe d for the purpose of avoiding or preventing an arr est." The petitioners now claim that

### The kidnapping instruction submitted to the jury read a s 3 

### follows:
You are further instructed that th e

Arkansas Statutes further provide that a personcommits the offense of kidnapping i f without consent, he restrains another perso n so as to interfere substantially with hi s liberty with the purpose of using such person as a shield or hostage or to facilitate th e commission of any felony or fl ight thereafter. App. 464-65.

The robbery instruction submitted to the jury read a s 4 

### follows:
You are instructed that the Arkansa s

Statutes provide that a personcommits robbery if wit h the purpose of committing a theft o r resisting apprehension immediately thereafter he employs or threatens to immediately employ physical force upon another. App. 464.
-7- it was error for the court to submit this circum stance to the jury because it duplicates an element of the underlying offenses of kidnapping an d 3 robbery. They maintain that the st atute 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 argumen t successfullyadvanced by the petitioners in their preceding habea s 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 i n Lowenfield v. Phelps , 484 U.S. 231 (1988). Today, Perry v. Lockhart , 871 F.2 d 1384 (8th Cir.), cert. denied , 493 U.S. 959 (1989), which wa s instructed by Lowenfield , is the law of this Circuit, see Lockhart v

. Fretw ell , 113 S. Ct. 838, 843-44 (1993) (assuming but not holding tha t 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 of fense of capital murder. To sustai n this charge, the State must prove th e following things beyond a reasonable doubt : Count one, first. That Paul R uiz and Earl Van Dentoncommitted or attempted to commit th e crimes of robbery or kidnappin g or both. Two, that in the course of it and i n fervor of that crime or crimes or an immediate fligh t therefrom Paul Ruiz and Earl Van Denton caused the death of Marvin Ritchie or Opal Jame s un der circumstances manifesting an extrem e indiff erence to the value of human life o r count two, first, that with the premeditated and deliberate purpose of causing the death of any person, Pau l Ruiz and Earl Van Denton caused the death of Marvin Ritchie an d
-8- (discussing the retroactive application of Perry ). In Perry , we held that Arkansas's capital-mu rder 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 aggravatin g circ umstances considered by the jury may duplicate an element of th e robberyor kidnapping homicides eligible for the death penalty, does not rend er Arkansas's death-penalty scheme unconstitutional or violate th e petitioners' rights.
The petitioners urge us to reconside r 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 ov errule the established law of the circuit." Ibid

.

III.

Ruiz and Denton also allege that the trial court committe d constitutional error at the guilt phase of their second trial by submittin g multiple theories of guilt to the jury without i nstructing the jurors that they must reach a unanimous verdict on at least one of the various theorie s advanced by the State. They 5

### Opal James. Second, that those deaths were caused in the co urse of

the same criminal episode.

. . .

As a part of count one of the charge o f capital murder, the State contends that th e deathof Marvin Ritchie and Opal Jame s occurred during the commission or attempte d commissionof the crimes of robbery , kidnapping, or both by Paul Ruiz and Earl Van Denton, or in immediate flight from th e commission of either one or both of thes e crimes. To prove robbery, the State must prove beyond a reasonable doubt that, with the purpose o f commit ting a theft, Paul Ruiz and Earl Va n Dentonemployed or threatened to emplo y physical force upon another.

. . . To prove kidnapping, the State must prov e beyonda reasonable doubt first, that Pau l Ru iz and Earl Van Denton did without consen t of Marvin Ritchie, Opal James, and Davi d Sma ll, or any of them restrain all or any o f them so as to interfere substa ntially 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 purpos e of A., using either of them as a shieldor hostage; B., facilitating th e commissionof robbery or flight therefrom -

- thereafter; C., inflicting physical injury on any of them; D., terrorizing any of them. App. 524-26. -9- maintain that the tri al court's failure to give the unanimity instruction is particularly egregious in this case because i t involved two defendants, multiple victims, mul tiple crimes, and the use of a general verdict form. The District Court refused to grant relief, stat ing that the claim had not been properly raised in

### -10-

state court, and, in the alternative, that the claim had been raised in th e 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 s econd trial, or during their state postconviction proceedings

. Thus, the claim is procedurally defaulted. A district court need no t
cons ider 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 conten d that t he general-verdict/unanimity issue is in effect the equivalent o f thei r severance claim, which was advanced on direct appeal, in stat e postconviction procee dings, and in their first habeas. Even if we agreed with Ruiz's and Dento n'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 th e merits and decided it against Ruiz and Denton. Then, on appeal to thi s Court, the argument was not raised.
It is axiomatic that a district court may dismiss a successive habeas petit ion"asserting identical grounds for relief raised and decide d adversely on the meri ts in an earlier petition." Olds v. Armontrout , 919 F.2d 1331 , 1332 (8th Cir. 1990), cert. denied , 500 U.S. 908 (1991)

. Bec ause the severance issue was raised in the petitioners' first habea s petit ionand rejected by the District Court at that time, the Distric t Court did not abuse its discretion by dismissing the instant claim a s successive.
It is true that a district court may hear a successive claim, w ithout a showing of cause an d prejudice, "when required to do so by the `ends of justice.'" Schlup v. Delo , 115 S. Ct. 851, 863

### -11-

(1995) (quoting Sanders v. United States , 373 U. S. 1, 15 (1963)). But the "ends of justice" require review of procedurally barred, abusive, o r successive claims only in the narrowest type of case -- when a fundamental misc arriage of justice would otherwise result. Id . at 864; see als o McCleskeyv. Zant , 499 U.S. 467, 495 (1991) ("the exception to cause for funda mental miscarriages of justice gives meaningful content to th e otherwise unexplained `ends of justice' inquiry"). The miscarriage-of

justice exception all ows a successive claim to be heard if the petitioner
can "show that 'a constitutional violation has probably resulted in th e convictionof 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 t hey are actually innocent of the crime. Instead they offer an explanation for their failure to advance thi s claim, or something close to it, in the appeal of their first habea s petition. According to the petitioners, their p ost-conviction counsel did not pursue this claim vigorously during the appeal of their first habeas petitionbecause other issues presented a greater likelihood of success, and another claim, infact, resulted in habeas relief. They contend that fail ure to pursue the instant claim at the appellate level should b e excused.

We are no t 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 initiallygranted relief from the conviction on the authority of Grigsby v. Mabry , 758 F.2d 22 6 (8th Cir. 1985) (en banc), rev'd sub nom. Lockhart v. McCree , 476 U.S. 1 62 (1986). Ruiz v. Lockhart , 754 F.2d 254 (8th Cir. 1985). The Supreme Court subsequently reversed Grigsby , Lockhart v

. McCr ee , supra , vacated our holding in Ruiz's and Denton's cases, an d remandedthe 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 sentenc es on the authority of our

### -12-

holding in Collins , supra .
Ruiz and Denton were aware at the time of remand from the Suprem e Court that the validity of their convictions was once again bein g considered, and that their reliance on Grigsbyhad 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 o f 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 issu e may not be considered on its merits now. We have considere d Denton's argument that his first habeas counsel was ineffective, but there is no constitutional right to counsel on collateral review, and appointmen t of counsel in death-p enalty 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 limite d 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 evidentiar y hearing on the sua sponte dismissal, for failure to meet statutor y qualif ications, of a large number of veniremen. Finally, Ruiz , individually, argues that a severance should hav e been granted at the 1989 sentenci ng trial due to a Batson v. Kentucky , 476 U.S. 78 (1986) , violation.

### -13- The District Court addressed each of these arguments comprehens ively. 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.