United States District Court, D. North Dakota
Galen P. Rufus, Petitioner,
James Sayler, Warden of the Missouri River Correctional Center, Respondent.
CHARLES S. MILLER, JR., MAGISTRATE JUDGE UNITED STATES
the court is a Petition under 28 U.S.C. § 2254 for a
Writ of Habeas Corpus by a Person in State Custody filed by
petitioner, Galen Rufus (“Rufus”). (Doc. No. 1).
Also before the court is a Motion to Dismiss by respondent,
James Sayler (“the State”). (Doc. No. 16).
November 7, 2013, Rufus was charged in state district court
by way of information with (1) human trafficking, a class AA
felony; (2) unlawful possession of marijuana with intent to
deliver, a class B felony; (3) unlawful possession of
morphine, a class C felony; (4) unlawful possession of
hydrocodone, a class C felony; and (5) unlawful possession of
drug paraphernalia, a class A misdemeanor. (Doc. No. 15-2).
Rufus pled guilty to counts (2), (3), and (5). (Doc. No.
15-1). The State dismissed count (4). Rufus waived his right
to a jury trial as to the human trafficking charge. (Doc. No.
15-3). After a bench trial, the state district court found
Rufus guilty of human trafficking. (Doc. No. 15-4). The state
district court sentenced Rufus to ten years'
imprisonment, with five years suspended and with five years
of probation to follow. (Doc. No. 15-5).
appealed his conviction on the human trafficking charge to
the North Dakota Supreme Court on October 27, 2014. (Doc. No.
15-1). In that appeal, Rufus argued: (1) the record did not
support the state district court's findings of fact; (2)
insufficient evidence supported his conviction with respect
to (a) whether he would have caused the minor child to engage
in sexual conduct, (b) whether he completed a substantial
step towards committing the crime, and (c) whether he acted
with the requisite culpability; and (3) his charge should not
have been classified as a class AA felony. The North Dakota
Supreme Court concluded the record supported the state
district court's findings of fact, sufficient evidence
justified his conviction, and his charge was properly
classified as a class AA felony. State v. Rufus,
2015 ND 212, 868 N.W.2d 534. (“Rufus
I”). The court issued its mandate on September 23,
2015. (Doc. No. 15-1).
State Postconviction Proceedings
filed an application for postconviction relief with the state
district court on October 23, 2015. (Doc. No. 15-9). That
application asserted multiple claims for relief. Of those
claims, the state district court construed Rufus's
application as raising ineffective assistance of
counselclaims as to: (1) failure to demand a
change in judge; (2) failure to request a change in venue;
(3) wrongful waiver of trial by jury; (4) failure to present
an entrapment defense; and (5) failure to keep Rufus apprised
of his case. (Doc. Nos. 15-11; 15-13). Rufus also asserted a
due process violation, alleging the State charged him on
information it “knew or should have known came from
Outrageous Police Conduct (entrapment).” (Doc. No.
15-10). Finally, Rufus alleged he was denied a fair trial
because the presiding judge was biased. (Doc. No. 15-10).
to an evidentiary hearing on the application, the court
summarily dismissed two of Rufus's claims for ineffective
assistance of counsel. First, the court concluded trial
counsel was not ineffective for failing to request a change
in judge because the time for doing so had already lapsed by
the time trial counsel began representing Rufus. (Doc. No.
15-1 p. 7');">11 p. 7). Second, the court concluded trial counsel was
not ineffective for failing to request a change in venue
because a change in venue is only relevant for a jury trial,
a right Rufus had previously waived. (Doc. No. 15-11). The
state district court allowed the remainder of Rufus's
claims to proceed to an evidentiary hearing, which the court
held on November 10, 2016. (Doc. No. 15-12).
the evidentiary hearing, Rufus moved to amend his application
for postconviction relief to include ten additional claims.
(Doc. No. 18 pp. 37-57). Rufus argued allowing this amendment
was appropriate because the evidence and testimony provided
at the evidentiary hearing supported those claims. (Doc. No.
18 p. 32). Because that information was already before the
court, Rufus argued no further hearings were necessary and
the State would not be prejudiced. The state district court
denied Rufus's motion to amend his application,
concluding the issues raised therein were not raised at the
evidentiary hearing and allowing the amended application
would be unfair. (Doc. No. 15-13).
the claims raised in the original application, the court
found such claims unfounded. The court concluded trial
counsel was not ineffective for waiving Rufus's right to
a jury trial because that decision was a matter of trial
strategy, trial counsel explained that decision to Rufus, and
Rufus ultimately agreed to that strategy. The court also
concluded trial counsel was not ineffective for failing to
present an entrapment defense because that decision was a
matter of trial strategy and trial counsel felt Rufus's
best chance of an acquittal rested on a legal defense that
entrapment would contradict. Finally, the court concluded
Rufus had not borne his burden of establishing trial
counsel's lack of communication affected the outcome of
his trial. As to the due process claim, the court concluded
Rufus had not substantiated his claims of prosecutorial
misconduct. As to the fair trial claim, the court concluded
Rufus failed to prove up his claim of bias by the presiding
judge. The state district court denied Rufus's petition
in its entirety on December 8, 2016.
appealed that order on December 22, 2016. (Doc. No. 15-9). In
that appeal, Rufus faulted the state district court for not
allowing him to amend his application. (Doc. No. 15-14). He
also included the ten claims, issue by issue, he sought to
include in his proposed amended application. The State
responded by arguing the state district court properly denied
Rufus's motion. (Doc. No. 15-15). The State also argued
many of the issues Rufus raised were not addressed in the
postconviction proceeding or were addressed in the underlying
criminal case. (Doc. No. 15-15). In an unpublished opinion,
the North Dakota Supreme Court summarily affirmed the denial
of Rufus's application for postconviction relief on May
4, 2017. Rufus v. State, 2017 ND 83, 894 N.W.2d 908.
Federal Habeas Petition
next filed his § 2254 petition with this court on May
12, 2017. (Doc. No. 1). In the petition itself, Rufus raises
twelve grounds for relief. (Doc. Nos. 1, 4). In grounds one
and twelve, he alleges N.D.C.C. ch. 12.1-40 was
unconstitutional under N.D. Const. art. IV, § 13, thus
voiding both his drug and human trafficking convictions. In
ground two, Rufus alleges he suffered a denial of his Sixth
Amendment right to a fair trial because his conditions of
confinement limited his ability to effectively communicate
with his counsel. In ground three, Rufus alleges he was
entrapped by what he characterizes as outrageous police
conduct. In ground four, Rufus alleges the State secured his
conviction through the use of inadmissible evidence. Grounds
five, six, eight, and ten generally allege there was
insufficient evidence to convict Rufus of human trafficking.
Ground seven contains multiple claims relating to the lack of
a victim and the State's conduct. Ground nine focuses on
the legislative repealing and replacing of N.D.C.C. ch.
12.1-40. Ground eleven alleges the North Dakota state courts
wrongly applied the culpability requirement for a human
trafficking charge. Additionally, Rufus incorporates the
brief he submitted to the North Dakota Supreme Court in
alleging ten additional grounds for relief, making a total of
twenty-three claims for habeas relief.
Evidence Supporting Rufus's Conviction
following factual summary, taken verbatim from the decision
of the North Dakota Supreme Court at Rufus I, at
¶¶ 2-3, provides context in evaluating this
[¶2] Rufus responded to an advertisement posted on
Craigslist under "personals > casual encounters"
by a Ward County Deputy Sheriff using the undercover persona
of "Chad Russo." The advertisement indicated
Russo's girlfriend would be out of town for the weekend
and her daughter wanted to make some money while her mother
was gone. According to the advertisement, interested
individuals could contact Russo for more details. Rufus
responded to the advertisement requesting more information.
Russo replied, informing Rufus that the girl was fourteen
years old. Rufus asked Russo whether it would be illegal, as
the girl was only fourteen, and requested more details. Russo
acknowledged fourteen was illegal, but indicated he would not
tell anyone. In two separate online Yahoo Messenger
conversations, Russo and Rufus discussed the pricing for
various sexual acts and a meeting place and time. Russo also
sent Rufus a picture of "the girl." During Yahoo
agreed to exchange two bags of marijuana, each worth $60, for
one hour of time with the fourteen-year-old girl as follows:
Russo: . . .we meet tonight and I'll bring her with, she
likes to hit it too . . . we can work it out . . . you bring
something for me and she can take care of you Rufus: OK your
[sic] on, what works for u [sic] guys . . . .
Russo: 1 hr with her do [sic] do whatever you want . . . no
freaky shit . . . for two 60 bags . . . sound right? . . . .
Rufus: u [sic] got it, and im [sic] looking for something
else just for a good time
Rufus and Russo agreed to meet in a parking lot at 9:00 p.m.
Russo told Rufus to bring condoms if he wanted to have sexual
intercourse with the girl. Rufus arrived and was arrested.
The deputy found marijuana and money on Rufus. The deputy
also found a cooler containing beer, additional marijuana,
one morphine pill, and one oxycodone pill in Rufus's
[¶3] Rufus was charged with human trafficking. Rufus
waived his right to a jury trial and, on May 28, 2014, the
district court held a bench trial. The court issued its
findings and verdict, convicting Rufus of human trafficking,
a class AA felony. The district court entered judgment on
October 21, 2014, sentencing Rufus to ten years of
incarceration, with five years suspended. Rufus appealed,
challenging the sufficiency of the evidence, and
alternatively, whether the offense should be classified as a
class AA felony.
Scope of Review
28 U.S.C. § 2254, a federal court may review state-court
criminal proceedings to determine whether a person is being
held in custody in violation of the United States
Constitution or other federal law. However, where the state
court has adjudicated the federal claim on the merits, this
court's review is limited by 28 U.S.C. § 2254(d) to
a determination of whether the state court's decision is
(1) directly contrary to, or an unreasonable application of,
clearly established federal law as determined by the United
States Supreme Court, or (2) based on an unreasonable
determination of the facts based on the evidence presented in
the state-court proceeding. See 28 U.S.C. §
2254(d); see generally Harrington v. Richter, 562
U.S. 86, 97-100 (2011) (“Richter”);
Williams v. Taylor, 529 U.S. 362, 399-413 (2000).
This highly deferential standard of review is often referred
to as “AEDPA deference” because it was enacted by
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). E.g., Pederson v. Fabian, 491 F.3d
816, 824-25 (8th Cir. 2007); see generally Renico v.
Lett, 559 U.S. 766, 773 n.1 (2010). The reasons for the
limited review are ones of federalism and comity that arise
as a consequence of the state courts having primary
responsibility for ensuring compliance with federal law in
state criminal proceedings. See, e.g.,
Richter, 562 U.S. at 103.
exhaustion doctrine codified at 28 U.S.C. § 2254(b)-(c)
precludes granting habeas relief for claims that have not
been properly exhausted in the state courts. E.g.,
Rhines v. Weber, 544 U.S. 269, 274 (2005); Dixon
v. Dormire, 263 F.3d 774, 777 (8th Cir. 2001). Proper
exhaustion has two components. First, the claim must be
“fairly presented, ” which requires that the
petitioner present both the factual and legal premises for
the claim, with the latter being satisfied if there is a
reference to the particular federal constitutional right or a
citation to a state or federal case that raises the
constitutional issue. Dansby v. Norris, 682 F.3d
711, 722-23 (8th Cir. 2012), vacated on other
grounds, Dansby v. Hobbs, No. 12-8582, 2013 WL
506561 (U.S. June 3, 2013); Carney v. Fabian, 487
F.3d 1094, 1096 (8th Cir. 2007). Second, the petitioner
“must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process.” O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999).
addition, there are three other aspects of the exhaustion
doctrine that are important. The first is that the exhaustion
doctrine is satisfied if there are no state-court remedies
available and exhaustion would be futile, such as when the
claim has been procedurally defaulted at the state-court
level. E.g., Armstrong v. Iowa, 418 F.3d
924, 926-27 (8th Cir. 2005). The second is that Rose v.
Lundy, 455 U.S. 509 (1982), prohibits a petitioner from
proceeding with a “mixed petition” of exhausted
and unexhausted claims. See also Rhines v. Weber,
544 U.S. at 273-74. The third is that § 2254(b)(2)
authorizes the court to deny a claim on the merits
notwithstanding a failure to exhaust. E.g.,
Gringas v. Weber, 543 F.3d 1001, 1003 (8th Cir.
federal district court is precluded from substantively
considering a habeas claim that has been procedurally
defaulted at the state level on independent and adequate
state grounds. E.g., Coleman v. Thompson,
501 U.S. 722, 729-30 (1991). State procedural grounds are
independent and adequate if they are firmly established,
readily ascertainable, and regularly followed. Barnett v.
Roper, 541 F.3d 804, 808 (8th Cir. 2008); Franklin
v. Luebbers, 494 F.3d 744, 750 (8th Cir. 2007). They
must also further a legitimate state interest and not be
applied in an exorbitant manner. Barnett, 541 F.3d
at 808. The rule barring procedurally-defaulted claims is
nearly absolute. Cagle v. Norris, 474 F.3d 1090,
1099 (8th Cir. 2007). The only exceptions are the rare
instances when a prisoner is able to meet the strict cause
and prejudice or actual innocence standards. E.g.,
Dretke v. Haley, 541 U.S. 386, 392-93 (2004);
Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir.
D.State Defenses of Res Judicata, Misuse of Process, and