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Rufus v. Sayler

United States District Court, D. North Dakota

February 21, 2018

Galen P. Rufus, Petitioner,
James Sayler, Warden of the Missouri River Correctional Center, Respondent.



         Before 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”).[1] (Doc. No. 1). Also before the court is a Motion to Dismiss by respondent, James Sayler (“the State”). (Doc. No. 16).

         I. BACKGROUND

         A. Trial

         On 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).

         B. Direct Appeal

         Rufus 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).

         C. State Postconviction Proceedings

         Rufus 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 counsel[2]claims 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).

         Prior 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).

         After 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).

         As to 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.

         Rufus 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.

         D. Federal Habeas Petition

         Rufus 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.[3]

         E. Evidence Supporting Rufus's Conviction

         The 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 petition:

[¶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 Messenger conversations,

         Rufus 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 vehicle.
[¶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.


         A. Scope of Review

         Under 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.

         B. Exhaustion Requirements

         The 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).

         In 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. 2008).

         C. Procedural Default

         A 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. 2012).

         D.State Defenses of Res Judicata, Misuse of Process, and ...

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