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Earl VON DENTON
Classification:
Spree killer
Characteristics: Fugitive
- Robberies
Number of victims: 7
Date of murders:
June-July
1977
Date
of arrest:
July 13,
1977
Date of birth: 1949
Victims profile: Men
and women
Method of murder:
Shooting
Location: Oregon/???/Arkansas, USA
Status:
Executed
by lethal injection in Arkansas on January 8, 1997
An Evening of Death: 3 Murderers
Are Executed
By Rick Bragg - The New York Times
With the prick of a
needle, once, twice, three times, the
state's executioners put to death three
killers on a single wet, icy night in
southern Arkansas.
Two of the condemned men,
escapees from an Oklahoma prison who went on
a murder spree over three states, have
haunted the dreams of their victims'
families for 20 years. They died on schedule
on Wednesday, almost quietly, refusing to
say any last words.
The third, a less-famous
killer of convenience store clerks, died
with a poem on his lips, dramatically, after
a last-minute appeal left him strapped to a
gurney for 45 minutes with the needle
already inserted in his arm. The highest
court in the land gave him its attention,
considering a final, fine point in his case,
as he lay, as the clock ticked. Then, the
Supreme Court told the state it could
proceed.
It was a grim, jagged
night that dismayed the people who protest
state-sponsored killing. But for the
families of the women and men who died at
the hands of Earl Van Denton, Paul Ruiz and
Kirt Wainwright, it brought relief, and
revenge. It may, they hope someday, even
bring peace.
''I hope I have some
relief and the nightmares will stop,'' said
Anne Jester, whose father, Opal James, a 58-year-old
park ranger, was killed by Mr. Denton and Mr.
Ruiz after their escape from prison in
Oklahoma. Bound by a friendship that seemed
to fall from the pages of Truman Capote's
''In Cold Blood,'' Mr. Denton and Mr. Ruiz
are believed to have committed seven murders,
some randomly.
In her nightmares, ''it
is always that they have escaped again, and
are after me,'' she said. And she would wake
afraid that it might be true, that they are
loose again, Mrs. Jester said.
Forever
more, as the executioner pressed the button
that sent a poison into their veins, she
will wake and know it is just a dream.
It was the second time
that Arkansas has put three men to death in
a single night -- the first was in 1994 --
here in this stark concrete block and chain-link
prison surrounded by soggy, dull cotton
fields and red mud.
Texas and Illinois have
executed two people on the same day in
recent years. It is cheaper to do it this
way, explained state and prison officials,
because it reduces overtime costs and
reduces the stress on prison employees.
But the executions of
three men in less than three hours
concentrated all the pain and other feelings
that emanate from such powerful events.
Outside the Governor's
mansion, in Little Rock, Ark., 100 miles
away, a few dozen people stood in the
freezing rain, to plead for compassion. Like
those on the other side of this issue, they
quoted a Bible to make their arguments. ''Forgive
them, Father; they don't know what they are
doing,'' said Sister Joan Pytlik, a Roman
Catholic nun in Little Rock.
And, in a room near, but
out of sight of, the execution chamber, a
small group of people whose lives were
unalterably changed by the killers huddled
together. Arkansas does not allow the
relatives of victims, or of the condemned,
to witness the execution. But some of the
victims' relatives just wanted to be as
close as possible, as the thing was being
done.
''They
took the shirt off my dad's back before they
killed him,'' said Virginia Hamilton, whose
father, a small-town marshal who made $100 a
week for breaking up fights and giving drunk
teen-agers a strong talking to, was murdered
by Mr. Denton and Mr. Ruiz when he went to
help them with a flat tire.
It took her father away
from her when she was 14, and ruined her
mother's life, she said.
''Yeah,'' Mrs. Hamilton
said, ''I hate them.''
Others, like Mrs. Jester,
waited for word by phone. Angela Smith
Cunningham, who was just 11 on July 19,
1988, the day Kirt Wainwright shot her
mother behind the counter of a convenience
store in Hope, Ark., wanted to know one
thing, as the execution neared: would he beg
for his life, ''like my mother did.''
As the hours ground down
to 7 P.M., the start of the first execution,
as the inmates sat alone or with their
counselors in their ''quiet cells,'' the
rain and cold combined to cover the barren
trees around the prison in a sheen of
glittering ice. Back in Little Rock, as the
first man, Mr. Denton, began the short walk
to the chamber, protesters lit a single
candle.
*****
Earl Van Denton
Friends in Prison On a Killing Spree
Paul Ruiz
and Earl Van Denton cemented their prison
friendship with a jail break from the
Oklahoma State Prison at McAlester on June
23, 1977. Over the next two weeks,
investigators say, they killed almost at
their convenience.
Marvin Richie, the good-natured
town marshal of Magazine, Ark., a wide place
in the road, got in their way by accident.
Mr. Richie believed in
second chances. He believed in giving a teen-ager
with a heavy foot a stern lecture, not a
ticket. He believed, said his daughter, Mrs.
Hamilton, in old-fashioned things like
helping people whose cars broke down on the
side of the road.
On June 29, he got a call
from a man outside town who said he saw two
men pushing a tire down a road. He went to
see if he could help.
Mr. Ruiz and Mr. Denton
bound him and put him in the back seat.
Later that day they used his patrol car to
block an isolated road as two park rangers,
Opal James and David Small, happened by.
Within a few hours, Mr.
Richie and Mr. Small were shot. Mr. Richie
died, and Mr. Mr. Small was handcuffed to
him and made to crawl into the trunk. They
shot him in the chest and left him
handcuffed to a dead man for five hours in
sweltering heat. His lung collapsed, but he
lived. Mr. James would be killed later.
Two weeks later, the two
killers were caught in Portland, Ore., and
were sentenced to die for their crimes, the
first capital sentence in recent history in
Arkansas.
Their
lawyers kept them alive through two decades,
with re-trials and stays and appeals, for 20
years.
The murder of her father
wrecked her mother's health, Mrs. Hamilton
said. Her mother was, like many women of
that time and place, dependent on her
husband in some ways. She did not even
drive. The killing shattered her nerves, and
life, the daughter said.
''It's not fair,'' said
Mrs. Hamilton, that Arkansas spent hundreds
of thousands of dollars for the men's food
and legal needs.
The fact that they took
his shirt before they killed him still
blazes inside her. At one court hearing, she
remembers looking the killers over head to
toe, from their new go-to-court suits to
their new shoes. ''I couldn't tell them from
the lawyers,'' she said, and began to cry.
A little before 7 P.M.,
Mr. Denton, a pale, bland-looking man, was
buckled to a cross-shaped metal gurney, his
arms outstretched. Needles were inserted
into both forearms.
He was asked if he had
anything to say.
''No,'' he said.
The executioners, hidden
behind a curtain, injected him with poison,
a solution of sodium pentothal, Pavulon and
potassium chloride, as he lay quietly. He
coughed, once, and closed his eyes.
The
official time of death was 7:09 P.M.
Outside the governor's
mansion, Rita Spillenger, the executive
director of the American Civil Liberties
Union of Arkansas, told the protesters: ''The
world looks at us in bewilderment.''
*****
Paul Ruiz
Guards Said Killers Laughed at Killings
It took
only a few minutes to prepare the chamber
for the second man, the 49-year-old Mr.
Ruiz, a man with slicked-back graying hair
and a Pancho Villa mustache.
He found God in prison.
''I see no reason to fear
Paul today, or to have a reason to see him
dead,'' said Pat Bane, his friend, spiritual
adviser and a Catholic lay minister.
Opal James's body was
missing for three days. Mr. Ruiz and Mr.
Denton kept him alive a little longer than
the other men they shot -- they believed
they had killed Mr. Small -- because he knew
the back roads.
Mrs. Jester, Mr. James's
daughter, was 25 when they found his body on
July 1, 1977.
''The people who guarded
them during the trial said they joked and
laughed about the things they did,'' Mrs.
Jester said.
When asked about Mr. Ruiz
and his claim to have found salvation, she
said: ''I believe there is a God. God can
forgive him.''
But if he has changed,
she said, why has he not admitted to his
crimes and begged the families to forgive
him?
Mr. Ruiz,
on the gurney, was asked if he had any final
words.
''No,'' he said.
He was pronounced dead at
8 P.M.
Mr. Small, now a thin,
frail-looking elderly man, later stood in
front of a bank of television cameras and
said he was satisfied, ''like a 1,000 pound
weight has been lifted off my shoulders.''
He had begged to be allowed to witness the
executions.
Mrs. Hamilton broke down
in tears as she tried to explain how she
felt, and then she and Mr. Small, the man
handcuffed to her dead father in the trunk
of his car, just stood and hugged in the
quiet glare of the lights.
In Little Rock, the rain
stopped for a little while, and the
protesters lit a candle for Mr. Ruiz, too.
The death penalty
protesters in front of the governor's
mansion in Little Rock had already gone home.
On Appeal from the United States
District Court for the Eastern District of Arkansas
No. 94-3402EA
Paul Ruiz, Appellant,
v.
Larry Norris, Director, Arkansas Department of Correction, Appellee.
Submitted: September 14, 1995
Filed: December 11, 1995
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)
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,(2) for reasons
given in a comprehensive opinion, 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 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' ineffective-assistance
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, (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:
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 ineffective-assistance 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 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 it was error for the
court to submit this circumstance to the jury because it duplicates
an element of the underlying offenses of kidnapping(3) and robbery.(4)
They maintain that the statute as thus applied fails to perform 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(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.(5)The
jury was instructed as follows:
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 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. 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 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 (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-of-justice 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 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.
The District Court addressed each of these
arguments comprehensively. We affirm and adopt the District
Court's reasoning.
