Siers v. Weber ( 2014 )

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2014 S.D. 51
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
DONOVAN CRAIG SIERS, Plaintiff and Appellant,
v.
DOUGLAS WEBER, Warden of the
South Dakota State Penitentiary, Respondent and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE PETER H. LIEBERMAN
Judge
****
MARK KADI
Minnehaha County Office
of the Public Advocate
Sioux Falls, South Dakota Attorneys for plaintiff
and appellant.
MARTY J. JACKLEY
Attorney General
JEFFREY P. HALLEM
KELLY MARNETTE
Assistant Attorneys General
Pierre, South Dakota Attorneys for respondent
and appellee.
****
ARGUED ON MARCH 25, 2014
OPINION FILED 07/23/14
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GILBERTSON, Chief Justice
[¶1.] Petitioner and Appellant Donovan Siers filed a petition for habeas
corpus alleging ineffective assistance of counsel. The petition asserted that counsel
in Siers’s driving under the influence conviction failed to properly advise Siers of
the constitutionality of blood evidence taken incident to lawful arrest but without
Siers’s consent. The State moved to dismiss the petition for failure to state a claim
upon which relief could be granted. The habeas court granted the motion, but
issued a certificate of probable cause regarding whether Missouri v. McNeely, ___
U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), should be given retroactive effect
in South Dakota. We affirm the habeas court’s ruling and hold that McNeely is not
given retroactive effect.
FACTS
[¶2.] Appellant Donovan Siers filed an amended petition for habeas corpus
in May 2013. Siers’s petition alleged the following: 1
[¶3.] Siers was arrested in Minnehaha County for driving under the
influence of alcohol in May 2008. Siers refused to give a blood sample to police. He
was subsequently placed in restraints and his blood was drawn without his consent
and without police attempting to obtain a warrant. The blood sample was analyzed
and showed Siers to have had .22 percent by weight of alcohol in his blood. The
blood sample was the primary evidence supporting Siers’s conviction for driving
under the influence. Siers pleaded guilty to the offense, and was later convicted and
1. For purposes of this appeal, we presume as true all facts as alleged in the
petition.
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incarcerated for felony failure to appear arising from the driving under the
influence conviction. Siers was represented by two attorneys from the Minnehaha
County Public Defender’s Office. Siers asserted in his habeas petition that the
attorneys failed to fully and correctly advise Siers regarding the constitutionality of
the seizure of blood evidence. Siers’s petition further alleged that failure of counsel
to properly advise Siers was a violation of his due process rights and that the
evidence would have been suppressed and the charges against him dropped had his
attorneys challenged the introduction of the blood test evidence.
[¶4.] At the time of Siers’s arrest, South Dakota case law indicated that the
destruction of blood alcohol evidence by natural dissipation in the body constituted
an exigent circumstance in a driving under the influence arrest, allowing for a blood
draw without a warrant. However, the United States Supreme Court subsequently
held in Missouri v. McNeely that the natural dissipation of alcohol in the
bloodstream does not present a per se exigent circumstance justifying
nonconsensual blood testing in all driving under the influence arrests. ___ U.S. at
___, 133 S. Ct. at 1563. Siers cited McNeely before the habeas court to support his
petition.
[¶5.] The State filed a motion to dismiss for failure to state a claim upon
which relief could be granted. A hearing on the motion was held in August 2013.
At the hearing, Siers argued that counsel in his driving under the influence
conviction should have advised him of the constitutionality of blood evidence taken
incident to arrest but without his consent, and that McNeely should be given
retroactive effect. Siers also presented statistical evidence that retroactive
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application would not be disruptive to the judicial system. The habeas court held
that McNeely should not be applied retroactively to his habeas petition, and
therefore granted the State’s motion to dismiss. However, the habeas court issued a
certificate of probable cause to allow Siers to appeal two McNeely-related issues to
this Court. On appeal, this Court is asked to determine whether McNeely created a
new rule of constitutional law and whether McNeely should be given retroactive
application to final convictions in South Dakota. 2
STANDARD OF REVIEW
[¶6.] “A habeas corpus applicant has the initial burden of proof to establish
a colorable claim for relief.” Steiner v. Weber, 2011 S.D. 40, ¶ 4, 815 N.W.2d 549,
551 (quoting Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463, 468). “Habeas
corpus can only be used to review (1) whether the court had jurisdiction of the crime
and the person of the defendant; (2) whether the sentence was authorized by law;
and (3) in certain cases whether an incarcerated defendant has been deprived of
basic constitutional rights.” Id. (citation omitted). “Although we ordinarily review
a habeas court’s fact findings under the clearly erroneous standard, when, as here,
the circuit court receives no evidence but grants the State’s motion to dismiss as a
2. The issues addressed in this appeal are narrow. We do not address whether,
under Davis v. United States, Siers was prejudiced by his counsel’s failure to
challenge the blood draw as unconstitutional or whether his counsel was
otherwise ineffective. See ___ U.S. ___, 131 S. Ct. 2419, 2423-24, 180 L. Ed.
2d 285 (2011) (holding that evidence obtained in reasonable reliance on
binding precedent is not subject to the exclusionary rule). As the court in
Davis noted, “Retroactive application does not, however, determine what
‘appropriate remedy’ (if any) the defendant should obtain. Remedy is a
separate, analytically distinct issue.” Id. at ___, 131 S. Ct. at 2431 (citations
omitted). In this appeal, we only address whether the habeas court should
give McNeely retroactive effect.
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matter of law, our review is de novo and we give no deference to the circuit court’s
legal conclusions.” Id. (citation omitted).
ANALYSIS AND DECISION
[¶7.] 1. Whether Missouri v. McNeely announced a new rule of
constitutional law.
[¶8.] Our analysis of whether the decision in a particular case is given
retroactive effect begins with a determination of whether the decision issues a “new
rule” of constitutional law, or whether the case simply restates an “old rule.” If the
decision simply restates an old rule, the rule should be applied retroactively. See
Cowell v. Leapley, 458 N.W.2d 514, 518 (S.D. 1990). “[B]y definition, without a new
rule, there is no change in the law and the question of retroactivity is immaterial.”
Larsen v. Sioux Falls Sch. Dist. No. 49-5, 509 N.W.2d 703, 706 (S.D. 1993) (quoting
United States v. Bowen, 500 F.2d 960, 975 (9th Cir. 1974)). In this case, Siers
argues that the habeas court erred in determining that McNeely constituted a new
rule of constitutional law. Siers asserts that McNeely merely restated the rule laid
down in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908
(1966). Accordingly, Siers asks this Court to remand to the habeas court to allow
Siers to argue that his trial counsel was ineffective by failing to argue that
Schmerber prohibited the introduction of the blood evidence used in this case.
[¶9.] In Schmerber, the defendant was at a hospital receiving treatment for
injuries suffered in an automobile accident when police arrested the defendant for
driving under the influence. Id. at 758, 86 S. Ct. at 1829. At the direction of a
police officer, the defendant’s blood was drawn without a warrant or the defendant’s
consent and analysis of the blood was used in the State’s case against him. Id. at
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758-59, 86 S. Ct. at 1829. The Supreme Court upheld the warrantless blood test
because the officer “might reasonably have believed that he was confronted with an
emergency, in which the delay necessary to obtain a warrant, under the
circumstances, threatened the destruction of evidence[.]” Id. at 770, 86 S. Ct. at
1835 (citations and internal quotation marks omitted).
[¶10.] In 1977 this Court adopted a rule, based on Schmerber. We stated:
Schmerber held that bodily substance samples were not subject
to the exclusionary rule under the Fourth Amendment if they
are taken (1) incident to a lawful arrest, (2) by a reliable and
accepted method of obtaining such sample, (3) in a reasonable,
medically approved manner, and (4) where there is probable
cause to believe that the evidence sought exists. It also held
that the elimination of alcohol by natural bodily functions
presents exigent circumstances which obviate the necessity of
obtaining a search warrant.
State v. Hartman, 256 N.W.2d 131, 134 (S.D. 1977) (footnotes omitted) (citing
Schmerber, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908). This rule was regularly
applied by this Court and guided the practice of law enforcement officers for
decades. See, e.g., State v. Mattson, 2005 S.D. 71, ¶ 44, 698 N.W.2d 538, 552; State
v. Hanson, 1999 S.D. 9, ¶ 28, 588 N.W.2d 885, 891; State v. Tucker, 533 N.W.2d 152,
154 (S.D. 1995); State v. Lanier, 452 N.W.2d 144, 145 (S.D. 1990); State v. Parker,
444 N.W.2d 42, 44 (S.D. 1989).
[¶11.] In McNeely, the United States Supreme Court “granted certiorari to
resolve a split of authority on the question whether the natural dissipation of
alcohol in the bloodstream establishes a per se exigency that suffices on its own to
justify an exception to the warrant requirement for nonconsensual blood testing in
drunk-driving investigations.” __ U.S. ___, 133 S. Ct. at 1558. The defendant in
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McNeely was arrested for driving under the influence and refused to provide a
breath sample or blood sample. Id. at ___, 133 S. Ct. at 1556-57. Without
attempting to obtain a warrant, the police officer took the defendant to the hospital
and directed a lab technician to draw the defendant’s blood. Id. at ___, 133 S. Ct. at
1557.
[¶12.] The defendant moved to suppress the results of the blood test, alleging
a violation of his Fourth Amendment rights. Id. The trial court granted the
suppression motion, concluding that the exigency exception to the warrant
requirement did not apply because there were no circumstances suggesting an
emergency other than the destruction of alcohol evidence in the defendant’s body
through natural metabolic processes. Id. The Missouri Supreme Court affirmed.
The United States Supreme Court affirmed the Missouri Supreme Court in a split
decision, holding that “the natural dissipation of alcohol in the bloodstream does not
constitute an exigency in every case sufficient to justify conducting a blood test
without a warrant.” Id. at ___, 133 S. Ct. at 1568.
[¶13.] This Court has generally relied on the United States Supreme Court’s
own pronouncements to determine whether or not one of its decisions has handed
down a new rule in a particular case. See, e.g., Cowell, 458 N.W.2d at 518 (citations
omitted) (“With deference to the Supreme Court . . . we accept their determination
that they are indeed ‘new rules.’”); State v. Garcia, 2013 S.D. 46, ¶ 16, 834 N.W.2d
821, 823 (deferring to Supreme Court’s decision in Chaidez v. United States, ___
U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), that Padilla announced a new
rule). In this instance, however, the United States Supreme Court has not
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expressly stated whether McNeely was a new rule or whether the decision was
simply a restatement of Schmerber based on new facts.
[¶14.] “A case announces a new rule . . . when it breaks new ground or
imposes a new obligation on the government.” Chaidez, ___ U.S. at ___, 133 S. Ct.
at 1107 (internal quotation marks omitted) (quoting Teague v. Lane, 489 U.S. 288,
301, 109 S. Ct. 1060, 1070, 103 L. Ed. 2d 334 (1989)). Conversely, a case restates an
old rule “when it is merely an application of the principle that governed a prior
decision to a different set of facts.” Id. (citations and internal quotation marks
omitted). The question becomes whether “a state court considering the defendant’s
claim at the time his conviction became final would have felt compelled by existing
precedent to conclude that the rule he seeks was required by the Constitution.”
O’Dell v. Netherland, 521 U.S. 151, 156, 117 S. Ct. 1969, 1973, 138 L. Ed. 2d 351
(1997) (citations omitted). “[A] case announces a new rule if the result was not
dictated by precedent” such that the holding “would have been apparent to all
reasonable jurists.” Chaidez, ___ U.S. at ___, 133 S. Ct. at 1107 (citations and
internal quotation marks omitted).
[¶15.] The McNeely opinion explicitly states that the United States Supreme
Court “granted certiorari to resolve a split of authority on the question whether the
natural dissipation of alcohol in the bloodstream establishes a per se exigency that
suffices on its own to justify an exception to the warrant requirement for
nonconsensual blood testing in drunk-driving investigations.” McNeely, ___ U.S. at
___, 133 S. Ct. at 1558. McNeely acknowledged that after Schmerber, Iowa, Utah,
and Missouri concluded that natural dissipation of alcohol in the body did not alone
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constitute sufficient exigent circumstances to bypass the warrant requirement,
while Minnesota, Wisconsin, and Idaho held natural dissipation in the body was a
per se exigent circumstance. Id. at ___, 133 S. Ct. at 1558 n.2. South Dakota’s
precedent aligned more closely with the latter group. The United States Supreme
Court has explained:
While there can be no dispute that a decision announces a new
rule if it expressly overrules a prior decision, “it is more difficult
to determine whether we announce a new rule when a decision
extends the reasoning of our prior cases.” Because the leading
purpose of federal habeas review is to “ensure that state courts
conduct criminal proceedings in accordance with the
Constitution as interpreted at the time of those proceedings,” we
have held that “the ‘new rule’ principle validates reasonable,
good-faith interpretations of existing precedents made by state
courts.” This principle adheres even if those good-faith
interpretations “are shown to be contrary to later decisions.”
Graham v. Collins, 506 U.S. 461, 467, 113 S. Ct. 892, 897-98, 122 L. Ed. 2d 260
(1993) (citations omitted). A number of states, including South Dakota, interpreted
Schmerber in good faith to hold that dissipation of alcohol in the body was an
exigent circumstance obviating the need for a search warrant. These divergent
good-faith interpretations of Schmerber support a conclusion that the outcome in
McNeely was not clearly dictated by existing precedent.
[¶16.] Furthermore, the McNeely decision itself highlights the reasonable
debate among jurists as to what Schmerber dictated. Justice Thomas’s dissent in
McNeely interprets Schmerber to allow warrantless blood draws so long as there is
probable cause to believe the driver is under the influence of alcohol:
The Court [in Schmerber], therefore, held that dissipation of
alcohol in the blood constitutes an exigency that allows a blood
draw without a warrant.
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The rapid destruction of evidence acknowledged by the parties,
the majority, and Schmerber’s exigency determination occurs in
every situation where police have probable cause to arrest a
drunk driver. In turn, that destruction of evidence implicates
the exigent-circumstances doctrine.
....
Just as the suspect’s efforts to destroy “highly evanescent
evidence” gave rise to the exigency in Cupp, the natural
metabolization of blood alcohol concentration (BAC) creates an
exigency once police have probable cause to believe the driver is
drunk. It naturally follows that police may conduct a search in
these circumstances.
___ U.S. at ___, 133 S. Ct. at 1575-76 (Thomas, J., dissenting) (citations
omitted). Given the split in interpretation at the state level and within the
United States Supreme Court, we cannot conclude that Schmerber made the
holding in McNeely “apparent to all reasonable jurists.” Chaidez, ___ U.S.
___, 133 S. Ct. at 1107 (citation omitted).
[¶17.] Additionally, in South Dakota and many other places, McNeely
also “breaks new ground” and “‘imposes a new obligation’ on the
government.” See id. (quoting Teague, 489 U.S. at 301, 109 S. Ct. at 1070).
For decades, law enforcement agents and courts in this state have acted with
the understanding that the natural dissipation of alcohol in the blood
constituted exigent circumstances, such that officers did not need a warrant
before ordering a drunk-driving arrestee’s blood drawn. McNeely indicates
that police can no longer rely on dissipation alone as a per se exigent
circumstance. Because McNeely broke new ground in this area, and because
McNeely’s outcome was not apparent to all reasonable jurists, we conclude
that McNeely issued a new rule of constitutional law for retroactivity analysis
purposes.
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[¶18.] 2. Whether Missouri v. McNeely should be given retroactive
application.
[¶19.] Because we determined that McNeely constituted a new rule, we next
determine whether McNeely should be given retroactive effect in habeas corpus
proceedings in South Dakota. To determine on collateral review whether a new rule
is to be given retroactive effect upon final convictions, we have generally examined
three criteria: “(1) The purpose of the decision, (2) reliance on the prior rule of law,
and (3) the effect upon the administration of justice.” Garcia, 2013 S.D. 46, ¶ 17,
834 N.W.2d at 824 (citations omitted). These factors, adopted from Linkletter v.
Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), were first employed
by this court in State v. One 1966 Pontiac Auto., 270 N.W.2d 362 (S.D. 1978).
[¶20.] The State argues that, applying the Linkletter factors in this case,
McNeely should not be given retroactive effect. Under the first prong, the State
argues that McNeely was not “designed to improve the accuracy of criminal trials.”
Cowell, 458 N.W.2d at 518. Nor does the rule in McNeely enhance the reliability of
the fact-finding process by helping “to show the actual guilt or innocence of the
individual.” Garcia, 2013 S.D. 46, ¶ 20, 834 N.W.2d at 824. Under the second
prong, the State notes the long-standing reliance on this Court’s interpretation of
Schmerber to allow blood samples to be taken after a DUI arrest. See Hartman, 256
N.W.2d at 134 (“[Schmerber] also held that the elimination of alcohol by natural
bodily functions presents exigent circumstances which obviate the necessity of
obtaining a search warrant.”). Last, the State argues that under the third prong of
the Linkletter analysis, retroactive application of McNeely would have a disruptive
effect on the administration of justice. The State argues that retroactive application
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may cause an influx in challenges to present and prior convictions, as well as
undermine the finality of judgments in this state.
[¶21.] Siers urges this Court to refrain from applying the Linkletter analysis
in this case. First, Siers asserts that the Linkletter analysis is inapplicable in this
case because McNeely did not issue a new rule and therefore Schmerber should have
been given its full effect in the first instance. If we apply the Linkletter analysis,
Siers argues that retroactive application of McNeely would not have a disruptive
effect on the administration of justice and therefore should be given retroactive
effect under the third prong of Linkletter. As an alternative test, Siers urges this
Court to adopt a retroactivity standard by which all criminal cases are given
prospective and retroactive effect unless the court issuing the rule states otherwise.
[¶22.] As discussed above, we have determined McNeely to have issued a new
rule. Accordingly, Siers’s argument that Linkletter should not apply based on new
rule/old rule grounds fails. Thus, we address whether, as a new rule, McNeely
should nevertheless be given retroactive effect.
[¶23.] Siers does not address the first two prongs of the Linkletter analysis.
Instead, Siers argues that the third factor of the Linkletter analysis weighs in favor
of retroactive application in this case, because there would be little or no disruption
to the administration of justice. In support of this position Siers puts forth
Department of Corrections statistics, coupled with South Dakota Unified Judicial
System statistics, to assert that any influx in cases caused by retroactive
application in this case could be easily handled by the judicial system. Specifically,
Siers notes that, as of June 2013, 398 inmates were incarcerated on DUI offenses.
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He also notes that case filings across South Dakota courts increased by 1,743 from
2011 to 2012 without noted disruptions to state prosecutions. Siers concludes that
if the State can handle an influx of 1,743 cases in 2012, it can easily accommodate
an additional 398 cases if this Court were to retroactively apply McNeely and every
one of those cases contained a valid McNeely-based challenge.
[¶24.] Our analysis under the third prong of Linkletter has recognized two
types of disruption to the administration of justice. In some cases, we have noted a
qualitative disruption to the administration of justice: the undermining of the
finality of judgments in this state. See Garcia, 2013 S.D. 46, ¶ 26, 834 N.W.2d at
825. At other times, we have noted concern about quantitative disruption: the
number of cases in which retroactive application would have an effect. See Cowell,
458 N.W.2d at 519; Locke v. Erickson, 85 S.D. 262, 265, 181 N.W.2d 100, 102 (1970)
(citation omitted) (“To apply the rule retroactively would be the genesis for literally
hundreds of post-conviction evidentiary hearings which in sheer numbers would
virtually shatter the bounds of reality.”). Siers asserts that this Court has in the
past merely speculated as to the likely quantitative disruption caused by retroactive
application of any given decision. Siers correctly notes that that this court has
never examined statistical information to support its position that a retroactive
application would be disruptive to the administration of justice. 3
3. Cowell, when addressing the third factor, quoted concerns voiced by the
United States Supreme Court about the uncertainty of the impact of
retroactive applications: “We can only guess at the number of cases where
Edwards might make a difference in the admissibility of statements . . . but
the number is surely significant.” 458 N.W.2d at 519 (quoting Solem v.
(continued . . .)
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[¶25.] Nonetheless, the judicial and correction systems statistics used by
Siers fail to convince this Court that there would be no disruption to the
administration of justice. As the State argues, there is probably the potential for a
greater influx of legal challenges than those contemplated by Siers’s statistics.
Furthermore, there is the qualitative disruption to the administration of justice in
that retroactive application undermines the finality of judgments. Because Siers
does not directly address whether any of the other Linkletter factors would weigh in
favor of retroactive application of McNeely, we do not find the balance of the
Linkletter factors to weigh in favor of retroactive application in this case.
[¶26.] Although Siers’s use of statistical information does not convince us in
this case that retroactive application is warranted under the Linkletter analysis, his
arguments do cause us to re-examine what standard we should use to determine
retroactivity. Siers urges this Court to apply the civil retroactivity standard from
Hohm to the criminal and habeas context. Under the rule stated in Hohm, a
decision has both retroactive and prospective effect unless the court issuing the
decision states otherwise. See Hohm v. Rapid City, 2008 S.D. 65, ¶ 21, 753 N.W.2d
895, 906 (citation omitted). Although a pure retroactivity rule would be less
complex to apply, and lead to more predictable and even-handed results, “it has the
potential to create disruption in the system as more final cases are overturned.”
Mary C. Hutton, Retroactivity in the States: The Impact of Teague v. Lane on State
________________________
(. . . continued)
Stumes, 465 U.S. 638, 650, 104 S. Ct. 1338, 1345, 79 L. Ed. 2d 579, 591
(1984)).
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Postconviction Remedies, 44 Ala. L. Rev. 421, 457 (1993). 4 However, neither are we
satisfied that the Linkletter factors are the best possible test for retroactivity. In
the interest of finality of judgment, uniformity, and ease of application, we conclude
the Teague rule, as applied by the United States Supreme Court, to be a better rule
under which to determine whether a case should be applied retroactively on
collateral review.
[¶27.] After we adopted the Linkletter test, 5 the United States Supreme
Court rejected the Linkletter test in Teague, 489 U.S. 288, 109 S. Ct. 1060, 103 L.
Ed. 2d 334 (1989). Teague stated that normally a new rule would not be
retroactively applied once a defendant’s case had become final. 489 U.S. at 311, 109
S. Ct. at 1075-76. Moreover, Teague held that retroactive application of new rules
in cases that had become final would occur in only two instances: (1) when the rule
announced is substantive, 6 placing “certain kinds of primary individual conduct
beyond the power of the States to proscribe,” or (2) when the rule is a “‘watershed’
4. Professor Hutton’s article was cited with approval by the United States
Supreme Court for its conclusion that Teague left states free to fashion
broader retroactivity rules “which respond to the unique concerns of that
state.” See Danforth v. Minnesota, 552 U.S. 264, 281-82, 128 S. Ct. 1029,
1042, 169 L. Ed. 2d 859 (2008).
5. We first employed the Linkletter factors in State v. One 1966 Pontiac Auto.,
270 N.W.2d 362 (1978). We later employed these factors in determining
whether a new rule should be given retrospective effect in a collateral
criminal proceeding in McCafferty v. Solem (McCafferty III), 449 N.W.2d 590,
593 (S.D. 1989), superseded on other grounds by State v. Raymond, 540
N.W.2d 407, 409-10 (S.D. 1995)).
6. “In contrast, rules that regulate only the manner of determining the
defendant’s culpability are procedural” and not normally applied
retroactively. Schriro v. Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519,
2523, 159 L. Ed. 2d 442 (2004).
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rule[] of criminal procedure[.]” Danforth v. Minnesota, 552 U.S. 264, 266, 128 S. Ct.
1029, 1032, 169 L. Ed. 2d 859 (2008).
[¶28.] One of the driving forces behind the United States Supreme Court’s
adoption of Teague was a concern for federalism and comity. “[T]he Teague rule of
nonretroactivity was fashioned to achieve the goals of federal habeas while
minimizing federal intrusion into state criminal proceedings.” Id. at 280, 128 S. Ct.
at 1041. These concerns “are unique to federal habeas review of state convictions.”
Id. at 279, 128 S. Ct. at 1040-41. However, other concerns that drove the United
States Supreme Court to adopt Teague are relevant to habeas determinations before
this Court.
[¶29.] First, the Teague rule is driven by concerns for the finality of
convictions. “[T]he Teague principle protects not only the reasonable judgments of
state courts but also the States’ interest in finality quite apart from their courts.”
Beard v. Banks, 542 U.S. 406, 413, 124 S. Ct. 2504, 2511, 159 L. Ed. 2d 494 (2004).
The United States Supreme Court has noted that the issue of finality “is a matter
that States should be free to evaluate, and weigh the importance of, when prisoners
held in state custody are seeking a remedy for a violation of federal rights by their
lower courts.” Danforth, 552 U.S. at 280, 128 S. Ct. at 1041.
[¶30.] The interest in finality of judgments imbedded in Teague is an interest
in which this Court has repeatedly shown great concern. As we have noted, “[o]ne
of the law’s very objects is the finality of its judgments. Neither innocence nor just
punishment can be vindicated until the final judgment is known. Without finality,
the criminal law is deprived of much of its deterrent effect.” State v. Moeller, 511
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N.W.2d 803, 808 (S.D. 1994) (internal quotation marks omitted) (quoting McCleskey
v. Zant, 499 U.S. 467, 491, 111 S. Ct. 1454, 1468, 113 L. Ed. 2d 517, 542 (1991)); see
also, State v. Bilben, 2014 S.D. 24, ¶ 33, 846 N.W.2d 336, 344-45 (Gilbertson, C.J.,
dissenting); Garcia, 2013 S.D. 46, ¶ 26, 834 N.W.2d at 825 (“Specifically, there
exists the likelihood that applying Padilla retroactively would undermine the
finality of any guilty plea in South Dakota made prior to and in contradiction to the
United States Supreme Court’s holding in Padilla.”); McCafferty III, 449 N.W.2d at
594 (“There comes a point where the justice system and society has a right to
consider that a conviction fairly obtained is final.”). The Legislature has reflected a
similar concern for finality of judgments by limiting the scope of habeas review and
the timeframe in which a prisoner may petition for relief. See Bostick v. Weber,
2005 S.D. 12, ¶ 14, 692 N.W.2d 517, 521 (citation omitted) (“Our state habeas
remedy is not as broad as the federal habeas corpus remedy.”); 2012 S.D. Sess. Laws
ch. 118, § 3 (codified at SDCL 21-27-3.3) (placing two-year statute of limitations on
habeas petitions).
[¶31.] The Teague rule is also “grounded in concerns over uniformity and the
inequity inherent in the Linkletter approach.” Danforth, 552 U.S. at 280, 128 S. Ct.
at 1041. Both of these concerns resonate in our application of state habeas relief.
The concern with uniformity is perhaps stronger at the federal level, where the
United States Supreme Court is charged with “the responsibility and authority to
ensure the uniformity of federal law.” See id. at 292, 128 S. Ct. at 1048 (Roberts,
C.J., dissenting). However, some degree of uniformity and consistency should be a
concern of this Court.
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[¶32.] This Court has an interest in consistent results and avoiding
“disparate treatment of similarly situated defendants[.]” See id. at 301, 128 S. Ct.
at 1053, (Roberts, C.J., dissenting). 7 Siers’s arguments in this case highlight the
subjective and often speculative nature of applying the Linkletter factors.
Application of the Linkletter factors requires some subjective weighing because
there is no clear standard as to what weight should be given to each factor. As
presented in this case, we have never determined whether one factor, argued alone,
could be enough to secure retroactive application. Furthermore, retroactivity under
the Linkletter factors may also depend in part on the novelty of a petitioner’s case.
The petitioner whose case would impact fewer other cases would have a greater
chance of convincing a court that retroactive application would be warranted. The
Teague rule removes these subjective and speculative elements from our
retroactivity review.
[¶33.] Last, this Court has an interest in uniformity with the federal
standard that is not being properly addressed under our current application of the
Linkletter test. When we first rejected the Teague rule, we stated:
With respect to collateral attacks on convictions, the Teague rule
is extremely narrow. In fact, the only real issue becomes, is it a
new rule? If it is, it is highly unlikely that it will be applied
retroactively.
Cowell, 458 N.W.2d at 517. We were correct that this Court was entitled to adopt a
broader rule of retroactivity than that employed in federal habeas review. However,
7. We note that Teague was concerned with disparate treatment between those
seeking relief on direct review and those seeking relief in a collateral
proceeding. See Teague, 489 U.S. at 302, 109 S. Ct. at 1071.
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our categorization that “the only real issue [under Teague] becomes, is it a new
rule?” may have oversimplified the federal standard. Accordingly, our retroactivity
analysis under the Linkletter factors has not addressed the exceptions in Teague
which would require retroactive application of a new rule. See, e.g., Garcia, 2013
S.D. 46, 834 N.W.2d 821; McCafferty III, 449 N.W.2d 590.
[¶34.] As the Nevada Supreme Court has noted, “Teague is not controlling on
this court, other than in the minimum constitutional protections established by its
two exceptions.” Colwell v. State, 59 P.3d 463, 470 (Nev. 2002); see also Danforth,
552 U.S. at 288, 128 S. Ct. at 1045 (“Federal law simply ‘sets certain minimum
requirements that States must meet but may exceed in providing appropriate
relief.’” (citation omitted)). This Court is “free to choose the degree of retroactivity
or prospectivity which we believe appropriate to the particular rule under
consideration, so long as we give federal constitutional rights at least as broad a
scope as the United States Supreme Court requires.” Danforth, 552 U.S. at 276,
128 S. Ct. at 1039 (quoting State v. Fair, 502 P.2d 1150, 1152 (Or. 1972)).
[¶35.] Instead of looking to Teague as a minimum standard for retroactivity
and applying a broader complimentary state rule, this Court’s retroactivity analysis
has largely ignored Teague altogether. Some degree of nonuniformity has been
recognized as “a necessary consequence of a federalist system of government.” Id.
at 290, 128 S. Ct. at 1047. However, without addressing the Teague exceptions, a
South Dakota court may find that a case does not require retroactive application—
based on the rule’s purpose, reliance on the old rule, and effect on the
administration of justice. The same request for retroactive relief, but under federal
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habeas review, may succeed by arguing that the rule fits one of the Teague
exceptions and thus must be given retroactive effect. This conflict and non-
uniformity is undesirable.
[¶36.] Although we declared in Cowell that the Teague rule was “unduly
narrow,” 458 N.W.2d at 518, our case law reflects that we have not utilized the
Linkletter standard to grant any greater retroactivity than under the federal
standard. By applying the Teague test for retroactivity, this Court can better
address concerns for finality, consistency, and uniformity—all by way of a simpler,
more straightforward test. Moving forward, we therefore adopt the Teague rule. A
new rule is applied to convictions that have become final only when (1) the rule
announced is substantive, 8 placing “certain kinds of primary individual conduct
beyond the power of the States to proscribe,” or (2) the rule is a “‘watershed’ rule[] of
criminal procedure[.]” Danforth, 552 U.S. at 266, 128 S. Ct. at 1032. The new rule
announced in McNeely did not place any form of individual conduct beyond the
power of the State to proscribe. Nor was it a new watershed rule of criminal
procedure. Thus, we answer the retroactivity question the same under the new
standard as we would have under the old and determine that McNeely should not be
given retroactive effect.
8. “In contrast, rules that regulate only the manner of determining the
defendant’s culpability are procedural” and not normally applied
retroactively. Summerlin, 542 U.S. at 353, 124 S. Ct. at 2523.
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CONCLUSION
[¶37.] For the above stated reasons, we conclude that Missouri v. McNeely, __
U.S. __, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), declared a new rule of
constitutional law. The new rule announced in McNeely was not a rule which
warrants retroactive application to cases on habeas review. Accordingly, we affirm
the habeas court’s grant of the State’s motion to dismiss.
[¶38.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.
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