Davis v. Weber

#26483-a-LSW
2013 S.D. 88
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
MICHAEL TODD DAVIS, Petitioner 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
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THE HONORABLE JOSEPH NEILES
Judge
****
KENNETH M. TSCHETTER of
Nicholson, Tschetter, Adams & Nicholson
Sioux Falls, South Dakota Attorneys for petitioner
and appellant.
MARTY J. JACKLEY
Attorney General
KELLY MARNETTE
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent
and appellee.
****
CONSIDERED ON BRIEFS
ON NOVEMBER 4, 2013
OPINION FILED 12/11/13
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WILBUR, Justice
[¶1.] Michael Davis filed a petition for habeas relief more than seven and
one half years after his conviction for possession of an unauthorized article by an
inmate. The habeas court found that Davis had failed to rebut the presumption of
prejudice to the State caused by Davis’s failure to file his petition for habeas relief
within five years pursuant to SDCL 21-27-3.2. We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] Davis was a South Dakota State Penitentiary inmate serving a 15-year
sentence stemming from a 1998 aggravated assault conviction. On November 14,
2001, while Davis was residing in the disciplinary segregation unit, penitentiary
officials investigated an assault on Davis’s cellmate. As a part of the investigation,
officials seized Davis’s clothing. Officials found a razor blade hidden in the hem of
Davis’s boxer shorts. Davis was permitted to use a disposable razor while
incarcerated, but he was not permitted to remove the blade from the razor and
conceal it.
[¶3.] Davis was charged by indictment on June 13, 2002, with possession of
an unauthorized article by an inmate, in violation of SDCL 24-2-14(3) and second-
degree rape, in violation of SDCL 22-22-1(2). In addition, a part two information
was filed pursuant to SDCL 22-7-7. As a result of these charges, Davis faced a
possibility of two life sentences in the penitentiary. Attorney Paul Pietz was
appointed to represent Davis on these charges.
[¶4.] On June 24, 2002, Davis was arraigned on the charges and pleaded not
guilty. Plea agreement negotiations began between the State and Davis. The
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parties entered into a plea agreement wherein Davis agreed to plead guilty to
possession of an unauthorized article by an inmate. In exchange for his guilty plea
to this charge, the State agreed to dismiss the second-degree rape charge and the
part two information. The State agreed to limit the maximum possible penitentiary
sentence to 15 years, to be served after Davis served the entirety of his assault
sentence from 1998.
[¶5.] At a change of plea hearing on October 24, 2002, Davis was advised of
his constitutional and statutory rights; the terms of the plea agreement; and the
sentence. Davis pleaded guilty to possession of an unauthorized article by an
inmate. Davis agreed to the factual basis as presented by the State.
[¶6.] On December 11, 2002, the circuit court sentenced Davis to 15 years in
the penitentiary, with his sentence to run consecutively to his prior sentence for
aggravated assault. A judgment of conviction and sentence was filed on December
26, 2002. The judgment of conviction and sentence and notice of the right to appeal
were mailed to Pietz. 1 Davis did not file a direct appeal with this Court.
[¶7.] Davis filed a petition for writ of habeas corpus on June 16, 2010, and
the habeas court appointed new counsel for his habeas petition. 2 In his petition,
Davis alleged a number of constitutional violations, including ineffective assistance
of trial counsel. Davis alleged that Pietz failed to preserve his right to appeal
1. The record does not indicate whether Davis was sent the judgment of
conviction and sentence and notice of the right to appeal.
2. Counsel representing Davis in this appeal did not represent Davis in his
habeas petition to the circuit court.
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following his guilty plea and sentence, and that Pietz did not apprise him of
potential appellate issues. In its return to the petition for writ of habeas corpus, the
State requested dismissal of the petition based on prejudice caused by Davis’s
failure to file his petition for habeas relief within five years pursuant to SDCL 21-
27-3.2. The State also addressed the merits of Davis’s habeas claims.
[¶8.] An evidentiary hearing on the petition was held on February 28, 2012.
Davis, Pietz, and Melinda Johnson, the records administrator for the Department of
Corrections, testified at the evidentiary hearing. In a memorandum decision dated
April 27, 2012, the habeas court determined that Davis had failed to rebut the
presumption of prejudice to the State caused by Davis’s failure to timely file his
petition. The habeas court found that “[t]he prejudice to the [S]tate does appear to
this court to be real, both in the limitations they had in responding to the claims of
[Davis] in the habeas action, and in their ability going forward to respond should
the case be reversed on appeal.” The habeas court subsequently entered findings of
fact and conclusions of law; an order denying the petition; and an order dismissing
the petition for writ of habeas corpus.
DECISION
[¶9.] “A habeas corpus claim is a collateral attack on a final judgment and
therefore our review is limited.” Fast Horse v. Weber, 2013 S.D. 74, ¶ 9, 838 N.W.2d
831, 835-36 (quoting Boyles v. Weber, 2004 S.D. 31, ¶ 6, 677 N.W.2d 531, 536). “A
habeas corpus applicant has the initial burden of proof to establish a colorable claim
for relief.” Id. ¶ 9, 838 N.W.2d at 836 (quoting Steiner v. Weber, 2011 S.D. 40, ¶ 4,
815 N.W.2d 549, 551). “Habeas corpus can only be used to review (1) whether the
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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. (quoting Steiner,
2011 S.D. 40, ¶ 4, 815 N.W.2d at 551). “A habeas court’s findings of fact will be
upheld unless such findings are clearly erroneous.” Id. With this background in
mind, we consider the procedural prerequisites to collaterally attack a final
judgment pursuant to SDCL chapter 21-27.
[¶10.] Prior to its repeal in 2012, 3 SDCL 21-27-3.2 allowed for the dismissal
of belated habeas corpus petitions:
An application under this chapter may be dismissed if it appears
that the state or the applicant’s custodian has been prejudiced in
its ability to respond to the application by delay in its filing,
unless the applicant shows that the application is based on
grounds of which he could not have had knowledge by the
exercise of reasonable diligence before the circumstances
causing the prejudice occurred. It shall be presumed that the
state or the applicant’s custodian has been prejudiced if the
application is filed more than five years after signing,
attestation and filing of the judgment or order under which the
applicant is held. This presumption is rebuttable pursuant to §
19-11-1.
The habeas petitioner, however, may rebut the presumption of prejudice in SDCL
21-27-3.2 by presenting “substantial, credible evidence[.]” SDCL 19-11-1 (Rule
301). 4
3. SDCL 21-27-3.2 was repealed by the South Dakota Legislature in 2012. See
2012 S.D. Sess. Laws ch. 118, § 2. In its place, the Legislature enacted a two-
year statute of limitation applicable to all applications for relief under SDCL
chapter 21-27. See SDCL 21-27-3.3.
4. SDCL 19-11-1 (Rule 301) provides in pertinent part:
(continued . . . )
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[¶11.] “It is plain from the language of [SDCL 21-27-3.2] that its purpose is to
prevent excessive delay in filing an application for habeas corpus which might
unfairly limit the ability of the State to respond to such an application.” Flute v.
Class, 1997 S.D. 10, ¶ 9, 559 N.W.2d 554, 556. Further, this Court has stated:
The statute authorizes (but does not mandate) the dismissal of
an application for habeas corpus if “the state or the applicant’s
custodian has been prejudiced in its ability to respond to the
application by delay in its filing, unless the applicant shows that
the application is based on grounds of which he could not have
had knowledge by the exercise of reasonable diligence before the
circumstances causing the prejudice occurred.” It presumes that
any delay of five years or more is prejudicial, but provides an
opportunity for the applicant to rebut that presumption.
However, it is clear from the words of the statute that the
authority to dismiss an application rests on a determination of
unfair prejudice.
Id. ¶ 10, 559 N.W.2d at 557.
[¶12.] Davis does not argue with the habeas court’s determination that the
presumption of prejudice applied. More than seven and one half years had passed
between the judgment of conviction filed on December 26, 2002, and the petition for
habeas corpus filed on June 16, 2010. Davis, however, contends that the habeas
court erred in concluding that Davis had failed to rebut the presumption of
_______________________________________
( . . . continued)
In all civil actions and proceedings, unless otherwise provided
for by statute or by chapters 19-9 to 19-18, inclusive, a
presumption imposes on the party against whom it is directed
the burden of going forward with evidence to rebut or meet the
presumption, but does not shift to such party the burden of proof
in the sense of the risk of nonpersuasion, which remains
throughout the trial upon the party on whom it was originally
cast. When substantial, credible evidence has been introduced to
rebut the presumption, it shall disappear from the action or
proceeding[.]
(Emphasis added.)
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prejudice to the State. Davis asserts that the habeas court need only consider
whether Davis had rebutted the presumption of prejudice that the State was limited
in its ability to respond to Davis’s claims in his habeas petition. To that end, Davis
contends that he presented substantial, credible evidence on the merits of his
petition, which was sufficient to rebut the presumption of prejudice. Further, Davis
argues that the habeas court’s additional consideration — whether Davis had
rebutted the presumption of prejudice that the State was limited in its ability to
retry Davis if relief were granted — was irrelevant and improper. Davis argues
that the habeas court’s determination that Davis failed to rebut the presumption of
prejudice based on the State’s inability to retry Davis if relief were granted is
clearly erroneous. He requests that the dismissal and denial of his habeas petition
be reversed.
Ability to retry petitioner
[¶13.] Initially, we note that in dismissing the habeas petition for Davis’s
failure to rebut the presumption of prejudice, the habeas court determined that
“[t]he prejudice to the [S]tate does appear to be real, both in the limitations they
had in responding to the claims of [Davis] in the habeas action, and in their ability
going forward to respond should the case be reversed on appeal.” (Emphasis added.)
However, the plain language of SDCL 21-27-3.2 only provided for the dismissal
upon prejudice to the State in its ability to respond to the application. See SDCL
21-27-3.2 (repealed 2012) (stating “[a]n application under this chapter may be
dismissed if it appears that the state or the applicant’s custodian has been
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prejudiced in its ability to respond to the application by delay in its filing”).
(Emphasis added.)
[¶14.] Federal Rules Governing Habeas Corpus Cases dictate habeas
applications in federal cases. One such rule, former Rule 9(a) of the Federal Rules
Governing Habeas Corpus Cases under 28 U.S.C. § 2254, 5 provided:
A petition may be dismissed if it appears that the state of which
the respondent is an officer has been prejudiced in its ability to
respond to the petition by delay in its filing unless the petitioner
shows that it is based on grounds on which he could not have
had knowledge by the exercise of reasonable diligence before the
circumstances prejudicial to the state occurred.
“[The purpose of former Rule 9(a)] was to codify the equitable doctrine of laches
which had been applied in habeas cases in the past[.]” McDonnell v. Estelle, 666
F.2d 246, 250 (5th Cir. 1982).
[¶15.] In interpreting former Rule 9(a), the United States Supreme Court
held that:
The Habeas Corpus Rules permit a State to move for dismissal
of a habeas petition when it has been prejudiced in its ability to
respond to the petition by delay in its filing. . . . Congress has
not seen fit, however, to provide the State with an additional
defense to habeas corpus petitions based on the difficulties that it
will face if forced to retry the defendant.
Vasquez v. Hillery, 474 U.S. 254, 265, 106 S. Ct. 617, 624, 88 L. Ed. 2d 598 (1986)
(emphasis added) (internal citations and quotation marks omitted). Federal courts
have followed suit and held that “[i]n a habeas proceeding under § 2254, the
5. In 2004, Rule 9 was amended and Rule 9(a) was deleted as a result of the
passage of the Antiterrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2244(d). This Act established a one-year statute of limitations for
federal habeas petitions.
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appropriate prejudice determination does not encompass the government’s facility
in retrying the petitioner, but just embraces its capacity to respond suitably to the
petition.” United States v. Nahodil, 36 F.3d 323, 327 (3d Cir. 1994). See Hannon v.
Maschner, 845 F.2d 1553, 1556 (10th Cir. 1988) (determining that prejudice to the
government in its ability to retry the petitioner “is irrelevant to a Rule 9(a)
defense”); Strahan v. Blackburn, 750 F.2d 438, 441-42 (5th Cir. 1985) (internal
citations and quotation marks omitted) (stating that “[t]he impact that delay may
have had on possible retrial is not to be considered” in determining whether the
government was prejudiced by petitioner’s delay); Aiken v. Spalding, 684 F.2d 632,
633 (9th Cir. 1982) (stating “[d]ifficulty in reprosecution is not expressly considered
in the text of Rule 9(a)”). See also 39 Am. Jur. 2d Habeas Corpus § 128 (1999)
(stating that “[p]rejudice to the state in its ability to retry the petitioner because of
a delay in filing is not a valid ground for dismissal of the petition; the District Court
is limited to determining whether the state has been prejudiced in its ability to
address the issues raised in the petition”).
[¶16.] Our Court has previously recognized the similarities between SDCL
21-27-3.2 and former Rule 9(a). We noted that SDCL 21-27-3.2 “use[d] the same
standards as” former Rule 9(a), however, SDCL 21-27-3.2 “include[d] a presumption
of prejudice if the application [was] more than five years after the conviction.”
Garritsen v. Leapley, 541 N.W.2d 89, 92 n.1 (S.D. 1995). Because we previously
recognized the similarity between SDCL 21-27-3.2 and former Rule 9(a), federal
precedent is instructive to this Court on whether prejudice to the State in its ability
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to retry the petitioner is a valid prejudice ground that Davis must overcome by a
showing of substantial, credible evidence.
[¶17.] Federal precedent provided for dismissal of a habeas petition when the
government had been prejudiced in its ability to respond to the petition by delay in
its filing. Ability to retry the petitioner was not an allowable ground for dismissal.
Similarly, the plain language of SDCL 21-27-3.2 only provided for one basis for
dismissal — prejudice to the State in its ability to respond to the application. We
agree with the federal precedent that consideration of the State’s ability to retry the
petitioner if relief were granted is not a valid prejudice ground. Therefore, the
habeas court’s dismissal of the writ based on Davis’s failure to rebut the
presumption of prejudice to the State regarding its ability to retry the petitioner
was improper.
Ability of State to respond to application by delay in its filing
[¶18.] Even though the habeas court improperly dismissed the writ based on
Davis’s failure to rebut the presumption of prejudice to the State in its ability to
retry Davis, the habeas court’s analysis did not end there. The habeas court also
dismissed the writ on Davis’s failure to rebut the presumption of prejudice to the
State in its ability to respond to the application. Based on the plain language of
SDCL 21-27-3.2, this is a valid ground for the habeas court’s consideration. See
SDCL 21-27-3.2 (repealed 2012) (stating “[a]n application under this chapter may
be dismissed if it appears that the state or the applicant’s custodian has been
prejudiced in its ability to respond to the application by delay in its filing”).
(Emphasis added.)
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[¶19.] Here, the habeas court concluded that Davis had not rebutted the
presumption that the State was prejudiced in its ability to respond to the
application. In making its determination, the habeas court found that:
Judge Kean is alive, but retired. He was not called to testify at
the habeas hearing, so we do not know what he would have said
about this case. Paul Pietz is alive, but he lives in Rapid City.
He testified at the hearing by ITV. The original victim of the
rape charge is not identified in the indictment. The court is not
aware of who the witnesses were for the State on the
unauthorized article charge, or who was involved in finding the
razor blade. The court is not aware of whether the razor blade
or other items were kept in evidence or have been disposed of.
The court does know that Paul Pietz’s memory has eroded over
time, and is not . . . as complete as it might have been had this
action been filed in 2003 or 2004.
[¶20.] A review of the record supports the habeas court’s finding that Pietz’s
memory had eroded over time and was not as complete as it might have been had
the habeas petition been filed in 2003 or 2004. When asked if he remembered
Davis’s case, Pietz responded “I - - somewhat, yes.” He indicated that he “can’t say
that [his] memory is perfect. It’s been . . . close to ten years.” The record reveals
that in responding to Davis’s several habeas claims, Pietz had to testify
substantially from his notes taken in 2002 and as to his standard practice at the
time Pietz represented Davis. Moreover, Davis, who had the burden to rebut the
presumption of prejudice, was given a reasonable opportunity to present evidence
on whether Davis’s delay in filing manifested a lack of diligence and whether the
State had been prejudiced in such delay. The habeas court correctly concluded that
because of the lapse of time and the effect on Pietz’s memory, Davis had failed to
rebut the statutory presumption of prejudice to the State in its ability to respond to
the application.
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[¶21.] Affirmed.
[¶22.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and
SEVERSON, Justices, concur.
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