#27345-rev&rem-JMK
2016 S.D. 76


                             IN THE SUPREME COURT

                                   OF THE

                         STATE OF SOUTH DAKOTA

                                    * * * *

KEVIN L. HUGHBANKS,                                 Petitioner and Appellant,

            v.

BOB DOOLEY, Warden,
South Dakota State Penitentiary,                    Respondent and Appellee.

                                    * * * *

                    APPEAL FROM THE CIRCUIT COURT
                    OF THE SECOND JUDICIAL CIRCUIT
                    LINCOLN COUNTY, SOUTH DAKOTA

                                    * * * *

                       HONORABLE STUART L. TIEDE
                             Retired Judge

                                    * * * *

DAVID A. STUART of
Peterson, Stuart, Rumpca &
Rasmussen, Prof. LLC
Beresford, South Dakota                             Attorneys for petitioner
                                                    and appellant.

MARTY J. JACKLEY
Attorney General

PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota                                Attorneys for respondent
                                                    and appellee.

                                    * * * *
                                                    CONSIDERED ON BRIEFS
                                                    ON AUGUST 18, 2016

                                                    OPINION FILED 10/26/2016
#27345

KERN, Justice

[¶1.]        Kevin Hughbanks appealed a summary judgment denying his petition

for habeas corpus relief from his convictions for two counts of possession of child

pornography and as a habitual offender. Hughbanks’s attorney filed his brief as a

“Korth brief” alleging a lack of arguably meritorious issues for appeal. See State v.

Korth, 2002 S.D. 101, 650 N.W.2d 528. Upon consideration of the case, we

identified two arguably meritorious issues for appeal and directed supplemental

briefing on those issues. See id. ¶ 16 n.6, 650 N.W.2d at 535 n.6. After completion

of supplemental briefing, we again considered the case. We reverse and remand.

                          Facts and Procedural History

                                     Conviction

[¶2.]        On March 20, 2007, Hughbanks pleaded guilty in Lincoln County to

two counts of possession of child pornography and admitted the Part II Information

alleging he was a habitual offender. He was sentenced on June 19, 2007, to ten

years in the penitentiary on the first count and to a consecutive ten years on the

second count with the latter sentence suspended. A written judgment was filed on

June 25, 2007. Hughbanks did not directly appeal his conviction and it became

final on July 26, 2007.

                             Habeas in Circuit Court

[¶3.]        Hughbanks filed his only petition for a writ of habeas corpus on April

2, 2014, nearly seven years after his conviction became final. He alleged multiple

claims of ineffective assistance of counsel and a Miranda violation. The court

appointed counsel and issued a provisional writ of habeas corpus requiring a return.

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The State filed its return on April 24, 2014, raising a defense under the two-year

statute of limitations for habeas corpus actions set forth in SDCL 21-27-3.3. 1 This

statute, effective July 1, 2012, replaced a prior statute that generally permitted a

habeas action to be “filed at any time[.]” See 2012 S.D. Sess. Laws ch. 118, §§ 1 & 3.

On May 21, the State filed a motion for summary judgment along with a statement

of undisputed facts in support of its statute of limitations defense. The return,

motion, and statement asserted that the petition was time barred under SDCL 21-

27-3.3(1) because Hughbanks filed his petition more than two years after his

conviction was final in 2007. Further the State argued that none of the exceptions

1.    SDCL 21-27-3.3 provides:

             A two-year statute of limitation applies to all applications
             for relief under this chapter. This limitation period shall
             run from the latest of:

                (1) The date on which the judgment became final by
                    the conclusion of direct review or the expiration of
                    the time for seeking such review;

                (2) The date on which the impediment to filing an
                    application created by state action in violation of
                    the constitution or laws of the United States or of
                    this state is removed, if such impediment
                    prevented the applicant from filing;

                (3) The date on which the constitutional right asserted
                    in the application was initially recognized by the
                    Supreme Court of the United States or the
                    Supreme Court of this state if the right has both
                    been newly recognized and is retroactively
                    applicable to cases on collateral review; or

                (4) The date on which the factual predicate of the
                    claim or claims presented could have been
                    discovered through the exercise of due diligence.

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provided for by subdivisions (2) through (4) of SDCL 21-27-3.3 applied so as to

permit Hughbanks’s petition. Hughbanks countered with his own statement of

undisputed material facts asserting that he did not discover the factual predicates

for his claims until December 2013 and, therefore, his petition was timely under

SDCL 21-27-3.3(4).

[¶4.]         A hearing was held on July 8, 2014. Hughbanks testified 2 that he

lacked access to legal counsel and legal materials, which deprived him of the ability

to appreciate the legal significance of the predicate facts for his habeas claims until

December 2013. Therefore, Hughbanks argued that his habeas petition was timely

under SDCL 21-27-3.3(4). The habeas court rejected Hughbanks’s claims in a

memorandum decision filed on August 26, 2014, and an amended decision filed

October 30, 2014. The court reasoned that all of the factual predicates for

Hughbanks’s claims were known to him no later than 2010. Further, the court

found that Hughbanks had adequate access to counsel and legal materials to

appreciate the legal significance of those facts before that time. Accordingly, the

court filed an amended judgment and order on November 4, 2014, granting the

State’s motion for summary judgment, quashing the provisional writ of habeas

corpus and dismissing Hughbanks’s petition with prejudice.

                               Initial Habeas Appeal

[¶5.]         On January 8, 2015, the habeas court granted Hughbanks’s motion for

a certificate of probable cause to appeal the denial of his claim under SDCL 21-27-


2.      Although the hearing was on a motion for summary judgment, the habeas
        court permitted Hughbanks to testify on the motion.

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3.3(4). Hughbanks filed a notice of appeal to this Court. His counsel later filed

Hughbanks’s brief as a Korth brief claiming a lack of arguably meritorious issues

for appeal. Consistent with Korth, counsel then briefed the issues requested by

Hughbanks, including the issue on which the certificate of probable cause was

granted. But counsel also raised a new claim, arguing that it was error to

retroactively apply the two-year statute of limitations set forth in SDCL 21-27-3.3,

which took effect July 1, 2012, to a habeas petition arising from Hughbanks’s 2007

conviction.

[¶6.]         In its response, the State agreed with certain aspects of Hughbanks’s

retroactivity argument. In view of the State’s position, this Court directed

supplemental briefing on the following issues:

              1)    Whether the habeas court erred in retroactively
                    applying SDCL 21-27-3.3 to Hughbanks’s action.
                    See, e.g., Eagleman v. Diocese of Rapid City, 2015
                    S.D. 22, 862 N.W.2d 839.

              2)    Whether in retroactively applying SDCL 21-27-3.3
                    to Hughbanks’s action the habeas court had
                    authority to delay commencement of the two-year
                    limitations period until July 1, 2012, the effective
                    date of the statute.

Upon completion of the supplemental briefing, we now consider the case.

                                     ANALYSIS

                                       Issue 1

[¶7.]         Whether the habeas court erred in retroactively applying
              SDCL 21-27-3.3 to Hughbanks’s action.

[¶8.]         Hughbanks argues that the habeas court erred in retroactively

applying the statute of limitations in SDCL 21-27-3.3, passed in 2012, to his habeas

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petition because his conviction became final in 2007. Application of SDCL 21-27-

3.3(1) immediately rendered any habeas action commenced by Hughbanks after

2009 untimely unless one of the exceptions provided for in subdivisions (2) through

(4) of the statute applied. None of the exceptions applied to Hughbanks or applied

in a manner beneficial to him. He therefore contends that the court should have

delayed commencement of the two-year limitations period until July 1, 2012, the

effective date of SDCL 21-27-3.3, giving him time to file his habeas action. If

allowed, this would make his habeas petition, filed in April 2014, timely. The State

agrees with Hughbanks’s argument, citing its concern that retroactive application

of the statute would otherwise cut off Hughbanks’s previously viable habeas claims

in violation of due process.

[¶9.]        There is support for the parties’ position. As explained in 54 C.J.S.

Limitations of Actions § 16 (2016):

             When . . . a limitations period is statutorily shortened or
             created where none existed before, federal due process
             requires that potential litigants be afforded a reasonable
             time for the commencement of an action before the bar
             takes effect. Thus, the legislature may shorten a
             limitations period and apply it retroactively, provided
             that a reasonable opportunity is given to exercise a
             remedy which would otherwise be materially affected by a
             new statute of limitations. If a claimant does not file
             within such reasonable time, the claim is barred. What is
             a reasonable time is to be determined by the legislature,
             unless the time allowed is manifestly so insufficient that
             the statute becomes a denial of justice.

See also Kotval v. Gridley, 698 F.2d 344, 347 n.5 (8th Cir. 1983) (noting that

“retroactive application [of an amendment shortening a limitations period] is

constitutional so long as a plaintiff is not suddenly cut off from bringing an action,

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but is given a reasonable opportunity after the effective date of the statute to bring

suit before his claim is absolutely barred by the new enactment”).

[¶10.]         SDCL 21-27-3.3 is patterned after the statute of limitations for federal

habeas corpus actions. Compare SDCL 21-27-3.3, with 28 U.S.C. § 2244(d)(1)

(setting forth the statute of limitations for a federal habeas corpus action for a

person in custody pursuant to a judgment of a state court). Because of due process

concerns such as those discussed above, federal courts have interpreted the federal

habeas statute of limitations as permitting an additional one-year period from the

effective date of the statute for applicants to bring claims that would have otherwise

been cut off by the statute when it took effect. As explained by the Eighth Circuit

Court of Appeals:

               Prior to enactment of the AEDPA,[ 3] federal prisoners
               could collaterally attack their convictions . . . “at any
               time.” The AEDPA changed that right overnight, limiting
               the time period for filing § 2255 motions to one year from
               various triggering events. Federal prisoners whose
               convictions were final, and to whom none of the other
               triggering events applied, were suddenly without
               recourse. We recently joined the other circuits that have
               addressed this question in holding that a one-year grace
               period provides a reasonable time period to avoid the
               unjust result that would follow the application of the
               AEDPA’s one-year time limit on preexisting causes of
               action.

Moore, 173 F.3d at 1134-35 (citations omitted) (footnote added). The grace period or

additional period for bringing claims discussed in Moore has been recognized by the


3.       “AEDPA” stands for “the Antiterrorism and Effective Death Penalty Act of
         1996,” which revised the federal habeas statutes of limitation. Moore v.
         United States, 173 F.3d 1131, 1133 (8th Cir. 1999).


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United States Supreme Court. See Wood v. Milyard, __ U.S. __, __, 132 S. Ct. 1826,

1831, 182 L. Ed. 2d 733 (2012) (noting that, “[f]or a prisoner whose judgment

became final before AEDPA was enacted, the one-year limitations period runs from

the AEDPA’s effective date: April 24, 1996”).

[¶11.]         Relying on federal authorities such as those above, both Hughbanks

and the State urge this Court to recognize an additional two-year period 4 from the

2012 effective date of SDCL 21-27-3.3 in order to give habeas petitioners who would

otherwise be cut off by the new statute a reasonable time to file their claims. Both

sides agree that recognition of such a period would make Hughbanks’s 2014 habeas

petition timely, requiring a reversal and remand of the summary judgment against

him.

[¶12.]         Ordinarily this Court does not apply a new statute of limitations

retroactively to pending litigation absent an expression of legislative intent for such

application. See Eagleman, 2015 S.D. 22, ¶ 16, 862 N.W.2d at 846 (noting that the

“Legislature did not express an intent” that an amended statute of limitations

should apply retroactively “to pending litigation” and deeming it “unsound to apply”

the statute “to abruptly terminate plaintiffs’ pending suits”). 5 In fact this Court has



4.       The additional two-year period proposed by Hughbanks and the State
         corresponds with the two-year statute of limitations in SDCL 21-27-3.3 just
         as the additional one-year period recognized by the federal courts corresponds
         with the one-year statute of limitations for federal habeas corpus actions.

5.       See Stratmeyer v. Stratmeyer, 1997 S.D. 97, ¶¶ 14-17, 567 N.W.2d 220, 223-
         24 (applying the statute of limitations against civil actions for childhood
         sexual abuse retroactively based upon expressions of legislative intent in the
         enactment that it should be so applied); Koenig v. Lambert, 527 N.W.2d 903,
                                                                      (continued . . .)
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previously declined to retroactively apply an amended statute of limitations/repose

to actions commenced before the effective date of the amendment. Id. ¶ 15, 862

N.W.2d at 846 (noting that this Court has “never held that a newly enacted

limitations period applies retroactively to a pending lawsuit”).

[¶13.]       Nonetheless, this case does not concern pending litigation. Hughbanks

commenced his action after the effective date of SDCL 21-27-3.3. Therefore, the

ordinary prohibition against retroactive application of a new statute of limitations

to pending litigation does not apply here. But as the Tenth Circuit Court of Appeals

has noted, applying a shortened limitations period retroactively in a habeas action

“could mean that a prisoner whose conviction became final more than a year before

the AEDPA went into effect would have no avenue to bring a habeas petition

because his petition would always be out of time under the new language.” Hoggro

v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998), In Hoggro, a federal habeas

petitioner commenced his action over a year after the effective date of the AEDPA,

which shortened the limitations period for such actions to a year after the conviction

became final. In view of the problems posed by retroactive application, the Tenth

Circuit joined other circuits holding “that for prisoners whose convictions became




(. . . continued)
         904 (S.D. 1995) (citing SDCL 2-14-21 in holding that a statute of limitations
         should not be applied retroactively absent the “expression of such an
         intention by the South Dakota Legislature”), overruled on other grounds by
         Stratmeyer, 1997 S.D. 97, ¶ 21, 567 N.W.2d at 224.

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final before April 24, 1996,[ 6] the one-year statute of limitation does not begin to

run until April 24, 1996.” Id. 7

[¶14.]         Similarly, in United States v. Craycraft, 167 F.3d 451 (8th Cir. 1999), a

petitioner seeking to vacate his sentence filed his petition and amendments

approximately a year after the effective date of the AEDPA. The AEDPA also

changed the limitations period for these petitions to a year after the conviction

becoming final. Id. at 456. In reviewing the timeliness of the petition and

amendments, the Eighth Circuit also joined “the majority of circuits in holding that

[the statute’s] one-year time limit did not begin to run prior to April 24, 1996.” Id.

In Moore, the Eighth Circuit relied in part on Craycraft in referring to “the one-year

grace period” for applying “the AEDPA’s one-year time limit [to] preexisting causes

of action.” 173 F.3d at 1135 (citing Paige v. United States, 171 F.3d 559, 560-61 (8th

Cir. 1999); Craycraft, 167 F.3d at 456).

[¶15.]         These authorities clarify that the additional one-year period recognized

by the federal courts for commencing actions under the AEDPA resulted from

judicial interpretations of how to apply the new statute of limitations in the act to



6.       The AEDPA’s effective date is April 24, 1996. See Hoggro, 150 F.3d at 1226.

7.       The Tenth Circuit Court of Appeals cited Burns v. Morton, 134 F.3d 109, 111
         (3d Cir.1998), Calderon v. U. S. Dist. Court for the Cent. Dist. of Cal., 128
         F.3d 1283, 1287 (9th Cir.1997), overruled on other grounds, 163 F.3d 530, 539
         (9th Cir. 1998), and Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en
         banc), rev’d on other grounds, 521 U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d
         481 (1997). See also United States v. Simmonds, 111 F.3d 737, 744-46 (10th
         Cir.1997) (applying the same rule against retroactivity to the parallel one-
         year statute of limitations for federal post-conviction relief under 28 U.S.C.A.
         § 2255), overruled on other grounds, 322 F.3d 1256, 1261 (10th Cir. 2003).

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#27345

preexisting causes of action commenced after the act’s effective date and suddenly

cut off by the act’s strict application. To avoid a cut off that would violate the

Constitution, the courts held in cases like Hoggro, Craycraft, and Moore that the

new, one-year statute of limitations would not begin to run against preexisting

causes of action until AEDPA’s effective date on April 24, 1996, and would not

expire until April 24, 1997. This is the source of the additional one-year period for

commencing such actions recognized in cases such as Moore. 173 F.3d at 1135.

[¶16.]         Hughbanks’s habeas action falls into a similar category of cases

because Hughbanks did not commence his action until after the effective date of

SDCL 21-27-3.3. Like the federal courts, we similarly conclude, based on our

judicial interpretation, that the habeas court did not err in applying SDCL 21-27-

3.3 to Hughbanks’s action. 8 However, we must still decide whether the habeas

court could grant Hughbanks a judicially-created period of extension.

                                        Issue 2

[¶17.]         Whether, in retroactively applying SDCL 21-27-3.3 to
               Hughbanks’ action, the habeas court had authority to delay
               commencement of the two-year limitations period until July 1,
               2012, the effective date of the statute.

[¶18.]         As set forth under Issue 1, the additional period recognized by the

federal courts for timely commencement of federal habeas actions under the new

statute of limitations in the AEDPA was a product of those courts’ judicial



8.       This conclusion is consistent with Engesser v. Young, 2014 S.D. 81, ¶ 27, 856
         N.W.2d 471, 481 in which we applied the 2012 amendments to the state
         habeas corpus law, including SDCL 21-27-3.3, to a 2001 conviction where the
         habeas action was not commenced until 2013.

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construction or interpretation of that act. It is similarly within this Court’s power

to interpret statutes. See Hot Springs Indep. Sch. Dist. No. 10 v. Fall River

Landowners Ass’n, 262 N.W.2d 33, 39 (S.D. 1978) (noting that “[t]he interpretation

of an existing statute is a judicial . . . function” (quoting Des Moines Ind. Common

Sch. Dist. v. Armstrong, 95 N.W.2d 515, 521 (Iowa 1959))). See also State v. Custer,

871 N.W.2d 243, 257 (Neb. 2015) (noting that “a court’s proper role is to interpret

statutes and clarify their meaning).” Statutory interpretation “is a question of law.”

State v. Clements, 2013 S.D. 43, ¶ 6, 832 N.W.2d 485, 486. “When a court is faced

with a question of statutory construction, it is not making new law, but rather

interpreting existing law.” Burgard v. Benedictine Living Communities, 2004 S.D.

58, ¶ 16, 680 N.W.2d 296, 301. This includes interpreting the proper application of

statutes of limitation. See, e.g., id; Peterson, ex rel. Peterson v. Burns, 2001 S.D.

126, 635 N.W.2d 556 (determining as a matter of statutory construction that the

medical malpractice statute of limitations covered wrongful death actions caused by

medical malpractice).

[¶19.]       SDCL 21-27-3.3, like the AEDPA, contains no explicit provision

governing its application to preexisting causes of action not commenced until after

the effective date of the statute and suddenly cut off by its provisions. The language

of the statute, however, is taken almost verbatim from comparable provisions in the

AEDPA. Compare SDCL 21-27-3.3, with 28 U.S.C. § 2244(d)(1), and 28 U.S.C. §

2255(f). Furthermore, it was passed almost sixteen years after the AEDPA and,

presumably, with cognizance of the numerous federal court decisions interpreting

that act. See St. Paul Mercury Ins. Co. v. Andrews, 321 N.W.2d 483, 485-86 (N.D.

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1982) (noting the presumption that when the legislature “adopt[s] a statute from

another jurisdiction, [it] adopt[s] the contemporaneous construction of its provisions

by the courts of that jurisdiction”). Accord Melby v. Anderson, 64 S.D. 249, 266

N.W. 135, 136 (1936) (noting that where the Legislature adopts the law of another

state, it is “the general presumption that the South Dakota Legislature intended to

enact [the] law with the meaning that the courts of [the other state] had previously

placed upon [it]”). Therefore, we interpret SDCL 21-27-3.3 in a manner consistent

with the federal court decisions discussed above. See Waterman v. Morningside

Manor, 2013 S.D. 78, ¶ 18, 839 N.W.2d 567, 572 (noting that where a federal

version of a rule “is equivalent to our rule . . . [this Court] can look to decisions from

federal courts for analytical support”). Such construction and the constitutional

considerations underlying the federal court decisions are also in accord with the

principle that it is this Court’s duty to apply a statute “in a constitutional manner”

and “to choose [an] interpretation, if feasible, that will uphold the validity of the

statute.” In re A.L., 2010 S.D. 33, ¶ 19, 781 N.W.2d 482, 487.

[¶20.]        Although not controlling, the legislative history of SDCL 21-27-3.3

supports interpreting the statute in a manner consistent with the federal court

decisions. See In re Adoption of A.A.B., 2016 S.D. 22, ¶ 9, 877 N.W.2d 355, 361

(quoting Jensen v. Turner Cty. Bd. of Adjustment, 2007 S.D. 28, ¶ 5, 730 N.W.2d

411, 413) (referring to legislative history “is justified . . . when legislation is

ambiguous, or its literal meaning is absurd or unreasonable”). Testimony before

legislative committees about the statute from the State Attorney General and an

individual legislator who supported the bill reveals that the Legislature intended

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the statute to function consistently with the AEDPA. Here, SDCL 21-27-3.3, like

the AEDPA, does not clearly indicate that it applies to convictions made final before

passage of the statute. And misapplication of the statute risks unreasonably

cutting off such actions in violation of the Constitution as noted in cases such as

Kotval, 698 F.2d at 347 n.5. Therefore, this is a suitable case for consideration of

legislative history, although the views expressed by individuals before legislative

bodies are not always indicative of legislative intent. See Eagleman, 2015 S.D. 22, ¶

11, 862 N.W.2d at 845 (noting that “the motivation of a few representatives cannot

be attributed to the Legislature as a whole”).

[¶21.]         We are aware of holdings in some jurisdictions that courts should not

fill a legislative gap created by failing to provide for a reasonable time for filing suit

on preexisting causes of action when the legislature shortens a statute of

limitations. See, e.g., Adams & Freese Co. v. Kenoyer, 116 N.W. 98, 99 (N.D. 1908)

(noting that if the legislature fails to fix a reasonable time for bringing existing

causes of action under an amended statute of limitations, “the courts cannot . . .

supply this legislative lapse”). 9 However, we have not identified a holding in a case

similar to this one where the Legislature adopted the amended statute of


9.       See also Falgout v. Dealers Truck Equip. Co., 748 So. 2d 399, 408 (La. 1999)
         (holding that “[w]hen the legislature enacts a prescriptive [limitations]
         statute that potentially affects existing causes of action and fails to require
         parties to exercise their vested rights within a reasonable time, ‘the courts
         should refrain from supplying this legislative lapse’” (quoting Maltby v.
         Gauthier, 506 So. 2d 1190, 1193 (La. 1987))); Flippin v. Jarrell, 270 S.E.2d
         482, 487 (N.C. 1980) (noting that “[t]he fixing of the time within which to
         bring suit” on existing causes of action when a statute of limitations is
         shortened “is not within the power of the judiciary” (quoting Barnhardt v.
         Morrison, 101 S.E. 218, 221 (N.C. 1919)).

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limitations nearly verbatim from another jurisdiction with a significantly developed

body of case law interpreting how to apply the statute to preexisting causes of

action. Moreover, unlike cases from other courts, we have legislative history

supporting application of the amended statute in the same manner as in the

original jurisdiction. Under the unique circumstances of this case, we believe it is

consistent with legislative intent to interpret the amended statute in the same

manner as in the original jurisdiction, i.e., the federal courts. See Dale v. Young,

2015 S.D. 96, ¶ 6, 873 N.W.2d 72, 74 (noting that the purpose of statutory

construction is “to determine legislative intent” (quoting In re West River Elec.

Ass’n, Inc., 2004 S.D. 11, ¶ 15, 675 N.W.2d 222, 226)). This means that the habeas

court had authority to grant Hughbanks an additional two years from July 1, 2012,

to permit the timely filing of his habeas action. Granting that period would have

rendered Hughbanks’s action, filed on April 2, 2014, timely. The court erred in

granting summary judgment for the State based upon a violation of the statute of

limitations.

                                    CONCLUSION

[¶22.]         With reference to Issue 1, we hold that the habeas court did not err in

applying SDCL 21-27-3.3 to Hughbanks’s action because Hughbanks commenced

the action after the effective date of the statute. As to Issue 2, we hold that, in

applying SDCL 21-27-3.3 to Hughbanks’s action, the habeas court had the requisite

authority to delay commencement of the two-year limitations period until July 1,

2012, the effective date of the statute. Because Hughbanks filed the action within

the two years, the habeas court erred in granting summary judgment against

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Hughbanks for violating the statute of limitations in SDCL 21-27-3.3. Having

determined that the habeas court erred in granting summary judgment, we do not

address Hughbanks’s argument under SDCL 21-27-3.3(4) concerning the date of

discovery of the factual predicates for his claims.

[¶23.]       Reversed and remanded.

[¶24.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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