#26823-a-DG

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
#26823

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)).

                                          -13-
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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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#26823

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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