#26019-r-GAS

2011 S.D. 40

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
KYLE STEINER,                               Appellant,

      v.

DOUG WEBER, acting in his
capacity as the warden of the
South Dakota State Penitentiary,            Appellee.

                                   ****

                   APPEAL FROM THE CIRCUIT COURT OF
                     THE SEVENTH JUDICIAL CIRCUIT
                   FALL RIVER COUNTY, SOUTH DAKOTA

                                   ****

                      THE HONORABLE JEFF W. DAVIS
                                Judge

                                   ****

JOHN R. MURPHY
Rapid City, South Dakota                    Attorney for appellant.


MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota                        Attorneys for appellee.



                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON OCTOBER 3, 2011

                                            OPINION FILED 05/23/12
#26019

SEVERSON, Justice

[¶1.]          Kyle Steiner appeals the circuit court’s dismissal of his application for

a writ of habeas corpus, arguing that the court erred in dismissing the writ and in

ruling on the merits of the writ without first conducting an evidentiary hearing.

Because Steiner has alleged facts which, if proven to be true, would entitle him to

relief, we reverse dismissal of the writ.

                         Facts and Procedural Background

[¶2.]          On July 23, 2009, a complaint was filed in Fall River County charging

Steiner with one count of sexual contact with a child. Steiner retained Chris

Beesley to represent him. Beesley moved the case rather quickly through the

system, filing only a motion for continuance and a waiver of preliminary hearing.

On November 13, 2009, Steiner entered a guilty plea to one count of sexual contact

with a child. The only concession made by the State in exchange for the plea was to

remain silent at sentencing. On December 17, 2009, Steiner was sentenced to

fifteen years in prison, with eight years suspended. He did not appeal his conviction

or sentence.

[¶3.]          On October 16, 2010, Steiner filed an application for a writ of habeas

corpus, claiming that his trial counsel was ineffective. The case was originally

assigned to Judge Janine Kern. But because Judge Kern had presided over the

underlying criminal case, presiding Judge Jeff W. Davis intervened and reassigned

the case to himself. On December 1, 2010, without conducting an evidentiary

hearing, Judge Davis issued a decision letter dismissing Steiner’s application for a




                                            -1-
#26019

writ of habeas corpus. The decision also denied Steiner relief based on the merits of

his ineffective assistance claim. Steiner appeals.

                                Standard of Review

[¶4.]        “A habeas corpus applicant has the initial burden of proof to establish

a colorable claim for relief.” Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463,

468 (citing Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S. Ct. 1019, 1025, 82 L. Ed.

1461 (1938)). “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. (quoting Lodermeier v. Class,

1996 S.D. 134, ¶ 3, 555 N.W.2d 618, 622). 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 matter of

law, our review is de novo and we give no deference to the circuit court’s legal

conclusions. Id.

                              Analysis and Decision

Dismissal of Steiner’s Habeas Corpus Petition

[¶5.]        After the State filed a motion to dismiss, the habeas court dismissed

Steiner’s application for a writ of habeas corpus without receiving evidence. In

Jenner v. Dooley, this Court established a test to be used in determining whether

dismissal of a habeas petition is appropriate:

             As habeas proceedings are civil in nature, the rules of civil
             procedure apply to the extent they are not inconsistent with
             SDCL chapter 21-27. SDCL 15-6-81(a). Motions to dismiss,
             therefore, are appropriate to dispose of nonmeritorious

                                          -2-
#26019

             applications. A court may dismiss a habeas corpus petition for
             failure to state a claim under SDCL 15-6-12(b)(5) only if it
             appears beyond doubt that the petition sets forth no facts to
             support a claim for relief. Fact allegations must be viewed in a
             light most favorable to the petitioner. A motion to dismiss
             under § 12(b)(5) challenges the legal sufficiency of the petition.
             As the United States Supreme Court noted, when a court

                    reviews the sufficiency of a complaint, before the
                    reception of any evidence . . . its task is necessarily
                    a limited one. The issue is not whether a plaintiff
                    will ultimately prevail but whether the claimant is
                    entitled to offer evidence to support the claims.
                    Indeed it may appear on the face of the pleadings
                    that a recovery is very remote and unlikely but that
                    is not the test.

             Motions to dismiss in civil actions are generally disfavored, but
             a habeas petition may be more susceptible to dismissal because
             the remedy it seeks is limited, being in the nature of a collateral
             attack on a final judgment. To survive a motion to dismiss
             under § 12(b)(5), an application for habeas corpus must pass a
             minimum “threshold of plausibility.” If an applicant’s
             allegations are unspecific, conclusory, or speculative, the court
             may rightfully entertain a motion to dismiss. Also, if pleadings
             fail to allege a requisite element necessary to obtain relief,
             dismissal is in order.

Id. (citations omitted). Therefore, we must determine whether the facts that

Steiner alleges, if true, would support a claim for relief.

[¶6.]        Steiner has raised a claim of ineffective assistance of counsel. We have

adopted the test for ineffective assistance of counsel set forth in Strickland v.

Washington: first, the defendant must show that counsel’s performance was so

deficient that he was not functioning as “counsel” guaranteed by the Sixth

Amendment; and second, he must show that counsel’s deficient performance

prejudiced the defendant. Id. ¶ 16 (quoting Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)). The United States Supreme


                                           -3-
#26019

Court recently verified the importance of effective assistance of counsel in the plea-

bargaining process. Lafler v. Cooper, __U.S. __, __, 132 S. Ct. 1376, __ L. Ed. 2d __

(2012); Missouri v. Frye, __ U.S. __, __, 132 S. Ct. 1399, __ L. Ed. 2d __ (2012).

“Defendants have a Sixth Amendment right to counsel, a right that extends to the

plea-bargaining process.” Lafler, 132 S. Ct. at 1384. “The Sixth Amendment

requires effective assistance of counsel at critical stages of a criminal proceeding.

Its protections are not designed simply to protect the trial[.] . . . The constitutional

guarantee applies to pretrial critical stages that are part of the whole course of a

criminal proceeding, a proceeding in which defendants cannot be presumed to make

critical decisions without counsel’s advice.” Id. at 1385.

[¶7.]        Steiner alleges that his trial counsel was ineffective because he failed

to advise Steiner of the “corroborating evidence” rule. Prior to his arrest, Steiner

made several incriminating statements to law enforcement officers relating to the

sexual contact charge. Steiner asserts that these statements were the only evidence

of the criminal act. The corroboration rule is a rule of evidence providing that “the

admissibility of an extrajudicial confession is conditioned upon its corroboration by

other evidence.” State v. Best, 89 S.D. 227, 232 N.W.2d 447, 452 (1975).

“Corroborating evidence must establish the corpus delicti of the crime by

independent proof.” State v. Thompson, 1997 S.D. 15, ¶ 36, 560 N.W.2d 535, 543.

“The corroborating evidence must show (1) the fact of an injury or loss, and (2) the

fact of someone’s criminal responsibility for the injury or loss.” Id.

[¶8.]        Other courts have determined that the failure to advise of the

corroboration rule is a possible violation of the performance prong of Strickland.


                                           -4-
#26019

See Lowe v. State, 2009 WL 1677240, at *4 (Iowa App. 2009) (holding trial counsel

“failed an essential duty” by not advising his client of the corroboration rule. “We

cannot say he had the opportunity to weigh his options with knowledge of the

requirement that his confession be corroborated.”); Carlton v. State, 1993 WL

75323, at *3 (Tenn. Crim. App. 1993) (finding a petitioner who alleged ineffective

assistance of counsel for failure to advise of the corroboration rule “has alleged

circumstances which, if true, fairly raise the claim of the ineffective assistance of

counsel.”).

[¶9.]         Regarding the prejudice prong of Strickland, Steiner argues that but

for counsel’s ineffective assistance, i.e., counsel’s failure to advise of the

corroboration rule, Steiner would not have pleaded guilty.

              With regard to plea cases, the prejudice part of the Strickland
              test, “will closely resemble the inquiry engaged in by courts
              reviewing ineffective-assistance challenges to convictions
              obtained through a trial. . . . [W]here the alleged error of counsel
              is a failure to advise the defendant of a potential affirmative
              defense to the crime charged, the resolution of the ‘prejudice’
              inquiry will depend largely on whether the affirmative defense
              likely would have succeeded at trial.”

Owens v. Russell, 2007 S.D. 3, ¶ 9, 726 N.W.2d 610, 615-16 (quoting Strickland, 466

U.S. at 694, 104 S. Ct. at 2068). Although the corroboration rule is not an

affirmative defense, its application could require a judgment of acquittal. See

Thompson, 1997 S.D. 15, ¶ 39, 560 N.W.2d at 544 (“We do not find sufficient

corroborating evidence to establish that the crime of sexual contact . . . was

committed. Corpus delicti may not be presumed. . . . We hold that the trial court

erred in denying Thompson’s motion for judgment of acquittal on the charge of

sexual contact.”).

                                            -5-
#26019

[¶10.]       The State argues that Steiner’s allegations are “bald and conclusory,”

and that there was ample corroborating evidence to satisfy the corpus delicti

requirement. In fact, the State devotes a substantial portion of its brief to

presenting the evidence that it claims could have been used against Steiner at trial.

[¶11.]       Assuming, as we must, that Steiner’s factual allegations are true, his

habeas petition supports a claim for relief. If Steiner’s trial counsel did not

adequately advise him on the law regarding corroborating evidence, this deficiency

may violate the performance prong of Strickland. Regarding the prejudice

requirement, this Court is not in a position to speculate as to whether Steiner would

have been successful if he had taken his case to trial. Nor was the circuit court in

such a position when ruling on the motion to dismiss. As the United States

Supreme Court has said, “it may appear . . . that a recovery is very remote and

unlikely but that is not the test.” Jenner, 1999 S.D. 20, ¶ 13, 590 N.W.2d at 469

(quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686 (1974)).

Instead, we must only determine whether the habeas petition meets the “minimum

threshold of plausibility.” Id. We believe that it does. Steiner’s allegations are not

unspecific, conclusory, or speculative. If they are true, they may support a claim for

relief. Whether they are true and whether they actually support a claim for relief

are questions that can be decided only after an evidentiary hearing on the merits of

the habeas petition.

                                     Conclusion

[¶12.]       In order to be successful on his ineffective assistance of counsel claim,

Steiner must demonstrate that counsel’s performance was so deficient that he was


                                           -6-
#26019

not acting as “counsel,” and that he was prejudiced by this deficient performance. If

Steiner’s allegations are true, they may satisfy both of these requirements. The

State has argued at length that there is ample evidence to disprove these

allegations. But the appropriate forum for presenting this evidence is not this

Court; rather it is an evidentiary hearing on the merits of the habeas petition.

Steiner’s allegations meet the “minimum threshold of plausibility,” and the circuit

court was premature in dismissing his petition without conducting an evidentiary

hearing on the merits.

[¶13.]       Reversed.

[¶14.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

WILBUR, Justices, concur.




                                         -7-
