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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

                                    ****

                     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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