#25626-a-PER CURIAM

2010 S.D. 105

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                * * * *

STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

STANLEY REED,                             Defendant and Appellant.



                                * * * *

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

                                * * * *

                        HONORABLE JEFF W. DAVIS
                                Judge

                                * * * *

MARTY J. JACKLEY
Attorney General

ANDREW KNECHT
Assistant Attorney General                Attorneys for plaintiff
Pierre, South Dakota                      and appellee.

MITCHELL D. JOHNSON of
Johnson Law Office                        Attorney for defendant
Rapid City, South Dakota                  and appellant.

                                * * * *

                                          CONSIDERED ON BRIEFS
                                          ON NOVEMBER 15, 2010

                                          OPINION FILED 12/29/10
#25626

PER CURIAM.

[¶1.]        Stanley Reed (Reed) filed a petition for writ of habeas corpus including

an application for court-appointed counsel. The habeas court found Reed’s petition

“frivolous” and therefore not made in “good faith” as required by SDCL 21-27-4.

Reed’s petition and request for appointed counsel were denied. We adopt an

objective definition of “good faith,” one that includes a determination that the issues

raised in the petition are not frivolous, in interpreting SDCL 21-27-4. The habeas

court is affirmed.

                                  BACKGROUND

[¶2.]        Reed pleaded guilty to felony distribution of a controlled substance and

third-degree rape. Reed filed a petition for a writ of habeas corpus accompanied by

a request for court-appointed counsel. After his petition was dismissed by the

habeas court, Reed moved this Court for a certificate of probable cause (CPC) in

order to appeal dismissal of his petition. This Court granted the motion for CPC to

address the definition of “good faith” as used in SDCL 21-27-4.

                           ANALYSIS AND DECISION

[¶3.]        SDCL 21-27-4 provides in part:

             If a person has been committed, detained, imprisoned or
             restrained of his liberty, under any color or pretense whatever,
             civil or criminal, and if upon application made in good faith to
             the court or judge thereof, having jurisdiction, for a writ of
             habeas corpus, it is satisfactorily shown that the person is
             without means to prosecute this proceeding, the court or judge
             shall appoint counsel for the indigent person pursuant to
             chapter 23A-40.

[¶4.]        The habeas court interpreted the “good faith” requirement of this

section to qualify the statutorily mandated appointment of habeas counsel such that

                                          -1-
#25626

counsel need only be appointed when the petition raises any issue that is not

frivolous. As stated by the habeas court, “a petition which lists only frivolous, or

meritless, grounds for habeas relief is not made in good faith and does not warrant

the appointment of counsel.”

[¶5.]        This Court has not previously addressed the language of SDCL 21-27-4

conditioning appointment of counsel “upon application made in good faith.” Some

guidance is provided in SDCL 2-14-2. This section states in relevant part:

             Terms used throughout the code of laws enacted by § 2-16-13,
             mean: . . . “Good faith,” an honest intention to abstain from
             taking any unconscientious advantage of another, even through
             the forms or technicalities of law, together with an absence of all
             information or belief of facts which would render the transaction
             unconscientious[.]

Id. But inclusion of “render the transaction unconscientious” suggests this

definition is meant for use in a transactional context.

[¶6.]        Reed urges a subjective definition of “good faith.” This Court has

previously defined “good faith” in this manner. See, e.g., B.W. v. Meade County, 534

N.W.2d 595, 598 (S.D. 1995) (“Acting in good faith denotes performing honestly,

with proper motive, even if negligently.”). This Court has not, however, applied

such a definition of “good faith” in the context of SDCL 21-27-4.

[¶7.]        Reed cites authority from other jurisdictions that comment on the

importance of habeas counsel. While those cases articulate the value of habeas




                                          -2-
#25626

counsel, each of the jurisdictions cited allow habeas courts to refuse appointed

counsel to petitioners who have filed frivolous petitions. 1



1.    “However, there is no requirement that a court, in every instance, appoint
      counsel.” Mugnano v. Painter, 575 S.E.2d 590, 592 (W. Va. 2002). This
      rationale is based upon the relevant portion of the West Virginia code, which
      states: “If the court . . . is satisfied that the facts alleged in this regard are
      true, and that the petition was filed in good faith, and has merit or is not
      frivolous, the court shall order that the petitioner proceed in forma pauperis
      and the court shall appoint counsel for the petitioner.” W. Va. Code § 53-4A-
      4(a) (emphasis added).

      The Virginia authority Reed cites contains the following language:

             The rule adopted by the majority of the courts is that while a
             petitioner is not in every instance entitled to the assistance of
             counsel in the prosecution of his petition for writ of habeas
             corpus, the nature and the contents of the relief sought and the
             basis of the error or defect charged may require that such
             appointment be made. If it appears from a reading of the
             petition that the points raised are frivolous and plainly do not
             justify a judicial inquiry, as is frequently the case, the
             appointment of counsel is not required.

      Darnell v. Peyton, 160 S.E.2d 749, 751 (Va. 1968) (emphasis added).

      Similarly the New York case Reed cites recognizes the importance of habeas
      corpus and therefore the importance of habeas counsel, but acknowledges:
      “In so holding, it is not concluded that in every habeas corpus proceeding,
      however baseless, or however repetitious, the court must burden the Bar with
      responsibilities for futile representation of litigious prisoners.” People ex. rel.
      Williams v. La Vallee, 225 N.E.2d 735, 736 (N.Y. 1967) (emphasis added).

      Reed quotes extensively from a recent Nevada Supreme Court case
      addressing factors to be applied in determining whether habeas counsel
      should be appointed. The case quoted, however, acknowledges that the
      Nevada statutory scheme allows discretion for appointment of post-conviction
      counsel. “NRS 34.750 provides for the discretionary appointment of post-
      conviction counsel . . . .” Ford v. Nevada, 2009 WL 1492140, *1 (Nev. 2009)
      (unpublished) (emphasis added).

      Reed also cites a Pennsylvania case discussing the preference for
      appointment of counsel when the factual and legal issues are complex. But
                                                                (continued . . .)
                                        -3-
#25626

[¶8.]         The habeas court borrowed the U.S. Supreme Court’s interpretation of

“good faith” used for determining whether to allow indigent defendants to appeal in

forma pauperis. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8

L.Ed.2d 21 (1962). The statutory language interpreted by Coppedge reads: “An

appeal may not be taken in forma pauperis if the trial court certifies in writing that

it is not taken in good faith.” 28 U.S.C.A. 1915(a)(3). In this context, the U.S.

Supreme Court rejected a subjective construction of “good faith.” Coppedge, 369

U.S. at 444-45, 82 S.Ct. at 920-21. Instead, the Supreme Court adopted an objective

standard for determining “good faith.” “We consider a defendant’s good faith in this

type of case demonstrated when he seeks appellate review of any issue not

frivolous.” Coppedge, 369 U.S. at 445, 82 S.Ct. at 921.

[¶9.]         The habeas court further cited Eighth Circuit precedent requiring a

showing of non-frivolousness prior to appointment of federal habeas counsel. The

language examined by the Eighth Circuit reads: “Whenever the United States

magistrate judge or the court determines that the interests of justice so require,

____________________________
(. . . continued)
         the specific holding of that case was that “we are unable to conclude that the
         court below abused its discretion in denying appellant’s request for the
         appointment of counsel.” Commonwealth ex. rel. Bell v. Russell, 220 A.2d
         632, 634 (Pa. 1966).

        Finally, Reed cites Louisiana authority. The Louisiana court held: “except
        under special circumstances where counsel will not be of assistance,
        appointment of counsel to represent a habeas petitioner at his evidentiary
        hearing is necessary to insure a full, fair, and impartial proceeding.” Cherry
        v. Cormier, 281 So.2d 99, 103 (La. 1973). Even this case, however, stands for
        the proposition that when an evidentiary hearing is conducted, a petitioner
        should be appointed counsel. But the South Dakota habeas scheme does not
        require an evidentiary hearing on every habeas petition. See Clothier v.
        Solem, 444 N.W.2d 384, 385 (S.D. 1989).

                                          -4-
#25626

representation may be provided for any financially eligible person. . . .” 18 U.S.C.

3006(a)(2). Federal interpretation of this statute to include a finding of non-

frivolousness is clear. Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 1994) (“If the

petitioner has presented only claims that are frivolous or clearly without merit, the

district court should dismiss the case on the merits without appointing counsel.”).

[¶10.]       But we must consider that South Dakota provides greater protection to

habeas petitioners than provided by the federal scheme. In Sweeney v. Leapley, this

Court adopted the Anders briefing procedure for appointed habeas counsel who

determines their client’s appeal to be without merit. 487 N.W.2d 617, 620 (S.D.

1992) (citing Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400, 18

L.Ed.2d 493, 498-99 (1967) (requiring appointed counsel who have determined their

client’s position to be without merit to include with their request to withdraw a brief

“referring to anything in the record that might arguably support the appeal.”)). The

U.S. Supreme Court has determined this procedure does not apply in federal habeas

proceedings. Id. at 619 (citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990,

95 L.Ed.2d 539 (1987)). In Sweeney, this Court explicitly provided more protection

to indigent state habeas petitioners than afforded by the federal courts. “We feel

that South Dakota should provide more protection than afforded in Finley. We have

authorized writs of habeas corpus by statute, SDCL ch. 21-27, and by our own

constitution, Art. V, § V and Art. VI, § VII. Our statutes authorize court appointed

counsel, SDCL 21-27-4.” Id. at 620. But Sweeney does not address application of

“good faith” as used in SDCL 21-27-4. Nor does it mandate that all habeas

petitioners, even those raising only frivolous allegations, be appointed counsel.


                                          -5-
#25626

[¶11.]       There is no constitutional right to habeas counsel. But this Court has

recognized the statutory right to counsel for indigent prisoners. “It is beyond

dispute that our legislature has required that counsel be appointed for indigent

prisoners in habeas proceedings. SDCL 21-27-4. Our legislature has spoken in

spite of the fact that the United States Constitution does not mandate this

requirement.” Jackson v. Weber, 2001 S.D. 136, ¶ 12, 637 N.W.2d 19, 22 (citing

Coleman v. Thompson, 501 U.S. 722, 755, 111 S.Ct. 2546, 2567, 115 L.Ed.2d 640,

672 (1991)). While the legislature requires that counsel be appointed for indigent

prisoners in habeas proceedings, it has conditioned that appointment “upon

application made in good faith.” SDCL 21-27-4. Like Sweeney, Jackson does not

interpret “good faith” as used in 21-27-4.

[¶12.]       The U.S. Supreme Court settled on an objective definition of “good

faith” because of the problems associated with a subjective interpretation.

             Such a construction would deprive the legislation of sensible
             meaning, there probably being no convicted defendant who
             would not sincerely wish a Court of Appeals to review his
             conviction. Further, a subjective standard might suggest that
             only persons who, in good conscience, could insist on their
             innocence, are to be entitled to a review of their convictions
             without payment of costs.

Coppedge, 369 U.S. at 444-45, 82 S.Ct. at 920-21. Likewise, in the present context,

most likely all prisoners sincerely desire an attorney to help discover and establish

constitutional deprivations which may set them free. Therefore, a subjective

interpretation of “good faith” would not effectively qualify “application,” rendering

“good faith” meaningless.




                                             -6-
#25626

[¶13.]       Even though South Dakota offers habeas petitioners greater protection

than the federal scheme, this Court has an obligation to interpret statutes to grant

meaning to all language. Wiersma v. Maple Leaf Farms, 1996 S.D. 16, ¶ 5, 543

N.W.2d 787, 789 (“We presume the Legislature never intends to use surplusage in

its enactments, so where possible the law must be construed to give effect to all its

provisions.”). An objective interpretation, requiring a petition to be not frivolous

before counsel must be appointed, prevents the “good faith” requirement of SDCL

21-27-4 from becoming meaningless. Therefore, an application is submitted in

“good faith,” pursuant to SDCL 21-27-4, when the petitioner alleges grounds for

habeas relief that are not frivolous.

[¶14.]       Those courts requiring a habeas petition be not frivolous before

appointment of counsel is required agree that appointment of counsel is left to the

discretion of the habeas court. “The appointment of counsel, in both state and

federal collateral proceedings, is generally a matter left to the discretion of the court

concerned.” Cherry, 281 So.2d at 101. See also Wise v. State, 708 N.W.2d 66, 69

(Iowa 2006). Therefore, this Court reviews the habeas court’s denial of requested

counsel, and thus the determination of frivolity, for an abuse of discretion.

[¶15.]       Reed’s petition for habeas corpus alleges ineffective assistance of

counsel based upon his mental state at the time he pleaded guilty. Essentially,

Reed argues his counsel gave him erroneous advice regarding pleading guilty in

light of his mental status. Reed suggests that but for the erroneous advice of

counsel he would not have pleaded guilty.




                                           -7-
#25626

[¶16.]         As pointed out by the habeas court, Reed completed competency

treatment prior to pleading guilty. Upon completion of this treatment, the trial

court held an evidentiary hearing regarding Reed’s competency. Dr. Ramesh

Somepalli, who treated Reed at the Human Services Center in Yankton, testified

that Reed was competent to stand trial, able to understand the proceedings, and

able to assist his attorney.

[¶17.]         In order to establish ineffective assistance of counsel, Reed must

overcome a strong presumption in favor of effective representation. See, e.g., Dillon

v. Weber, 2007 S.D. 81, ¶ 7, 737 N.W.2d 420, 424. At the change of plea hearing,

Reed testified that his pleas were free and voluntary. Reed also testified that the

medication he was taking at the time of the change of plea helped him focus better.

The habeas court did not abuse its discretion in deciding the issues raised in the

petition for writ of habeas corpus were frivolous.

[¶18.]         “Good faith,” as that term is used in SDCL 21-27-4, is demonstrated

when a petitioner raises any basis for habeas relief that is not frivolous. The

habeas court did not abuse its discretion when it determined that Reed’s petition,

which did not proceed to a hearing, raised only frivolous allegations. 2 The order of




2.       A habeas petitioner is not entitled to an evidentiary hearing. Clothier, 444
         N.W.2d at 385. However, if an evidentiary hearing is to be conducted, the
         habeas court should consider this in determining whether to appoint counsel.
         While not presently before us, this Court notes the Louisiana approach,
         which requires habeas counsel be appointed before an evidentiary hearing.
         “Except under special circumstances where counsel will not be of assistance,
         appointment of counsel to represent a habeas petitioner at his evidentiary
         hearing is necessary to insure a full, fair, and impartial proceeding.” Cherry,
         281 So.2d at 103.

                                            -8-
#25626

the habeas court denying Reed habeas counsel and dismissing the petition for writ

of habeas corpus is affirmed.

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

MEIERHENRY, and SEVERSON, Justices, participating.




                                        -9-
