#27085-denied-SLZ

2014 S.D. 66

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                     ****

FRANK ASHLEY,                                      Petitioner,

      v.

DARIN YOUNG, Warden
of the South Dakota State Penitentiary             Respondent.

                                     ****

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

                                     ****

                    THE HONORABLE ROBERT A. MANDEL
                                Judge

                                     ****

JOHN R. MURPHY
Murphy Law Office, PC
Rapid City, South Dakota                           Attorneys for petitioner.

MARTY J. JACKLEY
Attorney General
Pierre, South Dakota

Mark A. Vargo
Pennington County State’s Attorney

Patrick M. Grode
Pennington County Deputy State’s Attorney
Rapid City, South Dakota                           Attorneys for respondent.

                                     ****

                                            CONSIDERED ON BRIEFS
                                            AUGUST 14, 2014

                                            OPINION FILED 9/17/2014
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ZINTER, Justice

[¶1.]         Frank Ashley moved this Court for a certificate of probable cause

(CPC) to appeal the circuit court’s denial of his petition for habeas corpus. In

denying the motion, we clarify the standard of review and showing necessary for

applicants to obtain CPCs from this Court.

                           Facts and Procedural History

[¶2.]         In 2009, Frank Ashley was found guilty of three counts of third-degree

rape of a victim less than sixteen years of age; one count of fourth-degree rape of a

victim between thirteen and sixteen years of age; four counts of sexual contact with

a child under sixteen years of age; and one count of aggravated incest. He was

sentenced to fifteen years imprisonment on each conviction, to be served

consecutively, for a total of 135 years. This Court summarily affirmed the

conviction on direct appeal (#25346).

[¶3.]         Ashley submitted his first application for writ of habeas corpus in

2011. The circuit court dismissed the application and denied the issuance of a CPC.

Pursuant to SDCL 21-27-18.1, Ashley moved this Court for a CPC to permit an

appeal of the denial of his application. In 2012, this Court reversed the habeas

court’s dismissal and remanded the matter for an evidentiary hearing on Ashley’s

claims. 1



1.      This Court’s order was based on the then-recent holding in Steiner v. Weber,
        2011 S.D. 40, 815 N.W.2d 549. Steiner reinforced the requirement that
        where assertions in a habeas application meet the “minimum threshold of
        plausibility,” and where those assertions require an evidentiary hearing
        before they can support a claim for relief, the habeas court must hold an
                                                             (continued . . .)
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[¶4.]        After a continuance requested by Ashley, the habeas court held an

evidentiary hearing in November 2013. The court received evidence, including

testimony from Ashley, Ashley’s trial counsel Ellery Grey, and the State’s expert

witness, attorney Robert Van Norman. The court entered findings of fact,

conclusions of law, and an order denying Ashley’s application. The

court also denied Ashley’s motion for a CPC.

[¶5.]        Ashley now seeks to appeal the habeas court’s final order denying

relief. A final order entered in habeas corpus proceedings “may not be reviewed by

the Supreme Court . . . on appeal unless the circuit judge who renders the judgment

or a justice of the Supreme Court issues a certificate of probable cause that an

appealable issue exists.” SDCL 21-27-18.1. Because the habeas court denied

Ashley’s motion for a CPC, he has filed a motion for a CPC with this Court.

                                       Decision

[¶6.]        At its core, the CPC procedure is designed for this Court to conduct

“discretionary appellate review of habeas petitions.” See Lange v. Weber, 1999 S.D.

138, ¶ 10, 602 N.W.2d 273, 275-76 (citing Lynch v. Blodgett, 999 F.2d 401, 403 (9th

Cir. 1993)). Discretionary appellate review is “[t]he primary means of separating

meritorious from frivolous appeals,” see id. (quoting Barefoot v. Estelle, 463 U.S.

880, 892-93, 103 S. Ct. 3383, 3394, 77 L. Ed. 2d 1090 (1983)) (internal quotation

marks omitted), an essential procedure given the “increasing burden of frivolous

appeals in post-conviction proceedings,” see id. ¶ 12, 602 N.W.2d at 276.

(. . . continued)
         evidentiary hearing before it can dismiss an application. See id. ¶ 11, 815
         N.W.2d at 553.

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[¶7.]         Before Lange, there was limited authority—a single statute, SDCL 21-

27-18.1, and little state case law 2—on which to rely in reviewing CPC motions.

Recognizing that the purpose of our CPC procedure was similar to the federal

courts’ certificate of appealability, the Lange Court adopted the federal certificate of

appealability standards relating to the content of a CPC granted by a circuit court.

See 1999 S.D. 138, ¶¶ 11-12, 602 N.W.2d at 276. 3 This Court limited its adoption of

the federal standards to the requirements of the CPC itself. Doing so addressed the

limited controversy before us in Lange: it resolved a habeas court’s dismissal of a

habeas application as meritless and its contradictory issuance of a certificate

indicating that there was probable cause to appeal. See id. ¶ 13, 602 N.W.2d at 276.

Although Lange provided instruction on how habeas courts were to issue CPCs, this


2.      Only two cases prior to Lange construed our CPC procedure. See Wayrynen v.
        Class, 1998 S.D. 111, ¶¶ 14-16, 586 N.W.2d 499, 501 (holding that a failure to
        file a CPC motion before the deadline because of court clerk clerical error did
        not make it untimely); Singletary v. State, 88 S.D. 655, 658, 227 N.W.2d 424,
        425 (1975) (noting, as Lange concluded later, that it was inconsistent for a
        habeas court to both summarily dismiss an application for habeas relief and
        issue a CPC).

3.      Lange requires:

              [I]f the trial court denies an application in a habeas claim, it
              must either issue a certificate of probable cause or state why a
              certificate should not issue. A specific showing of probable cause
              must be articulated on the certificate in order to confer
              jurisdiction upon this Court to review the denial of a habeas
              corpus petition. The certificate must make “a substantial
              showing of the denial of a constitutional right.” 28 U.S.C.
              2253(c)(2). In addition, the certificate must indicate which
              specific issue or issues satisfy the showing of the denial of a
              constitutional right.

        Id. ¶ 12, 602 N.W.2d at 276.

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Court has yet to provide similar guidance on the standard of review and the

showing an applicant must make to obtain a CPC.

[¶8.]        SDCL 21-27-18.1 provides that a CPC certifies there is “probable cause

that an appealable issue exists.” Lange added the requirement that a habeas

court’s CPC must indicate “a substantial showing of the denial of a constitutional

right.” Lange, 1999 S.D. 138, ¶ 12, 602 N.W.2d at 276 (quoting 28 U.S.C. §

2253(c)(2)). By adopting the federal standard, Lange interpreted SDCL 21-27-18.1’s

“probable cause” language to require a substantial showing of the denial of a

constitutional right. Although this showing concerned the certificate itself, it also

necessarily describes an applicant’s required showing to obtain a CPC. See Lange,

1999 S.D. 138, ¶ 9, 602 N.W.2d at 275 (“[A] certificate may only issue if the

applicant ‘has made a substantial showing of the denial of a constitutional right.’”

(quoting 28 U.S.C. § 2253(c)(2))).

[¶9.]        The “substantial showing” requirement is imposed because a motion

for a CPC is not an appeal of the underlying habeas matter, or a proxy thereof. It is

an intermediate procedure affording this Court “discretionary appellate review of

habeas petitions.” See Lange, 1999 S.D. 138, ¶ 10, 602 N.W.2d at 275-76. SDCL 21-

27-18.1 and the federal certificate of appealability statute share this purpose of

providing intermediate, discretionary review. Under the similar federal procedure,

the appropriate standard of review does not permit a reviewing court to give “full

consideration [to] the factual and legal bases adduced in support of the claims.” See

Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931

(2003) (referring to 28 U.S.C. § 2253). We agree with that proposition under SDCL

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21-27-18.1. To consider the full merits of the factual and legal claims in a

petitioner’s CPC motion, this Court would need the complete record. Moreover,

such a procedure would circumvent the intermediate, discretionary review

jurisdiction the Legislature provided in SDCL 21-27-18.1. Cf. Miller-El, 537 U.S. at

336-37, 123 S. Ct. at 1039 (concluding, with regard to 28 U.S.C. § 2253, “[w]hen a

court of appeals sidesteps the preliminary appealability process by first deciding the

merits of an appeal and then justifying its denial of a [certificate] based on its

adjudication of the actual merits, it is in essence deciding an appeal without

jurisdiction”).

[¶10.]        Given the similarities between SDCL 21-27-18.1 and 28 U.S.C. § 2253,

and considering our decision in Lange, federal case law provides further guidance

on the standard that applies in reviewing whether a substantial showing of the

denial of a constitutional right has been made under SDCL 21-27-18.1. A

“substantial showing” is “a showing that reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were ‘adequate to deserve encouragement to

proceed further.’” Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595, 1603-

04, 146 L. Ed. 2d 542 (2000) (quoting Barefoot, 463 U.S. at 893 n.4, 103 S. Ct. at

3394 n.4). The applicant bears the burden of proof, and ultimately “must

demonstrate that reasonable jurists would find the [habeas] court’s assessment of




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the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338, 123 S. Ct.

at 1040 (quoting Slack, 529 U.S. at 484, 120 S. Ct. at 1604). 4

[¶11.]         Ashley’s showing does not address the habeas court’s assessment. His

application consists of a motion, in brief format. The brief contains a summary of

Ashley’s claims. Within his arguments, Ashley references selected evidentiary

hearing testimony and authorities. But his motion/brief essentially repeats the

arguments he made to the habeas court at the habeas hearing. Such a showing is

insufficient to enable us to conduct discretionary review because Ashley fails to

address the habeas court’s post-hearing assessment. In other words, Ashley fails to

address how the habeas court’s findings of fact and conclusions of law were


4.       In a more detailed description, the Supreme Court explained:

               A prisoner seeking a [certificate] must prove “‘something more
               than the absence of frivolity’” or the existence of mere “good
               faith” on his or her part. Barefoot, supra, at 893, 103 S. Ct.
               3383. We do not require petitioner to prove, before the issuance
               of a [certificate], that some jurists would grant the petition for
               habeas corpus. Indeed, a claim can be debatable even though
               every jurist of reason might agree, after the [certificate] has
               been granted and the case has received full consideration, that
               petitioner will not prevail. As we stated in Slack, “[w]here a
               district court has rejected the constitutional claims on the
               merits, the showing required to satisfy § 2253(c) is
               straightforward: The petitioner must demonstrate that
               reasonable jurists would find the district court’s assessment of
               the constitutional claims debatable or wrong.” 529 U.S., at 484,
               120 S. Ct. 1595.

         Miller-El, 537 U.S. at 338, 123 S. Ct. at 1040 (fourth alteration in original).
         In Barefoot, the Supreme Court described the “more than the absence of
         frivolity” and the “more than good faith” thresholds as being “a higher one
         than the ‘good faith’ requirement of [28 U.S.C. §] 1915.” 463 U.S. at 893, 103
         S. Ct. at 3394 (citing Blackmun, Allowance of In Forma Pauperis Appeals in §
         2255 and Habeas Corpus Cases, 43 F.R.D. 343, 352 (8th Cir. 1967)).

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debatable or wrong. Because Ashley failed to address the habeas court’s findings of

fact and conclusions of law, he failed to “demonstrate that reasonable jurists would

find the [habeas] court’s assessment of the constitutional claims debatable or

wrong.” See id, 537 U.S. at 338, 123 S. Ct. at 1040 (emphasis added) (quoting Slack,

529 U.S. at 484, 120 S. Ct. at 1604). Instead, Ashley effectively asks this Court, on

a limited record, to undertake a similar review that the habeas court undertook.

But the habeas court’s review was informed by the observation of live testimony and

a review of the entire record. Future applicants appealing the denial of habeas

relief on the evidence 5 must cite the habeas court’s findings of fact, conclusions of

law, and analysis; and then, present an argument demonstrating why they lacked

such merit that the habeas court’s assessment of the constitutional claims was

debatable or wrong. Future showings that do not address the habeas court’s

findings of fact and conclusions of law will no longer be deemed adequate to warrant

this Court’s discretionary review of an application for a CPC.

[¶12.]         Nevertheless, because this is the first time we have articulated these

requirements, we exercise our discretion to review Ashley’s showing. Discretionary

review begins with “an overview of the claims in the habeas petition and a general

assessment of their merits.” See Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039. This

is a case where, regardless of Ashley’s lack of argument regarding the habeas

court’s assessment, the facts and law are clear. An overview of Ashley’s claims and


5.       Our consideration of a CPC following a summary dismissal of the habeas
         application on its claims is governed by the standard reiterated in Steiner.
         See 2011 S.D. 40, ¶ 5, 815 N.W.2d at 551 (quoting Jenner v. Dooley, 1999 S.D.
         20, ¶ 13, 590 N.W.2d 463, 469).

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#27085

our assessment of their merits reveals that the habeas court’s assessment was not

debatable or wrong. 6 Because Ashley failed to make a substantial showing of the

denial of a constitutional right, he failed to establish probable cause that an

appealable issue exists for appellate review. Ashley’s motion for issuance of a CPC

is denied.

[¶13.]         GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




6.       Ashley argues there is probable cause that appealable issues exist on his
         claims of: (1) ineffective assistance of trial counsel, (2) improper admission of
         other acts evidence, (3) failure to comply with requests for a bill of
         particulars, (4) trial court bias, (5) cruel and unusual punishment, and (6)
         increasing his sentence because he chose not to participate in a psychosexual
         evaluation. But the habeas court’s unrefuted, fact-based rationale is
         supported by the record and the court’s law-based rationale rests on well-
         settled interpretations of law. See Graham v. State, 328 N.W.2d 254, 256
         (S.D. 1982) (quoting State v. Hartley, 326 N.W.2d 226, 228 (S.D. 1982))
         (alteration in original) (“It is not our function to make findings or conclusions
         . . . ; rather, it is our province to determine if the findings are supported by
         evidence and if the conclusions are warranted by findings.”).

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