Abdulrazzak v. S.D. Bd. of Pardons & Paroles

• Decision Date: 04 March 2020
• Docket Number: #28685
• Citation: 940 N.W.2d 672
• Parties: Haider Salah ABDULRAZZAK, Petitioner and Appellant, v. South Dakota BOARD OF PARDONS AND PAROLES, Respondent and Appellee.
• Court: South Dakota Supreme Court

940 N.W.2d 672

Haider Salah ABDULRAZZAK, Petitioner and Appellant,

v.South Dakota BOARD OF PARDONS AND PAROLES, Respondent and Appellee.

#28685

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS MARCH 25, 2019

OPINION FILED March 4, 2020

Rehearing Denied March 31, 2020

HAIDER SALAH ABDULRAZZAK, Springfield, South Dakota, Pro se petitioner and appellant.

MARTY J. JACKLEY, Attorney General, CATHERINE SCHLIMGEN, Special Assistant Attorney General, Sioux Falls, South Dakota, Attorneys for respondent and appellee.

[¶1.] Justice Salter delivers the opinion of the Court on Issues 1(a) and 1(b). Retired Justice Severson delivers the opinion of the Court on Issues 1(c) and 2.

[¶2.] SALTER, Justice, writing for the Court on Issues 1(a) and 1(b).

[¶3.] Haider Abdulrazzak appeals a circuit court order dismissing as untimely his appeal of a Board of Pardons and Paroles (the Board) order revoking his parole. Abdulrazzak disputes the court’s conclusion that timely filing of the notice of appeal is a jurisdictional requirement and claims he perfected his appeal by depositing his notice of appeal in the prison mail system within the thirty-day deadline. He alternatively claims that his appeal is timely because he filed his notice of appeal within the time allowed under the rules of civil procedure governing the computation of time. Finally, Abdulrazzak argues the circuit court abused its discretion when it denied his request for a standby attorney to help him present his arguments during the hearing on the Board’s motion to dismiss his appeal.

Facts and Procedural History

[¶4.] In 2011, a jury convicted Abdulrazzak of multiple counts of possessing, manufacturing, or distributing child pornography. He was sentenced to a total of twenty-one years in prison with thirteen years suspended. Abdulrazzak appealed his convictions to this Court which affirmed by summary disposition in 2013. See State v. Abdulrazzak, 828 N.W.2d 547 (S.D. 2013) (unpublished table decision).

[¶5.] Abdulrazzak was later released from prison pursuant to a parole agreement. However, he appeared before the Board for a parole revocation hearing in early 2017 to address allegations that he had violated his supervision conditions. The Board voted to revoke Abdulrazzak’s parole and issued findings of fact, conclusions of law, and an amended order on April 13, 2017. The Board served a notice of entry of the amended order on Abdulrazzak by mail at the South Dakota State Penitentiary in Springfield on April 21. Thirty-four days later, on May 25, the Minnehaha County Clerk of Court received and filed Abdulrazzak’s pro se notice of appeal. The circuit court appointed counsel based upon Abdulrazzak’s contemporaneous application for court-appointed counsel.

[¶6.] The Board later filed a motion to dismiss Abdulrazzak’s appeal for lack of jurisdiction, claiming it was untimely. In his opposition, Abdulrazzak urged the application of what is commonly known as the prison mailbox rule to support his argument that his appeal was timely. In the jurisdictions where it exists, the prison mailbox rule generally deems an inmate’s legal documents and pleadings filed as of the date they are submitted to prison authorities who mail them to the appropriate offices for filing. See Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988). After filing the brief opposing the Board’s motion to dismiss, Abdulrazzak’s counsel moved to withdraw, citing his client’s request.

[¶7.] The circuit court conducted a hearing on June 4, 2018, and it appears that during the hearing, the court granted defense counsel’s motion to withdraw, leaving Abdulrazzak without court-appointed counsel. Abdulrazzak asserts that he requested a "standby attorney" to help him present his arguments during the hearing and that the circuit court denied his request. The record does not contain a transcript of the hearing.

[¶8.] Notwithstanding the lack of a transcript, it appears the circuit court also granted the Board’s motion to dismiss during the hearing because Abdulrazzak filed a pro se post-hearing motion for reconsideration. He contended that his counsel should have also argued in Abdulrazzak’s prehearing brief that the addition of SDCL 15-6-6(e) ’s three-day service-by-mail period made his notice of appeal timely.¹ On June 28, 2018, the circuit court filed its order dismissing Abdulrazzak’s appeal for lack of jurisdiction. On appeal to this Court, Abdulrazzak presents the following issues:

1. Whether the circuit court erred when it dismissed as untimely Abdulrazzak’s appeal of the Board’s decision revoking his parole.

2. Whether the circuit court abused its discretion by denying Abdulrazzak’s request for a standby attorney at the hearing on the motion to dismiss his appeal.

Analysis and Decision

123 [¶9.] We review a circuit court’s dismissal for lack of appellate jurisdiction "as a ‘question of law under the de novo standard of review.’ " Upell v. Dewey Cty. Comm'n, 2016 S.D. 42, ¶ 9, 880 N.W.2d 69, 72 (quoting AEG Processing Ctr. No. 58, Inc. v. S.D. Dep't of Revenue and Reg., 2013 S.D. 75, ¶ 7 n.2, 838 N.W.2d 843, 847 n.2 ). See also Watertown Co-op Elevator Ass'n v. S.D. Dep't of Revenue, 2001 S.D. 56, ¶ 7, 627 N.W.2d 167, 170 (holding that a decision to dismiss an administrative appeal to circuit court is reviewed de novo). "Further, when statutory interpretation is relevant to the inquiry, ‘statutory interpretation is also a question of law, reviewed de novo.’ " Upell, 2016 S.D. 42, ¶ 9, 880 N.W.2d at 72 (quoting AEG, 2013 S.D. 75, ¶ 7 n.2, 838 N.W.2d at 847 n.2 ). In addition, we review "legal questions arising under the rules of civil procedure de novo, utilizing our established rules for statutory construction." Leighton v. Bennett, 2019 S.D. 19, ¶ 7, 926 N.W.2d 465, 467-68 (citing Moore v. Michelin Tire Co., Inc., 1999 S.D. 152, ¶ 16, 603 N.W.2d 513, 519-20 ).

1. Whether the circuit court erred when it dismissed as untimely Abdulrazzak’s appeal of the Board’s decision revoking his parole.

(a) The Circuit Court’s Appellate Jurisdiction under Chapter 1-26

[¶10.] The Board operates under the direction and supervision of the Department of Corrections. SDCL 24-13-3. It is generally governed by the Administrative Procedure Act which lists the following requirements for administrative appeals:

An appeal shall be taken by serving a copy of a notice of appeal upon the adverse party, upon the agency, and upon the hearing examiner, if any, who rendered the decision, and by filing the original with proof of such service in the office of the clerk of courts of the county in which the venue of the appeal is set, within thirty days after the agency served notice of the final decision or, if a rehearing is authorized by law and is requested, within thirty days after notice has been served of the decision thereon.

SDCL 1-26-31 (emphasis added).

[¶11.] We have held that this statute "clearly delineates who must be served with a notice of appeal and when and where it must be filed in order to transfer jurisdiction from the executive to the judicial branch." Slama v. Landmann Jungman Hosp., 2002 S.D. 151, ¶ 4, 654 N.W.2d 826, 827 (quoting Schreifels v. Kottke Trucking, 2001 S.D. 90, ¶ 12, 631 N.W.2d 186, 189 ). We have further determined that satisfying the requirements of SDCL 1-26-31 is essential to a circuit court’s appellate jurisdiction. Schreifels, 2001 S.D. 90, ¶ 7, 631 N.W.2d at 188.

[¶12.] Here, the Board served notice of entry of its order revoking Abdulrazzak’s parole on April 21, 2017. He filed his notice of appeal of the order on May 25, thirty-four days later, making the appeal appear to be untimely on its face. Abdulrazzak initially seeks to avoid the impact of this apparent untimeliness by arguing that the period for appealing the Board’s decision is not a jurisdictional requirement. However, as indicated, this argument is definitively foreclosed by our precedent. Id. Abdulrazzak’s next argument, urging us to adopt the prison mailbox rule, is equally unavailing.²

(b) The Prison Mailbox Rule

4 [¶13.] Originally instituted in Houston, the prison mailbox rule results principally from the United States Supreme Court’s interpretation of 28 U.S.C. § 2107, which requires only timely "fil[ing]" for a notice of appeal in federal civil cases. 487 U.S. at 272, 108 S. Ct. at 2383. Believing this to be an imprecise textual requirement and citing the practical limitations pro se prisoner litigants face by virtue of their incarceration, the Supreme Court held that a prisoner timely filed a notice of appeal in a federal habeas corpus action when he delivered the notice to prison authorities who would forward it to the appropriate clerk of court. Id. at 276, 108 S. Ct. at 2385. See also Fed. R. App. P. 4(c) (incorporating the Houston decision and mailbox rule into the Federal Rules of Appellate Procedure).

[¶14.] The Houston decision, however, does not purport to state a constitutional rule, and some states have adopted their own versions of the prison mailbox rule, while others have declined to do so. See generally Barbara J. Van Arsdale, Annotation, Application of "Prisoner Mailbox Rule" by State Courts Under State Statutory and Common Law, 29 A.L.R. 6th 237, 274-82, 314-22 (2007). Appellate courts in Minnesota and Nebraska, for instance, have opted not to apply a prison mailbox rule in light of state law requirements that a notice of appeal actually be filed with the clerk of court.³ See, e.g., Toua Hong Chang v. State, 778 N.W.2d 388, 392 (Minn. Ct. App. 2010) ; State v. Parmar, 255 Neb. 356, 586 N.W.2d 279, 283-84 (1998).

[¶15.] In Chang, the Minnesota Court of Appeals refused to recognize the prison mailbox rule and held that a prisoner’s post-conviction petition was untimely because it was not filed with the trial court within the statutory deadline. 778 N.W.2d at 392. The court noted that the applicable statutes required the petitioner to commence a post-conviction action "by filing a petition in the [trial] court" within...