Bostick v. Weber
| Citation | 2005 SD 12,692 NW 2d 517 |
| Decision Date | 19 January 2005 |
| Docket Number | No. 23243-a-DG.,23243-a-DG. |
| Parties | FRED ALFRED BOSTICK, Petitioner and Appellant, v. DOUGLAS WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee. |
| Court | Supreme Court of South Dakota |
STEVE MILLER, Sioux Falls, South Dakota, Attorney for petitioner and appellant.
LAWRENCE E. LONG, Attorney General, FRANK GEAGHAN, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.
[¶ 1.] Petitioner Fred A. Bostick filed a habeas corpus petition alleging ineffective assistance of counsel at his original trial in 1997. After a certificate of probable cause had been issued but before the habeas hearing was held, the Petitioner was paroled from the state penitentiary. The circuit court held Bostick's parole mooted his right to seek habeas relief in the courts of South Dakota. Bostick appealed contending the conditions of his parole constituted custody and imposed a significant restraint on his liberty within the meaning of SDCL 21-27-1, and therefore he was entitled to seek habeas relief. Affirmed.
[¶ 2.] On May 5, 1997, Fred A. Bostick escaped while a prisoner at the Minnehaha County Community Corrections Facility in Sioux Falls, South Dakota. Petitioner was charged with escape in violation of SDCL 22-11A-2, and subsequently convicted by a jury.1 On February 12, 1998, Petitioner was sentenced by the Honorable Judith Meierhenry to eight years in the state penitentiary.
[¶ 3.] In July 2001, Petitioner filed a pro se habeas action while in custody at the State Penitentiary. Attorney Steve Miller was appointed by the circuit court to assist Petitioner with his request for habeas relief. The State's motion to dismiss the petition was granted by the circuit court, which then denied a certificate of probable cause. After appeal, this Court issued an order of limited remand, directing that Petitioner's claim of ineffective assistance of counsel be heard on the merits and decided.
[¶ 4.] In December 2003, prior to the habeas hearing, Petitioner was granted parole effective February 3, 2004. A hearing was held in circuit court to determine if Petitioner's parole mooted his habeas action. The circuit court ruled the habeas action was mooted by Petitioner's parole and dismissed the habeas petition.
[¶ 5.] After the circuit court's dismissal of the habeas action on April 2, 2004, Petitioner requested a certificate of probable cause to appeal the circuit court's ruling on the issue of mootness. This Court issued an order of limited remand, directing the circuit court to determine the issue of mootness. The sole issue on appeal is one of first impression in South Dakota:
Whether a formerly incarcerated inmate on conditional parole, but not physically confined to a particular facility, is "committed or detained, imprisoned or restrained of his liberty" within the meaning of SDCL 21-27-1 such that a habeas corpus action is not rendered moot.
[¶ 6.] "Statutory interpretation and application are questions of law." Block v. Drake, 2004 SD 72, ¶8, 681 NW2d 460, 463 (citing Steinberg v. State Dept. of Military Affairs, 2000 SD 36, ¶6, 607 NW2d 596, 599). We review conclusions of law concerning a writ of habeas corpus under the de novo standard, giving no deference to the lower court's decisions. Jackson v. Weber, 2001 SD 30, ¶9, 637 NW2d 19, 22 (citing Jenner v. Dooley, 1999 SD 20, ¶11, 590 NW2d 463, 468).
[¶ 7.] We use statutory construction to discover the true intent of the legislature in enacting the law, which is ascertained primarily from the language used in the statute. State v. Myrl & Roy's Paving, Inc., 2004 SD 98, ¶6, 686 NW2d 651, 653 (citing Martinmaas v. Engelmann, 2000 SD 85, ¶49, 612 NW2d 600, 611). We confine ourselves to the language used by the legislature in order to determine what the legislature said, rather than what the courts think it should have said. State v. I-90 Truck Haven Service, Inc., 2003 SD 51, ¶3, 662 NW2d 288, 290 (citing Martinmaas, 2000 SD 85, ¶49, 612 NW2d at 611). In doing so, we must attempt to give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject. Id.
[¶ 8.] Under the South Dakota habeas corpus statute, a petitioner is not entitled to a writ of habeas corpus unless the petitioner is "committed or detained, imprisoned or restrained of his liberty." SDCL 21-27-1 (emphasis added).2 An appeal by a petitioner who is not committed, detained, imprisoned, or restrained of his liberty, is moot and we will not consider its merits. Moeller v. Solem (Moeller I), 363 NW2d 412, 414 (SD 1985) (citing Application of Painter, 85 SD 156, 161, 179 NW2d 12, 14 (1970)). Mootness arises when an individual has finished serving his sentence and is discharged from prison or confinement. Ex parte Wilken, 22 SD 135, 136, 115 NW 1075, 1075 (1908). Mootness also bars habeas relief when an individual is admitted to bail, as that individual is no longer in custody nor restrained of his or her freedom. Painter, 85 SD at 159, 179 NW2d at 13.
[¶ 9.] Mootness also precludes relief when a petitioner seeks to use the habeas remedy to challenge a prior conviction for which a sentence has been completed, as mootness cannot be overcome based on the possibility that a past criminal conviction may enhance the penalty for a future conviction. Moeller I, 363 NW2d at 414. This Court will "not hear any appeal on the assumption that the defendant will commit another crime and be imprisoned again." Id. (quoting Maxwell v. State, 261 NW2d 429, 432 (SD 1978)).
[¶ 10.] Petitioner argues that "restrained of his liberty" encompasses more than physical restraint. Petitioner contends the phrase should be read to include an individual on parole, as such a person is considered to be a prisoner and in custody under this Court's interpretation of SDCL 23A-27-36 in State v. Karp, 527 NW2d 912 (SD 1995). In Karp, SDCL 23A-27-36 was used to enhance the third driving-under-the-influence conviction of a probationer, a subject unrelated to habeas relief. SDCL 23A-27-36 pertained to the enhancement of sentences for prisoners who committed crimes. (repealed 2004).3 The language of the statute itself noted that the definition of prisoner as used in SDCL 23A-27-36 was applicable only to that specific code section. Id.
[¶ 11.] The habeas statutory scheme is codified at SDCL Chapter 21. The purpose of the habeas corpus statutory scheme is to provide a process whereby persons illegally restrained of liberty may petition a court for release. SDCL 21-27-1; State v. Jameson, 52 SD 524, 527, 219 NW2d 118, 119 (1928). No definitions for the terms "committed, detained, imprisoned or restrained of his liberty" are provided within SDCL 21-27-1, or within Chapter 21. However, the statutory scheme in SDCL Chapter 21-27 references actual custody as the prerequisite for habeas relief. SDCL 21-27-3 provides in relevant part:
An application for a writ of habeas corpus shall be in writing and signed by the applicant or some person on his behalf, setting forth the facts concerning his detention and in whose custody he is detained, and shall be accompanied by a copy of the warrant of commitment or other documentary authority, if any, or by an affidavit that such copy has been demanded of the person in whose custody he is detained and by him refused or not given.
(emphasis added).
[¶ 12.] The habeas statutory scheme is replete with references to physical custody. See SDCL 21-27-3, SDCL 21-27-3.2, SDCL 21-27-9.1, SDCL 21-27-9.2, SDCL 21-27-11. SDCL 21-27-9.1 provides the manner in which a habeas writ may be served, noting that it may be served on the person to whom it is directed, "or with any of his subordinates who may be at the place where the applicant is detained." (emphasis added). SDCL 21-27-9.2 provides the person to whom the writ is addressed "shall produce the body of the applicant before the court at the hearing of the cause of imprisonment or detainer."
[¶ 13.] Petitioner argues that the federal habeas remedy at 28 USCA § 2254 (a), which utilizes the word "custody," has been interpreted by the United States Supreme Court in Jones v. Cunningham as applicable to an individual on parole. 371 US 236, 243-44, 83 SCt 373, 377, 9 LEd2d 285, 291 (1963).4 Petitioner also urges this Court to consider and follow those jurisdictions that have adopted an expansive view of the term "custody" in state habeas corpus remedies. See In re Azurin, 104 CalRptr2d 284 (CalApp 2001); In re Horst, 14 P3d 1162 (KS 2000); Hoang v. State, 872 SW2d 694 (TexCrimApp 1993); Monohan v. Burdman, 530 P2d 334 (WA 1975); Staples v. State, 274 A2d 715 (ME 1971); State ex rel Atkinson v. Tahash, 142 NW2d 294 (MN 1966); Commonwealth ex rel Ensor v. Cummings, 215 A2d 651 (PA 1966); State v. Gray, 406 SW2d 580 (MO 1966); Garnick v. Miller, 403 P2d 850 (NV 1965); Schooley v. Wilson, 374 P2d 353 (CO 1962). However, an almost equal number of states have held the opposite, that a parolee is not restrained of his or her freedom so as to avail him or herself of the habeas remedy. See People ex rel Williams v. Morris, 357 NE2d 851 (IL 1976); Sorrow v. Vickery, 184 SE2d 462 (GA 1971); People ex rel Wilder v. Markley, 255 NE2d 784 (NY 1970); Williams v. State, 155 So2d 322 (AL 1963), cert denied, 155 So2d 323 (AL 1963); McGloin v. Warden of Maryland House of Corrections, 137 A2d 659 (MD 1958); White v. Gladden, 303 P2d 226 (OR 1956); State v. Ballard, 83 A2d 539 (NJ 1951), aff'd 88 A2d 537 (NJ 1952); and Ex parte Davis, 146 P 1085 (OklaCrimApp 1915).
[¶ 14.] Our state habeas remedy is not as broad as the federal habeas corpus remedy. Painter, 85 SD at 161, 179 NW2d at 14. Our remedy extends only as far as the language used by our legislature allows, as federal decisions on the application of the federal habeas statute do not...
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State v. Reaves
...Justices, concur. * The State cites cases holding that it should not be assumed that the defendant would commit another crime. See Bostick v. Weber, 2005 SD 12, ¶ 26, 692 N.W.2d 517, 523; Matter of Woodruff, 1997 SD 95, ¶ 10, 567 N.W.2d 226, 228; Moeller v. Solem, 363 N.W.2d 412, 414 (S.D.1......