Davis v. Weber

• Decision Date: 11 December 2013
• Docket Number: No. 26483.,26483.
• Citation: 841 N.W.2d 244,2013 S.D. 88
• Parties: Michael Todd DAVIS, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

841 N.W.2d 244

2013 S.D. 88

Michael Todd DAVIS, Petitioner and Appellant,

v.Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.

No. 26483.

Supreme Court of South Dakota.

Considered on Briefs Nov. 4, 2013.

Decided Dec. 11, 2013.

Kenneth M. Tschetter, 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.

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 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 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 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 2012,³SDCL 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

[¶ 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 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. SeeSDCL 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...