Duffy v. Brown Cnty.
| Decision Date | 25 January 2012 |
| Docket Number | CIV 11-1038 |
| Parties | SHAWN DUFFY, Petitioner, v. BROWN COUNTY, SOUTH DAKOTA, Respondent. |
| Court | U.S. District Court — District of South Dakota |
Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 contending that he was detained at the Brown County, South Dakota, jail in violation of his rights under the United States Constitution. The United States District Court may hear and decide a petition for a writ of habeas corpus under 28 U.S.C. § 2241(cX3) by a person who is in custody but not yet convicted or sentenced. Braden v. 30th Judicial Circuit Court of Kentucky. 410 U.S. 484,488,93 S.Ct. 1123, 1126, 35 L.Ed.2d 443 (1973). A federal writ of habeas corpus may issue only upon the violation of "the constitution, laws or treaties of the United States." Stewart v. Nix. 972 F.2d 967,970 (8th Cir. 1992); 28 U.S.C. § 2241. Petitioner contends his federal Constitutional rights have been violated in connection with his pretrial detention. This matter came on for hearing on December 27, 2011, pursuant to an order to show cause why petitioner's request for relief should not be granted. An evidentiary hearing was conducted. A transcript has been prepared and filed. Briefs have been filed and have been fully considered.
There has been a suggestion that, by allowing the Duffy petition to be heard, a floodgate will be opened to state prisoners seeking relief in federal court. I trust this will not be the case as I am not looking for more business or hearings. Even if this suggestion might come true, I took an oath to support the United States Constitution and I do not intend to close the courthouse doors to those with possible Constitutional grievances. I also seek no confrontation with thestates' attorney's office or with state court judges, ray colleagues, for whom I have the highest respect Like the umpire, however, I will call them as I see them.
The record shows that petitioner was arrested on March 17, 2011, and charged by criminal complaint in the Fifth Judicial Circuit, Brown County, South Dakota, with three counts of possessing controlled substances - Ridalin, Xanax, and Endocet - by theft, misrepresentation, forgery, or fraud, one count of keeping a place for the use or sale of a controlled substance, and one count of the use or possession of drug paraphernalia. That case, which the parties have referred to as the "doctor shopping case" is captioned CR 11-323. An initial appearance was made by the defendant in that case on March 18, 2011, before a state court magistrate who imposed a $5,000 cash bond. Duffy was and is indigent and could post no bond. He has thus been held in the Brown County jail. An attorney was appointed for petitioner on March 21, 2011. Brown County provides attorneys for indigents by virtue of a contract for a lump sum payment for one year based on a contract entered into by the county and four attorneys who jointly agreed to submit a proposal.
By state statute, a preliminary hearing must be held within 15 days after a defendant makes the initial court appearance. That deadline was April 4, 2011. This is a very important right granted to a criminal defendant. No preliminary hearing was ever held. There is nothing in the state court records showing or even indicating that Duffy ever waived his right to a preliminary hearing. In fact, the box on a state form to the effect that a preliminary hearing was waived is unchecked. There is also nothing in the record of the present proceeding to show that Duffy's attorney ever waived such right on behalf of the client. Nor could the attorney do so without the knowing and voluntary consent of the client No motion to dismiss the case for failure to hold a preliminary hearing and follow the state statute was ever made on behalf of Mr. Duffy.
The practice in Aberdeen as to magistrate court appearances is for the attorneys to meet with the judge in chambers without defendants being present. These meetings are off the record and there is nothing for a reviewing court, whether it is the state circuit court, the South Dakota Supreme Court, or a United States District Court, to look at to determine what happened in a given case. Defendants are apparently never required to state on the record in the presence of acourt reporter that the defendant desires to waive the important statutory right to a preliminary hearing. There is no court proceeding in which the defendant is canvassed to see if he or she desires to waive the preliminary hearing in a knowing and voluntary fashion. We do not know here whether the defendant was ever even consulted about demanding a preliminary hearing or waiving the same. Lack of "on the record" proceedings makes it virtually impossible for a reviewing court to know what transpired as to any particular defendant, including petitioner. The difficulty in dealing with the issues before this court is compounded by the refusal of the defendant to waive his attorney-client privilege. Thus, we do not know what discussions, if any, were held between the defendant and his then state court attorney. Nor do we know what was said or not said. It is elementary that no defendant should be allowed to waive important rights unless the waiver is knowingly and voluntarily entered into by the defendant. The practice also is that once a preliminary hearing is demanded in a given case, the matter is taken before a grand jury. Once an indictment is issued, the defendant loses the right to have a preliminary hearing at which a judge would determine whether there is probable cause to believe that he committed the crime or crimes charged
Following the initial appearance, nothing happened, according to the official state court file, until April 19, 2011, when a stipulation by counsel and court order for a psychiatric examination was filed. Petitioner was transported to the Human Services Center ("HSC") in Yankton, South Dakota, on April 28, 2011, for a forensic evaluation. He was returned to the Brown County jail that same date. Duffy claims the evaluation took not more than 30 minutes at the HSC. No evidence was offered to rebut such claims. If his claims are true, this would be less than a perfunctory examination and evaluation. On May 25, 2011, the HSC issued its report finding the petitioner competent to stand trial and sent the report not to the court but to the prosecutor and Duffy's attorney. No notice of insanity was ever filed claiming that the defendant was not mentally competent at the time the crime or crimes were committed. No motion was ever filed asking the state court to determine whether the defendant was mentally competent to stand trial and to assist his lawyer. No motion for another psychiatric examination by an independent mental health expert was ever filed.
On April 21, 2011, a grand jury returned an indictment charging the identical charges set forth in the previous complaint with the addition of two more charges of possession of a controlled substance - Hydrocodone and Methadone.
It was not until June 30, 2011, that petitioner had an initial appearance and arraignment on the indictment The results of the forensic evaluation were not discussed at this hearing and no order was ever entered finding the defendant competent or incompetent to stand trial. At the direction of the judge, the prosecutor and Duffy's attorney obtained a trial date of November 2, 2011, a date obviously 229 days after Duffy had made his initial appearance.
The prosecutor filed an habitual offender information on July 5, 2011.
On June 30, 2011, the Deputy States Attorney who was prosecuting petitioner's "doctor shopping case" filed a criminal complaint alleging petitioner possessed alcohol or marijuana in jail on June 10, 2011. That case was assigned case number CR 11-816. On July 5, 2011, petitioner appeared without counsel for an initial appearance on that charge. He appeared again on July 11, 2011, but his attorney did not appear and the matter was continued.
Petitioner sent a letter to a Circuit Judge dated on or about July 24, 2011, complaining, inter alia, about his attorney and the fact that he was incarcerated pending trial rather than released to a mental health facility. The judge had the letter filed in CR 11-323. On August 17, 2011, another letter from petitioner to the judge was filed which, again, complained about his lack of assistance by court appointed counsel.
The grand jury returned an indictment on August 8, 2011, alleging attempted possession of alcohol or marijuana in jail. The original criminal complaint had alleged actual possession of alcohol or marijuana. Petitioner appeared with the same court appointed attorney on August 31, 2011, for an initial appearance and arraignment on that indictment. Although there was some mention in the record about joining the two indictments for trial, no inquiry was made whether defense counsel and petitioner agreed to such a joinder. No order was ever entered that the two cases should be joined for trial. Mr. Duffy's attorney was requested to choose a motions deadline and the attorney arbitrarily chose October 13, 2001. The circuit judge ordered that the speedy trial deadline be tolled until that date. The judge thereafter issued an order misdated September 31 which tolled the 180 day period until October 13, 2011.
While all the foregoing was transpiring in Circuit Court, petitioner wrote me a letter on August 9, 2011, setting forth the charges he was facing and the factual background for those charges. This letter was consistent with letters he had been sending to the state circuit court. He complained therein that he was being unlawfully detained and court appointed counsel was not helping him. I responded to his letter. I told him: ...
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