Graham v. Young

• Decision Date: 26 October 2016
• Docket Number: CIV 13-4100
• Parties: JOHN GRAHAM, Petitioner, v. DARIN YOUNG, Warden, Respondent.
• Court: U.S. District Court — District of South Dakota

JOHN GRAHAM, Petitioner, v. DARIN YOUNG, Warden, Respondent.

CIV 13-4100

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

October 26, 2016

MEMORANDUM OPINION AND ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

Petitioner, John Graham, is an inmate at the South Dakota State Penitentiary.He filed a pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 17, 2013.¹RespondentDarin Young has moved for summary judgment, asserting the state court correctly denied Graham's habeas claims.Respondent has submitted for the Court's review the relevant state court records and transcripts of the underlying state court criminal trial.For the following reasons, the writ will be denied.

BACKGROUND

In February 1976, Anna Mae Aquash's remains were found in a remote area of the Badlands near Wanblee in South Dakota.In 2003, Graham, a Canadian citizen, was charged in federal court with premeditated murder of Aquash.In 2007, Graham was extradited to South Dakota from Canada.The federal murder charge was dismissed by this Court because the indictment failed to allege Graham's Indian status, and the Eighth Circuit affirmed.SeeUnited States v. Graham, 572 F.3d 954(8th Cir.2009).In 2009, Graham was indicted by a Pennington County grand jury on statecharges of premeditated murder and felony murder.The underlying felony was alleged to be the kidnapping of Aquash.

Prior to trial, the United States requested permission from Canada to try Graham on the state charges.The Consent to Waiver of Specialty, signed by the Canadian Minister of Justice on February 2, 2010, provides:

Consent to Waiver of Specialty Article 12(1)(iii) of the Treaty on Extradition between Canada and the United States of America

United States of America v. John Graham

Having regard to the request from the United States of America dated December 18, 2009, (Diplomatic NoteNo. 852) and to the provisions of sub-paragraph 12(1)(iii) of the Treaty on Extradition between Canada and the United States of America, I hereby consent to the detention, prosecution and, if he is convicted, punishment of John Graham with respect to the offences which are set forth in the Indictment, No. 09-3953, filed on September 9, 2009, in the Seventh Circuit Court, County of Pennington, namely:

Count 1: Murder while in the Commission of any felony namely kidnapping, in violation of South Dakota Codified Law 22-16-9 and 22-19-1; and

Count 3: Premeditated Murder, in violation of South Dakota Codified Law 22-16-4.

State v. Graham, 2012 SD 42, § 12, 815 N.W.2d 293, 299 n.6(2012).

On January 26, 2011, a jury convicted Graham of felony murder in violation of SDCL 22-16-9.He was acquitted of premeditated murder.Graham was sentenced to life in prison.

Graham raised the following issues on direct appeal to the South Dakota Supreme Court:

1.Whether the doctrine of specialty deprived the State of jurisdiction to try Graham on the state felony murder charge when he had been extradited to the United States on the federal charge of premeditated murder;

2.Whether the circuit court erred in allowing Looking Cloud's and Maloney's testimony restating Looking Cloud's 2002 telephonic statement to Maloney;

3.Whether the circuit court erred in allowing Yellow Wood's testimony that Aquash said that Peltier made a statement accusing Aquash of being an informant;4.Whether the circuit court erred in allowing Ecoffey's testimony that Peltier, in the presence of Aquash, made a self-incriminatory statement admitting that he killed an FBI agent;

5.Whether there was sufficient evidence to convict Graham of felony murder;

6.Whether Graham's sentence of life imprisonment without parole was authorized by statute, and whether the sentence was cruel and unusual punishment under the Eighth Amendment.

The South Dakota Supreme Court rejected these claims and affirmed Graham's conviction and sentence on May 30, 2012.State v. Graham, 815 N.W.2d 293(S.D.2012).

On May 24, 2013, Graham petitioned for state habeas corpus relief.He raised the following grounds for relief:

1.The court lacked jurisdiction because Canada has no law comparable to felony murder;

2.The jury did not find Graham guilty of kidnapping because the jury instructions did not include every element of the offense;

3.Graham's indictment and jury instructions were duplicitous because they merged kidnapping and felony murder into a single count;

4.Graham's felony murder conviction is void because it is based on a statute that was repealed in 2005;

5.Graham did not receive a fair trial based in part on the alleged lack of evidence of his guilt and on counsel's alleged ineffective assistance for "failing to call any of the obvious witnesses or mention any of the well-known alternative theories of the murder[.]"

All of Graham's habeas claims were denied by the state court.A certificate of probable cause was not issued.(Doc. 31-1.)

Graham timely filed a pro se motion for certificate of probable cause with the South Dakota Supreme Court pursuant to 21-27-18.1. (Doc. 31-2).On September 9, 2013, the South Dakota Supreme Court issued an order dismissing the motion for certificate of probable cause "for failureto serve a copy of the motion upon the opposing party, this service being a prerequisite to the Court's jurisdiction to consider said motion pursuant to SDCL 21-27-18.1."(Doc. 31-6.)

Graham timely filed this federal habeas petition.Respondent argued that the entire federal petition was procedurally defaulted because the South Dakota Supreme Court denied Graham's habeas claims on the independent and adequate ground that Graham failed to serve the motion for certificate of probable cause simultaneously with its filing as required by SDCL 21-27-18.1.²The Respondent did not cite one other case where the South Dakota Supreme Court had dismissed a timely filed motion for certificate of probable cause for lack of jurisdiction because the petition had not been served at the time of filing.³This Court ruled Graham's habeas claims were not procedurally defaulted because there was no adequate state law ground barring federal habeas review.

The claims presented in Graham's pending writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 are the same as those raised in his state habeas, with one additional claim: that the Court should consider all of the errors in the aggregate and find that Graham's trial lawyer provided ineffective assistance of counsel.

DISCUSSION

I.STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a habeas petitioner cannot obtain relief based on a claim adjudicated on the merits in state court unless the adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonableapplication of, clearly established Federal law, as determined by the Supreme Court of the United States."28 U.S.C. § 2254(d).Under AEDPA, "clearly established Federal law" refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state court decision.Lockyer v. Andrade, 538 U.S. 63, 71(2003).The Supreme Court has emphasized that Supreme Court decisions are the only ones that can form the basis justifying habeas relief; circuit courtcases cannot.Id.;see alsoLopez v. Smith, — U.S. —, 135 S.Ct. 1(2014)(per curiam)("We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is 'clearly established.'").

A state court decision is "contrary to"Supreme Court precedent"if the state court applies a rule that contradicts the governing law set forth in [Supreme Court]cases," or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e]Court and nevertheless arrives at a result different from [the Court's] precedent."Williams v. Taylor, 529 U.S. 362, 405-06(2000).A state court decision involves an unreasonable application of federal law "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case."Id. at 407.

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,'the state court's decision must have been more than incorrect or erroneous."Wiggins v. Smith, 539 U.S. 510, 520(2003)(citation omitted)."The state court's application must have been 'objectively unreasonable.'"Id. at 520-21(citation omitted);see alsoLaFrank v. Rowley, 340 F.3d 685, 689(8th Cir.2003)(under "unreasonable application" clause, federal habeas court may not issue writ simply because it concludes in its independent judgment that relevant state court decision applied clearly established law erroneously or incorrectly; rather, application must be objectively unreasonable).The habeas petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority.Woodford v. Visciotti, 537 U.S. 19, 24(2002).

The "contrary" and "unreasonable application" standards are "difficult to meet," and "highly deferential" for evaluating state-court rulings, "which demands that state-court decisions be given the benefit of the doubt."Cullen v. Pinholster, 563 U.S.170, 181(2011)(quotingWoodford, 537 U.S. at 24).These thresholds are "'difficult to meet,' because the purpose of AEDPA is to ensure that federal habeas relief functions as a 'guard against extreme malfunctions in the state criminal justice systems,' and not as a means of error correction."Greene v. Fisher, — U.S. —, 132 S.Ct. 38, 43(2011)(quotingHarrington v. Richter, 562 U.S. 86, 102(2011)).

Even where constitutional error is found in § 2254 proceedings, habeas petitioner...