Gregory v. Solem

• Decision Date: 20 December 1989
• Docket Number: 16619,Nos. 16618,s. 16618
• Citation: 449 N.W.2d 827
• Parties: Garland Ray GREGORY, Jr., Petitioner and Appellant, v. Herman SOLEM, Respondent and Appellee.
• Court: South Dakota Supreme Court

Page 827

449 N.W.2d 827

Garland Ray GREGORY, Jr., Petitioner and Appellant, v. Herman SOLEM, Respondent and Appellee.

Nos. 16618, 16619.

Supreme Court of South Dakota.

Argued Oct. 16, 1989.

Decided Dec. 20, 1989.

Michael Butler, Richard Braithwaite, on the brief, Sioux Falls, for petitioner and appellant.

Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, Jeffry L. Bloomberg, Lawrence County State's Atty., Deadwood, for respondent and appellee.

GILBERTSON, Circuit Judge.

ISSUES PRESENTED

Garland Ray Gregory, Jr. (petitioner) brings the following issues to this court for our resolution:

1. AT PETITIONER'S ARRAIGNMENT ON THE CHARGE OF CONSPIRACY TO COMMIT MURDER, WAS HE AWARE OF THE NATURE OF THE OFFENSE?

2. DID PETITIONER'S TRIAL COUNSEL NEGLECT TO INFORM PETITIONER OF THE ELEMENTS OF CONSPIRACY TO COMMIT MURDER, WHICH FAILURE CONSTITUTES INEFFECTIVE REPRESENTATION?

In addition, Herman Solem (respondent) has filed a notice of review in which he raises the following issue:

SHOULD PETITIONER'S AMENDED PETITION FOR WRIT OF HABEAS CORPUS HAVE BEEN DISMISSED PURSUANT TO SDCL 21-27-16.1?

We find respondent's issue dispositive of this appeal and affirm the trial court's denial of the petition albeit for a different reason. City of Mitchell v. Beauregard, 430 N.W.2d 704 (S.D.1988).

PROCEDURAL HISTORY

On March 13, 1980, pursuant to a plea bargain, petitioner pled guilty to conspiracy to commit murder. In exchange, the state dismissed a companion murder charge and agreed to request a sentence of life imprisonment rather than seek the death penalty. The trial court accepted petitioner's guilty plea and sentenced him to life imprisonment. Following the sentence, petitioner did not file a direct appeal.

On January 27, 1981, petitioner sought post conviction relief. The circuit court denied this request. Upon appeal this court held that the trial court substantially complied with SDCL ch. 23A-7 in its determination that there was a sufficient factual basis for petitioner's guilty plea and that such plea was knowingly, intelligently and voluntarily entered. We remanded, however, for entry of specific findings and conclusions on whether petitioner was advised of 1) the nature of the conspiracy charge, 2) the consequences of a guilty plea, and 3) for a determination of whether petitioner's guilty plea was a voluntary and intelligent choice among alternative courses of action. See Gregory v. State, 325 N.W.2d 297 (S.D.1982) (hereinafter Gregory I ).

The circuit court's findings of fact and conclusions of law were affirmed in Gregory v. State, 353 N.W.2d 777 (S.D.1984) (hereinafter Gregory II ). Therein we held:

[T]he record in the instant case, when viewed in the totality of the circumstances, fairly supports the finding that petitioner understood the nature of the charges against him and that his guilty plea was accepted in compliance with both statutory and constitutional requirements.

353 N.W.2d at 780.

Petitioner next filed a petition for writ of habeas corpus in the United States District Court for the District of South Dakota. Relief was denied. Upon appeal the district court's decision was affirmed in Gregory v. Solem, 774 F.2d 309 (8th Cir.1985). The Eighth Circuit found sufficient evidence in the record to establish a factual basis for the acceptance of the guilty plea. The federal appeals court further concurred with this court's analysis in Gregory II by finding that his guilty plea was knowing, intelligent and voluntary.

On November 25, 1986, petitioner filed another application for writ of habeas corpus in Lawrence County circuit court. ¹ In that petition he raised the two issues that he brings to this court as grounds for appeal. Prior to any hearings, respondent made a motion to dismiss pursuant to SDCL 21-27-16.1. Respondent argued that petitioner's issues had either been previously adjudicated or waived. The trial court agreed and dismissed. Upon appeal in Gregory v. Solem, 420 N.W.2d 362 (S.D.1988) (Gregory III ), this court reversed. We held that petitioner was entitled to an evidentiary hearing to attempt to show reasonable cause why his current issues had not been raised in the previous petition.

Thereafter the circuit court on remand held such a hearing. At the conclusion of this hearing, respondent renewed its motion to dismiss under SDCL 21-27-16.1. Such motion was denied by the circuit court. The circuit court then held against petitioner on the merits of the issues raised in his habeas corpus petition. Both parties now appeal to this court as set forth above.

ISSUE PRESENTED

SHOULD PETITIONER'S AMENDED PETITION FOR WRIT OF HABEAS CORPUS HAVE BEEN DISMISSED PURSUANT TO SDCL 21-27-16.1? ²

The scope of review is limited in a state habeas corpus proceeding because the remedy is in the nature of a collateral attack upon a final judgment. Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). A writ of habeas corpus will provide relief for a petitioner if any of the grounds of SDCL 21-27-16 are met. This court will not overturn the factual findings of the circuit court unless they are clearly erroneous. Id. at 145.

SDCL 21-27-16.1 is the statute which both parties cite in support of their position:

All grounds for relief available to a petitioner under this chapter shall be raised in his original, supplemental or amended application. Any ground not raised, finally adjudicated or knowingly and understandingly waived in the proceedings resulting in his conviction or sentence or in any other proceeding that the applicant has taken to secure relief from his conviction, or sentence, may not be the basis for a subsequent application, unless the court finds grounds for relief asserted which for reasonable cause were omitted or inadequately raised in the original, supplemental or amended application. (emphasis added). ³

In Gregory III, we noted petitioner's burden of proof of "reasonable cause" but did not feel it necessary to go into an in-depth discussion of what this standard required of a habeas petitioner. Respondent argues that the "reasonable cause" requirement of SDCL 21-27-16.1 should be interpreted in accordance with the United States Supreme Court's "cause and prejudice" standard of review. See Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Petitioner asks that such a standard be rejected and opts for a "reasonable man" standard. The circuit court applied the cause and prejudice test advanced by respondent. However, having done so, it concluded that petitioner had apparently met such a standard and denied respondent's motion to dismiss. ⁴

The seminal case concerning the "cause and prejudice" test is Wainwright v. Sykes, supra. This standard was adopted therein, but the United States Supreme Court felt it unnecessary to define its specific elements. It did, however, adopt a general rule that for a habeas petitioner to avoid dismissal of a subsequent petition for failure to raise the issue in a prior proceedings, the petitioner must show:

1. Cause for his omission or failure to previously raise the grounds for habeas relief; and

2. Actual prejudice resulting from the alleged constitutional violation.

Later, in Murray v. Carrier, supra, the Supreme Court set forth an in-depth analysis of what constitutes "cause":

We think, then, that the question of cause for procedural default does not turn on whether counsel erred or on the kind of error counsel may have made. So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel or that "some interference by officials" made compliance impracticable, would constitute cause under this standard. (citations omitted).

477 U.S. at 488, 106 S.Ct. at 2645, 91 L.Ed.2d at 408. In addressing the second prong, that being "prejudice," the Supreme Court noted that "[t]he habeas petitioner must show 'not merely that errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.' " Id., 477 U.S. at 494, 106 S.Ct. at 2648, 91 L.Ed.2d at 412. ⁵ (emphasis original).

This cause and prejudice standard has also received increasing acceptance among the various state jurisdictions dealing with this issue. See Valeriano v. Bronson, 12 Conn.App. 385, 530 A.2d 1100 (1987); Cherry v. Abbott, 258 Ga. 517, 371 S.E.2d 852 (1988); Polly v. State, 355 N.W.2d 849 (Ia.1984); ⁶ Irving v. State, 498 So.2d 305 (Miss.1986); Passanisi v. Dir. Nev. Dept. of Prisons, 769 P.2d 72 (Nev.1989); Wells v. Shulsen, 747 P.2d 1043 (Utah 1987); Epperly v. Booker, 235 Va. 35, 366 S.E.2d 62 (1988); Cutbirth v. State, 751 P.2d 1257 (Wyo.1988).

This court is well aware that in recent years, habeas petitioners have sought relief from the federal and state courts of South Dakota in a manner which has these proceedings going to and from each court on a frequent basis. The case at bar is an example in point. With the adoption of the "cause and prejudice" doctrine in all federal courts, the use of the same criteria by this court would facilitate the task of federal courts in the...