Grooms v. Solem, CIV 83-4078.
Decision Date | 10 May 1983 |
Docket Number | No. CIV 83-4078.,CIV 83-4078. |
Citation | 562 F. Supp. 512 |
Parties | Daniel GROOMS, Petitioner, v. Herman SOLEM, Warden, South Dakota State Penitentiary, Mark Meierhenry, Attorney General, State of South Dakota, Respondents. |
Court | U.S. District Court — District of South Dakota |
Daniel Grooms, pro se.
Daniel Grooms was convicted of grand theft in the Circuit Court of Deuel County, South Dakota, and sentenced to imprisonment in the South Dakota State Penitentiary for 30 years. He has appealed this conviction.
Petitioner by this action seeks to have this court order his release on bail pending appeal. I conclude that this application is a petition for writ of habeas corpus under 28 U.S.C. § 2254.
For reasons more fully set out herein, the court dismisses the petition for failure to exhaust state court remedies. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
It is well settled that a state petitioner is without an absolute federal constitutional right to bail pending appeal after conviction. Young v. Hubbard, 673 F.2d 132, 134 (5th Cir.1982); Hamilton v. New Mexico, 479 F.2d 343, 344 (10th Cir.1973); Hooks v. Fourth District Court of Appeals, 442 F.2d 1042, 1043 (5th Cir.1971); Bloss v. Michigan, 421 F.2d 903, 905 (6th Cir.1970); United States ex rel Means v. Solem, 440 F.Supp. 544, 548 (D.S.D.1977).
Where, however, a state makes provisions for bail pending appeal, the Eighth and Fourteenth Amendments provide that it may not be denied arbitrarily or unreasonably. Young v. Hubbard, 673 F.2d at 134, Finetti v. Harris, 609 F.2d 594, 599 (2d Cir.1979); United States ex rel Means v. Solem, 440 F.Supp. at 548, citing United States ex rel Rainwater v. Morris, 411 F.Supp. 1252, 1258 (N.D.Ill.1976).
Prior to July 1, 1979, South Dakota had a statute governing bail pending appeal which permitted either the trial court judge or the state supreme court to grant such bail. See S.D.C.1960 Supp. 34.4107 cited in State v. Olsen, 82 S.D. 605, 152 N.W.2d 176, 177 (1967) (Codified at S.D.C.L. § 23-51-13). As of July 1, 1979, S.D.C.L. section 23-51-13 was repealed by the South Dakota State Legislature. 1978 S.D. Sess.Laws ch. 178, § 577.
At the present time bail pending appeal is governed by S.D.C.L. section 23A-43-16. Under the current statutory scheme only "the court in which the conviction was had may release the defendant pending the outcome of the appeal." Id. The state supreme court may no longer grant such bail.
S.D.C.L. section 23A-43-16 expressly precludes a motion for amendment by circuit judge of conditions of release under S.D. C.L. section 23A-43-14 and appeal to the South Dakota Supreme Court for amendment of conditions of release under S.D.C.L. section 23A-43-15. "Other rights to judicial review of conditions of release or orders of detention are not affected." S.D.C.L. § 23A-43-16.
Thus, it appears that a defendant who has been convicted of an offense and has filed an appeal may seek release pending appeal from the court in which he was convicted. If such motion is denied, the defendant may not move the court for an amendment of conditions of release.
Of course it follows that no appeal may be taken to the South Dakota Supreme Court for review of the motion for amendment in the first instance. Such is the holding of State v. Lien, 305 N.W.2d 388, 380 (S.D.1981). Had the appeal in Lien been brought directly under S.D.C.L. section 23A-43-16 rather than under S.D.C.L. section 23A-43-14 a different result would have ensued.
A state court's denial of bail pending appeal is subject to a due process analysis in a federal habeas corpus action. United States ex rel Bad Heart Bull v. Parkinson, 381 F.Supp. 985 (D.S.D.1974). In State v. Hickey, 269 N.W.2d 816 (S.D.1978) the South Dakota Supreme Court acknowledged the rule established in Bad Heart Bull and outlined a procedure for handling applications for bail pending appeal:
State v. Hickey, 269 N.W.2d at 818.
While the South Dakota Legislature has withdrawn from the state supreme court the power to grant bail in the first instance, it has not withdrawn the court's power to review a state trial court's decision to grant or deny bail pending appeal. S.D.C.L. § 23A-43-16. Accordingly, the quoted passage from Hickey remains good law and should be followed whenever a state defendant seeks bail pending appeal. The federal district court is not the appropriate forum in which to take a direct appeal from a state trial judge's decision to grant or deny such bail.
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