Haase v. Weber

• Decision Date: 16 February 2005
• Docket Number: No. 23190.,23190.
• Citation: 2005 SD 23,693 N.W.2d 668
• Parties: Troy HAASE, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

693 N.W.2d 668

2005 SD 23

Troy HAASE, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.

No. 23190.

Supreme Court of South Dakota.

Argued October 5, 2004.

Decided February 16, 2005.

Rehearing Denied March 23, 2005.

Steve Miller, Sioux Falls, South Dakota, Attorney for petitioner and appellant.

Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.

MEIERHENRY, Justice.

[¶ 1.] Haase made his third application for a writ of habeas corpus concerning his 1988 conviction for kidnapping and rape. This application was dismissed by the trial court on procedural grounds. Haase appeals.

FACTS

[¶ 2.] Haase was convicted of kidnapping and rape in 1988. The conviction was affirmed by this Court on direct appeal. State v. Haase, 446 N.W.2d 62 (S.D.1989). In 1991 Haase filed his first application for a writ of habeas corpus raising numerous issues, including ineffective assistance of trial and appellate counsel. His court appointed attorney reviewed the application and relevant records. After her review, she wrote a letter to the judge stating that no viable or colorable habeas corpus claims existed and there was no basis for a hearing. Subsequent to receiving the letter, the circuit court denied the writ stating: "That based upon the investigation of petitioner's attorney there are no issues, factual or legal, which require that this court schedule and hold a hearing upon the petitioner's allegations." (Emphasis added.) Haase's certificate of probable cause was also denied by both the circuit court and this Court.

[¶ 3.] Seven years after Haase's first habeas application was denied, Haase filed a second habeas application. His initial pro se application asserted the same grounds as his first habeas application in addition to a new ground concerning the Reiman/Curtis test.¹ An amended application dropped the grounds that were presented in the first habeas application and asserted only the new Reiman/Curtis issue. The amended application was denied on two procedural grounds: first, because of prejudice to the state because it was filed more than five years after the judgment; and second, because Haase failed to prove reasonable cause for not raising the Reiman/Curtis issue in his first habeas application. See SDCL 21-27-3.2; SDCL 21-27-16.1. Denial on these procedural grounds resulted in Haase still not having had a judge review the merits of any of his habeas issues.

[¶ 4.] The appeal now before us involves Haase's third application for writ of habeas corpus. His only asserted ground for relief in this third habeas application is ineffective assistance of his second habeas counsel. Haase alleges his attorney was ineffective because he failed to appeal the denial of his second habeas petition within the required time. Consequently, he has been procedurally barred from state appellate review. Further, he has been procedurally barred from filing a federal habeas petition because he did not appeal in state court. In an effort to overcome these procedural bars, Haase's current habeas application seeks a new opportunity to appeal the denial of his second habeas application.

DECISION

[¶ 5.] The propriety of this third habeas and the remedy it seeks is clearly questionable. We have often explained that habeas is a "collateral attack on a final judgment." Knecht v. Weber, 2002 SD 21, ¶ 4, 640 N.W.2d 491, 494 (citations and quotations omitted). This habeas makes no collateral attack on the final criminal trial judgment. However, the facts of this case present a unique and troubling situation. No judge has ever made an independent review of any of Haase's grounds for habeas relief. Haase has suffered this fundamental injustice through no fault of his own but, rather, through the mistakes of prior counsel and courts. Now, as a result of various procedural barriers, it is unlikely that his habeas grounds could ever be reviewed by a judge on their merits. Therefore, under the unique facts of this case, we believe it is in the best interests of justice and judicial efficiency to remand this case back to the trial court in order for the court to proceed directly to the merits of Haase's habeas claims, thereby providing Haase with a judicial determination of the merits of his claims and circumventing the procedural purgatory within which Haase now finds himself. Cf. People v. Gaines, 105 Ill.2d 79, 85 Ill.Dec. 269, 473 N.E.2d 868, 875 (1984)

("The strict application of the doctrine of res judicata may be relaxed, however, where fundamental fairness so requires.") (citations and quotations omitted). Therefore, we remand to the trial court for a new hearing and instruct it to consider any and all of Haase's asserted grounds for habeas relief on their merits.

[¶ 6.] SABERS and KONENKAMP, Justices, concur.

[¶ 7.] GILBERTSON, Chief Justice, and ZINTER, Justice, dissent.

GILBERTSON, Chief Justice (dissenting).

[¶ 8.] The Court ascertains the only issue in this "third habeas is ineffective assistance of his second habeas counsel." A habeas corpus proceeding is a civil action which exists solely under statutes passed by our legislature. Based on my dissent in Jackson v. Weber, 2001 SD 30, 2001 SD 136, 637 N.W.2d 19, I would affirm the trial court herein. There is no statutory basis, decades after the fact, to retroactively incorporate the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard into our habeas corpus statutes. Jackson, 2001 SD 30, ¶ 29, 637 N.W.2d at 25-26 (citing Krebs v. Weber, 2000 SD 40, ¶ 7-9, 608 N.W.2d 322, 324-5).

[¶ 9.] The South Dakota habeas corpus remedy extends only as far as the language used by our legislature allows. Cowell v. Leapley, 458 N.W.2d 514, 517 (S.D.1990). SDCL 21-27-4 requires the appointment of counsel for indigent persons seeking habeas relief.² Under SDCL 23A-40-1 to -20, counties are required to provide counsel to indigent defendants by establishing a public defenders office, maintaining a systematic court appointed process using licensed attorneys, or contracting for such services with attorneys licensed to practice law in South Dakota.³

[¶ 10.] The majority of states that provide court appointed counsel for indigent defendants on habeas review have held that Strickland standards do not apply to counsel on habeas. For example, Texas courts have held that competency is judged by the statutory standards within the habeas and criminal statutory schemes, rather than by the higher standard required for trial and appellate counsel under Strickland.Ex parte Graves, 70 S.W.3d 103, 114 (Tex.Crim.App.2002). The Texas habeas statutory scheme requires the appointment of "competent counsel" for defendants in death penalty cases. Tex Crim Proc Code Ann 11.071 § 2(a) (2004). However, Texas courts have defined the term "competent" from within the statutory scheme itself, rather than grafting on the Strickland requirements. Graves, 70 S.W.3d at 114. That court held that the statutory scheme requires competency at the time of appointment and throughout the representation as judged by the counsel's qualifications, experience and abilities. Id. That court held that if it grafted the Strickland standard onto the Texas habeas corpus scheme, it would be overriding the clear and unambiguous language of the legislature, and guaranteeing an endless and repetitious supply of resurrected writs that had previously been denied. Id. at 115. See also Baum v. State, 533 N.E.2d 1200, 1201 (In.1989)

(adopting the standard that if counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court, nothing requires judging his performance by the rigorous standard set forth in Strickland).

[¶ 11.] We now find ourselves among only a handful of states that apply Strickland standards to the performance of counsel in habeas review, three of which have found some textual justification within their respective statutory schemes or constitutions. See Grinols v. State, 10 P.3d 600, 604 (Alaska Ct.App.2000)

; In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729, 748 (Ca.1993); Palmer v. Dermitt, 102 Idaho 591, 635 P.2d 955, 957 (Id.1981). The remaining few, including South Dakota, rely on the "matter of common sense" approach without regard to their respective statutory schemes, or merely graft on the Strickland standard in the interest of justice. State v. Rue, 175 N.J. 1, 811 A.2d 425 (N.J.2002); Commonwealth v. Priovolos, 552 Pa. 364, 715 A.2d 420 (1998); State v. Flansburg, 345 Md. 694, 694 A.2d 462 (1997); Dunbar v. State, 515 N.W.2d 12 (IA1994); Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992).

[¶ 12.] The legislature has clearly stated that admission to the South Dakota bar is what is required for competency on habeas review. The legislature obviously intended that the competency of habeas counsel be established at the appointment stage, rather than examining counsel's final product of representation after the fact. It is not the role of this Court to supplant its own definition of competency in light of the plain and unambiguous language in SDCL 23A-40-7.

ZINTER, Justice (dissenting).

[¶ 13.] I disagree with the Court's remedy that sets aside all statutory requirements of the Habeas Corpus Act and permits Haase to proceed with all substantive claims he asserts for habeas relief. Under Jackson v. Weber, 2001 SD 136, 637 N.W.2d 19, Haase's remedy is limited to pursuing an appeal of Habeas # 2 if he can establish ineffective assistance of counsel in that proceeding. However, Haase failed to establish entitlement to even that limited remedy because he failed to show prejudice ⁴ from attorney Thompson's failure to appeal (a showing that Haase would have succeeded on appeal of Habeas # 2). Because Haase failed to meet the requirements for habeas corpus relief, I would...