High Elk v. Solem, 85-5383

• Decision Date: 05 November 1986
• Docket Number: No. 85-5383,85-5383
• Citation: 804 F.2d 496
• Parties: Harold Clifford HIGH ELK, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary; Mark Meierhenry, Attorney General, State of South Dakota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 496

804 F.2d 496

Harold Clifford HIGH ELK, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary; Mark

Meierhenry, Attorney General, State of South

Dakota, Appellees.

No. 85-5383.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 16, 1986.

Decided Nov. 5, 1986.

Patrick J. Kane, Sioux Falls, S.D., for appellant.

Grant Gormley, Pierre, S.D., for appellees.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

McMILLIAN, Circuit Judge.

Harold Clifford High Elk appeals from a final order entered in the District Court ¹ for the District of South Dakota denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. High Elk v. Solem, No. CIV 84-4143 (D.S.D. Oct. 2, 1985). For reversal appellant argues that he was denied effective assistance of trial counsel. For the reasons discussed below, we affirm the order of the district court.

Appellant was convicted in state court in 1979 of first degree rape and sentenced pursuant to a habitual offender statute to a term of 26 years imprisonment. The state supreme court affirmed the conviction on direct appeal, State v. High Elk, 298 N.W.2d 87 (S.D.1980). Appellant then sought post-conviction relief, alleging ineffective assistance of trial counsel and erroneous application of the state habitual offender statute. Following an evidentiary hearing, the state trial court denied relief. On appeal appellant raised only the claim of ineffective assistance of trial counsel. The state supreme court affirmed the denial of post-conviction relief, High Elk v. State, 344 N.W.2d 497 (S.D.1984). The facts underlying the prosecution are set forth in the state court opinions and will not be repeated here.

Appellant has exhausted available state remedies. In his petition for habeas corpus relief, appellant claimed that he had been denied effective assistance of counsel because his defense attorney (1) failed to file a motion to suppress evidence, including a pair of his jeans, seized from his bowling bag, (2) failed to effectively use an FBI lab report to establish that the dried blood found on appellant's jeans matched appellant's blood type and not the victim's, (3) raised the subject of the dried blood but then failed to effectively cross-examine government witnesses about the dried blood, blood types and the damp condition of the jeans, and (4) failed to file a motion to limit cross-examination about appellant's prior convictions.

The district court considered the first three claims of ineffective assistance of counsel together and found defense counsel's handling of the evidence about appellant's jeans, the dried blood and the FBI lab report was deficient. Slip op. at 5. The district court further found, however, that appellant had failed to establish actual prejudice. Id. at 6. With respect to the claim that counsel unreasonably failed to file a motion to limit cross-examination about appellant's prior convictions, the district court found that such failure was insufficient to warrant relief, apparently on the basis of no actual prejudice, and denied the petition for habeas relief. Id. at 6-7.

The Supreme Court recently held that the restriction on habeas review of fourth amendment claims set forth in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), did not preclude habeas review of sixth amendment claims of ineffective assistance of counsel which are based upon ineffective representation with respect to fourth amendment issues. Kimmelman v. Morrison, --- U.S. ----, 106 S.Ct. 2574, 2582-87, 91 L.Ed.2d 305 (1986). The Court stated that

[i]n order to prevail [on a claim of ineffective assistance of counsel], the defendant must show both that counsel's representation fell below an objective standard of reasonableness, and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.

Id. at 2583, citing Strickland...