Hirning v. Dooley

• Decision Date: 21 April 2004
• Docket Number: No. 22839.,22839.
• Citation: 679 N.W.2d 771,2004 SD 52
• Parties: Milo Walter HIRNING, Petitioner and Appellant, v. Robert DOOLEY, Warden of the Springfield Correctional Facility Springfield, South Dakota, Respondent and Appellee.
• Court: South Dakota Supreme Court

679 N.W.2d 771

2004 SD 52

Milo Walter HIRNING, Petitioner and Appellant, v. Robert DOOLEY, Warden of the Springfield Correctional Facility Springfield, South Dakota, Respondent and Appellee.

No. 22839.

Supreme Court of South Dakota.

Considered on Briefs January 12, 2004.

Decided April 21, 2004.

David M. Hosmer, Yankton, South Dakota, for petitioner and appellant.

Lawrence E. Long, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, for respondent and appellee.

ZINTER, Justice.

[¶ 1.] Milo Hirning filed a Petition for Writ of Habeas Corpus challenging four drug convictions. The habeas court denied relief. Hirning appeals on three of the convictions. We affirm.

Facts and Procedural History

[¶ 2.] There are three criminal proceedings involving four convictions that were reviewed by the habeas court. Hirning challenges the first, third, and fourth convictions in this appeal.

[¶ 3.] The first conviction arose out of an automobile stop on a Brown County highway. The facts related to this conviction are found in State v. Hirning, 1999 SD 53, 592 N.W.2d 600 (Hirning I). Hirning's trial counsel was William Gerdes. Gerdes filed a motion to suppress the drugs found in Hirning's pants pocket after the stop. The motion was denied by the trial court. Hirning stipulated to the facts and was found guilty of unauthorized possession of a controlled substance (and of being a habitual offender). Hirning appealed the search, conviction, and ten-year sentence. We affirmed in Hirning I.

[¶ 4.] The second conviction arose from a 17-year-old informant's allegation that Hirning sold marijuana. Hirning was charged with distribution of marijuana to a minor and with being a habitual offender. He was initially represented by Gerdes, but retained attorney Ramon Roubideaux to finish the case. Hirning pleaded guilty to distribution and was sentenced to five years in the South Dakota State Penitentiary. This sentence ran concurrently with the previous ten-year sentence. This conviction is not challenged in this habeas appeal.

[¶ 5.] The third and fourth convictions both arose from a subsequent search of Hirning's home. Roubideaux was again Hirning's trial counsel. Hirning's co-defendant was Shane Nolter, who was also represented by Roubideaux. Hirning filed an affidavit waiving any conflict of interest existing at the time of the affidavit.

[¶ 6.] In these third and fourth cases, Roubideaux filed a motion to suppress. Hirning contended that the warrant failed to state with specificity the items to be seized. At the hearing on that motion, Roubideaux orally amended the motion to add a claim that the warrant failed to establish probable cause. The motion was denied by Circuit Judge Jack Von Wald.

[¶ 7.] Hirning later retained David Palmer as new counsel. Palmer filed motions to reconsider Roubideaux's previous challenges to the search warrant. Palmer also requested that Judge Von Wald recuse himself because he had signed the search warrant. Judge Von Wald denied the recusal request, denied reconsideration of the Roubideaux motion to suppress, and denied the subsequent motions. Based on stipulated facts, Hirning was convicted of both counts of unauthorized possession of a controlled substance. He was sentenced to ten years on each count. These sentences ran concurrently with each other, but consecutive to his sentences for the first and second convictions.

[¶ 8.] Hirning then filed this petition for writ of habeas corpus challenging the validity of his convictions. Following an evidentiary hearing, Circuit Judge Jon Flemmer denied Hirning's request for habeas relief.

[¶ 9.] On appeal, Hirning raises the following issues:

Conviction 1

1. Whether trial counsel was ineffective for failing to properly investigate witnesses who could have testified at the suppression hearing.

Convictions 3 and 4

2. Whether the judge who signed the search warrant had an appearance of bias when he presided at the suppression hearing reviewing the same warrant.

3. Whether the affidavit in support of the search warrant failed to establish probable cause.

4. Whether trial counsel was ineffective for failing to adequately raise Fourth Amendment and Due Process claims, and for having a conflict of interest.

Analysis and Decision

[¶ 10.] Habeas Corpus review is limited because it is a collateral attack on a final judgment. Siers v. Class, 1998 SD 77, ¶ 9, 581 N.W.2d 491, 494 (citing Black v. Class, 1997 SD 22, 560 N.W.2d 544). "Habeas corpus is not a substitute for direct review." Id. (citing Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191). "[H]abeas corpus can be used only to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases, whether an incarcerated defendant has been deprived of basic constitutional rights." St. Cloud v. Leapley, 521 N.W.2d 118, 121 (S.D.1994) (citations omitted). "Fact determinations will only be disturbed upon a showing that they were clearly erroneous." New v. Weber, 1999 SD 125, ¶ 5, 600 N.W.2d 568, 572 (citing Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191). "However, ineffective assistance of counsel is a mixed question of fact and law on which this Court can substitute its own judgment as to whether counsel's representation was ineffective." Davi v. Class, 2000 SD 30, ¶ 15, 609 N.W.2d 107, 112 (citations omitted). We review the constitutional and legal claims de novo. See State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43; Ramos v. Weber, 2000 SD 111, ¶ 12, 616 N.W.2d 88, 92.

Conviction 1

[¶ 11.] 1. Whether trial counsel was ineffective for failing to properly investigate witnesses who could have testified at the suppression hearing.

[¶ 12.] Hirning claims that Gerdes was ineffective in failing to investigate whether two witnesses should have been called at the suppression hearing. Hirning also claims that Gerdes was ineffective for failing to call Hirning at the suppression hearing.

[¶ 13.] We utilize the two-prong test set forth in Strickland v. Washington to review ineffective assistance of counsel claims. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable.

Id., 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

[¶ 14.] Furthermore, "[t]o establish prejudice from counsel's failure to investigate a potential witness, [Hirning] must show that the witness would have testified and that their testimony `would have probably changed the outcome of the trial.'" Siers, 1998 SD 77, ¶ 25, 581 N.W.2d at 497 (citing Hadley v. Groose, 97 F.3d 1131, 1135 (8th Cir.1996) (citation omitted)). We therefore "consider: `(1) the credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses called; and (3) the strength of the evidence actually presented by the prosecution.'" Id. (citing McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir.1996)). "[T]here is no prejudice if, factoring in the uncalled witnesses, the government's case remains overwhelming." Id. ¶ 27 (citations omitted).

[¶ 15.] Hirning first asserts that Gerdes was ineffective for failing to properly investigate whether Billy Mills and Denise Mills should have been called at the suppression hearing to challenge the admissibility of the drugs found in Hirning's pants pocket. Hirning contends that Billy Mills, the front-seat passenger, would have negated Denise Mills's on-the-scene admission that other drugs previously found in the vehicle were owned by all three. Negating Denise's on-the-scene admission could have called into question the "joint possession" fact that the highway patrol officer used to establish probable cause to search Hirning.¹ Hirning essentially argues that, by impeaching Denise Mills's on-the-scene admission, the drugs found in his pocket would have been suppressed.

[¶ 16.] To support this argument, Hirning points out that Billy Mills later pleaded guilty to possession of the "other drugs" that were found by the patrol officer in the car. Billy Mills also testified at the habeas hearing that he claimed sole ownership of those drugs. Although this evidence might now impeach Denise's statement of joint ownership, this after-the-fact evidence would not have eliminated probable cause at the time of the stop. A number of facts support this conclusion. First, Billy Mills did not claim that Denise failed to make the joint ownership statement. He merely claimed ownership and denied hearing Denise tell the officer that the drugs belonged to everyone. Thus, the impeachment value was limited. Second, Billy admitted that, had he been called to testify at Hirning's suppression hearing, he would have been able to offer incriminating testimony against Hirning. Nevertheless, Hirning argues that Gerdes was ineffective in failing to investigate and call Denise and Billy Mills at the suppression hearing.

[¶ 17.] In habeas cases challenging an attorney's investigation, "the reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Brakeall v....