Hughbanks v. Dooley, No. 27345.

CourtSupreme Court of South Dakota
Writing for the CourtKERN, Justice.
Citation887 N.W.2d 319
Parties Kevin L. HUGHBANKS, Petitioner and Appellant, v. BOB DOOLEY, Warden, South Dakota State Penitentiary, Respondent and Appellee.
Decision Date26 October 2016
Docket NumberNo. 27345.

887 N.W.2d 319

Kevin L. HUGHBANKS, Petitioner and Appellant,
v.
BOB DOOLEY, Warden, South Dakota State Penitentiary, Respondent and Appellee.

No. 27345.

Supreme Court of South Dakota.

Considered on Briefs Aug. 18, 2016.
Decided Oct. 26, 2016.


887 N.W.2d 319

David A. Stuart of Peterson, Stuart, Rumpca & Rasmussen, Prof. LLC, Beresford, South Dakota, Attorneys for petitioner and appellant.

Marty J. Jackley, Attorney General, Paul S. Swedlund, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.

Opinion

KERN, Justice.

¶ 1.] Kevin Hughbanks appealed a summary judgment denying his petition for habeas corpus relief from his convictions for two counts of possession of child pornography and as a habitual offender.

[887 N.W.2d 320

Hughbanks's attorney filed his brief as a "Korth brief" alleging a lack of arguably meritorious issues for appeal. See State v. Korth, 2002 S.D. 101, 650 N.W.2d 528. Upon consideration of the case, we identified two arguably meritorious issues for appeal and directed supplemental briefing on those issues. See id. ¶ 16 n. 6, 650 N.W.2d at 535 n. 6. After completion of supplemental briefing, we again considered the case. We reverse and remand.

Facts and Procedural History

Conviction

¶ 2.] On March 20, 2007, Hughbanks pleaded guilty in Lincoln County to two counts of possession of child pornography and admitted the Part II Information alleging he was a habitual offender. He was sentenced on June 19, 2007, to ten years in the penitentiary on the first count and to a consecutive ten years on the second count with the latter sentence suspended. A written judgment was filed on June 25, 2007. Hughbanks did not directly appeal his conviction and it became final on July 26, 2007.

Habeas in Circuit Court

[¶ 3.] Hughbanks filed his only petition for a writ of habeas corpus on April 2, 2014, nearly seven years after his conviction became final. He alleged multiple claims of ineffective assistance of counsel and a Miranda violation. The court appointed counsel and issued a provisional writ of habeas corpus requiring a return. The State filed its return on April 24, 2014, raising a defense under the two-year statute of limitations for habeas corpus actions set forth in SDCL 21–27–3.3.1 This statute, effective July 1, 2012, replaced a prior statute that generally permitted a habeas action to be "filed at any time[.]" See 2012 S.D. Sess. Laws ch. 118, §§ 1 & 3. On May 21, the State filed a motion for summary judgment along with a statement of undisputed facts in support of its statute of limitations defense. The return, motion, and statement asserted that the petition was time barred under SDCL 21–27–3.3(1) because Hughbanks filed his petition more than two years after his conviction was final in 2007. Further the State argued that none of the exceptions provided for by subdivisions (2) through (4) of SDCL 21–27–3.3 applied so as to permit Hughbanks's petition. Hughbanks countered with his own statement of undisputed material facts asserting that he did not discover the factual predicates for his claims until December 2013 and, therefore, his petition was timely under SDCL 21–27–3.3(4).

[¶ 4.] A hearing was held on July 8, 2014. Hughbanks testified2 that he lacked access to legal counsel and legal materials,

[887 N.W.2d 321

which deprived him of the ability to appreciate the legal significance of the predicate facts for his habeas claims until December 2013. Therefore, Hughbanks argued that his habeas petition was timely under SDCL 21–27–3.3(4). The habeas court rejected Hughbanks's claims in a memorandum decision filed on August 26, 2014, and an amended decision filed October 30, 2014. The court reasoned that all of the factual predicates for Hughbanks's claims were known to him no later than 2010. Further, the court found that Hughbanks had adequate access to counsel and legal materials to appreciate the legal significance of those facts before that time. Accordingly, the court filed an amended judgment and order on November 4, 2014, granting the State's motion for summary judgment, quashing the provisional writ of habeas corpus and dismissing Hughbanks's petition with prejudice.

Initial Habeas Appeal

¶ 5.] On January 8, 2015, the habeas court granted Hughbanks's motion for a certificate of probable cause to appeal the denial of his claim under SDCL 21–27–3.3(4). Hughbanks filed a notice of appeal to this Court. His counsel later filed Hughbanks's brief as a Korth brief claiming a lack of arguably meritorious issues for appeal. Consistent with Korth, counsel then briefed the issues requested by Hughbanks, including the issue on which the certificate of probable cause was granted. But counsel also raised a new claim, arguing that it was error to retroactively apply the two-year statute of limitations set forth in SDCL 21–27–3.3, which took effect July 1, 2012, to a habeas petition arising from Hughbanks's 2007 conviction.

[¶ 6.] In its response, the State agreed with certain aspects of Hughbanks's retroactivity argument. In view of the State's position, this Court directed supplemental briefing on the following issues:

1) Whether the habeas court erred in retroactively applying SDCL 21–27–3.3 to Hughbanks's action. See, e.g., Eagleman v. Diocese of Rapid City, 2015 S.D. 22, 862 N.W.2d 839.

2) Whether in retroactively applying SDCL 21–27–3.3 to Hughbanks's action the habeas court had authority to delay commencement of the two-year limitations period until July 1, 2012, the effective date of the statute.

Upon completion of the supplemental briefing, we now consider the case.

ANALYSIS

Issue 1

[¶ 7.] Whether the habeas court erred in retroactively applying SDCL 21–27–3.3 to Hughbanks's action.

[¶ 8.] Hughbanks argues that the habeas court erred in retroactively applying the statute of limitations in SDCL 21–27–3.3, passed in 2012, to his habeas petition because his conviction became final in 2007. Application of SDCL 21–27–3.3(1) immediately rendered any habeas action commenced by Hughbanks after 2009 untimely unless one of the exceptions provided for in subdivisions (2) through (4) of the statute applied. None of the exceptions applied to Hughbanks or applied in a manner beneficial to him. He therefore contends that the court should have delayed commencement of the two-year limitations period until July 1, 2012, the effective date of SDCL 21–27–3.3, giving him time to file his habeas action. If allowed, this would make his habeas petition, filed in April 2014, timely. The State agrees with Hughbanks's argument, citing its concern that retroactive application of the statute would otherwise cut off Hughbanks's previously

[887 N.W.2d 322

viable habeas claims in violation of due process.

¶ 9.] There is support for the parties' position. As explained in 54 C.J.S. Limitations of Actions § 16 (2016) :
When ... a limitations period is statutorily shortened or created where none existed before, federal due process requires that potential litigants be afforded a reasonable time for the commencement of an action before the bar takes effect. Thus, the legislature may shorten a limitations period and apply it retroactively, provided that a reasonable opportunity is given to exercise a remedy which would otherwise be materially affected by a new statute of limitations. If a claimant does not file within such reasonable time, the claim is barred. What is a reasonable time is to be determined by the legislature, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice.

See also Kotval v. Gridley, 698 F.2d 344, 347 n. 5 (8th Cir.1983) (noting that "retroactive application [of an amendment shortening a limitations period] is constitutional so long as a plaintiff is not suddenly cut off from bringing an action, but is given a reasonable opportunity after the effective date of the statute to bring suit before his claim is absolutely barred by the new enactment").

[¶ 10.] SDCL 21–27–3.3 is patterned after the statute of limitations for federal habeas corpus actions. Compare SDCL 21–27–3.3, with 28 U.S.C. § 2244(d)(1) (setting forth the statute of limitations for a federal habeas corpus action for a person in custody pursuant to a judgment of a state court). Because of due process concerns such as those discussed above, federal courts have interpreted the federal habeas statute of limitations as permitting an additional one-year period from the effective date of the statute for applicants to bring claims that would have otherwise been cut off by the statute when it took effect. As explained by the Eighth Circuit Court of Appeals:

Prior to enactment of the AEDPA,[3 ]federal prisoners could collaterally attack their convictions ... "at any time." The AEDPA changed that right overnight, limiting the time period for filing § 2255 motions to one year from various triggering events. Federal prisoners whose convictions were final, and to whom none of the other triggering events applied, were suddenly without recourse. We recently joined the other circuits that have addressed this question in holding that a one-year grace period provides a reasonable time period to avoid the unjust result that would follow the application of the AEDPA's one-year time limit on preexisting causes of action.

Moore, 173 F.3d at 1134–35 (citations omitted) (footnote added). The grace period or additional period for bringing claims discussed in Moore has been recognized by the United States Supreme Court. See Wood v. Milyard, 566 U.S. 463, ––––, 132 S.Ct. 1826, 1831, 182 L.Ed.2d 733 (2012)...

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1 practice notes
  • Asmussen v. Young, 28875
    • United States
    • Supreme Court of South Dakota
    • 21 Agosto 2019
    ...claims are "clearly procedurally defaulted[.]" See Khaimov , 297 F.3d at 786. This is a case like Hughbanks v. Dooley , 2016 S.D. 76, 887 N.W.2d 319, where because Asmussen’s criminal judgment was final over two years before the effective date of SDCL 21-27-3.3 (the statute of limitations e......
1 cases
  • Asmussen v. Young, 28875
    • United States
    • Supreme Court of South Dakota
    • 21 Agosto 2019
    ...claims are "clearly procedurally defaulted[.]" See Khaimov , 297 F.3d at 786. This is a case like Hughbanks v. Dooley , 2016 S.D. 76, 887 N.W.2d 319, where because Asmussen’s criminal judgment was final over two years before the effective date of SDCL 21-27-3.3 (the statute of limitations e......

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