Kiir v. S. D. State Penitentiary

• Docket Number: 4:21-CV-04009-KES
• Decision Date: 28 July 2021
• Parties: DIW BOL KIIR, Petitioner, v. SOUTH DAKOTA STATE PENITENTIARY, THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, Respondents.
• Court: U.S. District Court — District of South Dakota

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DIW BOL KIIR, Petitioner, v. SOUTH DAKOTA STATE PENITENTIARY, THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, Respondents.

No. 4:21-CV-04009-KES

United States District Court, D. South Dakota, Southern Division

July 28, 2021

REPORT AND RECOMMENDATION

VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

Pursuant to 28 U.S.C. § 2254, pending before the court is the pro se habeas petition of Diw Bol Kiir, an inmate in the custody of the state of South Dakota. See Docket No. 1. Respondents have now filed a motion to dismiss Mr Kiir's petition without holding an evidentiary hearing. See Docket No. 10. Mr. Kiir has filed a motion to quash the respondent's motion. See Docket No 15. These matters were referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, district judge.

FACTS

A. Offense Facts and Charges Asserted

On May 15, 2015, some citizens made a report to police that a man had threatened them with a firearm and then left in a vehicle. Sioux Falls Police Officer Chase Vanderhule responded to the call and located Mr. Kiir, who matched the description given by the citizens, behind an apartment building. Officer Vanderhule approached Mr. Kiir and asked him some questions, including whether the officer could pat Mr. Kiir down to make sure he did not have any weapons on him.

A tussle ensued during which Mr. Kiir repeatedly made attempts to grab at the waistband of his pants. Officer Vanderhule eventually had to tase Mr. Kiir repeatedly, after which the officer was eventually able to handcuff Mr. Kiir and arrest him. A firearm matching the description given by the citizens was located on the ground in the area where Mr. Kiir had fought with Officer Vanderhule. The vehicle Mr. Kiir had been driving contained a backpack. Inside the backpack were a bus ticket with Mr. Kiir's name on it and two jeweler's bags and a scale with methamphetamine residue.

Mr. Kiir was eventually indicted on the following charges:

Count 1-aggravated assault on a law enforcement officer

Count 2-simple assault on a law enforcement officer

Count 3-simple assault on a law enforcement officer

Count 4-simple assault on a law enforcement officer

Count 5-possession of a controlled substance

Count 6-committing a felony with a firearm

Count 7-committing simple assault on police with a firearm

Count 8-possession of a firearm with an altered serial number

Count 9-possession of a firearm by a convicted drug offender

Count 10-grand theft (the firearm in question was stolen) Count 11-resisting arrest

See State v. Kiir, CR 15-3221 at p. 24 (2d Jud. Cir. 2015).

B. Trial and Sentencing

Mr. Kiir availed himself of his right to a jury trial and was convicted on October 7, 2015, of counts 2, 3, 5, 6, 7, 8, 9, and 10. Id. at pp. 131-33. He was acquitted of counts 1 and 4. Id. The State dismissed count 11 prior to trial. Id. at 313.

Mr. Kiir was sentenced on December 11, 2015. Id. at pp. 166-68. The court imposed a sentence of two years for Count 2, no sentence as to Count 3, four years for Count 5, ten years for Count 6, no sentence as to Count 7, three years for Count 8, four years for Count 9, and three years for Count 10. Id. at p. 167. The sentences imposed for Counts 2, 5, 8, 9 & 10 were to run concurrently. Id. The sentence imposed for Count 6 was to run consecutive to the other sentences. Id. As to Count 6, Mr. Kiir was given credit for 209 days served presentence and the court also suspended three years of the ten-year sentence on the condition that Mr. Kiir pay his fines and attorneys fees. Id.

At the sentencing hearing, counsel informed the court it need only impose a sentence for either Count 6 or Count 7, but not both. Id. at pp. 511-12 (pp. 2-3 of the Dec. 11, 2015, motions hearing transcript). Counsel informed the court it did not make any difference which count the court chose to sentence on. Id. The court indicated it would sentence on Count 6. Id.

C. Direct Appeal to the South Dakota Supreme Court

Mr. Kiir filed a direct appeal. State v. Kiir, 900 N.W.2d 290 (S.D. 2017). Mr. Kiir asserted the court violated his confrontation clause rights by admitting res gestae evidence at trial (hearsay statements of the reporting witnesses) and challenged the sufficiency of the evidence as to three of the offenses of conviction (possession of a controlled substance while armed, simple assault on police while armed, and possession of a controlled substance). Id. at 292, 295. Indirectly, Mr. Kiir also attempted to raise an argument that counsel was constitutionally ineffective for failing to move for a judgment of acquittal on Count 6 at the close of the prosecution's case. Id. at 297.

The court, in an opinion issued August 2, 2017, affirmed on the res gestae issue. Id. at 296. As to Count 6, the court agreed with Mr. Kiir that the evidence did not support a conviction on that charge because there was no evidence that Mr. Kiir possessed the firearm while simultaneously possessing the methamphetamine found in a backpack in a vehicle in a parking lot some distance away from where the tussel occurred with the police officer. Id. at 297. The court declined to entertain Mr. Kiir's ineffective assistance of counsel argument in connection with Count 6. Id. at 297-98. The court determined the error with regard to Count 6 was harmless because the evidence was sufficient to support Mr. Kiir's conviction on Count 7 and the trial court imposed only a single sentence for Counts 6 and 7. Id. at 298-99.

Justice Kern dissented as to the court's holding regarding Counts 6 and 7. Id. at 299-301 (Kern, J., concurring in part and dissenting in part). Justice Kern believed it was not clear on the record that Mr. Kiir was not prejudiced by the error because it was unclear what effect the erroneous Count 6 conviction may have had on the trial court's sentencing decision. Id. Justice Kern would have reversed and remanded for a vacation of the Count 6 conviction and resentencing on Count 7. Id.

D. State Habeas Proceedings

On December 29, 2017, Mr. Kiir filed a petition for habeas relief in state court. Kiir v. Young, Civ. 18-163 pp. 1-9 (2d Jud. Cir.) (filed Jan. 3, 2018). In his petition he raised the following claims:

1. ineffective assistance of counsel for failing to seek an instruction on a lesser included offense-resisting arrest as a lesser included offense of simple assault on a law enforcement officer.

2. ineffective assistance of counsel for failing to challenge the defective indictment and moving to dismiss Counts 6 and 7 for which all the essential elements were not recited.

3. ineffective assistance of counsel for failing to object to the proposed jury instructions and to request a more appropriate instruction that would define the term “armed” as used in SDCL § 22-14-12 relative to Count 1.

4. ineffective assistance of counsel for failing to move for a judgment of acquittal as to Count 6 at the close of the state's evidence.

5. ineffective assistance of counsel for failing to move the court in limine to exclude video evidence.

6. ineffective assistance of appellate counsel for failing to raise all of the above allegations 1-5 in the appeal.

7. ineffective assistance of appellate counsel for failing to argue on appeal trial counsel's failure to move to sever Count 9.

Id. Counsel was appointed to represent Mr. Kiir on this habeas petition. Id. at pp. 12-13. Counsel amended Mr. Kiir's petition. Id. at pp. 35-41. In the amended petition Mr. Kiir raised the following claims:

A. Ineffective assistance of trial counsel:

1. failing to timely move to sever Count 9

2. failing to object to “community safety” testimony from police

3. failing to object to evidence of uncharged aggravated assault

4. failing to object to police testimony Mr. Kiir expressed no surprise when informed he was being charged with a weapons offense

5. failing to move for a judgment of acquittal on all counts at the close of the prosecution's evidence

6. failing to move for a mistrial when evidence of Mr. Kiir's prior drug offense was introduced

7. failing to object to introduction of the judgment evidencing Mr. Kiir's prior drug conviction

8. failing to object to testimony of field test of drugs found in backpack

9. failing to object to jury instructions regarding Mr. Kiir's prior felony

10. failing to object to “community safety” arguments in the prosecution's closing argument

11. failing to object to prosecution's statement in closing argument about Mr. Kiir's lack of surprise when told he was being charged with a weapons offense.

B. Mr. Kiir's sentence constituted cruel and unusual punishment.

C. Mr. Kiir's admission to the part II information charging him with being an habitual offender was constitutionally unsound.

D. Different judges handled Mr. Kiir's jury trial and his sentencing, and Mr. Kiir did not consent to different judges handling different parts of his case.

Id.

Both parties moved for summary judgment in their favor and the state habeas court resolved those motions in favor of respondent in a 41-page opinion filed July 8, 2020. Id. at pp. 352-92. Thereafter, Mr. Kiir moved the state habeas court for the issuance of a certificate of probable cause in a motion dated July 24, 2020, and filed on August 4, 2020. Id. at pp. 394-407. The state habeas court denied the motion August 4, 2020. Id. at p. 408. Mr. Kiir then moved the South Dakota Supreme Court for the issuance of a certificate of probable cause on August 18, 2020 (dated August 17, 2020), which was denied on December 18, 2020. See Kiir v. Young, #29388 at pp. 1-19, 33 (S.D.).

E. Mr. Kiir's § 2254 Petition

Mr Kiir timely filed his instant § 2254 petition with this court on January...